Introductory Commentary, John Adams, 1965
I. Memorial & Remonstrance Against Religious Assessments
James Madison, 1785
Thomas Jefferson, 1779
Thomas Jefferson, 1802
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”
First Amendment to the
Constitution of the United States
Containing the foregoing words, the Bill of Rights to the Constitution of the United States was proposed by Congress on September 25, 1789 and presented to the several states for ratification. Through the years it has been necessary to subject these words, as well as other portions of the Constitution, to interpretation in order to secure a meaningful constitutional precept upon which we, as a people, may guide our actions in religious matters coming properly within the purview of the First Amendment.
In our constitutional framework this responsible task has been accorded to the Supreme Court of the United States. During the course of American history the Supreme Court has rendered approximately 50 decisions which relate significantly to either the “establishment” clause or the “free exercise” clause. Some of these decisions are more important than others. Yet each in some way contributed to the evolving mosaic which describes the constitutional relationship of religion and government in our society. Future decisions will further detail this relationship in years to come.
In its decisions the Supreme Court has found it imperative to delve into this country's historical settings, to ascertain a meaningful interpretation of these first sixteen words of the First Amendment. To insure a proper construction the Court has examined at length various documents, public pronouncements and speeches written or delivered either before or contemporaneously with the drafting of the First Amendment. Singular attention has been focused upon writings and speeches of the founders of our constitutional system, principally those of James Madison and Thomas Jefferson.
Of all the documents authored by these two gentlemen, three have been accorded special attention by the Supreme Court. Indeed, it may very well be said that these three writings have been decisive in directing the Court's interpretation of the religious clauses of the First Amendment. It is these three writings which have been included within this work.
The first of these documents is James Madison's Memorial and Remonstrance Against Religious Assessments, Written in 1785, this document opposed an Assessment Bill for religious instruction introduced the previous year in the Virginia General Assembly, but upon which Madison had maneuvered deferment of final consideration until the fall of 1785. In the interim the Memorial and Remonstrance was issued and circulated throughout the Commonwealth.
The Assessment Bill as introduced sought only to benefit a single church. This preference incurred the opposition of other sects. It was, therefore, amended to pacify the dissentient groups by providing for a general assessment to support religious education, the right being given to each taxpayer to designate which church should receive his share of the tax.
The Memorial and Remonstrance assailed the Assessment Bill in its amended form. Opposition to the proposed legislation was aroused, bringing a flood of protest petitions. Madison later recalled that his Memorial and Remonstrance “met with the approbation of the Baptists, the Presbyterians, the Quakers and the few Roman Catholics, universally; of the Methodists, in part; and even of not a few of the Sect formerly established by law.” Madison's “Detached Memoranda”, 3 Wm. and Mary Q. 534,551,(1946).
So eloquent and persuasive were Madison's arguments that, largely due to his efforts, the Assessment Bill died ignominiously in committee in December, 1785.
Recognizing Madison's leading role in the drafting of the Bill of Rights four years later, and particularly his role in formulating the religious clauses, the United States Supreme Court has in its decisions repeatedly accorded the Memorial and Remonstrance pre‑eminence in interpreting the religious clauses of the First Amendment. Indeed, Mr. justice Frankfurter described this document as “an event basic in the history of religious liberty,” McCollum v. Board of Education, 333 U.S. 203, 214 (1948), while Mr. justice Rutledge stated “the Remonstrance is at once the most concise and the most accurate statement of the views of the First Amendment's author concerning what is 'an establishment of religion'.” Everson v. Board of Education, 330 U.S. 1, 37 (1947).
The second document included within this work reflects the combined talents of both Madison and Jefferson. It is the Bill for Establishing Religious Freedom, introduced into the Virginia General Assembly by Jefferson in June of 1779. The Bill failed of enactment in successive legislative sessions until, following Madison's defeat of the Assessment Bill in December, 1785, Madison successfully steered the Bill for Establishing Religious Freedom to its enactment in January, 1786. The work today commonly is called “The Virginia Statute of Religious Freedom.”
