The Federalist Society for Law and Public Policy Studies (FedSoc) is an American conservative and libertarian legal organization that advocates for a textualist and originalist interpretation of the U.S. Constitution. Headquartered in Washington, D.C., it has chapters at more than 200 law schools and features student, lawyer, and faculty divisions; the lawyers division comprises more than 70,000 practicing attorneys in ninety cities.
Through speaking events, lectures, and other activities, it provides a
forum for legal experts of opposing conservative views to interact with
members of the legal profession, the judiciary, and the legal academy. It is one of the most influential legal organizations in the United States.
The Federalist Society was founded in 1982 by a group of students from Yale Law School, Harvard Law School, and The University of Chicago Law School with the aim of challenging liberal or left-wing
ideology within elite American law schools and universities. The
organization's stated objectives are "checking federal power, protecting
individual liberty and interpreting the Constitution according to its
original meaning", and it plays a central role in networking and mentoring young conservative lawyers. According to Amanda Hollis-Brusky, the Federalist Society "has evolved into the de facto gatekeeper for right-of-center lawyers aspiring to government jobs and federal judgeships under Republican presidents." It vetted President Donald Trump's list of potential U.S. Supreme Court nominees; in March 2020, 43 out of 51 of Trump's appellate court nominees were current or former members of the society.
In January 2019, The Washington Post
wrote that the Federalist Society had reached an "unprecedented peak of
power and influence." Of the current nine members of the Supreme Court of the United States, at least five are current or former members of the organization—Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, Samuel Alito, and Amy Coney Barrett. Chief Justice John Roberts previously served as a member of the steering committee of the Washington, D.C., chapter, but denies ever being a member. Politico
wrote that the Federalist Society "has become one of the most
influential legal organizations in history—not only shaping law
students' thinking but changing American society itself by deliberately,
diligently shifting the country's judiciary to the right."
In 2018, Politico Magazine wrote that "it is no
exaggeration to suggest that it was perhaps the most effective student
conference ever—a blueprint, in retrospect, for how to marry youthful
enthusiasm with intellectual oomph to achieve far-reaching results." The society states that it "is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."
Background
The society looks to Federalist Paper Number 78 for an articulation of the virtue of judicial restraint, as written by Alexander Hamilton:
"It can be of no weight to say that the courts, on the pretense of a
repugnancy, may substitute their own pleasure to the constitutional
intentions of the legislature ... The courts must declare the sense of
the law; and if they should be disposed to exercise WILL instead of
JUDGMENT, the consequence would equally be the substitution of their
pleasure to that of the legislative body."
The society's name is said to have been based on the eighteenth-century Federalist Party; however, James Madison associated with Thomas Jefferson and the Democratic-Republican Party in opposition to Federalist Party policies borne from a loose interpretation of the Commerce Clause. The society's views are more closely associated with the general meaning of Federalism (particularly the New Federalism) and the content of the Federalist Papers than with the later Federalist Party.
The society holds a national lawyers convention each year in
Washington, D.C. It is one of the highest profile conservative legal
events of the year. Speakers have included former ACLU head Nadine Strossen, business executive and 2016 Republican presidential candidate Carly Fiorina, former BB&T chairman John Allison, former Attorney General Michael Mukasey, U.S. Senator Mike Lee, and White House Counsel under President Barack ObamaNeil Eggleston. The Federalist Society invites to its events "capable liberal advocates to try to rebut conservative perspectives."
The
Federalist Society has 200 student chapters at law schools across the
United States as well as lawyers chapters in 90 U.S. cities. The
Federalist Society provides its 70,000 members with "intellectual
sparring and professional grooming." David Montgomery, writing in The Washington Post Magazine,
said that each individual member of the group is "akin to an excited
synapse in a sprawling hive mind with no one actually in charge."
Montgomery called the Federalist Society "a remarkably successful
example of what political scientists call a 'political epistemic community'," echoing Amanda Hollis-Brusky,
who described the Federalist Society as "an interconnected network of
experts with policy-relevant knowledge who share certain beliefs and
work to actively transmit and translate those beliefs into policy." Former Federalist Society executive vice president Leonard Leo
has said "he endorses the network theory of the society," saying, "It's
less about who gets what job and more about building a community that
can be self-perpetuating and self-sustaining and self-driving."
Steven Teles, a professor of political science at Johns Hopkins University and the author of The Rise of the Conservative Legal Movement: The Battle for Control of the Law,
wrote that the Federalist Society's influence on the judicial selection
process may not be the group's most important impact. Instead, the
"supply-and-demand relationship between the judges and the network" may
be paramount, with judges needing "scholarship and arguments extending
Federalist principles into new areas. Where new legal theories depart
from the status quo, they need them to be vetted and legitimized through
public debate. They require targeted cases raising questions that
provide an opening to move the law. Without professors and lawyers in
the network filling that demand, you're not going to maximize what you
got through the electoral process." According to professor Lawrence Baum, the administrations of Ronald Reagan and George W. Bush
"aimed to nominate conservative judges, and membership in the
Federalist Society was a proxy for adherence to conservative ideology."
The Washington Post Magazine wrote that the Federalist
Society "provides the enduring climate within which storms on the right
come and go" and that "Much of the Federalist Society's influence comes
not from its very public Washington victories but from its
behind-the-scenes, grass-roots ability to shift the law at the idea
level, even the cultural level." The Federalist Society lobbies for no particular policies, it does not sign amicus briefs, and it does not represent clients in cases.
Amanda Hollis-Brusky, political science associate professor at Pomona
College, and Calvin TerBeek, Ph.D. candidate in political science at the
University of Chicago, dispute that the Federalist Society is
non-partisan, pointing to documents written by the Federalist Society to
donors in 1984 where the organization states that one of its missions
is pushing conservative positions. In rebuttal to Hollis-Brusky and TerBeek, former Solicitor General Ted Olson also wrote in Politico Magazine
pointing out that in 37 years of its existence never "has the
Federalist Society filed a lawsuit or brief in any litigation, and never
once during that period has it passed any resolution advocating for or
against any legal issue."
In 2018, Politico Magazine wrote that "the organization had markedly and undeniably changed the nature of the judiciary." The Federalist Society has been described as influential during the presidencies of George H. W. Bush, George W. Bush and Donald Trump.
The American Constitution Society, founded in 2001, was explicitly started as a liberal analogue to the Federalist Society.
In January 2020, the Committee on Codes of Conduct of the
Judicial Conference of the United States circulated a proposed advisory
opinion that would bar membership in the Federalist Society or the
American Constitution Society for members of the judiciary. The proposed
opinion would continue to allow membership in the American Bar Association (ABA).
The proposed restriction is limited to membership, and judges would
still be allowed to participate in events hosted by organizations such
as the Federalist Society and the American Constitution Society through
speaking engagements, panel discussions, and event attendance. The proposed advisory opinion had a 120-day comment stage ending on May 20, 2020.
The Federalist Society has a Regulatory Transparency Project (RTP), whose goal, according to National Review, is to "foster a nationwide conversation about areas where the costs of regulation exceed any benefits."
The RTP includes twelve working groups who analyze government
regulations in different policy and legal areas. The project's methods
include issuing white papers and holding events.
Judicial philosophy
According to The Washington Post Magazine,
"Many individual Federalists are political and ideological warriors,
though never in the name of the Federalist Society. Rather, society
events provide the proving ground where they hone their arguments, seize
a chance to shine and come to the attention of mentors higher up in the
political-legal hierarchy. In that sense, the Federalist Society is a
talent network and placement agency as well."
A 2008 study found that Federalist Society members appointed by
Republican administrations to the U.S. Courts of Appeals had more
conservative voting records than non-members. Critics say the organization favors judicial activism, in particular on social issues. Many members of the Federalist Society favored overturning Roe v. Wade, the Supreme Court ruling that permitted abortion, prior to its overturning in 2022. The organization tends to favor judges who take conservative stances on abortion rights and other social issues.
Members of the Federalist Society have presented oral arguments in
every single abortion case that has been before the Supreme Court since
1992.
According to the authors of Building Coalitions, Making Policy: The Politics of the Clinton, Bush, and Obama Presidencies
(2012), "Federalist Society members declaim the notion that they are
united around a particular philosophy," although many members have been
associated with textualist or originalist methods of constitutional
interpretation. Judicial restraint tends to align with conservative
views on abortion and LGBT rights, while "Critics point out that
conservatives are typically not so intent on following 'original
meaning' in areas such as affirmative action, executive powers, free
speech and federalism."
Liberals have questioned "how suspiciously convenient it is that the
jurisprudence advocated by society members so often yields conservative
results."
Leonard Leo, former executive vice president of the Federalist Society,
"disputes the notion that the Constitution contains either conservative
or progressive values, and he denies that originalism is rigged to
reach conservative and libertarian results." He told The Washington Post Magazine,
"You're practicing originalism appropriately when you're doing so
without looking behind the curtain and trying to predetermine results"
and that "There are liberals who work really hard at trying to develop a
neutral, originalist approach to interpretation...The fact that people
may come out differently occasionally—that's okay. Half the battle is
just agreeing that it is essential."
Increasingly, according to the magazine, "A number of liberal scholars
have applied themselves to the task of showing how, in fact, originalist
approaches can yield progressive results. As this train of thought has
flowed out of the academy, liberal originalist logic is, more and more,
showing up in legal briefs and even in Supreme Court dissents."
