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The Original Separation of Church and State in America

Published online by Cambridge University Press:  03 February 2016

Richard J. Hoskins
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Extract

Religious freedom in America is guaranteed by the first sixteen words of the Bill of Rights:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

This simple declaration is pivotal. Its adoption in 1791 was the culmination of an era just as surely as it opened another. The first amendment has inspired almost 200 years of judicial history in which the United States Supreme and lower courts have attempted to fill these plain words with specific content. Its passage climaxed nearly as long a period of significant colonial history. An understanding of that history is indispensable to the interpretation of the first amendment since, as the Supreme Court has said:

No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.

Type
Special Section—Religion and American Public Life
Information
Journal of Law and Religion , Volume 2 , Issue 2 , 1984 , pp. 221 - 239
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1984

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References

1. U.S. Const, amend. I.

2. Everson v. Board of Education, 330 U.S. 1, 33 (1947) (Rutledge, J., dissenting).

3. Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for this faith or his worship, that the legislative 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.

Jefferson, T., Letter of 01 1, 1802, in 16 The Writings of Thomas Jefferson 281–82 (Bergh, A. ed. 1905)Google Scholar.

4. This is not to ignore that late eighteenth-century heirs to New England Puritanism were able to weave Puritan notions of covenant into Enlightenment ideas of individual freedom. In this regard, the correspondence of John Adams and Thomas Jefferson is illuminating. See. M. Peterson, Adams and Jefferson: A Revolutionary Dialogue (1976). In effect, the “city on a hill” was expanded from Puritan New England to the new liberal republic.

5. Tracy, D., Particular Classics, Public Religion, and the American Tradition 14 (unpublished manuscript)Google Scholar.

6. Letter to Lord Say and Seal 1636 in Morgan, E., Puritan Political Ideas 168–69 (1978)Google Scholar.

7. See Howe, M., The Garden and the Wilderness: Religion and Government in American Constitutional History (1965)Google Scholar.

8. Simpson, A., Puritanism in Old and New England 18 (1955)Google Scholar.

9. Id.

10. There were settlers before 1630, particularly in Salem, but in that year the charter and members of the Massachusetts Bay Company moved from England to the new world, and the settlement of the colony began in earnest. Population grew rapidly in the 1630's, largely because of stepped-up persecution of Puritans in England. After the establishment of Cromwell's Commonwealth, immigration from England slowed.

11. Miller, P., The New England Mind: The Seventeenth Century 439–440 (1939)Google Scholar.

12. In the summary of government which follows, and in other references to government herein, I have relied primarily on the following sources: Winthrop, J., The History of New England From 1630 to 1649, 2 vols. (Savage, James ed. 1853)Google Scholar; Miller, supra note 11; Miller, P. & Johnson, T., 1 The Puritans: A Sourcebook of Their Writings 181–280 (revised edition 1963)Google Scholar; Morison, S., The Intellectual Life of Colonial New England 177–209 (1956)Google Scholar; Morgan, E., Puritan Political Ideas 72–250 (1978)Google Scholar; Morgan, E., The Puritan Dilemma (1958)Google Scholar; Haskins, G., Law and Authority in Early Massachusetts (1960)Google Scholar; Friedman, L., A History of American Law 28–90 (1976)Google Scholar; Rutman, D., Win-Throp's Boston (1965)Google Scholar.

13. See Morgan, supra note 12, at 90-92. This dramatic expansion of political power to all church members was also, of course, a limitation to church members. The decision not to extend suffrage to the unregenerate was confirmed by the General Court in May 1631. Dunn, , John Winthrop Writes His Journal, 41 Wm. & Mary Q. 185, 197 (1984)Google Scholar.

14. 1 Winthrop, supra note 12, at 361-62.

15. Until 1632, the governor and lieutenant-governor were elected by the assistants from their own number; the freemen elected 20 assistants rather than 18 but had no say over who would become the two chief officers of the colony. In 1632 this was changed so that the freemen directly elected 18 assistants, the governor and lieutenant-governor. Morgan, supra note 12, at 90, 110.

16. The magistrates’ judicial duties included sitting individually as judges in various local courts and in groups of three at the monthly Court of Assistants, a first-level appellate court.

17. The effect of this change was, of course, to give the assistants and deputies veto power over each other's actions. The deputies, always vigilant for signs of despotic ambition by the magistrates, considered this an expansion of their power and a check on that of the assistants. The assistants, on the other hand, were relieved to gain veto power over the deputies, who were numerically superior to the magistrates and could outvote them in a unified assembly. See Morison, S., Builders of the Bay Colony 248 (1930)Google Scholar.

