O’Donnell Is Right About First Amendment

Newspaper and TV pundits bashing Delaware’s Christine O’Donnell with respect to the religion clauses of the First Amendment need to do some homework on the topic, as they obviously don’t know anything about it.

A good way to start might be to read the actual wording of the Amendment, which evidently O’Donnell’s critics haven’t done, judging from the way they misstate its contents while neglecting to quote specific language.  She is quite correct in suggesting that the phrase “separation of church and state” doesn’t appear there, nor is such a construction justified by the well-documented history of the Amendment.

(Her Senate opponent, in a TV debate, didn’t do much better in his fumbling attempt to recite the language, saying it requires that “government shall make no establishment of religion,” which is not only a misstatement of this key provision but also obscures the intended purpose of it.)


What the First Amendment does say is that “Congress shall make no law respecting an establishment of religion”—the “respecting” part being important—a phrase that had a definite meaning for the nation’s founders.  Various states at that time had “established” churches (like the Anglican church in Britain), which signified an official church supported by tax money and exercising certain legal privileges, while others had no such establishments and didn’t want them.Because of this great diversity in religious practice, there arose concerns that the new federal government might try to impose a “national” religion, overriding the customs of the several states.  It was in response to this that James Madison in the First Congress (June 1789) proposed what would become the First Amendment.  This said, among other things, that no one’s rights under the new government would be abridged for reasons of religion, “nor shall any national religion be established.”

This wording would be refined in a conference committee among members of the House and Senate that included Roger Sherman and Oliver Ellsworth, both from Connecticut, a state with an established church. This produced still more sweeping language saying that Congress shall make no law “respecting an establishment of religion,” meaning Congress couldn’t adopt any law whatever pertaining to the subject.  It couldn’t, that is, impose a national establishment, but it also couldn’t interfere with the established churches in the states that had them.

So the “wall of separation” then erected wasn’t between government and religion, but between the federal government and the states.  This was the point Thomas Jefferson would make in 1802 in his letter to the Danbury Baptists, saying that via the First Amendment the American people had prevented “their legislature”—Congress—from interfering in matters of religion.  He re-emphasized this point in his second inaugural address, saying that he had left religion “to the discipline of state” or religious societies and in 1808, asserting that as no power over religion had been given the “general government” it “must thus rest with the states” as far as any human authority could wield it.


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