Establishment and disestablishment at the founding

It has been so long--about 170 years--since any state in the United States has had an established church that we have almost forgotten what it is. When the words "Congress shall make no law respecting an establishment of religion" (1) were added to the Constitution, virtually every American--and certainly every educated lawyer or statesman--knew from experience what those words meant. The Church of England was established by law in Great Britain, (2) nine of the thirteen colonies had established churches on the eve of the Revolution, (3) and about half the states continued to have some form of official religious establishment when the First Amendment was adopted. (4) Other Americans had first-hand experience of establishment of religion on the Continent--of the Lutheran establishments of Germany and Scandinavia, the Reformed establishment of Holland, or the Gallican Catholic establishment of France. Establishment of religion was a familiar institution, and its pros and cons were hotly debated from Georgia to Maine.

When the Supreme Court began to decide cases involving claims about an establishment of religion in the 1940s, (5) however, the Justices made no serious attempt to canvass the legal history of establishment--either in Europe, in the American colonies, or in the early American States--or to distinguish between the First Amendment and the various conflicts over establishment at the state level. The Justices focused instead on one event in one State the rejection of Patrick Henry's Assessment Bill in Virginia in 1785 and the adoption of Thomas Jefferson's Bill for Establishing Religious Liberty--on the assumption that "the provisions of the First Amendment ... had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute." (6)

This truncated view of history made the establishment question seem too easy. In the Justices' account, a "large proportion of the early settlers of this country came here from Europe to escape the bondage of laws that compelled them to support and attend government-favored churches," (7) and transplantation of established churches to these shores "became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence," (8) leading directly to the First Amendment. One would never know from the Justices' careless description of history that no small number of the "freedom-loving colonials" considered official sanction for religion natural and essential, that the movement toward disestablishment was hotly contested by many patriotic and republican leaders, and that there were serious arguments--not mere "feelings of abhorrence"--on both sides of the issue. The Justices never analyzed any of the books, essays, sermons, speeches, or judicial opinions setting forth the philosophical and political arguments in favor of an establishment of religion, and relied on only one, perhaps unrepresentative, example from among the hundreds of arguments made against the establishment. (9)

To be sure, the Virginia Assessment Controversy of 1784-1786 was an important and illuminating event. But it was only one step in a series of legal developments moving from a formal, exclusive, and coercive state establishment to a system of free and equal religious freedom. It addressed only one of many issues raised by the establishment of religion. It took place in only one of many states that went through such a process; and it was not so much a debate about establishment as a debate about which of several possible arrangements should replace the "church by law established" in Virginia prior to the Revolution. To understand what an "establishment of religion" was and what disestablishment entailed, it is necessary to broaden our sights. It is difficult to know what the Framers of the First Amendment opposed if we do not know what those who favored establishment supported. We cannot understand the depth of the argument for disestablishment without understanding why reasonable men and women might have thought that establishment was necessary to republican government.

Nor did the Court give serious attention to the process of disestablishment: whether to the gradual dismantling of existing church establishments in the states or to the debates about the Establishment Clause at the federal level. Contrary to popular myth, the First Amendment did not disestablish anything. It prevented the newly formed federal government from establishing religion or from interfering in the religious establishments of the states. (10) The First Amendment thus preserved the status quo. Even at the state level, where disestablishment actually occurred, it was not a simple, binary decision. The founding generation had to figure out what changes to make and what would take the place of the establishment. There were many plausible alternatives. Would they combine broad toleration with mild and noncoercive governmental support for religion, on the model still common in Western Europe? (11) Would they create a secular public culture--a "republic of reason"--along the lines later followed in France? (12) Would they introduce a pluralistic religious free-for-all? What would be the public function of religion, if any, in this new republic? Unlike many modern Americans, most members of the founding generation believed deeply that some type of religious conviction was necessary for public virtue, and hence for republican government. (13) What institutional forms would disestablished religion take, and how would this affect education, poor relief, public decorum, republicanism, and the inculcation of virtue?

