The Text

After the 1787 Constitutional Convention, the States had to decide whether or not to ratify the draft Constitution.  The lack of a Bill of Rights was of considerable concern for many of the states. To help remedy this, State conventions drafted proposed amendments protecting various rights, including religious liberty.

While the language of each proposed religious liberty provision varied, one phrase was used repeatedly: rights of conscience.  Pennsylvania, New Hampshire, Virginia, and New York all included language protecting the “right” or “dictates of conscience.”  It was then up to the First Congress to pull from these suggestions and create a suitable amendment.

When Madison took up the call to draft a bill of rights, he included two religion clauses, both of which protected the “equal rights of conscience” from infringement.  After Madison, the proposal went to committee, which came up with three religion clauses, two of which specifically protected the “equal rights of conscience” from State and National infringement.  The House then took up consideration and, after significant debate, sent the following proposed amendment to the Senate for consideration:

Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.

The motion to adopt the House’s version was defeated in the Senate. Instead, three alternative drafts were proposed, all of which protected the “rights of conscience” from infringement. All three of these drafts were defeated and the Senate eventually agreed upon the following version:

Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion . . .

The House rejected this version. A joint committee of three senators and three representatives then drafted the language that would eventually become part of the First Amendment:

Congress shall make no Law respecting an establishment of Religion, or prohibiting the free exercise thereof.

Among the authors of the First Amendment, James Madison and Thomas Jefferson possessed an outsized influence.  Their substantive views are captured in two of today’s readings, and Madison’s Memorial and Remonstrance is frequently cited by the Supreme Court when discussing the Religion Clauses. The two mid-twentieth century cases below draw from Jefferson and Madison.

As you read, consider: Are there any drawbacks to focusing so heavily on Jefferson and Madison? How relevant are these Founding-era writings in the twenty-first century? How relevant should they be?

Reading Assignment:

  • Thomas Jefferson, A Bill for Establishing Religious Freedom (1779)

  • James Madison, Memorial and Remonstrance against Religious Assessments (1785)

  • McGowan v. Maryland, 366 U.S. 420 (1961)

  • Braunfeld v. Brown, 366 U.S. 599 (1961)

Optional Reading: