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which, if taken out of context, could conceivably be used to support the modern Supreme Court's “no aid to religion" interpretation of the establishment clause. But Livermore's silence on the agreement between Sylvester, Huntington, and Madison on indirect nondiscriminatory assistance suggests that what he wanted had little to do with the aid/no aid issue. This is confirmed by the character of the arguments used by Elbridge Gerry to support Livermore.
Gerry, speaking next, immediately connected Livermore's proposed language to Madison's use of the word "national." Gerry objected to Madison's choice of language because it implied that the Constitution created one nation, with a national government, instead of a union of states ruled by a federal government with limited powers. He principally was concerned, in other words, with the symbolic importance of putting the word "national" in our fundamental legal document, a word which the 1787 Convention carefully left out of the original Constitution when referring to the government of the United States. Gerry's concern with the relationship between the federal and state governments, expressed here during the establishment clause debate, was a consistent theme raised by Gerry during the First Congress, as it had been during the Constitutional Convention.
The Select Committee's version of the establishment clause-with its deletion of the word "national” from Madison's original proposal-would have satisfied this objection of Gerry's, but the committee version was too ambiguous on other grounds. Gerry supported Livermore because Livermore went even further than the committee did toward satisfying Gerry's concern over the nation/state issue. Livermore's suggested prohibition of any federal law "touching" religion differed in two ways from the versions of the clause discussed until then. (1) Livermore's language apparently would have prohibited any form of federal aid to religion, including nondiscriminatory aid offered to achieve a properly delegated end. However, this would not have led to the destruction of religion that Sylvester and Huntington feared, because Livermore's language reaffirmed the power of the states to aid religion as they saw fit. (2) Indeed, state power would have been enhanced. The Federalist interpretation of "necessary and proper” was consistent with permitting federal laws to affect state establishments indirectly, as long as Congress was trying to achieve something it had the power to accomplish. Livermore would have prevented this, and thereby could have raised havoc with the powers of the new federal government. It was precisely for this reason that Gerry, ever watchful of the new government's power, supported Livermore.
Livermore and Gerry had struck a responsive chord, and Madison knew it. He spoke right after Gerry to deny that his insertion of the word "national” was meant to have any symbolic importance, and he withdrew his motion to include the word. But the damage to the Federalist position had been done, at least for that day. The Select Committee's language, which had been neutral on the nation/state issue, was defeated 31-20 by the anti-Federalist Livermore proposal.
The August 20 Reconsideration
The August 15 debate was the only one recorded on either of the religion clauses. But the conclusion of public debate did not put an end to the changes the members of the First Congress made in the wording of the amendment.
On August 20, Fisher Ames, of Massachusetts, suggested that the establishment clause should be returned to the Select Committee's version. His proposal also marked the first congressional appearance of the free exercise clause as we know it.
Congress shall make no law establishing religion, or to pre-
If the interpretation given here of the Livermore amendment is correct, the Ames version of the establishment clause represented a return to a compromise position on the nation/state issue: while there were no claims that the United States was one "nation," neither were there any positive assurances that Congress would not do anything that touched the state religious establishments. This compromise, however, was not to be the last word on the nation/state issue.
Ames's addition of the free exercise clause obviously was important, but because the Annals do not report any speeches on the proposal, it is difficult to determine its meaning. What was the relationship between the "free exercise'' and the "rights of conscience" clauses in Ames's proposal? Were they redundant? Was the phrase "free exercise" meant to suggest that something more than rights of conscience or belief were to be protected? If so, what did the word "exercise" mean? Since Madison did use the word "worship" in his first version of the religion clauses, did "exercise" refer to the utterance and expression of belief through worship? If so, was the idea of worship understood to be limited to traditional modes of public, congregational prayer, or were other forms of expressive activity and/or religiously motivated behavior to be protected as well? Without any legislative record it is
281 Annals 766 (August 20, 1789).
impossible to answer these questions without referring to noncongressional contemporary sources. We shall turn to these later.
Although there was no floor debate on Ames's motion, there must have been considerable discussion of it off stage before it was introduced. The House accepted the motion of August 21, with no apparent controversy or counterproposal. On August 24, after some minor stylistic revision, the House sent the Ames's version to the Senate as its final version of the religion amendment.29
The principal Senate debate on the amendment apparently took place on September 3. We have to say "apparently' because Senate floor debates during the early Congresses were kept secret.
The Ames amendment must have provoked controversy in the Senate, since several alternative versions were suggested in its place. The votes on these seem to have been close, because competing versions were passed and then defeated again in fairly rapid order. Unfortunately, the Senate Journal does not even give us vote divisions; all we are told is whether a given motion passed or was defeated.