18. Winthrop, supra note 12, at 280 (entry of May 1645).

19. Quoted in Miller, supra note 12, at 452 (emphasis in original).

20. Sabine, G., A History of Political Theory 184 (3d ed. 1965)Google Scholar.

21. Id. at 185-86.

22. 26 Henry VIII, C. I (1534).

23. Mead, S., The Nation with the Soul of a Church 54 (1975)Google Scholar.

24. Id. at 55. The influence of Calvinism on the polity of seventeenth century Massachusetts Bay, and particularly on the church-state relationship, suggests a comparison to sixteenth century Geneva under the direct influence of Calvin himself. There are in fact some parallels in the scrupulous (if limited) separation of the two spheres. Professor Monter notes:

Calvin's Geneva … [was not] governed by her clergy; … Geneva was in theory governed by God through a balance of spiritual and secular powers, through clergy and magistrates acting in harmony. In the sixteenth century, the intimate association of the ecclesiastical and the secular government of a community was generally assumed to be both natural and desirable. Furthermore, the sphere of secular government was almost without exception the wider of the two. Geneva scarcely constitutes an exception to this rule.

Monter, E., Calvin's Geneva 144 (1967)Google Scholar. The civil government of Geneva, headed by the Small Council or Messieurs de Geneve (limited to 25 men) and the monthly assembly of the Two Hundred, was firmly in the control of merchants, not ministers:

Genevan magistrates were deep-rooted, hard-working, but unlettered men, who were incapable of maintaining a dialogue with their pastors and who often had the practical man's impatience with legal or theological subtleties.

Id. at 146-47.

25. Even before the death of John Winthrop, English Puritans criticized the intolerance in Massachusetts Bay. In June 1645, thirteen leading independent ministers in England protested in a letter to the General Court that the law banishing Anabaptists was ‘an embarrassment to the Independent cause in England.’ Miller, P., Errand into the Wilderness 13–14 (1956)Google Scholar.

26. The Journal of John Winthrop is available in two editions, one Winthrop's Journal, “History of New England,” 1630–1649, 2 vols. (Hosmer, James Kendall ed. 1853)Google Scholar, and one edited by James Savage, supra note 12. I have used the Savage edition. A new edition is scheduled for publication in 1985 by the Massachusetts Historical Society edited by Professor Richard S. Dunn. For a useful account of the history of the Journal and its subsequent publications, see Dunn, , John Winthrop Writes His Journal, 41 Wm. & Mary Q. 185 (1984)CrossRefGoogle Scholar.

27. Supra note 6.

28. 1 Winthrop, supra note at 255-56 (entry of March 9, 1636-37).

29. Id.

30. Id. at 299-300 (entry of November 1637).

31. Id.

32. Id.

33. Id. at 97 (entry of July 1632).

34. Morgan, supra note 47, at 95-96.

35. [N]o religious test shall ever be required as a qualification to any office or public trust under the United States.

U.S. CONST, art. VI. See also Everson v. Board of Education, 330 U.S. 1, 15-16 (1947):

[Under the Constitution] [n]o person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance.

36. 2 Winthrop supra note 12, at 46-47 (entry of June 1641).

37. Id. at 47.

38. Supra note 29 at 12, and accompanying text.

39. 2 Winthrop, supra note 12, at 19-21 (entry of October 1640).

40. Infra note 45 and accompanying text.

41. 1 Wintrhop, supra note 12, at 390-92 (entry of December 3, 1639).

42. Infra note 61 and accompanying text.

43. Id. at 391.

44. In the discussion of the fundamentals of covenant which follows, I have relied on numerous sources (since virtually anything written by, or about, New England Puritans touches upon the covenant nature of their theology and public life), but the most authoritative source remains Miller, supra note 11, chapters 13-16.

45. 1 Winthrop supra note 12, at 191 (entry of May 6, 1635).

46. Body of Liberties, § 2. The Body of Liberties is published in Morgan, supra note 12, at 178-203.

47. Id. § 1.

48. Id. § 7.

49. Id. § 12.

50. Id. § 26.

51. Id. § 9.

52. Id. § 42.

53. Id. § 46.

54. Id. § 47.

55. Id. § 48.

56. 7d. §§ 79-84, 89-93.

57. Id. § 58.

58. Id. § 59.

59. Id. § 60.

60. Id. § 95(9). See also § 95(8).

61. Id. § 95(10).

62. These have been reproduced in facsimile from the 1648 edition by the Huntington Library, San Marino, California, 1975.

63. See Ahlstorm, S., A Religious History of the American People 155–56 (1972)Google Scholar.

64. Smith, H., Handy, R., & Loetscher, L., I American Christianity: An Historical Interpretation with Representative Documents 139 (1960)Google Scholar.