This Article is an attempt to describe the actual laws and debates over establishment and disestablishment in the United States, in the hope that a more thorough understanding of the issue faced by early Americans will help to foster a richer, and perhaps less brittle and bipolar, understanding of the issues we face today. The Article is divided in two Parts. The first Part, published here, is on the subject of establishment. It provides a legal history of established religion in England, the colonies, and the early states; catalogs the laws and practices that constituted an establishment; and sets forth the principal (and competing) rationales for the establishment. The second Part, which will be published in a subsequent volume of this journal, will be devoted to disestablishment. It will set forth the principal (and competing) rationales for disestablishment, provide a legal history of the process of disestablishment in the early American states, and discuss in greater detail the more controversial issues that faced the founding generation as it moved toward disestablishment of religion.

At the time of the Founding, the period roughly from the beginnings of the Revolution through the formative years of the new Republic, the Church of England was the established church of the mother country, as it had been for centuries. (14) Before Independence, the Church of England was formally established by law in the five southern colonies (Maryland through Georgia). (15) It also held that status, without explicit legislative authorization, in four counties of metropolitan New York. (16) In Massachusetts, Connecticut, New Hampshire, and Vermont, localized establishments were formed, where the majority within each town could select the minister and hence the religious denomination--usually but not always, Congregationalism (or "Puritanism"). (17) The remaining colonies--Pennsylvania, Delaware, New Jersey, (18) Rhode Island, and non-metropolitan New York--had no official establishment of religion. (19) Rhode Island, (20) Pennsylvania, (21) and Maryland (22) were explicitly founded as havens for dissenters, though Maryland lost that status at the end of the 1600s. Although the laws of these colonies would not pass full muster under modern notions of the separation of church and state--they all had religious tests for office, blasphemy laws, and the like--they were, by the standards of the day, religiously tolerant and pluralistic. This Article will focus on England and the colonies and states where no one doubted that an establishment of religion existed.

No single law created the established church. Rather, it was constituted by a web of legislation, common law, and longstanding practice. When Thomas Jefferson began his legislative assault on the Virginia establishment in the early 1770s, his first step was to make a list of Acts of Parliament and the Virginia Assembly concerning religion. He found some twenty-three applicable English statutes (beginning in the days of Edward VI) and seventeen Virginia statutes (beginning in 1661). (23) Had he looked before those dates, he would have found many more. In 1661, when the religious laws of the colony had been systematically revised, the assembly members found that there had been "soe many alterations in the lawes, that the people knew not well what to obey nor the judge what to punish...." (24)

Nor was financial support from taxes a necessary hallmark of establishment. Even after dissenters were given the right of free exercise of religion and the Church of England lost its tax-supported status, the Virginia Assembly continued to speak of it as the "church by law established." (25) By the same token, the Church of England is undoubtedly the established religion of the United Kingdom even today, but it does not receive governmental funding in that capacity. (26) To understand the meaning of the term "establishment," therefore, we must examine the historical development of the established church from a variety of sources and times.

“[The ‘establishment’ clasue] prevented the newly formed federal government from establishing religion or from interfering in the religious establishments of the states.”

This is the bullet point. It is true. Modern establishment clause case law has turned that entirely on it’s head—making the “establishement” clause a weapen for massive federal intervention in state affairs.

Basically 1A says the federal government will not set any denomination as “the national religion”, as European countries did (with the obvious conflicts and often violent results).

That did not mean that states couldn’t do it. They already had.

Jefferson, as Governor, proclaimed an annual day of prayer. When he was President, he didn’t do a national day of prayer because he didn’t want to even appear to be promoting (his) and particular denomination.

Jefferson’s “wall” was at the federal level, he obviously believed the states themselves (via citizenry and their state laws) could do this. And he put it into personal practice as a state Governor.

These men (who debated and wrote the documents) KNEW EXACTLY WHAT THEY WERE DOING and KNEW WHAT THEY WROTE.

They prayed in the Congressional buildings. Had a service on Sundays. Opened Congress with prayer everyday. These men knew they were not breaking their own Constitution by doing so. From the same men came the first Supreme Court justices - they did not declare such practices as unconstitutional.

I believe it’s time to tank the entire lawyer class (the bloodsuckers of society). At least the part that deals with constitutional law as it’s taught in mainstream colleges today.

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