How to find “separation of church and state” in the Constitution


It’s been at least 20 years since I first heard the old canard of an argument that “there’s no separation of church and state in the Constitution.”  I think I first heard it attributed to David Barton, which would make sense, since he doesn’t understand the Constitution, but neither does he fear sharing his misunderstandings.

It was an incorrect statement then, and it’s been incorrect since September 1787.  Separation of state and church is woven throughout the Constitution, part of the warp and woof.

Recently, latter-day Constitution ignorami repeat the old canard.

Toles cartoon on dangers of marrying church and state

Toles cartoon on dangers of marrying church and state

I was surprised to discover I’ve not posted this before on this blog.  So here’s a slightly-edited version of a response I gave many months ago to someone who made that silly claim, a basic description that I developed years ago to explain the issue, in speeches by members of the Senate Subcommittee on the Constitution:

Separation of church and state: It’s in the Constitution.

I don’t play a constitutional lawyer on television, I am one*, but it seems to me anyone can read the Constitution and see. One can see especially if one understands that the Constitution sets up a limited government, as Madison described, one that can do only what is delegated to it. The Constitution is a short document.

Where should you look to find separation of church and state in the Constitution?

First, look in the Preamble.  It is made clear that the document is a compact between citizens: “We the people . . . do ordain and establish this Constitution . . .” The usual role of God ordaining (in some western nations) is altered, intentionally. It is not God who establishes this government, but you and I, together. From the first words of the Constitution, there is separation of church and state.  The power of our government grows out of a secular compact between you and me, and 308 million other residents of the nation.   We have a government created by consent of the governed, as the Declaration of Independence said a just government should be.  It is not a government created by the will of God directly (though some, including the Mormons, argue it is divinely inspired).  We have no divine right kings or other monarchs under the Constitution.  The government is not the grantor of rights from God, but is instead the protector of the rights of citizens, whatever the source of the rights and whatever the rights.

Second, look in the key parts of the document itself.  Start with Article 1 The legislative branch is given no role in religion; neither is any religion given any role in the legislature. In Article 2, the executive branch gets no role in religion, and religion gets no role in the executive branch. In Article 3, the judicial branch gets no role in religion, and religion gets no role in the judicial branch. In Article 4, the people get a guarantee of a republican form of government in the states, but the states get no role in religion, and religion gets no role in state government. This is, by design of the founders, a perfect separation of church and state.

Third, in Article 6, the convention wrote the hard and fast rule that no religious test can be used for any office in government, federal, state or local, means that no official will have a formal, governmental role in religion, and no religion can insist on a role in any official’s duties.

Fourth, Amendment 1 closes the door to weasling around it: Congress is prohibited from even considering any legislation that might grant a new bureaucracy or a new power to get around the other bans on state and church marriage, plus the peoples’ rights in religion are enumerated.

Fifth: In 1801 the Baptists (!) in Danbury, Connecticut, grew concerned that Connecticut would act to infringe on their church services, or teachings, or right to exist. So they wrote to President Jefferson. Jefferson responded with an official declaration of government policy on what the First Amendment and Constitution mean in such cases. Jefferson carefully constructed the form of the device as well as the content with his Attorney General, Levi Lincoln, to be sure that it would state what the law was. This “letter” is the proclamation. It’s an official statement of the U.S. government, collected in the president’s official papers and not in his personal papers. Make no mistake: Jefferson’s letter to the Danbury Baptists was an official act, an official statement of the law of the United States. Jefferson intended it to assuage the Baptists in Danbury, to inform and warn the Connecticut legislatures, and to be a touchstone to which future Americans could turn for information. It was only fitting and proper for the Supreme Court to use the letter in this capacity as it has done several times.

Sixth: The phrase, “separation of church and state” dates back another 100 years and more, to the founding of Rhode Island. It is the religion/state facet of the idea of government by consent of the governed without interference from religious entities, expressed so well in the Mayflower Compact, in the first paragraphs of the Declaration of Independence, and carried through in the Constitution (see especially the Preamble, above).

No, the phrase “separation of church and state” never appears in the Constitution. The principles of separation of church and state are part of the warp and woof, and history, of the document, however. The law is clear, the law was clear, the law has always been clear, and denying the Constitution says what it says, won’t change it or make it go away.  You could just as easily point out that the word “democracy” or “democratic” never appears in the document, though we rely on democratic mechanisms and institutions to make it work.  You could point out that nowhere does it say that our national government is a republic, though it is.  The Constitution doesn’t say “checks and balances,” nor does it say “federalism.”  The Constitution doesn’t mention political parties.  The Constitution was written before the advent of broadcasting, and makes no mention of radio nor television, nor of the internet — but the First Amendment freedoms apply there anyway.  The Constitution doesn’t say “privacy,” though it protects your right to privacy.

You won’t find “separation of church and state” as a phrase in the Constitution.  If you read it, you’ll find that the concept of the separation of state and church can’t be taken out of the document, either — it’s a fundamental principle of our government.