Legal activities of members
Members
of the Federalist Society have opposed regulation of private property
and private businesses, and have argued that specific regulations must
be enacted by legislatures rather than courts or executives that
interpret existing statutes and powers.
Parents Involved in Community Schools v. Seattle School District No. 1
Members of the Federalist Society have argued that courts should not take race into account when making decisions.
For example, members of the group have argued that civil rights cases
involving racially discriminatory policies should not consider race, but
rather the individuals involved.Federalist Society members were extensively involved with the Parents Involved in Community Schools v. Seattle School District No. 1 ruling where the Supreme Court struck down voluntary desegregation plans in several jurisdictions. The authors of The Federalist Society: How Conservatives Took the Law Back from Liberals
write that "Conservatives believe, however, that it is not appropriate
for the government to promote racial balance. The essence of the
conservative position is that there is no legal difference between
considering race or gender for purposes of exclusion and considering
race or gender for purposes of inclusion. They argue that both are
harmful and make racial problems worse. On the other hand, many civil
rights advocates believe that because our history has been one of the
systematic exclusion of racial minorities and women from social,
political, and economic institutions and from positions of power and
influence, the conservative view leads to the continuation of exclusion
and retards society's ability to move toward inclusion."
District of Columbia v. Heller
Members of the Federalist Society have forcefully argued against regulations on guns. Members hold that the Second Amendment
protects the rights of individuals to guns, as opposed to being a
collective right to arms. At the time of the Federalist Society's
creation and since the 19th century, the Supreme Court and academics had
held a more restrictive view of gun rights. The Federalist Society was
influential in shifting legal views on gun rights, culminating in the
Supreme Court ruling District of Columbia v. Heller
which struck down gun regulations in the District of Columbia that
required guns to be kept "unloaded and disassembled or bound by a trigger lock".
Citizens United v. FEC
The Federalist Society had a significant influence on the Citizens United
Supreme Court ruling which weakened regulations on campaign finance by
finding that the free speech clause of the First Amendment to the
Constitution prohibits the government from restricting independent
expenditures for communications by nonprofit corporations, for-profit
corporations, labor unions, and other associations.
National Federation of Independent Business v. Sebelius
The ideas of the Federalist Society were "at the intellectual heart" of National Federation of Independent Business v. Sebelius, which challenged the constitutionality of the Affordable Care Act
(ACA), with members of the group playing a "mostly behind-the-scenes
part in NFIB—and in many of the most significant conservative legal
victories of the last 30 years."
In her book on the history of the Federalist Society, political
scientist Amanda Hollis-Brusky writes that "Federalist Society members
had been invested in the litigation efforts against the ACA well before
the Act was signed into law—before there was even anything concrete to
litigate against."
Libertarian law professor Randy Barnett
attended his first Federalist Society event in 1986 and found the group
"open to testing a diversity of ideas". He became a "leading voice of
the growing libertarian wing of the Federalist Society, and he became
one of the architects of constitutional claims at the core of lawsuits
against the health-care plan."
His participation in the legal challenge to the ACA was initiated at
the Federalist Society's 2009 national convention, well before the ACA's
passage in 2010. He co-authored a 16-page legal memorandum "that
outlined a constitutional case against the health-care measure." The
memorandum "became a source of talking points during congressional
debate and laid the framework for subsequent court challenges; Barnett
represented one of the plaintiffs." Barnett said the Federalist Society "involves people, gets them interested, and they oftentimes will do something about that."
Role in presidencies
George W. Bush administration
Legal positions in the George W. Bush administration were overwhelmingly staffed with Federalist Society members. Approximately half of Bush's nominees for appellate court judgeships were Federalist Society members. The Bush administration was harshly criticized for the decision to nominate Harriet Miers
to the Supreme Court, with conservative critics arguing that she lacked
a consistently conservative track record, did not have Federalist
Society "credentials" and for her purported ties to the ABA (which
conservatives considered to be liberal). After conservative outcry,
Miers withdrew the nomination. The Bush administration went on to nominate Samuel Alito,
a Federalist Society member with a consistent conservative track record
who was active in Federalist Society circles, to the Supreme Court.
Members of the society helped to encourage Bush's decision to
terminate a nearly half-century-old practice of giving the ABA
confidential early access to judicial nominees, allowing the ABA to rate
nominee's qualifications for office before the nominations were
announced. Since the administration of President Dwight D. Eisenhower,
the ABA provided the service to presidents of both parties and the
nation by vetting the qualifications of those under consideration for
lifetime appointment to the federal judiciary before any other group.
The society alleged that the bar association showed a liberal bias in
its recommendations. Examples given included that while former Supreme Court clerks nominated to the Court of Appeals by Democrats had an average rating of slightly below "well qualified", similar Republican
nominees were rated on average as only "qualified/well qualified." In
addition the bar association gave Ronald Reagan's judicial nominees Richard Posner and Frank H. Easterbrook its lowest possible ratings of "qualified/not qualified", and Judges Posner and Easterbrook have gone on to become the two most highly cited judges in the federal appellate judiciary.
Donald Trump administration
According to Politico Magazine,
"Trump is president for a long list of reasons, of course, but near the
top of that list is the imprimatur the Federalist Society granted him.
He almost certainly couldn't have gotten what he wanted without the
Federalists. And they almost certainly couldn't have gotten what they
wanted without him." During the 2016 presidential campaign, Texas Senator Ted Cruz
"accused Trump of not being a true conservative" and warned Republicans
that Trump would nominate liberal judges. While consulting with
conservative think tankThe Heritage Foundation
to create a list of nominees, Trump stated: "I'm going to submit a list
of justices, potential justices of the United States Supreme Court,
that I will appoint from the list. I won't go beyond that list."
The Federalist Society was influential in the Trump administration, hand-selecting Supreme Court Justice Neil Gorsuch and recruiting a slate of conservative judges to fill vacancies throughout the federal judiciary.
The society helped to assemble the list of 21 people from which Trump
said he would choose a nominee to replace Antonin Scalia on the U.S.
Supreme Court. Nine of the 21 individuals spoke at the society's annual
convention in late November 2016, while nearly all of the others were in
attendance. Federalist Society members generally chose not to criticize Trump, and Politico
described the Federalist Society membership as "elite, conservative
lawyers who have generally chosen to give Trump a pass on his breaches
of long-cherished legal norms and traditions in exchange for the gift of
Supreme Court Justice Neil Gorsuch."
Former Federalist Society executive vice president Leonard Leo said:
"What President Trump has done with judicial selection and appointments
is probably at the very center of his legacy, and may well be his
greatest accomplishments thus far."
In May 2018, the Federalist Society hosted a phone call entitled
"examining the legality of the Mueller Investigation", where one of the
featured speakers argued that Special Counsel Robert Mueller's investigation into Russian interference in the 2016 election was unconstitutional.
In January 2021, some members of the Federalist Society, such as
Jeremy Rosen, an appellate lawyer in Los Angeles, argued that members
who assisted Trump in the spreading of false claims of election fraud
during the 2020 U.S. presidential election should be "distanced from the conservative group."Specific members mentioned for possible removal included John C. Eastman,
chair of the Federalist Society's federalism and separation of powers
practice group, who made claims about election fraud at a Trump rally on
January 6, 2021—the day of the Capitol attack. Others mentioned included Texas Senator Ted Cruz and Missouri Senator Josh Hawley, who voted against the certification of election results.
Anti-Federalist Papers is the collective name given to the works written by the Founding Fathers who were opposed to, or concerned with, the merits of the United States Constitution of 1787. Starting on 25September 1787 (eight days after the final draft of the US Constitution) and running through the early 1790s, these Anti-Federalists published a series of essays arguing against the ratification of the new Constitution. They argued against the implementation of a stronger federal government
without protections on certain rights. The Anti-Federalist papers
failed to halt the ratification of the Constitution but they succeeded
in influencing the first assembly of the United States Congress to draft the Bill of Rights. These works were authored primarily by anonymous contributors using pseudonyms such as "Brutus" and the "Federal Farmer." Unlike the Federalists, the Anti-Federalists created their works as part of an unorganized group.
History
Patrick Henry, author of several of the Anti-Federalist papers
Following its victory against the British in the Revolutionary War,
the United States was plagued by a variety of internal problems. The
weak central government could not raise taxes to cover war debts and was
largely unable to pass legislation. Many early American politicians and
thinkers believed that these issues were the result of the Articles of Confederation, the first governing document of the United States. In 1787 a convention
gathered in Philadelphia to attempt to amend it. Soon, however, the
gathering shifted its focus to constructing a newer and more powerful
Constitution for the fledgling country. Two main competing factions
emerged, the Federalists and the Anti-Federalists. The former supported a more powerful central government while the latter opposed it.
During the lengthy and heated national debate following this
convention, both groups wrote extensively in favor of their respective
positions. The Anti-Federalist papers are a selection of the written
arguments against the US Constitution by those known to posterity as the
Anti-Federalists. As with the Federalist papers, these essays were
originally published in newspapers. The most widely known are "a series
of sixteen essays published in the New York Journal from October
1787 through April 1788 during the same period. The Anti-Federalist was
appearing in New York newspapers, under the pseudonym 'Brutus'."