The first substitute amendment to be offered in the Senate on September 3 read as follows:
Congress shall make no law establishing one religious sector
conscience. 30 This version dropped the free exercise clause, while it made the establishment clause completely unambiguous on the permissibility of nondiscriminatory aid. It was defeated at first, but then was accepted by the Senate after reconsideration. But that did not end the matter. After the Senate rejected a motion offered on that same day to eliminate the religion amendment entirely, it then rejected two versions of the amendment that were similar to the one they had just accepted. The two defeated amendments read:
Congress shall not make any law infringing the rights of
Congress shall make no law establishing any particular
291 Annals 779. For receipt by the Senate, see Journal of the First Session of the Senate, p. 60 (August 25, 1789). (Hereinafter cited as 1 S. Jour.)
ing the free exercise thereof, nor shall the rights of conscience
be infringed.32 The parliamentary status of the version that had passed earlier in the day is left mysterious by the Journal. But whatever its status, the succession of amendments offered makes it clear that both the wording of the establishment clause and the very presence of the free exercise clause were being debated. The Senate ended the day by accepting most of the Ames version, after striking the seemingly redundant clause, “nor shall the equal rights of conscience be infringed." At the end of September 3, the Senate version of the amendment read:
Congress shall make no law establishing religion, or prohibit
ing the free exercise thereof.33 This did not satisfy some senators, who wanted to spell out the particular relationships between government and religion that they considered to be establishments. On September 9, the Senate embodied these concerns in the narrowest version of the amendment we have seen so far:
Congress shall make no law establishing articles of faith or a
mode of worship, or prohibiting the free exercise of religion. 34 This was the religion amendment that the Senate sent back to the House.
The Meaning of the Final Language
The House refused to accept the Senate's changes in the Bill of Rights and asked for a conference.35 The Annals do not give the House's reasons for rejecting the Senate's version of the religion amendment, but reasons come to mind readily. Madison's understanding of the kinds of governmental activities that should be prohibited was much broader than the understanding implied by the Senate amendment. At least part of Madison's broader conception was accepted by most members of the House.
The conference committee for the Bill of Rights was a strong one, composed of Representatives James Madison (Va.), Roger Sherman (Conn.), and John Vining (Del.), chairman of the House's Select Com
32 Ibid. 33Ibid. 3*Ibid., p. 77 (September 9, 1789). The Senate defeated the amendment that would have prohibited the states from infringing on the rights of conscience. Ibid., p. 72 (September 7, 1789).
mittee, and Senators Oliver Ellsworth (Conn.), Charles Carroll (Md.), and William Paterson (N.J.).36 The House members seem to have had their way on the religion amendment. The version that came out of the conference was essentially the Ames version with one significant alteration:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof. The conference committee's language was accepted by the House on September 24,37 and by the Senate on September 25.38
The final wording of the amendment embodied key compromises on both the nation/state and the aid/no aid issues, compromises which were made possible by the more important underlying agreement on the need to pass a bill of rights before time pressures made passage that year impossible. The most important compromise on the aid/no aid issue involved the use of the word "establishment" without such qualifying phrases as “religious doctrine" or "articles of faith." This formulation satisfied Madison's desire to prohibit indirect forms of discriminatory religious assistance as well as the direct establishment of a national church. At the same time, the phrase "an establishment" seems to ensure the legality of nondiscriminatory religious aid. Had the framers prohibited "the establishment of religion," which would have emphasized the generic word "religion," there might have been some reason for thinking they wanted to prohibit all official preferences of religion over irreligion. But by choosing "an establishment" over "the establishment," they were showing that they wanted to prohibit only those official activities that tended to promote the interests of one or another particular sect.
Thus, through the choice of "an" over "the," the conferees indicated their intent. The First Congress did not expect the Bill of Rights to be inconsistent with the Northwest Ordinance of 1787, which the Congress reenacted in 1789. One key clause in the Ordinance explained why Congress chose to set aside some of the federal lands in the territory for schools: "Religion, morality, and knowledge," the clause read, “being necessary to good government and the happiness of mankind, schools and the means of learning shall forever be encouraged."'39 This clause clearly implies that schools, which were to be built on federal lands with federal assistance, were expected to promote
30Stokes, Church and State, vol. 1, pp. 546-47. 371 Annals 913 (September 24, 1789). 381 S. Jour. 88 (September 25, 1789). 191 Stat. 50, 52 (1789), Art. III.