Constitutional Convention, Ratification, and the Bill of Rights

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Constitution adopted by the Constitutional Convention in 1787 was largely silent on matters of religion.1 Nonetheless, matters of religious freedom remained on the Founder’s minds.2 By 1787, a number of states had adopted constitutions containing some protections for religious freedom, though not all were as broad in scope as the ratified First Amendment.3 Some state constitutions seemingly limited protections for religious freedom to certain types of believers.4 Furthermore, as discussed elsewhere, some of those states still supported religious establishments,5 even as other constitutional provisions limited some aspects of state establishments.6 North Carolina’s constitution, for example, granted freedom of conscience and forbade an “establishment of any one religious church or denomination in this State, in preference to any other,” but further provided that the constitution did not “exempt preachers of treasonable or seditious discourses, from legal trial and punishment.” 7

During the debates over ratifying the Constitution, both proponents and opponents argued for the addition of a bill of rights, frequently citing religious freedom as one of the rights that should be expressly protected.8 Seven states considered amendments expressly protecting religious freedom, and four states ratified the Constitution only after officially recommending such amendments.9 Virginia, for example, proposed an amendment stating that “all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and . . . no particular religious sect or society ought to be favored or established by Law in preference to others.” 10

James Madison, a key figure in the framing and adoption of the Constitution and the First Amendment, initially considered a bill of rights unnecessary.11 Among his objections to such an enumeration, he was concerned that express declarations “of some of the most essential rights” would be stated too narrowly.12 Focusing specifically on “the rights of Conscience,” he noted that some states wanted to deny equal rights to non-Christians, suggesting any public definition of religious freedom would be too narrow.13 Madison, however, was ultimately persuaded to introduce the amendments that would become the Bill of Rights.14

On June 8, 1789, Madison introduced a proposed constitutional amendment in the House of Representatives which read: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” 15 He further proposed an amendment that expressly prohibited states from “violat[ing] the equal rights of conscience.” 16 Explaining this second provision, Madison believed “every Government should be disarmed of powers which trench upon those particular rights,” and wrote that “State Governments are as liable to attack these invaluable privileges as the General Government is.” 17

On August 15, the House considered a version of the amendment that read: “no religion shall be established by law, nor shall the equal rights of conscience be infringed.” 18 Debate revealed differences of opinion on what such an amendment should accomplish, but some Members expressed concern that the amendment would unduly prohibit government support for religion—even by the states—and thereby abolish religion altogether.19 Two days later, the House considered the amendment providing that “no State shall infringe the equal rights of conscience,” along with other rights.20 Madison “conceived this to be the most valuable amendment in the whole list,” again arguing it was necessary to prevent both state and federal governments from infringing “these essential rights.” 21 Ultimately, the version passed by the House on August 24 read: “Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed.” 22 The House also passed the amendment providing that “[n]o state shall infringe . . . the rights of conscience.” 23

Debate in the Senate was not recorded, but on September 3, 1789, the Senate considered the constitutional amendments adopted by the House.24 The Senate adopted amendments rewriting the first provision to read: “Congress shall make no law establishing one religious sect or society in preference to others.” 25 On September 9, the Senate combined the religion amendments with the other rights that would ultimately be part of the First Amendment into a provision reading: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech . . . .” 26 This version was adopted and sent to the House the same day.27 The House amendment guaranteeing the rights of conscience against the states was not approved by the Senate.28

A joint committee was appointed to resolve the differences between the Chambers, and although there is no surviving record of the committee debate, on September 24, 1789, it reported the text that would become the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof of speech . . . .” 29 On December 15, 1791, this language was ratified by the requisite number of states.