Structure and content
The
Anti-Federalist papers were written over a number of years and by a
variety of authors who utilized pen names to remain anonymous, and
debates over authorship continue to this day. Unlike the authors of The Federalist Papers,
a group of three men working closely together, the authors of the
Anti-Federalist papers were not engaged in an organized project. Thus,
in contrast to the pro-Constitution advocates, there was no one book or
collection of Anti-Federalist Papers at the time. The essays were the
product of a vast number of authors, working individually rather than as
a group. Although there is no canonical list of anti-federalist authors, major authors include Cato (likely George Clinton), Brutus (likely either Melancton Smith, Robert Yates or perhaps John Williams), Centinel (Samuel Bryan), and the Federal Farmer (either Melancton Smith, Richard Henry Lee, or Mercy Otis Warren). Works by Patrick Henry and a variety of others are often included as well.
Until the mid-20th century, there was no united series of
Anti-Federalist papers. The first major collection was compiled by
Morton Borden, a professor at Columbia University, in 1965. He
"collected 85 of the most significant papers and arranged them in an
order closely resembling that of the 85 Federalist Papers". The most
frequently cited contemporary collection, The Complete Anti-Federalist, was compiled by Herbert Storing and Murray Dry of the University of Chicago
and published in 1981. At seven volumes and including many pamphlets
and other materials not previously published in a collection, this work
is considered, by many, to be the authoritative compendium on the
publications.
Considering their number and diversity, it is difficult to
summarize the contents of the Anti-Federalist papers. Generally speaking
they reflected the sentiments of the Anti-Federalists, which Akhil Reed Amar
of the Yale Law School generalized as: a localist fear of a powerful
central government, a belief in the necessity of direct citizen
participation in democracy, and a distrust of wealthy merchants and
industrialists. Essays with titles such as "A Dangerous Plan of Benefit Only to The 'Aristocratick Combination'"
and "New Constitution Creates a National Government; Will Not Abate
Foreign Influence; Dangers of Civil War And Despotism" fill the
collection, and reflect the strong feelings of the authors.
In the table below, a selection of Anti-Federalist papers have been contrasted with their Federalist counterparts.
Topics common to Anti-Federalist and Federalist papers
Representation in House of Representatives and Senate
Melancton Smith, 6/20-6/27-88
Federalist No. 52–57, 62–63
Legacy
The Anti-Federalists proved unable to stop the ratification of the US Constitution, which took effect in 1789. Since then, the essays they wrote have largely fallen into obscurity. The influence of their writing, however, can be seen to this day – particularly in the nature and shape of the United States Bill of Rights. Federalists, such as Alexander Hamilton, vigorously argued against its passage but were in the end forced to compromise.
The Massachusetts Compromise
took place during the ratification process after 5 states had already
ratified. Despite being the minority power, Anti-Federalists were able
to create enough stir to prevent Massachusetts from ratifying the newly drafted Constitution.
They agreed that there would need to at least be amendments made before
their state would ratify the Constitution, leading to the beginning of
the United States Bill of Rights.
Other states with strong Anti-Federalist populations would follow this
example, expanding this list of amendments to the 10 we know today. The
Bill of Rights was constructed specifically to quell the fears of the
Anti-Federalists and to address their concerns. The Anti-Federalists
feared that there were not enough checks and balances
to protect the citizens from a governmental abuse of power. As such,
the Anti-Federalists focused on explicitly listing out the individuals'
rights and freedoms including free practice of religion, press, legal rights, and arms for protection from both their fellow man and government military occupation like what they faced during the Revolution. To prevent the Federal government from assuming all unspecified powers, as the Anti-Federalists feared, the 10th and final Amendment
in the Bill of Rights states that all powers not specified in the
Constitution would be left to the States. These State's Rights would be a
cornerstone issue for the entirety of United States history, from the treatment and freeing of slaves to the modern-day healthcare systems. The Anti-Federalists were not successful in stopping the ratification of the Constitution, but their actions still impact the Federal Government centuries after the writers of the Anti-Federalist papers are gone.
The name "Anti-Federalists" is a misnomer. It was imposed upon the movement by their opponents, the Federalists, and was supposed to mark them as men who "stood against the very political ideas they embraced". According to historian Carol Berkin:
Perhaps the nationalists' most
brilliant tactic in the battle of ideas ahead of them, however, was
their decision to call themselves "Federalists" and their cause,
"Federalism." The men behind the Constitution were not, of course,
federalists at all. They were advocates of a strong national government
whose authority diminished the independence of the states. [...] By
co-opting the name "Federalists," the pro-Constitution forces deprived
their opponents of the ability to signal clearly and immediately what
they stood for.
Main beliefs
The Anti-Federalists were against the ratification of the
Constitution for many reasons. The Anti-Federalists believed that the
Constitution, as drafted, would lead to a loss of individual liberties,
an erosion of state sovereignty, and the potential for the rise of
tyranny. They advocated for a more decentralized form of government with
greater protections for individual rights and stronger representation
for the states. Principally, they were afraid that the national
government would be too robust and would, thus, threaten states and
individual rights.
In the broad Antifederalist sense, they held that states should be
significantly autonomous and independent in their authority, applying
the right to self-administration in all significant internal matters
without the unwanted interjections of the federal government. The
Anti-Federalists debated with their Federalist colleagues, including
Alexander Hamilton and James Madison, on the functional model and
competencies of the planned federal government. The Anti-Federalists
believed that almost all the executive power should be left to the
country's authorities, while the Federalists wanted centralized national
governments.
They also believed that a large central government would not
serve the interests of small towns and rural areas, as opposed to the
urban interests that most Federalist delegates aligned with. Generally,
Anti-federalists were more likely to be small farmers than lawyers and
merchants and came from rural areas rather than the urban areas many
federalists represented. In their journey to protect the interests of rural areas and farmers, the Anti-Federalists believed:
They believed the Constitution, as written, would be oppressive
They believed the Constitution created a presidency so powerful that it would become a monarchy.
They believed the Constitution provided insufficient rights in the
courts (e.g., no guarantee of juries in civil cases, nor that criminal
case juries be local) and would create an out-of-control judiciary.
They believed that the national government would be too far away
from the people and thus unresponsive to the needs of localities.
They believed the Constitution would abrogate, at least in part, the power of the states.
They believed the federal government's powers to tax provided by the
Constitution could be used to exploit citizens and weaken the power of
the states.
Influence of the Anti-Federalists on the Bill of Rights
The
Bill of Rights is a foundation of American democracy that outlines
individual rights and liberties, curbing the government’s role in
violating people’s rights. When analyzing the historical evolution of
the document, the contributions attributed to the Anti-Federalists place
them at the center stage of the formation and adoption of the Bill of
Rights.
As a response to the Anti-Federalists’s demands of the addition
of the bill of rights to the constitution, which they believed could
protect individuals from the states’ patricide and central government
tyranny, the Federalists agreed to consider the amendments. The
Federalist, James Madison,
the primary architect of the constitution, wrote the ten amendments
that became the Bill of Rights which fulfilled the promises made by the
Federalists to Anti-Federalists after the anti-constitution activists
protested.
The Anti-Federalists drafted a bill of rights which is the first
ten amendments written in the constitution. These amendments ensured the
freedom of speech, religion, and assembly among others, and they as
well protected citizens against the right to bear arms and escape from
unreasonable search and seizures.
Their libertarian views and views on individual rights were embedded in
the constitution and continue to drive American political thought.
The Anti-Federalists especially advocated for the states’ rights
and believed in shared powers among the states and the national
government. The tenth amendment of the US constitution saw them reserve
the others’ powers to the people and states. Regarding the same, the
Anti-Federalist believed tyranny could only be limited if power was
shared.
That is, it separated the federal government’s powers over states’
rights in order to avoid the tyrannical nature of their past ruler.
History
During the American Revolution and its immediate aftermath, the term federal was applied to any person who supported the colonial union and the government formed under the Articles of Confederation. After the war, the group that felt the national government under the Articles was too weak appropriated the name Federalist
for themselves. Historian Jackson Turner Main wrote, "to them, the man
of 'federal principles' approved of 'federal measures,' which meant
those that increased the weight and authority or extended the influence
of the Confederation Congress."
As the Federalists moved to amend the Articles, eventually leading to the Constitutional Convention,
they applied the term anti-federalist to their opposition. The term
implied, correctly or not, both opposition to Congress and unpatriotic
motives. The Anti-Federalists rejected the term, arguing that they were
the true Federalists. In both their correspondence and their local
groups, they tried to capture the term. For example, an unknown
anti-federalist signed his public correspondence as "A Federal Farmer"
and the New York committee opposing the Constitution was called the
"Federal Republican Committee." However the Federalists carried the day
and the name Anti-Federalist forever stuck.
The Anti-Federalists were composed of diverse elements, including
those opposed to the Constitution because they thought that a stronger
government threatened the sovereignty and prestige of the states,
localities, or individuals; those that saw in the proposed government a
new centralized, disguised "monarchic" power that would only replace the
cast-off despotism of Great Britain;
and those who simply feared that the new government threatened their
personal liberties. Some of the opposition believed that the central
government under the Articles of Confederation was sufficient. Still
others believed that while the national government under the Articles
was too weak, the national government under the Constitution would be
too strong. Another complaint of the Anti-Federalists was that the
Constitution provided for a centralized rather than federal government
(and in The Federalist Papers, James Madison
admitted that the new Constitution had the characteristics of both a
centralized and federal form of government) and that a truly federal
form of government was a leaguing of states as under the Articles of
Confederation.