More, and Resources:

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*  A non-practicing one.  We have way more than 50,000 lawyers in Texas.  That’s enough trouble for one lifetime.  Someone has to look out for the welfare of the world.

110 Responses to How to find “separation of church and state” in the Constitution

  1. Ellie says:

    Ed, you made my day with the “rabid Episcopalian.” Thanks! Hope you are well.

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  2. Ed Darrell says:

    Also, if you want to see what is the moral foundation for separation of church and state as explained in the Constitution, check out the writing by the rabid Episcopalian James Madison that stopped the re-establishment of religion in Virginia, the Memorial and Remonstrance.

    It’s a Christian view, so it may be unclear to you in parts. Ask away.

    See: https://founders.archives.gov/documents/Madison/01-08-02-0163

    It’s annotated. Read the footnotes, too.

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  3. Ed Darrell says:

    Your arguments are answered in the article above. Do you and me a favor and read it.

    For example, Jefferson wrote more than just a letter. He also wrote what became the Statute for Religious Freedom in Virginia — which is the parent of the First Amendment.

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  4. Sviatoslav says:

    “Separation of church and state” is a fraudulent “precedent”, no different from something like Roe v Wade. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” – this is easy to understand. Two things result from this – Congress is restricted from legislating, regulating or otherwise establishing legal preeminence of any religion as any sort of official religion of the state and interfering in any way with any American citizen’s free and open exercise of religion.

    Nowhere in this clause, this Amendment and the entire Constitution, do the words Separation Of Church And State appear. The so-called “Constitutional Principle” of “Separation Of Church And State” may not properly be called a Constitutional Principle since it may not be found anywhere in the Constitution. The Establishment Clause says nothing whatsoever about any such separation. The language is clear for all to see.That was the whole purpose for the Establishment Clause being put into the First Amendment of the National Constitution, as the Framers sought two things. First is to prohibit any Federal legal requirement for citizens to join any religion other than the Colonial one (the States, back then, had their own “official State religions” – various Christian denomination) to which they already belonged. Second, to have religious toleration established in Federal law for open practice or “Exercise” of their existing official and legal Colonial religions.

    The notion that the Framers intended any sort of restriction at all on any Church or Synagogue, or on any minister or theologian, is just plain ludicrous. Nor did they intend to put any restrictions on themselves regarding their public endorsements, who they supported, who contributed to their campaigns or anything else. Legislators and Presidents and Justices were perfectly free to quote Scripture, teach Sunday School, pray in public, lead public prayer, give government dollars to Churches and Church groups and organizations, or anything else they wanted to do. And they did these things. The Clause wasn’t intended to restrict religion, but to free it. It placed two and only two very specific restrictions on Congress, and absolutely no restrictions on anyone else.

    What Thomas Jefferson wrote was a private letter – not any kind of law. President Jefferson did not intend for any part of it to ever be construed as any new law or in any way become legally binding on anyone. Even if it literally did become binding, if you read it, you see that it says exactly and precisely what the Establishment Clause says. Few documents in history have been more misrepresented than this one. Obviously, President Jefferson wasn’t too crazy about the Church of England, but his letter shows that he respected the rights of those who claimed it as their own. Later that year President Jefferson signed into law a tax exemption for Churches in Alexandria County. The following year he made a treaty with the Kaskaskia Indians in which he pledged federal money to erect a Catholic Church for them and to provide some support their priest. Now, Jefferson wasn’t particularly fond of the Catholic Church. In fact, he wasn’t too fond of Protestantism either, since he was a Deist.

    In the Everson case, what Justice Black did was to make the “constitutional principle” out of thin air. Jefferson himself, and others, actually did the very things Black’s opinion said and pretended that they could not legally do. Jefferson’s wall of separation certainly did not mean that the government or members of the Government were thereafter prohibited from supporting or practicing or publicly espousing religion, or teaching Sunday School in their spare time. This decision brought about the exact opposite of what was intended by Jefferson and the other framers – direct government control of and interference with religion. This was a direct violation of the intention of the religion clause. The clause intention was to restrict government and free religion; this opinion restricted religion and made government supreme over it to some degree, and invented, out of nothing, a “Constitutional” legal wall of separation that had not previously existed, nor been intended by the Founders. The Founders used to begin all proceedings, public or private, with prayer, and they did so on the day following the ratification of the Bill of Rights; they certainly did not intend to place themselves or their successors in the position of not being able to pray publicly, invoke the name of God in public speeches, quote Scripture to any audience including school children, or teach religion in their spare time, perhaps at a public school. What they did intend was to not legislate religion, and to not allow the government to hinder or restrict or control religion or religious expression. Period.