At its passage Jefferson was in France, where he served as a minister from 1784 to 1789. In his autobiography, however, Jefferson made the following comment on the intended scope of this important enactment:
“The Bill for establishing religious freedom, the principles of which had to a certain degree, been enacted before, I had drawn in all the latitude of reason and right . . . where the preamble declares that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the words “Jesus Christ,” so that it should read, “a departure from the plan of Jesus Christ, the holy author of our religion;” the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and the Mahometan, the Hindu, and the infidel of every denomination.”
The authoritative influence of this Virginia statute in the interpretation of the religious clauses of the First Amendment was summarized by Mr. justice Black when, speaking for the Court, he said, “This Court has previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute.” Everson v. Board of Education, 330 U.S. 1, 13 (1947).
The third and final document included in this work was written by Jefferson while President of the United States. It is a letter replying to an address from a committee of the Danbury Baptist Association of Connecticut. In this letter, dated January 1, 1802, Jefferson in a single phrase articulated a word picture of the purpose of the religious clauses of the First Amendment ‑they built, he said, “a wall of separation between Church and State.”
Referring to this Jeffersonian statement and its meaning with respect to the First Amendment, the Supreme Court has recognized 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.” Reynolds v. United States, 98 U.S. 145, 164 (1878).
It is difficult to overstate the important role these three documents have played in the Supreme Court's interpretation of the religious clauses of the First Amendment.
In respect to the “establishment” clause, they were certainly instrumental in leading the Supreme Court to enunciate the following definitive statement of the scope of the clause:
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non‑attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.” Everson v. Board of Education, 330 U.S. 1, 15‑16 (1947).
Absent these documents and an awareness of the historic circumstances in which they were written, a different construction of the religious clauses might well have resulted. Thus a reading and understanding of these documents is basic to a full appreciation of the religious clauses of the First Amendment. Their message is timeless ‑ as important for today and tomorrow as yesterday.
August 15, 1965
John J. Adams
Associate Director, Americans United
To The Honorable The General Assembly of The Commonwealth Of Virginia. A Memorial and Remonstrance.
We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled “A Bill establishing a provision for Teachers of the Christian Religion,” and conceiving that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill,
1. Because we hold it for a fundamental and undeniable truth, “that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.” The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true, that the majority may trespass on the rights of the minority.
2. 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. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co‑ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free government requires not merely, that the metes and bounds which separate each department of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.
3. Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of the noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?
4. Because, the bill violates that equality which ought to be the basis of every law, and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached. If “all men are by nature equally free and independent,” all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an “equal title to the free exercise of Religion according to the dictates of conscience.” Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens; so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their religions unnecessary and unwarrantable? Can their piety alone be entrusted with the care of public worship? Ought their Religions to be endowed above all others, with extraordinary privileges, by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations, to believe that they either covet pre‑eminencies over their fellow citizens, or that they will be seduced by them, from the common opposition to the measure.
5. Because the bill implies either that the Civil Magistrate is a competent judge of Religious truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: The second an unhallowed perversion of the means of salvation.
6. Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself; for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them; and not only during the period of miraculous aid, but long after it had been left to its own evidence, and the ordinary care of Providence: Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre‑existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence, and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies, to trust it to its own merits.
7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries, has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry, and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest luster; those of every sect, point to the ages prior to its incorporation with Civil policy. Propose a restoration of this primitive state in which its Teachers depended on the voluntary rewards of their flocks; many of them predict its downfall. On which side ought their testimony to have greatest weight, when for or when against their interest?
8. Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the support of Civil Government only as it is a means of supporting Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within the cognizance of Civil Government, how can its legal establishment be said to be necessary to civil Government? What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established clergy convenient auxiliaries. A just government, instituted to secure & perpetuate it, needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.
9. Because the proposed establishment is a departure from that generous policy, which, offering an asylum to the persecuted and oppressed of every Nation and Religion, promised a luster to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthropy in their due extent may offer a more certain repose from his troubles.
