Adopting the First Amendment for religious freedom

Rep. Madison of Virginia in the First Congress on June 8, 1789, proposed a series of amendments to the Constitution that evolved into the Bill of Rights.

The Senate began debate on the House amendments on September 3 and continued through September 9. The debate was conducted in secrecy and no record exists but the bare account of motions and votes in the Senate Journal. So it was several months before the first Congress started working on the Bill of Rights!

According to the record of September 3, four motions were defeated:

  • The first motion would have made the amendment read, “Congress shall make no law establishing one religious sect or society in preference to others.”
  • A second motion to kill the amendment was defeated.
  • A motion was made to change it to read, “Congress shall not make any law infringing the rights of conscience, or establishing any religious sect or society.”
  • The final defeated motion restated the same thought differently, “Congress shall make no law establishing any particular denomination of religion in preference to another.”
  • The Senate then adopted the language of the House, “Congress shall make no law establishing religion…”

The failure of these three statements, each of which seemed to express a narrow intent, and the adoption of the House version prove that the Senate intended something broader than merely a ban on preference to one sect.

Six days later when the Senate returned to the clause, it altered the House amendment to read, “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion…” Like the three previously defeated motions, this one would ban acts that prefer one denomination over others or that establish a single state church.

The Senate’s wording provoked the House to take action that made its intent clear. In voting on the Senate’s proposed amendments, the House accepted some, and it rejected others, including the Senate’s article on religion. To resolve the disagreement between the two branches, the House proposed a joint conference committee. The Senate refused to recede from its position but agreed to the proposal for a conference committee. The committee was a strong and distinguished one that consisted of Madison as chairman of the House conferees, joined by Sherman and Vining, and Ellsworth as chairman of the Senate conferees, joined by Paterson and Carroll. Four of the six men had been influential members of the Constitutional Convention. The House members of the conference flatly refused to accept the Senate’s version of the amendment on religion, indicating that the House would not be satisfied with merely a ban on preference of one sect or religion over others. The Senate conferees abandoned the Senate’s version, and the amendment was redrafted to give its present phraseology. On September 24, Ellsworth reported to the Senate that the House would accept the Senate’s version of the other amendments provided that the amendment on religion “shall read as follows, 'Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof.'"

On the same day, the House sent a message to the Senate verifying Ellsworth’s report. On the next day, September 25, the Senate by a two-thirds vote accepted the condition laid down by the House. Congress had passed the establishment clause.

—Leonard Levy, The Establishment Clause:
Religion and the First Amendment,
1986, pp 75ff