During the period of debate over the ratification of the
Constitution, numerous independent local speeches and articles were
published all across the country. Initially, many of the articles in
opposition were written under pseudonyms, such as "Brutus" (likely Melancton Smith), "Centinel" (likely Samuel Bryan), and "Federal Farmer." Eventually, famous revolutionary figures such as Patrick Henry
came out publicly against the Constitution. They argued that the strong
national government proposed by the Federalists was a threat to the
rights of individuals and that the president
would become a king. They objected to the federal court system created
by the proposed constitution. Minority groups also contributed, such as Mercy Otis Warren who disguised herself as "A Colombian Patriot," thought to be Elbridge Gerry.
Warren's most notable pamphlet discussed the treatment of minorities
and American natural rights; this pamphlet was titled "History of the
Rise, Progress, and Termination of the American Revolution".
This produced a body of political writing; the best and most
influential of these articles and speeches were gathered by historians
into a collection known as the Anti-Federalist Papers in allusion to the Federalist Papers.
The authors of these works did not organize together as a group.
Instead, they used the medium of print to spread their ideas
individually.
In many states the opposition to the Constitution was strong
(although Delaware, Georgia, and New Jersey ratified quickly with little
controversy), and in two states—North Carolina and Rhode Island—it
prevented ratification until the definite establishment of the new
government practically forced their adherence. Individualism was the
strongest element of opposition; the necessity, or at least the
desirability, of a bill of rights was almost universally felt.
In Rhode Island, resistance against the Constitution was so strong that
civil war almost broke out on July 4, 1788, when anti-federalist
members of the Country Party led by Judge William West marched into Providence with over 1,000 armed protesters.
The Anti-Federalists played upon these feelings in the ratification convention in Massachusetts.
By this point, five of the states had ratified the Constitution with
relative ease, but the Massachusetts convention was far more disputed
and contentious. After a long debate, a compromise (known as the "Massachusetts compromise")
was reached. Massachusetts would ratify the Constitution with
recommended provisions in the ratifying instrument that the Constitution
be amended with a bill of rights. (The Federalists contended that a
conditional ratification would be void, so the recommendation was the
strongest support that the ratifying convention could give to a bill of
rights short of rejecting the Constitution.)
Four of the next five states to ratify, including New Hampshire, Virginia, and New York,
included similar language in their ratification instruments. As a
result, shortly after the Constitution became operative in 1789,
Congress sent a set of twelve amendments to the states. Ten of these
amendments were immediately ratified and became known as the Bill of Rights, with one of the other two becoming the 27th Amendment—almost
200 years later. Thus, while the Anti-Federalists were unsuccessful in
their quest to prevent the adoption of the Constitution, their efforts
were not totally in vain. The Anti-Federalists thus became recognized as
an influential group among the Founding Fathers of the United States.
With the passage of the Constitution and the Bill of Rights, the
Anti-Federalist movement was exhausted. Some activists joined the Anti-Administration Party that James Madison and Thomas Jefferson were forming about 1790–91 to oppose the policies of Treasury Secretary Alexander Hamilton; this group soon became the Democratic-Republican Party.
When Jefferson took office as the third president in 1801, he replaced
Federalist appointees with Democratic-Republicans and sought to focus on
issues that allowed the states to make more of their own decisions in
matters. He also repealed the whiskey excise and other federal taxes,
shut down some federal offices and broadly sought to change the fiscal
system that Hamilton had created.
The principle is paraphrased from Thomas Jefferson's "separation
between Church & State." It has been used to express the
understandings of the intent and function of this amendment, which
allows freedom of religion. It is generally traced to a January 1, 1802, letter by Jefferson, addressed to the Danbury Baptist Association in Connecticut, and published in a Massachusetts newspaper.
Jefferson wrote,
Believing with you that religion is
a matter which lies solely between Man & his God, that he owes
account to none other for his faith or his worship, that the legitimate
powers of government reach actions only, & not opinions, I
contemplate with sovereign reverence that act of the whole American
people which declared that their legislature should "make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof," thus building a wall of separation between Church
& State. Adhering to this expression of the supreme will of the
nation in behalf of the rights of conscience, I shall see with sincere
satisfaction the progress of those sentiments which tend to restore to
man all his natural rights, convinced he has no natural right in
opposition to his social duties."
When they [the Church] have opened a
gap in the hedge or wall of separation between the garden of the church
and the wilderness of the world, God hath ever broke down the wall
itself, removed the Candlestick, etc., and made His Garden a wilderness
as it is this day. And that therefore if He will ever please to restore
His garden and paradise again, it must of necessity be walled in
peculiarly unto Himself from the world, and all that be saved out of the
world are to be transplanted out of the wilderness of the World.
In keeping with the lack of an established state religion in the United States, unlike in many European nations at the time, Article Six of the United States Constitution specifies that "no religious Test shall ever be required
as a Qualification to any Office or public Trust under the United
States" meaning that there will be no official state religion lawfully
established.
Jefferson's metaphor of a wall of separation has been cited repeatedly by the U.S. Supreme Court. In Reynolds v. United States
(1879) the Court wrote that Jefferson's comments "may be accepted
almost as an authoritative declaration of the scope and effect of the
[First] Amendment." In Everson v. Board of Education (1947), Justice Hugo Black
wrote: "In the words of Thomas Jefferson, the clause against
establishment of religion by law was intended to erect a wall of
separation between church and state."
In contrast to this emphasis on separation, the Supreme Court in Zorach v. Clauson (1952) upheld accommodationism,
holding that the nation's "institutions presuppose a Supreme Being" and
that government recognition of God does not constitute the
establishment of a state church as the Constitution's authors intended
to prohibit.
The extent of separation between government and religion in the U.S. continues to be debated.
Early history
Many early immigrants traveled to North America
to avoid religious persecution in their homelands, whether based on a
different denomination, religion or sect. Some immigrants came from
England after the English Civil War and the rise of Protestant dissenting sects in England. Others fled Protestant-Catholic religious conflicts in France and Germany. Immigrants included nonconformists such as the Puritans, who were Protestant Christians fleeing religious persecution from the Anglican King of England, and later Dissenters, such as Baptists.
The groups had a variety of attitudes on religious toleration; the Puritans, for instance, initially wanted a totally Puritan society. While some leaders, such as Roger Williams of Rhode Island and Quaker William Penn of Pennsylvania, ensured the protection of religious minorities within their colonies, the Plymouth Colony and Massachusetts Bay Colony in New England established churches, initially Puritan. The Dutch colony of New Netherland established its state Dutch Reformed Church
and outlawed all other worship, though enforcement was sparse in what
was essentially a trading, mercantile colony. In some cases,
jurisdictions wanted religious conformity for financial reasons: the
established Church was responsible for poor relief, putting dissenting churches at a significant disadvantage.
State churches in British North America prior to the Revolution
Catholic colonies
The Colony of Maryland was founded by a charter granted in 1632 to George Calvert, secretary of state to Charles I,
and his son Cecil, both recent converts to Catholicism. Under their
leadership allowing the practice of this denomination, many English
Catholic gentry families settled in Maryland. The colonial government
was officially neutral in religious affairs, granting toleration to all
Christian groups and enjoining them to avoid actions that antagonized
the others. On several occasions, "low-church" dissenters among
Protestants led insurrections that temporarily overthrew the Calvert
rule. In 1689, when William and Mary
came to the English throne, they acceded to Protestant demands to
revoke the original royal charter. In 1701 the Church of England was
"established" as the state church in Maryland. Through the course of the
eighteenth century, Protestants barred Catholics from public office in
the colony, and then prohibited them from voting, disenfranchising them.
Not all of the laws passed against Catholic (notably laws restricting
property rights and imposing penalties for sending children to be
educated in foreign Catholic institutions) were enforced, and some
Catholics continued to hold public office.
When New France was transferred to Great Britain in 1763 after it defeated France in the Seven Years' War, it practiced a policy of tolerating the Catholic Church
in the colony. No Catholic people in Quebec or other parts of New
France were forced to convert to the Anglican Church. The British did
open the colony to Protestant Huguenots,
who had been banned from settlement by previous French colonial
authorities - a continuation of discrimination that existed in France.
Spanish Florida was ceded to Great Britain
in 1763, in exchange for it giving up other claims. The British divided
Florida into two colonies, East and West Florida. Both colonies had a
policy of toleration for Catholic residents, as Catholicism had been the
established religion of the Spanish colonies, but established the Church of England as the state church.
The colonies of New York, Virginia, North Carolina, South Carolina, and Georgia officially maintained the Church of England as the established church, but the Anglican Church operated as an established church in the southern colonies. Absorbing the Dutch Calvinists and other Protestant immigrants, New York had a more diverse population.
There were also two non-British Protestant-dominated colonies that were later incorporated into British North America:
The Colony of Rhode Island and Providence Plantations
was founded by Baptist religious dissenters who were forced to flee the
Massachusetts Bay colony. It is widely regarded as the first polity to
grant religious freedom to all its citizens, although Catholics were
barred intermittently. Baptists, Seekers / Quakers, and Jews made this
colony their home. The King Charles Charter of 1663 guaranteed "full liberty in religious concernments".
Delaware Colony had no established church, but was contested between Catholics and Quakers.
Tabular summary
The following table lists all North American colonies administered by the United Kingdom at the commencement of the U.S. revolution, including states now incorporated in the U.S. and current provinces of Canada.
In several colonies, the establishment ceased to exist in practice at the Revolution, about 1776.