1: Cf. Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489, 496–97 (describing three aspects of the 1787 Constitution as “tak[ing] into account religious freedom” : (1) the provisions permitting affirmations in lieu of oaths; (2) the Sunday Clause of the presidential veto; and (3) the No Religious Test Clause). See ArtVI.C3.2.1 Historical Background on Religious Test for Government Offices.
2: See, e.g., John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 70–71 (4th ed. 2016) (discussing Charles Pinckney’s draft Constitution containing a provision prohibiting the federal legislature from passing laws “on the subject of Religion” ).
3: See, e.g., Va. Const. of 1776, § 16 ( “[A]ll men are equally entitled to the free exercise of religion, according to the dictates of conscience; and . . . it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.” ); Mass. Const. of 1780, art. II ( “[N]o subject shall be hurt, molested, or restrained of conscience; and . . . it for worshipping God in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession or sentiments, provided he doth not disturb the public peace or obstruct others in their religious worship . . . .” ).
4: See, e.g., N.J. Const. of 1776, XIX ( “[N]o Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles . . . .” ); Penn. Const. of 1776, Declaration of Rights, II ( “Nor can any 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 . . . .” ); Md. Const. of 1776, Declaration of Rights, XXXIII ( “[A]ll persons, professing the Christian religion, are equally entitled to protection in their religious liberty . . . .” ).
5: Amdt1.2.2.2 England and Religious Freedom; Amdt1.2.2.4 Colonial Concepts of Religious Liberty. See also, e.g., Md. Const. of 1776, Declaration of Rights, XXXIII ( “[T]he Legislature may, in their discretion, lay a general and equal tax, for the support of the Christian religion . . . .” ).
6: See, e.g., N.J. Const. of 1776, XVIII ( “[N]or shall any person, within this Colony, ever be obliged to pay tithes, taxes, or any other rates, for the purpose of building or repairing any other church or churches, place or places of worship, or for the maintenance of any minister or ministry . . . .” ); id. at XIX ( “[T]here shall be no establishment of any one religious sect in this Province, in preference to another . . . .” ); Delaware Declaration of Rights, § 2 (Sept. 11, 1776), reprinted in 5 The Founder’s Constitution 70 (Philip B. Kurland & Ralph Lerner eds., 1987) ( “[N]o man ought or of right can be compelled to attend any religious worship or maintain any ministry contrary to or against his own free will and consent . . . .” ).
7: N.C. Const. of 1776, art. XXXIV; Declaration of Rights art. XIX.
8: For example, writing from France, Thomas Jefferson argued the need for such protections while otherwise praising the document. See, e.g., Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), https://founders.archives.gov/documents/Jefferson/01-12-02-0454; Letter from Thomas Jefferson to William Stephens Smith (Feb. 2, 1788), https://founders.archives.gov/documents/Jefferson/01-12-02-0590. See also, e.g., Brutus II (Nov. 1, 1787), reprinted in XIII Commentaries on the Constitution 525–26 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (discussing the importance of rights of conscience and the need for a bill of rights); John Leland, Objections to the Constitution (Feb. 28, 1788), reprinted in The Sacred Rights of Conscience 409 (Daniel L. Dreisbach & Mark David Hall eds., 2009) (arguing that the proposed Constitution did not sufficiently protect religious liberty).
9: See Carl H. Esbeck, supra note 1, at 511. For the text of the proposals, see The Sacred Rights of Conscience, supra note 8, at 415–17.
10: Amendments Proposed by the Virginia Ratifying Convention (June 27, 1788), in The Sacred Rights of Conscience, supra note 8, at 416.
11: Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), https://founders.archives.gov/documents/Madison/01-11-02-0218.
12: Id.
13: Id. But cf., e.g., Letter from James Madison to John Brown (Aug. 23, 1785), reprinted in Jefferson & Madison on Separation of Church & State 75 (Lenni Brenner, ed., 2004) (giving advice on Kentucky’s Constitution, saying it might restrain the legislature “from meddling with religion” ).
14: One important figure pushing for express guarantees of religious liberty was John Leland, who mounted a political challenge to Madison and ultimately exacted a guarantee that Madison would propose an amendment protecting religious liberty. See, e.g., Gregory C. Downs, Religious Liberty That Almost Wasn’t: On the Origin of the Establishment Clause of the First Amendment, 30 U. Ark. Little Rock L. Rev. 19, 21, 27 (2007).
15: 1 Annals of Cong. 451 (1789).
16: Id. at 452.
17: Id. at 458.
18: Id. at 757.
19: See id. at 757–59.
20: Id. at 783. Informing this fear that voluntarism would lead to the abolition of religion is the fact that at this time, most of the history of religion involved some level of state sponsorship of religion. See, e.g., Amdt1.2.2.1 Introduction to the Historical Background on the Religion Clauses; Amdt1.2.2.3 State-Established Religion in the Colonies.
21: Id. at 784.
22: Congress Creates the Bill of Rights, Nat’l Archives 31, https://www.archives.gov/files/legislative/resources/bill-of-rights/CCBR_IIB.pdf (last visited June 3, 2022).
23: Id. at 140.
24: S. Journal, 1st Cong., 1st Sess. 70 (1789).
25: Id.
26: Id. at 77. The Senate rejected alternative drafts which would have, for example, spelled out that Congress could not establish any particular sect in preference to another. Id. at 70.
27: Id. at 77–78.
28: Id. at 72.
29: Id. at 87; see also 1 Annals of Cong. 948 (1789).