to “all denominations of Christian Protestants in this State.”
The Massachusetts constitution of March 2, 1780, says: “No subordination of any sect or denomination to another shall ever be established by law” (part i. art. 3), but allowed taxation to support “public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily” (id.), with this qualification, however: that “all moneys paid by the subject to the support of public worship and of the public teachers aforesaid shall, if he require it, be uniformly applied to the support of the public teacher or teachers of his own religious sect or denomination, provided there be any, on whose instruction he attends; otherwise it may be paid towards the support of the teacher or teachers of the parish or precinct in which the said moneys are raised” (id.)
If we state correctly—as we have not those documents by us—the New Hampshire constitution of June 2, 1784, provided that “no person of any one particular religious sect or denomination shall ever be compelled to pay towards the support of the teacher or teachers of another persuasion, sect, or denomination, … and no subordination of any one sect or denomination to another shall ever be established by law” (part i. art. 6), but that, subject to these provisions, the legislature might authorize local taxation to support “public Protestant teachers of piety, religion, and morality” (id.); and the Pennsylvania constitution of Sept. 28, 1776, provided “that no man can, of right, be compelled to attend, erect, or support any place of worship or to maintain any ministry against
his consent, … and that no preference shall ever be given by law to any religious establishments or modes of worship.” In Connecticut and Rhode Island the royal charter continued the fundamental law until 1818 in the former and 1842 in the latter State; but, lest it may be thought that in these States no opposition to an established church was manifested, it is proper to remark that, upon ratifying the Constitution of the United States, the Rhode Island Convention suggested as a highly desirable amendment “that no particular religious sect or society ought to be favored or established by law in preference to others” (1 Elliot Deb. 334); and in the Connecticut Convention Oliver Wolcott, in urging the ratification of that instrument, refers to an inclination in that assemblage to favor a like amendment, and says: “Knowledge and liberty are so prevalent in this country that I do not believe that the United States would ever be disposed to establish one religious sect, and lay all others under legal disabilities. But as we know not what may take place hereafter, and any such test would be exceedingly injurious to the rights of free citizens, I cannot think it altogether superfluous to have added a clause which secures us from the possibility of such oppression” (2 Elliot Deb. 202).
We may thus say that, upon becoming States, the American colonies declared with one voice that no religious establishment should possess a legal pre-eminence in their several jurisdictions. In the Federal Convention Charles Pinckney proposed to make it a part of the Constitution of the United States that “the legislature of the United States shall pass no law on
the subject of religion” (Journ., May 29), and thus apply to the general government the rule previously adopted by the States, which proposition failed. Mr. Pinckney then submitted this proposition: “No religious test or qualification shall ever be annexed to any oath of office under the authority of the United States” (Journ., Aug. 20), which was unanimously adopted (Journ., Aug. 30), Mr. Madison giving us this much of the debate: “Mr. Pinckney moved to add: ‘But no religious test shall ever be required as a qualification to any office or public trust under the authority of the United States.’ Mr. Sherman thought it unnecessary, the prevailing liberality being a sufficient security against such tests. Mr. Gouverneur Morris and Gen. Pinckney approved the motion. The motion was agreed to, nem. con.” (5 Elliot Deb. 498). Upon the final revision the words “the authority of” were struck out (Journ., Sept. 12). When the Constitution was submitted for ratification, considerable uneasiness was manifested at the failure of Mr. Pinckney’s resolution that “the legislature of the United States shall pass no law on the subject of religion,” and upon ratifying the instrument the New Hampshire, New York, and Virginia Conventions urged the adoption of an amendment to that effect. The North Carolina Convention, while declining to ratify at its first session, assigned the same emendation as desirable, as did also the Rhode Island Convention upon ratifying; though, as the First Amendment had then been proposed by Congress and was before the people, the action of Rhode Island was not one of the causes leading to its submission.
The New Hampshire Convention recommended this amendment: “That Congress shall make no laws touching religion or to infringe the rights of conscience” (4 Journ. Cong., 1782-8, App. p. 52). The New York Convention: “That no religious sect or society ought to be favored or established by law in preference to others” (id. p. 55). The Virginia (id. p. 53), North Carolina (id. p. 60), and Rhode Island (1 Elliot Deb. 334) Conventions severally proposed “that no particular religious sect or society ought to be favored or established by law in preference to others.” In the Maryland Convention it was suggested as a desirable amendment “that there be no national religion established by law”; but, that body concluding to ratify the Constitution without proposing amendments at that time, no final action was had on the proposition (2 Elliot Deb. p. 553); and thereupon the change was made.
Thus it became a part of the Constitution of the United States that “Congress shall make no law respecting an establishment of religion.” In many, perhaps we may say most, other particulars the Constitution was, when framed, an experiment, but in this the fathers of the republic had the lamp of experience to illuminate their path. While a myth to us, an established church had been a substantial reality to them, and their verdict thereupon was, that upon every ground of justice, interest, and harmony no religious sect or society ought ever to be favored or established by law in preference to others in these United States.
The second clause of the First Amendment, that Congress shall
make no law prohibiting the free exercise of religion, is substantially included in the other provisions cited at the opening of this paper, and need not be here specifically considered. It is a casus omissus provision which speaks for itself. The provision that “no religious test shall ever be required as a qualification to any office or public trust under the United States” opens, however, another field of inquiry.