The First Amendment to the US Constitution is one of the most celebrated lines of law ever written. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Yet these few words underwent significant revision through a lengthy political process before they were approved. Examining earlier versions of the first amendment helps illuminate what the First Congress wanted to protect and to guard against as it relates to religion.
The Constitution as written in the Constitutional Convention in 1787 did not provide any protections for religious liberty, beyond the ban on religious tests for office. Participants in the states’ ratifying conventions objected to that point, and James Madison won election to the first Congress in 1789 in part by promising his Virginia constituents that the omission would be changed. Madison announced to Congress on May 4, 1789, his intention to introduce a series of amendments to the Constitution. His plan was to insert the new clauses and sentences within the original text, rather than adding a list of statements to the end of the document.
The full text of Madison’s speech and his proposals is available here.
His initial proposal, which eventually became the first amendment, was:
“Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief of worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”
This section was followed by a lengthy list of other provisions, many of which are now a part of the Bill of Rights in some form. Then:
The House of Representatives, where Madison made these proposals, did not proceed immediately to discuss them. Eventually, the proposals were referred to a committee, which then reported back to the full House.
The committee reported back a slightly different text than Madison proposed. The new text read:
“Article 1. Section 9. Between paragraphs two and three insert “no religion shall be established by law, nor shall the equal rights of conscience be infringed.”
The House, serving as a committee of the whole (a system that allowed for more open discussion), engaged in a lengthy discussion of this proposal, which you can read in full here.
Peter Silvester of New York “feared it might be thought to have a tendency to abolish religion altogether.”
Elbridge Gerry of Massachusetts “thought the amendment altogether unnecessary, inasmuch as Congress had no authority whatever delegated to them by the constitution to make religious establishments; he would, therefore, move to have it struck out.”
Madison offered a longer description of what he thought the phrases meant:
“He apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the constitution, which gave Congress the power to make all laws necessary and proper to carry into execution the constitution, and the laws under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of language might admit.”
After more discussion, Madison suggested, then rescinded the proposal that the word “national” be inserted before the word “religion.” This would have read: “no national religion shall be established by law, nor shall the equal rights of conscience be infringed.”
Benjamin Huntington of Connecticut worried that such a phrasing could be damaging to New England’s religious establishments, which used local regulations to steer funds to churches. Huntington worried that these could be construed as “religious establishments” (as in fact many dissenters in New England did construe them) and thus be subject to law suits.
Samuel Livermore of New Hampshire suggested that the phrasing be changed to: “Congress shall make no laws touching religion, or infringing the rights of conscience.” In this proposal, Livermore was bringing up the language that his own state had proposed in its ratifying convention. They suggested the an amendment which read: “Congress shall make no law touching religion, or infringing the rights of conscience.”
On August 19, the House again took up deliberations. On August 21, Fischer Ames of Massachusetts proposed a new wording for the amendment:
“Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”
This version included both the direct reference to conscience and establishment, and it added “free exercise.” There was no discussion of the change, which was adopted. All of the proposed measures were then sent to committee for linguistic refinement. The committee’s report was sent to the Senate.
The records of the Senate discussion are shorter than the House’s discussions. They can be seen here. The initial version the Senate worked with was:
“Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.”
Several proposals were brought forward. These include:
Congress shall make no law establishing one religious sect or society in preference to others.
Congress shall not make any law, infringing the rights of conscience, or establishing any Religious Sect or Society.
Congress shall make no law establishing any particular denomination of religion in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.
The final version was more simple, and it returned to the language used by the house.
Congress shall make no law establishing religion, or prohibiting the free exercise thereof.
The next step was a conference committee between the House and Senate, which agreed on the following wording.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
Having agreed upon this language, it was sent to the states for ratification along with the other amendments.
1. What differences might we find between laws “respecting an establishment of religion,” “establishing religion,” and “touching on religion.”
2. Madison thought the provisions protecting religious freedom were unnecessary. Some representatives thought they might damage religion. What assumptions to these two positions make about the power of the federal government in religious matters?
3. Madison originally proposed that the amendment be a part of Article 1, Section 9 of the Constitution, though ultimately it was adopted at the end. How might it change our understanding of the first amendment if it were located in this way:
Transcription below taken from the National Archives website.
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
Madison’s proposal: The civil rights of none shall be abridged on account of religious belief of worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.