Some states' laws treat 1776 as the presumptive date of permanent legal
abolition; other states' constitutions and / or laws either explicitly
disestablished the state's established church (e.g. North Carolina) and / or forbade establishment of any religion. Some Canadian provinces have disestablished the Church of England (e.g. Nova Scotia), but some of the pre-U.S.-revolutionary provinces retain it.
In 1789 the Georgia Constitution was amended as follows:
"Article IV. Section 10. No person within this state shall, upon any
pretense, be deprived of the inestimable privilege of worshipping God in
any manner agreeable to his own conscience, nor be compelled to attend
any place of worship contrary to his own faith and judgment; nor shall
he ever be obliged to pay tithes, taxes, or any other rate, for the
building or repairing any place of worship, or for the maintenance of
any minister or ministry, contrary to what he believes to be right, or
hath voluntarily engaged to do. No one religious society shall ever be
established in this state, in preference to another; nor shall any
person be denied the enjoyment of any civil right merely on account of
his religious principles."
From 1780 to 1824, Massachusetts had a system which required every resident to belong to and attend a parish church,
and permitted each church to tax its members, but forbade any law
requiring that it be of any particular denomination. But in practice,
the denomination of the local church was chosen by majority vote of town
residents, which de facto established Congregationalism as the state religion. This was objected to, and was abolished in 1833. For details see Constitution of Massachusetts.
Until 1877 the New Hampshire Constitution required members of the State
legislature to be of the Protestant religion. Until 1968 the
Constitution allowed for state funding of Protestant classrooms but not
Catholic classrooms.
The North Carolina Constitution of 1776 disestablished the Anglican
church, but until 1835 the NC Constitution allowed only Protestants to
hold public office. From 1835 to 1876 it allowed only Christians
(including Catholics) to hold public office. Article VI, Section 8 of
the current NC Constitution forbids only atheists ("any person who shall
deny the being of Almighty God") from holding public office. Such clauses were held by the United States Supreme Court to be unenforceable in the 1961 case of Torcaso v. Watkins, when the court ruled unanimously that such clauses constituted a 'religious test' forbidden by the First Amendment prohibiting federal religious tests and the protections in the Fourteenth Amendment, which apply to the states as well as the federal government under the doctrine of incorporation.
Religious tolerance for Catholics with an established Church of England
was the policy in the former Spanish Colonies of East and West Florida
while under British rule.
Tithes for the support of the Anglican Church in Virginia were suspended in 1776 and never restored. 1786 is the date of the Virginia Statute of Religious Freedom, which prohibited any coercion to support any religious body.
Colonial views on establishment, accommodationism, and separationism
Many states were as explicit about
the need for a thriving religion as Congress was in its thanksgiving and
fast day proclamations. The Massachusetts Constitution of 1780
declared, for example, that "the happiness of a people, and the good
order and preservation of civil government, essentially depend on piety,
religion, and morality." The states were in a stronger position to act
upon this conviction because they were considered to possess "general"
powers as opposed to the limited, specifically enumerated powers of
Congress. Congregationalists and Anglicans who, before 1776, had
received public financial support, called their state benefactors
"nursing fathers" (Isaiah 49:23).
The Rhode Island Royal Charter obtained in 1663 by Roger Williams and John Clarke
contains unique provisions which make it significantly different from
the charters granted to the other colonies. It gave the colonists
freedom to elect their own governor and write their own laws, within
very broad guidelines, and also stipulated that no person residing in
Rhode Island could be "molested, punished, disquieted, or called in
question for any differences in opinion in matters of religion".
The Flushing Remonstrance
shows support for separation of church and state as early as the
mid-17th century, stating their opposition to religious persecution of
any sort: "The law of love, peace and liberty in the states extending to
Jews, Turks and Egyptians, as they are considered sons of Adam, which
is the glory of the outward state of Holland, so love, peace, and
liberty, extending to all in Christ Jesus, condemns hatred, war, and
bondage." The document was signed on December 27, 1657, by a group of
English citizens in America who were affronted by persecution of Quakers and the religious policies of the Governor of New Netherland, Peter Stuyvesant. Stuyvesant had formally banned all religions other than the Dutch Reformed Church from being practiced in the colony, in accordance with the laws of the Dutch Republic.
The signers indicated their "desire therefore in this case not to judge
lest we are judged, neither to condemn least we are condemned, but
rather let every man stand or fall to his own Master." Stuyvesant fined the petitioners and threw them in prison until they recanted. However, John Bowne allowed the Quakers to meet in his home. Bowne was arrested, jailed, and sent to the Netherlands for trial; the Dutch court exonerated Bowne.
New York Historical Society President and Columbia University Professor of History Kenneth T. Jackson
describes the Flushing Remonstrance as "the first thing that we have in
writing in the United States where a group of citizens attests on paper
and over their signature the right of the people to follow their own
conscience with regard to God - and the inability of government, or the
illegality of government, to interfere with that."
Given the wide diversity of opinion on Christian theological matters in the newly independent American States, the Constitutional Convention believed a government-sanctioned (established) religion would disrupt rather than bind the newly formed union together. George Washington wrote a letter in 1790 to the country's first Jewish congregation, the Touro Synagogue in Newport, Rhode Island to state:
Allowing rights and immunities of citizenship. It is now
no more that toleration is spoken of, as if it were by the indulgence of
one class of people, that another enjoyed the exercise of their
inherent natural rights. For happily the Government of the United
States, which gives to bigotry no sanction, to persecution no assistance
requires only that they who live under its protection should demean
themselves as good citizens, in giving it on all occasions their
effectual support.
There were also opponents to the support of any established church even at the state level. In 1773, Isaac Backus, a prominent Baptist minister in New England,
wrote against a state-sanctioned religion, saying: "Now who can hear
Christ declare, that his kingdom is, not of this world, and yet believe
that this blending of church and state together can be pleasing to him?"
He also observed that when "church and state are separate, the effects
are happy, and they do not at all interfere with each other: but where
they have been confounded together, no tongue nor pen can fully describe
the mischiefs that have ensued." Thomas Jefferson's influential Virginia Statute for Religious Freedom was enacted in 1786, five years before the Bill of Rights.
Most Anglican ministers, and many Anglicans were Loyalists. The Anglican establishment, where it had existed, largely ceased to function during the American Revolution, though the new States did not formally abolish and replace it until some years after the Revolution.
Jefferson, Madison, and the "wall of separation"
The phrase "[A] hedge or wall of separation between the garden of the church and the wilderness of the world" was first used by Baptist theologian Roger Williams, the founder of the colony of Rhode Island, in his 1644 book The Bloody Tenent of Persecution. The phrase was later used by Thomas Jefferson as a description of the First Amendment and its restriction on the legislative branch of the federal government, in an 1802 letter to the Danbury Baptists (a religious minority concerned about the dominant position of the Congregationalist church in Connecticut):
Believing with you that religion is a matter which lies
solely between man and his god, that he owes account to none other for
his faith or his worship, that the legitimate powers of government reach
actions only, and not opinions, I contemplate with sovereign reverence
that act of the whole American people which declared that their
"legislature" should "make no law respecting an establishment of
religion, or prohibiting the free exercise thereof," thus building a wall of separation
between church and State. Adhering to this expression of the supreme
will of the nation in behalf of the rights of conscience, I shall see
with sincere satisfaction the progress of those sentiments which tend to
restore to man all his natural rights, convinced he has no natural
right in opposition to his social duties.
Jefferson's letter was in reply to a letter from the Danbury Baptist Association dated October 7, 1801. In an 1808 letter to Virginia Baptists, Jefferson used the same theme:
We have solved, by fair experiment, the great and
interesting question whether freedom of religion is compatible with
order in government and obedience to the laws. And we have experienced
the quiet as well as the comfort which results from leaving every one to
profess freely and openly those principles of religion which are the
inductions of his own reason and the serious convictions of his own
inquiries.
Jefferson and James Madison's conceptions of separation
have long been debated. Jefferson refused to issue Proclamations of
Thanksgiving sent to him by Congress during his presidency, though he
did issue a Thanksgiving and Prayer proclamation as Governor of
Virginia.Madison issued four religious proclamations while President, but vetoed two bills on the grounds they violated the first amendment. On the other hand, both Jefferson and Madison attended religious services at the Capitol.
Years before the ratification of the Constitution, Madison contended
"Because if Religion be exempt from the authority of the Society at
large, still less can it be subject to that of the Legislative Body." After retiring from the presidency, Madison wrote of "total separation of the church from the state."
Jefferson's opponents said his position was the destruction and
the governmental rejection of Christianity, but this was a caricature. In setting up the University of Virginia,
Jefferson encouraged all the separate sects to have preachers of their
own, though there was a constitutional ban on the State supporting a
Professorship of Divinity, arising from his own Virginia Statute for Religious Freedom. Some have argued that this arrangement was "fully compatible with Jefferson's views on the separation of church and state;"
however, others point to Jefferson's support for a scheme in which
students at the university would attend religious worship each morning
as evidence that his views were not consistent with strict separation. Still other scholars, such as Mark David Hall,
attempt to sidestep the whole issue by arguing that American
jurisprudence focuses too narrowly on this one Jeffersonian letter while
failing to account for other relevant history.
Jefferson's letter entered American jurisprudence in the 1878 Mormon polygamy case Reynolds v. U.S., in which Stephen Johnson Field
cited Jefferson's "Letter to the Danbury Baptists" to state that
"Congress was deprived of all legislative power over mere opinion, but
was left free to reach actions which were in violation of social duties
or subversive of good order."