10. Because, it will have a like tendency to banish our Citizens. The allurements presented by other situations are every day thinning their number. To superadd a fresh motive to emigration, by revoking the liberty which they now enjoy, would be the same species of folly which has dishonored and depopulated flourishing kingdoms.
11. Because, it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish Religious discord, by proscribing all difference in Religious opinions. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs, that equal and complete liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bonds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that “Christian forbearance, love and charity,” which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded should this enemy to the public quiet be armed with the force of a law?
12. Because, the policy of the bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift, ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the former! Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of revelation from coming into the Region of it; and countenances, by example the nations
who continue in darkness, in shutting out those who might convey it to them. Instead of leveling as far as possible, every obstacle to the victorious progress of truth, the Bill with an ignoble and unchristian timidity would circumscribe it, with a wall of defense, against the encroachments of error.
13. Because attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case where it is deemed invalid and dangerous? and what may be the effect of so striking an example of impotency in the Government, on its general authority.
14. Because a measure of such singular magnitude and delicacy ought not to be imposed, without the clearest evidence that it is called for by a majority of citizens: and no satisfactory method is yet proposed by which the voice of the majority in this case may be determined, or its influence secured. “The people of the respective counties are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assembly.” But the representation must be made equal, before the voice either of the Representatives or of the Counties, will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence, that a fair appeal to the latter will reverse the sentence against our liberties.
15. Because, finally, “the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience” is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consult the Declaration of those rights which pertain to the good people of Virginia, as the “basis and foundation of government,” it is enumerated with equal solemnity, or rather studied emphasis.
Either then, we must say, that the will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may control the freedom of the press, may abolish the trial by jury, may swallow up the Executive and judiciary Powers of the State; nay that they may despoil us of our very right of suffrage, and erect themselves into an independent and hereditary assembly: or we must say, that they have no authority to enact into law the Bill under consideration. We the subscribers say, that the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may on the one hand, turn their councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his blessing, may redound to their own praise, and may establish more firmly the liberties, the prosperity, and the Happiness of the Commonwealth.
James Madison, 1785
I. WHEREAS Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors; for the instruction of mankind; that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow‑citizens he has a natural right; that it tends only to corrupt the principles of that religion it is meant to encourage, by bribing with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:
II. Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
III. And though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with
powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right.
Thomas Jefferson, 1779
To Messrs. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.
The affectionate sentiments of esteem and approbation which you are so good as to express towards me on behalf of the Danbury Baptist association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to these duties, the discharge of them becomes more and more pleasing.
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 & 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.
I reciprocate your kind prayers for the protection and blessing of the common father and creator of man and tender you or yourselves and your religious association, assurances of my high respect and esteem.
Jan. 1, 1802
The Memorial and Remonstrance Against Religious Assessments is found in the Writings of James Madison, (Hunt Ed.) Vol. II pp. 183‑191.
The Bill for Establishing Religious Freedom is taken from XII Hening Statutes of Virginia 84‑86 (1823).
The letter to the Danbury Baptist Association is located in the Writings of Thomas Jefferson (Monticello Ed.), vol. XVI, pp. 281‑282.
 “Basic Documents Relating to the Religious Clauses of the First Amendment,” Library Series: Number One (Americans United for Separation of Church and State, Washington, D.C., 1965).
 Note: “Mahometan” is supposed to be understood as a Muslim, but Jefferson did not know that Muslims do not worship Muhammad.
 Autobiography of Thomas Jefferson, with an introduction by Dumas Malone (New York: G. P. Putnam's Sons, 1959), 58‑59.
 The Memorial and Remonstrance Against Religious Assessments is found in the Writings of James Madison, (Hunt Ed.) Vol. II, pp. 183‑191.
 The Bill for Establishing Religious Freedom is taken from XII Hening Statutes of Virginia 84‑86 (1823).
 The letter to the Danbury Baptist Association is located in the Writings of Thomas Jefferson (Monticello Ed.), Vol. XVI, pp. 281‑282.