Separation of Church and State Law

Jerald Finney
Copyright © December 31, 2012
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Note. This is a modified version of Section IV, Chapter 10 of God Betrayed: Separation of Church and State/The Biblical Principles and the American Application. Audio Teachings on the History of the First Amendment has links to the audio teaching of Jerald Finney on the history of the First Amendment.

Chapter 10

To the new nation

Summary of Contents: The Constitutional Convention, submission to states for ratification; James Madison persuaded John Leland that he would stand for religious freedom and Leland withdrew as candidate for state ratification convention in favor of Madison, the Constitution was ratified, Madison was elected as Representative and introduced several amendments, including the First Amendment; the First Amendment was adopted on September 25, 1789 and approved by the required number of sstates in 1791.

Leland-Madison Memorial ParkLeland Madison Memorial Park

A convention was called in Philadelphia in 1787 to revise the Articles of Confederation.

“In a little more than a year after the passage of the Virginia Act for Religious Liberty the convention met which prepared the Constitution of the United States. Of this convention Mr. Jefferson was not a member, he being then absent as minister to France…. Five of the states, while adopting the Constitution, proposed amendments. Three—New Hampshire, New York, and Virginia—included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress the amendment now under consideration [the First Amendment] was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted” (Reynolds v. United States, 98 U.S. 145, 163 at 164 (1879)).

After the drafting of the Constitution, it was submitted to the states for ratification. The Baptists of Virginia were against ratification because the Constitution did not have sufficient provision for religious liberty. Patrick Henry had declined to serve at the Convention and was against it. He posed as the champion of the Baptists in opposition to the Constitution. Of course, Madison was for ratification. However, John Leland, the most popular preacher in Virginia, was chosen by the Baptists as candidate of Orange County to the state ratification convention opposed to ratification, and his opponent was to be James Madison. Mr. Leland likely would have been elected had he not later withdrawn. Mr. Madison, when he returned from Philadelphia, stopped by Mr. Leland’s house and spent half a day communicating to him about “the great matters which were then agitating the people of the state and the Confederacy” and relieving Baptist apprehensions as to the question of religious liberty. As a result of this meeting, Mr. Leland withdrew in favor of Mr. Madison and the Baptists of Orange County were won over to the side of Madison (Charles F. James, Documentary History of the Struggle for Religious Liberty in Virginia (Harrisonburg, VA.: Sprinkle Publications, 2007; First Published Lynchburg, VA.: J. P. Bell Company, 1900), pp. 150-158; Dr. William P. Grady, What Hath God Wrought: A Biblical Interpretation of American History (Knoxville, Tennessee: Grady Publications, Inc., 1999), pp. 166-167).

The Constitution was ratified and election of the officers of government was the next order of business. Patrick Henry, using his influence in the Legislature, prevented Madison from being elected as Senator. In addition, the Legislature drew the lines for Representative district so as to prevent Madison from being elected as Representative. However, he was able to “relieve Baptist apprehensions as to any change in his principles, and assure them of his readiness to aid in securing a proper amendment to the Constitution on the subject of religious liberty.” He was elected.

His first act, after the First Congress was organized, in 1789, was to propose, on June 8, certain amendments, including what is now the First Amendment. His purpose was to “conciliate and to make all reasonable concessions to the doubting and distrustful”—to those, the Baptists, who were concerned about the issue of religious liberty. “Of all the denominations in Virginia, [the Baptists] were the only ones that had expressed any dissatisfaction with the Constitution on that point, or that had taken any action into looking to an amendment.” The Baptists of Virginia had also corresponded with Baptists of other states to “secure cooperation in the matter of obtaining” a religious liberty amendment. No other denomination asked for this change (James, p. 167). A general committee of Baptist churches from Virginia presented an address to President Washington, dated August 8, 1789, expressing concern that “liberty of conscience was not sufficiently secured,” perhaps because “on account of the usage we received in Virginia, under the regal government, when mobs, bonds, fines and prisons, were [their] frequent repast” (Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 2 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), p. 340).  President Washington assured them that he would not have signed the Constitution if he had had the slightest apprehension that it “might endanger the religious rights of any ecclesiastical society” (Ibid.).

Some Baptists and others did not see the need for a religious freedom amendment. Indeed, the First Amendment may not have been necessary to guarantee separation of church and state. Isaac Backus was elected as a delegate to the Massachusetts convention of January, 1788, which considered the issue of ratification of the new Constitution. He spoke at the convention.

“On February 4, [Backus] spoke of ‘the great advantage of having religious tests and hereditary nobility excluded from our government.’ These two items in the Constitution seemed to him a guarantee against any establishment of religion and against the formation of any aristocracy. ‘Some serious minds discover a concern lest, if all religious tests should be excluded, the congress would hereafter establish Popery, or some other tyrannical way of worship. But it is most certain that no such way of worship can be established without any religious test.’ He said ‘Popery,’ but he probably feared, as many Baptists did, that some form of Calvinism of the Presbyterian or Consociational variety was more likely. His interpretation of this article helps to explain why the Baptists [of Massachusetts] made no effort to fight for an amendment on freedom of religion along with the others which the convention sent to Congress” (William G. McLoughlin, Isaac Backus and the American Piestic Tradition (Boston: Little, Brown and Company, 1967), pp. 198-199).

Even Madison, who proposed and fought for the First Amendment, did not believe that it was necessary for the security of religion. He wrote in his Journal on June 12, 1788:

“… Is a bill of rights a security for Religion? … If there were a majority of one sect, a bill of rights would be a poor protection for liberty. Happily for the states, they enjoy the utmost freedom of religion. This freedom arises from that multiplicity of sects, which pervades America, and which is the best and only security for religious liberty in any society. For where there is such a variety of sects, there cannot be a majority of any one to oppress and persecute the rest. Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment—I believe it to be so in the other states…. But the United States abound in such a variety of sects, that it is a strong security against religious persecution, and it is sufficient to authorize a conclusion, that no one sect will ever be able to outnumber or depress the rest” (Norman Cousins, In God We Trust (Kingsport, Tennessee: Kingsport Press, Inc., 1958), pp. 314-315).

Others were against a bill of rights. “James Wilson argued that ‘all is reserved in a general government which is not given,’ and that since the power to legislate on religion or speech or press was not given to the Federal government, the government did not possess it, and there was therefore no need for an express prohibition” (Leo Pfeffer, Church, State, and Freedom (Boston: The Beacon Press, 1953), p. 112). “Alexander Hamilton argued that a bill of rights, not only was unnecessary, but would be dangerous, since it might create the inference that a power to deal with the reserved subject was in fact conferred” (Ibid., citing Federalist Papers, Modern Library ed., 1937, p. 559).

The amendment was adopted on September 25, 1789 and was approved by the required number of states in 1791.


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