Jefferson and Madison's approach was not the only one taken in the eighteenth century. Jefferson's Virginia Statute for Religious Freedom was drafted in opposition to a bill, chiefly supported by Patrick Henry,
which would permit any Virginian to belong to any denomination, but
which would require him to belong to some denomination and pay taxes to
support it. Similarly, the Constitution of Massachusetts
originally provided that "no subject shall be hurt, molested, or
restrained, in his person, liberty, or estate, for worshipping God in
the manner and season most agreeable to the dictates of his own
conscience... provided he doth not disturb the public peace, or obstruct
others in their religious worship" (Article II), but also that:
The people of this commonwealth
have a right to invest their legislature with power to authorize and
require, and the legislature shall, from time to time, authorize and
require, the several towns, parishes, precincts, and other bodies
politic, or religious societies, to make suitable provision, at their
own expense, for the institution of the public worship of God, and for
the support and maintenance of public Protestant teachers of piety,
religion, and morality, in all cases where such provision shall not be
made voluntarily.
And the people of this commonwealth have also a right to, and do, invest
their legislature with authority to enjoin upon all the subjects an
attendance upon the instructions of the public teachers aforesaid, at
stated times and seasons, if there be any on whose instructions they can
conscientiously and conveniently attend. (Article III)
Since, in practice, this meant that the decision of who was taxable for a particular religion rested in the hands of the selectmen,
usually Congregationalists, this system was open to abuse. It was
abolished in 1833. The intervening period is sometimes referred to as an
"establishment of religion" in Massachusetts.
The Duke of York had required that every community in his new lands of New York and New Jersey support some church, but this was more often Dutch Reformed, Quaker, or Presbyterian, than Anglican.
Some chose to support more than one church. He also ordained that the
tax-payers were free, having paid his local tax, to choose their own
church. The terms for the surrender of New Amsterdam
had provided that the Dutch would have the liberty of conscience, and
the Duke, as an openly divine-right Catholic, was no friend of
Anglicanism. The first Anglican minister in New Jersey arrived in 1698,
though Anglicanism was more popular in New York.
Connecticut
had a real establishment of religion. Its citizens did not adopt a
constitution at the Revolution but rather amended their Charter to
remove all references to the British Government. As a result, the
Congregational Church continued to be established, and Yale College,
at that time a Congregational institution, received grants from the
State until Connecticut adopted a constitution in 1818 partly because of
this issue.
Test acts
The
absence of an establishment of religion did not necessarily imply that
all men were free to hold office. Most colonies had a Test Act,
and several states retained them for a short time. This stood in
contrast to the Federal Constitution, which explicitly prohibits the
employment of any religious test for Federal office, and which through
the Fourteenth Amendment later extended this prohibition to the States.
For example, the New Jersey Constitution of 1776
provides the liberty of conscience in much the same language as
Massachusetts (similarly forbidding the payment of "taxes, tithes or
other payments" contrary to conscience). It then provides:
That there shall be no establishment of any one religious sect in this Province, in preference to another; and that no Protestant inhabitant
of this Colony shall be denied the enjoyment of any civil right, merely
on account of his religious principles; but that all persons,
professing a belief in the faith of any Protestant sect, who
shall demean themselves peaceably under the government, as hereby
established, shall be capable of being elected into any office of profit
or trust, or being a member of either branch of the Legislature, and
shall fully and freely enjoy every privilege and immunity, enjoyed by
others their fellow-subjects.
This would permit a Test Act but do not require one.
The original charter of the Province of East Jersey had restricted membership in the Assembly to Christians; the Duke of York was fervently Catholic, and the proprietors of Perth Amboy, New Jersey were Scottish Catholic peers. The Province of West Jersey
had declared, in 1681, that there should be no religious test for
office. An oath had also been imposed on the militia during the French and Indian War
requiring them to abjure the pretensions of the Pope, which may or may
not have been applied during the Revolution. That law was replaced by
1799.
And each member, before he takes his seat, shall make and subscribe the following declaration, viz:
I do believe in one God, the creator, and governor of the
universe, the rewarder of the good and the punisher of the wicked. And I
do acknowledge the Scriptures of the Old and New Testament to be given
by Divine inspiration.
And no further or other religious tests shall ever hereafter be required of any civil officer or magistrate in this State.
Again, it provided in general that all tax-paying freemen and their sons shall be able to vote, and that no "man, who acknowledges the being of a God,
be justly deprived or abridged of any civil right as a citizen, on
account of his religious sentiments or peculiar mode of religious
worship."
The
first amendment to the US Constitution states "Congress shall make no
law respecting an establishment of religion, or prohibiting the free
exercise thereof." The two parts, known as the "establishment clause"
and the "free exercise clause" respectively, form the textual basis for
the Supreme Court's interpretations of the "separation of church and
state" doctrine.
Three central concepts were derived from the 1st Amendment which became
America's doctrine for church-state separation: no coercion in
religious matters, no expectation to support a religion against one's
will, and religious liberty encompasses all religions. In sum, citizens
are free to embrace or reject a faith, and support for
religion—financial or physical—must be voluntary, and all religions are
equal in the eyes of the law with no special preference or favoritism.
The First Congress' deliberations show that its understanding of
the separation of church and state differed sharply from that of their
contemporaries in Europe. As the 19th-century historian Philip Schaff observed:
The American separation of church and state rests upon
respect for the church; the [European anticlerical] separation, on
indifference and hatred of the church, and of religion itself... The
constitution did not create a nation, nor its religion and institutions.
It found them already existing and was framed for the purpose of
protecting them under a republican form of government, in a rule of the
people, by the people, and for the people.
An August 15, 1789, entry in Madison's papers indicates he intended
for the establishment clause to prevent the government imposition of
religious beliefs on individuals. The entry says: "Mr. Madison said 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."
Some legal scholars, such as John Baker of LSU,
theorize that Madison's initial proposed language—that Congress should
make no law regarding the establishment of a "national religion"—was
rejected by the House, in favor of the more general "religion" in an
effort to appease the Anti-Federalists. To both the Anti-Federalists and the Federalists, the very word "national" was a cause for alarm because of the experience under the British crown. During the debate over the establishment clause, Rep. Elbridge Gerry of Massachusetts took issue with Madison's language regarding whether the government was a national government, or a federal government
(in which the states retained their individual sovereignty), which
Baker suggests compelled Madison to withdraw his language from the
debate.
Following the argument between Madison and Gerry, Rep. Samuel Livermore
of New Hampshire proposed language stating that "Congress shall make no
laws touching religion or the rights of conscience." This raised an
uproar from members, such as Rep. Benjamin Huntingdon of Connecticut and
Rep. Peter Sylvester of New York, who worried the language could be
used to harm religious practice.
Others, such as Rep. Roger Sherman of Connecticut, believed the clause was unnecessary because the original Constitution only gave Congress stated powers, which did not include establishing a national religion.Anti-Federalists such as Rep. Thomas Tucker
of South Carolina moved to strike the Establishment Clause completely
because it could preempt the religious clauses in the state
constitutions. However, the Anti-Federalists were unsuccessful in
persuading the House of Representatives to drop the clause from the
First Amendment.
The Senate went through several more narrowly targeted versions
before reaching the contemporary language. One version read, "Congress
shall make no law establishing one religious sect or society in
preference to others, nor shall freedom of conscience be infringed,"
while another read, "Congress shall make no law establishing one
particular religious denomination in preference to others." Ultimately,
the Senate rejected the more narrowly targeted language.
At the time of the passage of the Bill of Rights,
many states acted in ways that would now be held unconstitutional. All
of the early official state churches were disestablished by 1833
(Massachusetts), including the Congregationalist establishment in Connecticut. It is commonly accepted that under the doctrine of Incorporation—which uses the Due Process Clause of the Fourteenth Amendment to hold the Bill of Rights applicable to the states—these state churches could not be reestablished today.
Yet the provisions of state constitutions protected religious
liberty, particularly the so-called freedom of conscience. During the
nineteenth century (and before the incorporation of the First Amendment
of the U.S. Constitution through the Fourteenth Amendment), litigants
turned to these provisions to challenge Sunday laws (blue laws), bible-reading in schools, and other ostensibly religious regulations.
But when the First Amendment was
ratified in 1791, it did not apply to the states and would not until
well into the 20th century. As a result, the First Amendment did not
prevent states from paying churches out of the public treasury, as
Maryland, Massachusetts, New Hampshire, Vermont, Connecticut, and South
Carolina did when that amendment was written. And those states that did
not fund churches still favored Christianity. Blasphemy was forbidden in
Delaware in 1826, and officeholders in Pennsylvania had to swear that
they believed in “the being of a God and a future state of rewards and
punishments.” American federalism gave states enormous power to regulate
the health, welfare and morals of their citizens. Because many thought
religion was the foundation of American society, they used their power
to imprint their moral ideals on state constitutions and judicial
opinions for much of American history.
The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments, intended to secure rights for former slaves. It includes the due process and equal protection clauses among others. The amendment introduces the concept of incorporation
of all relevant federal rights against the states. While it has not
been fully implemented, the doctrine of incorporation has been used to
ensure, through the Due Process Clause and Privileges and Immunities Clause, the application of most of the rights enumerated in the Bill of Rights to the states.
