The Debate in the House
Monday, June 8, 1789:
[James Madison speaking]: Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses to wit: 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.
Fifthly. That in article 1st, section 10, between clauses 1 and 2 be inserted this clause to wit: No state shall violate the equal rights of conscience, or freedom of the press, or trial by jury in criminal cases. (Annals of Congress, 1:434-435)
Saturday, August 15, 1789:
The House again went into a Committee of the Whole on the proposed amendments to the Constitution. Mr. Boudinot in the chair.
The fourth proposition being under consideration, as follows: Article 1. Section 9. Between paragraphs two and three insert 'no religion shall be established by law, nor shall the equal rights of conscience be infringed.'
Mr. SYLVESTER had some doubts of the propriety of the mode of expression used in this paragraph. He apprehended that it was liable to a construction different from what had been made by the committee. he feared it might be thought to abolish religion altogether.
MR. VINING suggested the propriety to transposing the two members of the sentence.
MR. GERRY said it would read better if it was no religious doctrine shall be established by law.
MR. SHERMAN thought the amendment altogether unnecessary, inasmuch as Congress had 'no authority whatever delegated to them by the Constitution to make religious establishments; he would, therefore, move to have it struck out.'
MR. CARROLL As the rights of conscience are, in their nature, a peculiar delicacy, and will little bear the gentlest touch of governmental hand; and as many sects have concurred in opinion that they are not well secured under the present constitution, he said he was much in favor of adopting the words. He thought it would tend more towards conciliating the minds of the people to the government than almost any other opinion he heard proposed. He would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community.
MR. MADISON said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforced the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion, that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.
MR. HUNTINGTON said that he feared, with the gentleman first up on this subject, that the words might be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction on it. The ministers of their congregations to the eastward were maintained by contributions of those who belong to their society; the expense of building meeting houses was contributed in the same manner. These things were regulated by bylaws. If an action was brought before a federal court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers or buildings of places of worship might be construed into a religious establishment.
By the charter of Rhode Island, no religion could be established by law; he could give a history of the effects of such a regulation; indeed the people were now enjoying the blessed fruits of it. He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and the free exercise of religion, but not to patronize those who professed no religion at all.
MR. MADISON thought, if the word 'National' was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combined together, and establish a religion, to which they would compel others to conform. He thought if the word 'National' was introduced, it would point the amendment directly to the object it was intended to prevent.
MR. LIVERMORE was not satisfied with the amendment; but he did not wish them to dwell long on the subject. He thought it would be better if it were altered, and made to read in this manner, that Congress shall make no laws touching religion, or infringing the rights of conscience.
MR. GERRY did not like the term National, proposed by the gentleman from Virginia, and he hoped it would not be adopted by the House. It brought to his mind some observations that had taken place in the Conventions at the time they were considering the present constitution. It had been insisted upon by those who were called anti-federalists, that this form of government consolidated the union; the honorable gentleman's motion shows that he considers it in the same light. Those who were called anti-federalists at that time, complained that they were in favor of a federal government, and the others were in favor of a National one; the federalists were for ratifying the constitution as it stood, and the others did not until amendments were made. Their names then ought not to have been distinguished by federalists and anti-federalists, but rats and anti-rats.
MR. MADISON withdrew his motion but observed that the words 'no National religion shall be established by law', did not imply that the government was a national one; the question was then taken on MR. LIVERMORE's motion, and passed in the affirmative 31 for it, and 20 against it. (Annals of Congress 1:729-731)
Monday, August 17, 1789:
The committee then proceeded to the fifth proposition:
Article I, Section 10 between the first and second paragraph, insert 'No state shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases.'
MR. TUCKER: this is offered, I presume, as an amendment to the constitution of the United States, but it goes only to the alteration of constitutions of particular states. It will be much better, I apprehend, to leave the state governments to themselves, and not to interfere with them more than we already do; and that is thought by many to be rather too much. I therefore move, Sir, to strike out these words.
MR. MADISON conceives this to be the most valuable amendment in the whole list. If there were any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments. He thought that if they provided against one, it was as necessary to provide against the other, and it was satisfied that it would be equally grateful to the people.
MR. LIVERMORE had no great objection to the sentiment, but he thought it not well expressed. He wished to make it an affirmative proposition; 'the equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any state.'
This transposition being agreed to, and MR. TUCKER'S motion being rejected, the clause was adopted. (Note: In the final wording of the amendments that were sent to the Senate the transposition had not taken place. No reason for that mistake is recorded). (Annals of Congress, 1:755)
Thursday, August 20, 1789:
On motion of MR. AMES, the fourth amendment was altered to read 'Congress shall make no law establishing religion or to prevent the free exercise thereof, or to infringe the rights of conscience.' This being adopted..." (Annals of Congress, 1:766)
The Debate in the Senate
All that is recorded of the debate over the religion clauses in the Senate of the First Congress is a list of motions and votes in the Senate Journal. Constitutional scholar Derek Davis summarizes the record as follows:
[The] amendment as submitted to the Senate...reflected a stylistic change that gave it the following reading: 'Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.' No record was left of the proceedings that brought about this stylistic change.
The Senate began deliberations on the House amendment on 3 September and continued through 9 September. The Ames amendment must have provoked controversy in the Senate, since several alternative versions were suggested in its place. In considering the House's draft, a Senate motion was first made to strike out 'religion or prohibiting the free exercise thereof,' and to insert, 'one religious sect or society in preference to others.' The motion was rejected, and then passed. Thus, the first new Senate version read, 'Congress shall make no law establishing one religious sect or society in preference to others, nor shall the rights of conscience be infringed.'
After further debate, the Senate rejected two alternative wordings. First, they rejected language providing, 'Congress shall not make any law, infringing the rights of conscience, or establishing any Religious Sect or Society." Second, they rejected the language providing, "Congress shall make no law establishing any particular denomination of religion in preference to another, or prohibiting free exercise thereof, nor shall the rights of conscience be infringed.'
Later the same day, 3 September, the Senate adopted a draft the treated religion more generically. 'Congress shall make no law establishing religion, or prohibiting the free exercise thereof.' Six days later, the Senate again changed its mind and adopted as its final form of the amendment, 'Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.'
The Senate version of the Amendment was sent to the House, which rejected it.
A House-Senate joint conference (Madison, Sherman, Vining representing the House, Ellsworth, Carroll, Paterson representing the Senate) was then created to resolve the disagreement over the religion amendment. A compromise amendment was eventually agreed upon as reported under the date of September 24, 1789. (Derek Davis, Original Intent, p. 60)
The Conference Committee
September 24, 1789:
The House proceeded to consider the report of a committee of conference, on the subject matter of the amendments depending between the two houses to the several articles of amendment to the Constitution of the United States, as proposed by this House; whereupon, it was resolved, that they recede from their disagreement to all the amendments; provided that the two articles, which, by the amendments of the Senate, are now proposed to be inserted as the third and eighth articles shall be amended to read as follows: Article three, 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.
On the motion, it was resolved, that the President of the United States be requested to transmit to the Executives of the several States which have ratified the constitution, copies of the amendments proposed by Congress, to be added thereto and like copies to the Executives of Rhode Island and North Carolina. (Annals of Congress, 1:913-914) http://members.tripod.com/~candst/tnppage/basic4a.htm