    But this decision and “precedent” was done for one and one thing only. To enshrine secularism – the aggressive form of atheism – in government for the purpose of religious cleansing of the people. This assertion is supported by the common Left-leaning (to say the least) opinions of of the American “educators of the educators” (people like John Dewey, Abraham Maslow, Erich Fromm and others). State secularism must begin to be widely recognized for what it is – which is a religious persuasion officially established, promoted and enforced by the state; not by Congress, but by the Court. Its main agenda is religious cleansing, concentrating on Christianity, and, for the secularists, the ends justify the means.

    Consider how the Secularists/Separationists quite regularly ask you to put your faith aside when you step up to the blackboard, or podium, or jury box, or microphone, or voting booth, or whatever. I submit the notion that putting your faith aside for any reason, in any environment, for even an instant, is very strictly against your religion, if you have a real religion. It cannot be claimed that it should be done for any higher purpose, for there is and can be no higher purpose.

    I ask you to take a moment to quietly think about the idea of separation of Church and, not only state, but, anything at all. What moral purpose could there possibly be for you to put aside and disregard your deep religious beliefs, for a moment, or for an issue, or in an environment? Pick a time frame, pick a topic, pick a place, and think about it; perform a thought experiment. After having put aside your religious beliefs and your faith-based moral standards, and having considered the secular topic or made the secular decision or done the secular business, in the end, have your religious teachings and moral standards regarding the apparently vitally important secular topic changed? If not, then, why did you disregard them? So why would you ever be asked to put your religion aside? Simple. To get you to choose or decide or vote for something against your religion and/or against the religious moral basis of the people. In America, the national religious moral basis is the Western Culture Ethos, which forms the very foundation for our civil law. Now, American citizens are more and more forced to appear atheist – and the more involved they are in government, the more they are forced. I submit that Justice Black and the 1947 Court was out of order in the Everson decision. That it had no foundation in precedent or existing law, that it was an arbitrary and personal opinion, that it has had tragic consequences adversely affecting the morality of the American people and the integrity of the American government. It should therefore be overturned. The Supreme Court overstepped its bounds in establishing what amounted to new law, which is unrepresentative law. It is not within the duties of the Supreme Court to dictate new law by the method of establishing bogus legal precedent of use in suppressing open Christian religious exercise and Christian religious expression anywhere in America. Such religious suppression represents an unconstitutional violation of the First Amendment free exercise clause. And, yet, this made-up “precedent” has been and is being used today by our government to prevent us from praying in public, to take down our religious monuments and art, to stop us from the Constitutionally guaranteed right to exercise our religion, any time, anywhere. Yet “our” government does not hinder the public practice of such things as Islam and Satanism.

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  5. […] Yes it is. Separation of church and state resides in the Constitution.  Here’s a post from 2010 to help them find it. […]

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  6. Ed Darrell says:

    HOWEVER, you may not seize the school’s public address system to force others to listen to your praying. No establishment means, especially in schools, the Darrell Rule of Religious Freedom applies: Government may not tell when to pray, where to pray, what to pray for, how to pray, or who can pray.

    You may choose to pray at a football game. Christians wouldn’t (except to ward off injury); but you’re free to.

    If you are a teacher, or a coach, or a school official, your job is to be sure that the separation of church and state is upheld, to uphold the Constitution, and not attempt to micturate contempt on it.

    If you, as coach, start to pray, and players join in, you have failed in your duty, and you have cast contempt on America and freedom.

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  7. Tom says:

    You are, of course wrong. The intent is EXACTLY as it is written. They left England under religious persecution. The government had a religion there and you will participate. They in fact wrote EXACTLY what they meant. The State will make no law respecting an ESTABLISHMENT of religion…………..or prohibiting the free exercise thereof…..Pretty plain to understand…Especially the free exercise thereof. That means if I choose to pray at school before or after a game on SCHOOL property I can. That is what free exercise means…. And if players want to join in, the right to assemble plays right in to it all. There is no freedom FROM religon, just freedom OF religion and the right to FREELY express it

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  8. […] Yes it is. Separation of church and state resides in the Constitution.  Here’s a post from 2010 to help them find it. […]

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  9. Ed Darrell says:

    Mr. Weasley: It’s historical allusion, to demonstrate that Jefferson knew what he was talking about, to demonstrate that the concept was not foreign to the drafters of the Constitution nor to the ratifying conventions, but instead is a part of the warp and woof of American freedom — dating back at least to that document that most of the “It-Ain’t-In-There” crowd claim as a founding religious document. You know, those people who say “America must be a Christian nation hostile to other beliefs because it says so in the Mayflower Compact.”

    Otherwise, you’re generally on the right path.

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  10. Ed Darrell says:

    Mr. Weasley: It’s historical allusion, to demonstrate that Jefferson knew what he was talking about, to demonstrate that the concept was not foreign to the drafters of the Constitution nor to the ratifying conventions, but instead is a part of the warp and woof of American freedom — dating back at least to that document that most of the “It-Ain’t-In-There” crowd claim as a founding religious document. You know, those people who say “America must be a Christian nation hostile to other beliefs because it says so in the Mayflower Compact.”

    Otherwise, you’re generally on the right path.

    Like

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