The incorporation of the First Amendment establishment clause in the landmark case of Everson v. Board of Education has affected the subsequent interpretation of the separation of church and state in regard to the state governments.
Although upholding the state law in that case, which provided for
public busing to private religious schools, the Supreme Court held that
the First Amendment establishment clause was fully applicable to the
state governments. A 1990s case involving the application of this
principle against the states was Board of Education of Kiryas Joel Village School District v. Grumet (1994).
Supreme Court cases
Jefferson's concept of "separation of church and state" first became a part of Establishment Clause jurisprudence in Reynolds v. United States, 98 U.S. 145 (1878).
In that case, the court examined the history of religious liberty in
the US, determining that while the constitution guarantees religious
freedom, "The word 'religion' is not defined in the Constitution. We
must go elsewhere, therefore, to ascertain its meaning, and nowhere more
appropriately, we think, than to the history of the times in the midst
of which the provision was adopted." The court found that the leaders in
advocating and formulating the constitutional guarantee of religious
liberty were James Madison and Thomas Jefferson. Quoting the
"separation" paragraph from Jefferson's letter to the Danbury Baptists,
the court concluded that, "coming as this does from an acknowledged
leader of the advocates of the measure, it may be accepted almost as an
authoritative declaration of the scope and effect of the amendment thus
secured."
The centrality of the "separation" concept to the Religion Clauses of the Constitution was made explicit in Everson v. Board of Education,
330 U.S. 1 (1947), a case dealing with a New Jersey law that allowed
government funds to pay for transportation of students to both public
and Catholic schools. This was the first case in which the court applied
the Establishment Clause to the laws of a state, having interpreted the due process clause of the Fourteenth Amendment as applying the Bill of Rights
to the states as well as the federal legislature. Citing Jefferson, the
court concluded that "The First Amendment has erected a wall between
church and state. That wall must be kept high and impregnable. We could
not approve the slightest breach."
While the decision (with four dissents) ultimately upheld the
state law allowing the funding of transportation of students to
religious schools, the majority opinion (by Justice Hugo Black) and the dissenting opinions (by Justice Wiley Blount Rutledge and Justice Robert H. Jackson)
each explicitly stated that the Constitution has erected a "wall
between church and state" or a "separation of Church from State": their
disagreement was limited to whether this case of state funding of
transportation to religious schools breached that wall. Rutledge, on
behalf of the four dissenting justices, took the position that the
majority had indeed permitted a violation of the wall of separation in
this case: "Neither so high nor so impregnable today as yesterday is the
wall raised between church and state by Virginia's great statute of
religious freedom and the First Amendment, now made applicable to all
the states by the Fourteenth." Writing separately, Justice Jackson
argued that "[T]here are no good grounds upon which to support the
present legislation. In fact, the undertones of the opinion, advocating a
complete and uncompromising separation of Church from State, seem
utterly discordant with its conclusion yielding support to their
commingling in educational matters."
In 1962, the Supreme Court addressed the issue of officially sponsored prayer or religious recitations in public schools. In Engel v. Vitale,
370 U.S. 421 (1962), the Court, by a vote of 6–1, determined it
unconstitutional for state officials to compose an official school
prayer and require its recitation in public schools, even when the
prayer is non-denominational and students may excuse themselves from
participation. (The prayer required by the New York StateBoard of Regents
prior to the Court's decision consisted of: "Almighty God, we
acknowledge our dependence upon Thee, and we beg Thy blessings upon us,
our parents, our teachers, and our country. Amen.") As the Court stated:
The petitioners contend, among other things, that the
state laws requiring or permitting use of the Regents' prayer must be
struck down as a violation of the Establishment Clause because that
prayer was composed by governmental officials as a part of a
governmental program to further religious beliefs. For this reason,
petitioners argue, the State's use of the Regents' prayer in its public
school system breaches the constitutional wall of separation between
Church and State. We agree with that contention, since we think that the
constitutional prohibition against laws respecting an establishment of
religion must at least mean that, in this country, it is no part of the
business of government to compose official prayers for any group of the
American people to recite as a part of a religious program carried on by
government.
The court noted that it "is a matter of history that this very
practice of establishing governmentally composed prayers for religious
services was one of the reasons which caused many of our early colonists
to leave England and seek religious freedom in America." The lone dissenter, Justice Potter Stewart,
objected to the court's embrace of the "wall of separation" metaphor:
"I think that the Court's task, in this as in all areas of
constitutional adjudication, is not responsibly aided by the uncritical
invocation of metaphors like the "wall of separation," a phrase nowhere
to be found in the Constitution."
In Epperson v. Arkansas,
393 U.S. 97 (1968), the Supreme Court considered an Arkansas law that
made it a crime "to teach the theory or doctrine that mankind ascended
or descended from a lower order of animals," or "to adopt or use in any
such institution a textbook that teaches" this theory in any school or
university that received public funds. The court's opinion, written by
Justice Abe Fortas,
ruled that the Arkansas law violated "the constitutional prohibition of
state laws respecting an establishment of religion or prohibiting the
free exercise thereof. The overriding fact is that Arkansas' law selects
from the body of knowledge a particular segment which it proscribes for
the sole reason that it is deemed to conflict with a particular
religious doctrine; that is, with a particular interpretation of the
Book of Genesis by a particular religious group." The court held that
the Establishment Clause prohibits the state from advancing any
religion, and that "[T]he state has no legitimate interest in protecting
any or all religions from views distasteful to them."
Justice Sandra Day O'Connor
Those who would renegotiate the boundaries between church and state
must, therefore, answer a difficult question: Why would we trade a
system that has served us so well for one that has served others so
poorly?'
In Lemon v. Kurtzman,
403 U.S. 602 (1971), the court determined that a Pennsylvania state
policy of reimbursing the salaries and related costs of teachers of
secular subjects in private religious schools violated the Establishment
Clause. The court's decision argued that the separation of church and
state could never be absolute: "Our prior holdings do not call for total
separation between church and state; total separation is not possible
in an absolute sense. Some relationship between government and religious
organizations is inevitable," the court wrote. "Judicial caveats
against entanglement must recognize that the line of separation, far
from being a 'wall', is a blurred, indistinct, and variable barrier
depending on all the circumstances of a particular relationship."
Subsequent to this decision, the Supreme Court has applied a
three-pronged test to determine whether government action comports with
the Establishment Clause, known as the "Lemon Test".
First, the law or policy must have been adopted with a neutral or
non-religious purpose. Second, the principal or primary effect must be
one that neither advances nor inhibits religion. Third, the statute or
policy must not result in an "excessive entanglement" of government with
religion. (The decision in Lemon v. Kurtzman
hinged upon the conclusion that the government benefits were flowing
disproportionately to Catholic schools, and that Catholic schools were
an integral component of the Catholic Church's religious mission, thus
the policy involved the state in an "excessive entanglement" with
religion.) Failure to meet any of these criteria is a proof that the
statute or policy in question violates the Establishment Clause.
In 2002, a three-judge panel on the Ninth Circuit Court of Appeals
held that classroom recitation of the Pledge of Allegiance in a
California public school was unconstitutional, even when students were
not compelled to recite it, due to the inclusion of the phrase "under
God." In reaction to the case, Elk Grove Unified School District v. Newdow, both houses of Congress passed measures reaffirming their support for the pledge, and condemning the panel's ruling.
The case was appealed to the Supreme Court, where the case was
ultimately overturned in June 2004, solely on procedural grounds not
related to the substantive constitutional issue. Rather, a five-justice
majority held that Newdow, a non-custodial parent suing on behalf of his
daughter, lacked standing to sue.
When the Louisiana state legislature passed a law requiring public school biology teachers to give Creationism and Evolution
equal time in the classroom, the Supreme Court ruled that the law was
unconstitutional because it was intended to advance a particular
religion, and did not serve the secular purpose of improved scientific
education.
The display of the Ten Commandments as part of courthouse
displays was considered in a group of cases decided in the summer of
2005, including McCreary County v. ACLU of Kentucky and Van Orden v. Perry.
While parties on both sides hoped for a reformulation or clarification
of the Lemon test, the two rulings ended with narrow 5–4 and opposing
decisions, with Justice Stephen Breyer the swing vote.
In Town of Greece v. Galloway,
12-696, the Supreme Court agreed to hear a case regarding whether
prayers at town meetings, which are allowed, must allow various faiths
to lead prayer, or whether the prayers can be predominantly Christian.
On May 5, 2014, the U.S. Supreme Court ruled 5–4 in favor of the Town
of Greece by holding that the U.S. Constitution not only allows for
prayer at government meetings, but also for sectarian prayers like
predominantly Christian prayers.
Madalyn Murray O'Hair's1963 lawsuit led to an end of mandatory prayer in public schools after the Supreme Court declared it unconstitutional.
On June 21, 2022, the Supreme Court ruled in a 6–3 vote that the
state program that provides tuition to schools should not exclude
religious schools and reversed the ban imposed in the state of Maine.
Chief Justice John Roberts Jr. stated that the issue was the
"discrimination against religion" and that the tuition program "promotes
stricter separation of church and state than the federal Constitution
requires".
The other three Justices who voted against the ruling commented that
"the decision was another step in dismantling the wall of separation
between church and state that the framers fought to build.”
In 1783, the United States signed a treaty with Great Britain that was promulgated "in the name of the Most Holy and Undivided Trinity".
