Church, State, and Original Intent

Amendment Proposals

Ever since Justices Rutledge, Black, and Waite seized upon their versions of strict separationist history, a great mass of church-state scholarship has been devoted to trying to answer the late-nineteenth- and twentieth-century question of – Did the establishment clause build a wall of separation between church and state or does it permit nonpreferential aid to religion? – with remarkably skimpy eighteenth-century materials. And we have compounded the problem in the church-state literature by hyping the role of the Bill of Rights in creating modern civil liberties via eye-catching titles like “The First Freedom,” which suggest that something important and definitive was going on when the Founding Fathers met to adopt the religion clauses. But if we are willing to suspend belief, at least for the sake of argument – that is, to stop looking for the proof texts of modern propositions in the original materials – it may be possible to paint a reasonably clear picture of what was going on when the First Congress had its brief and desultory debate on the establishment clause.

The First Congress had a number of important things to do, and sorting out the proper relationship between church and state was nowhere on that list. Getting down to the business of creating a working government of the United States was the mission of the First Congress, and there was virtually no interest among the majority of the members in discussing amendments.