It credited "'Divine Providence' with having disposed the two parties
to 'forget all past misunderstandings,' and is dated 'in the year of our
Lord' 1783."
As the Government of the United States of America is not,
in any sense, founded on the Christian religion; as it has in itself no
character of enmity against the laws, religion, or tranquillity, of
Mussulmen; and, as the said States never entered into any war or act of
hostility against any Mahometan nation, it is declared by the parties,
that no pretext arising from religious opinions, shall ever produce an
interruption of the harmony existing between the two countries.
Historian Anson Phelps Stokes noted in his 1950 history of this
question that "those who wished to deny that the United States as a
government has any special regard for the Christian religion...[have ]
almost invariably failed to call attention to the fact that the treaty
was superseded, less than a decade later, by another 'Treaty of Peace
and Amity,' signed in Tripoli June 4, 1805, in which the clause in
question...is omitted."
In the 1892 case Church of the Holy Trinity v. United States, Supreme Court Justice David Brewer
wrote for a unanimous Court that "no purpose of action against religion
can be imputed to any legislation, state or national, because this is a
religious people. ... [T]his is a Christian nation." Legal historian Paul Finkelman writes that:
Brewer,
the son of a Congregationalist missionary to Asia Minor, quoted several
colonial charters, state constitutions, and court decisions that
referred to the importance of Christian belief in the affairs of the
American people; cited the practice of various legislative bodies of
beginning their sessions with prayer, and noted the large number of
churches and Christian charitable organizations that exist in every
community in the country as evidence that this is a Christian nation. In
doing so, Brewer expressed the prevailing nineteenth-century Protestant
view that America is a Christian nation.
Since the late 20th century, some scholars and organizations disagree
with the way the Supreme Court has interpreted the constitutional
limitation on religious establishment.
Such critics generally argue that many aspects of church and state were
intermingled at the time the Constitution was ratified, and that the
framers had a different intention than has developed in the more than
200 years since the constitution was written. These critics note that
there were religious references in official contexts, and other founding
documents, such as the United States Declaration of Independence, reference the idea of a "Creator" and "Nature's God."
Passage of the 14th Amendment in 1868 incorporated recognition that the First Amendment applied to actions by state governments. Many constitutional debates relate to competing interpretive theories of originalism versus modern, progressivist theories such as the doctrine of the Living Constitution. Other debates center on the principle of the law of the land in America being defined not just by the Constitution's Supremacy Clause, but also by legal precedents.
This says that interpretations of the Constitution are subject to the
morals and values of a given era. It is not a question of historical revisionism when discussing the Constitution.
The "Ten Commandments" monument at Mower County Courthouse, Austin, Minnesota
The "religious test" clause has been interpreted to cover both elected and appointed federal officials, career civil servants (a relatively recent innovation), and political
appointees. Religious beliefs or the lack of them have not been
permissible tests or qualifications with regard to federal employees
since the ratification of the Constitution.
Seven states, however, included language in their Bill of Rights
or Declaration of Rights, or in the body of their constitutions, that
require state office-holders to have particular religious beliefs. Some
of these have been successfully challenged in court. These states are
Massachusetts, Maryland, North Carolina, Pennsylvania, South Carolina,
Tennessee, and Texas.
Among the required beliefs is: a Supreme Being and a future state of rewards and punishments. (Tennessee Constitution
Article IX, Section 2 is an example of this.) Some of these same states
specify that the oath of office include the words "so help me God." In
some cases, these oaths were historically required of jurors and
witnesses in court. At one time, such restrictions were allowed under
the doctrine of states' rights.
In the early 21st century, they are deemed to be in violation of the
federal First Amendment, as applied to the states via the 14th
amendment. They are unconstitutional and unenforceable.
Relaxed zoning rules and special parking privileges for churches, the tax-free status of church property, the designation of Christmas
as a federal holiday, etc., have also been questioned. These have
continued while considered examples of the governmental prerogative in
deciding practical and beneficial arrangements for the society. The
national motto "In God We Trust" has been challenged as a violation, but the Supreme Court has ruled that ceremonial deism is not religious in nature. A circuit court ruling in 2001 affirmed Ohio's right to use as its motto a passage from the Bible, "With God, all things are possible", because it displayed no preference for a particular religion.
Jeffries and Ryan (2001) argue that the modern concept of
separation of church and state dates from the mid-twentieth century
rulings of the Supreme Court. The central point, they argue, was a
constitutional ban against aid to religious schools, followed by a later
ban on religious observance in public education. Jeffries and Ryan
argue that these two propositions—that public aid should not go to
religious schools and that public schools should not be religious—make
up the separationist position of the modern Establishment Clause.
Jeffries and Ryan argue that the no-aid position drew support
from a coalition of separationist opinion. Most important was "the
pervasive secularism that came to dominate American public life," which
sought to confine religion to a private sphere. The ban against
government aid to religious schools was supported before 1970 by most
Protestants (and most Jews), who opposed aid to religious schools, which
were primarily Catholic at the time.
Originalist critics of the modern concept of the "separation of
church and state" argue that it is contrary to the conception of the
phrase as the Founding Fathers understood it. But society and the law
have changed. In the case of Locke v. Davey (2004), briefs
before the Supreme Court, including by the U.S. government, argued that
some state constitutional amendments relating to the modern conception
of separation of church and state (Blaine Amendments) were motivated by and intended to enact anti-Catholicism.
J. Brent Walker, executive director of the Baptist Joint Committee, has said:
"The fact that the separation of church and state has
been supported by some who exhibited an anti-Catholic animus or a
secularist bent does not impugn the validity of the principle. Champions
of religious liberty have argued for the separation of church and state
for reasons having nothing to do with anti-Catholicism or desire for a
secular culture. Of course, separationists have opposed the Catholic
Church when it has sought to tap into the public till to support its
parochial schools or to argue for on-campus released time in the public
schools. But that principled debate on the issues does not support a
charge of religious bigotry."
Steven Waldman says, "The evangelicals [sic, Baptists and Methodists] provided the political muscle for the efforts of Madison and Jefferson,
not merely because they wanted to block official churches but because
they wanted to keep the spiritual and secular worlds apart." Frank
Lambert wrote
"Religious freedom resulted from an alliance of unlikely partners. New
Light evangelicals such as Isaac Bachus and John Leland
joined forces with Deists and skeptics such as James Madison and Thomas
Jefferson to fight for a complete separation of church and state."
James Madison was influenced by the struggle of Baptists in
Virginia before the Revolution, where young men were jailed for
preaching without a license from the Anglican Church. As a young lawyer,
Madison defended such men in court. Both Madison and Jefferson
incorporated religious freedom into the state constitution of Virginia.
Judge Charles C. Haynes wrote an OpEd in 2013 in The Washington Post, saying:
For James Madison, Thomas Jefferson
and other early supporters of church-state separation, authentic
religious liberty requires that government remain neutral toward
religion while simultaneously upholding the right of religious people
and institutions to participate fully in the public square of America.
Ignoring the role of religion ... is hardly “neutral.” On the contrary,
such exclusion sends a message of government hostility to the religious.
The First Amendment does not guarantee atheists or anyone else “freedom
from religion.” Frequent exposure to religious symbols and messages is
inevitable in our religiously diverse society. The First Amendment does,
however, guarantee “freedom from government-imposed religion” – a core
condition of liberty of conscience.
Politics and religion in the United States
A map of U.S. states with display of the national motto in public schools and government buildings as of August 2022
Display in schools mandated
Display in at least some government buildings mandated
Display in schools mandated if a copy of the motto is donated
Display in schools allowed
Display in government buildings allowed
Robert N. Bellah
has written that, although the separation of church and state is
grounded firmly in the constitution of the United States, this does not
mean that there is no religious dimension in the political society of
the United States. He used the term "Civil Religion"
to describe the specific relation between politics and religion in the
United States. His 1967 article analyzes the inaugural speech of John F. Kennedy:
"Considering the separation of church and state, how is a president
justified in using the word 'God' at all? The answer is that the
separation of church and state has not denied the political realm a
religious dimension."
In 2013, the House of Representatives voted overwhelmingly to retain "In God We Trust",
as the official motto of the United States. Only 9 members of Congress,
8 Democrats and 1 Republican, voted against the resolution.
A study conducted in May 2022 showed that the strongest support
for declaring the United States a Christian nation comes from
Republicans who identify as Evangelical or born-again Christians. Of this demographic group, 78% are in favor of formally declaring the
United States a Christian nation, versus only 48% of Republicans
overall. Age is also a factor, with over 70% of Republicans from the Baby Boomer and Silent Generations in support of the United States officially becoming a Christian nation. According to Politico, the polling also found that sentiments of white grievance
are highly correlated with Christian nationalism: "White respondents
who say that members of their race have faced more discrimination than
others are most likely to embrace a Christian America. Roughly 59% of
all Americans who say white people have been discriminated against ...
favor declaring the U.S. a Christian nation, compared to 38% of all
Americans."
In 2013, North Carolina politicians proposed a bill that could have seen North Carolina establish an official religion for the state.
A 2013 YouGov poll found that 34% of people would favor establishing
Christianity as the official state religion in their own state, 47%
would be opposed and 19% were undecided.
In June 2022, Republican Lauren Boebert
told a church audience, "The church is supposed to direct the
government. The government is not supposed to direct the church. That is
not how our Founding Fathers intended it. And I am tired of this
separation of church and state junk. It's not in the Constitution."
