Still looking? Again, here’s how to find “separation of church and state” in the Constitution


It’s an election year. People get crazy. I’ve already heard from a dozen wacko candidates that “separation of church and state isn’t in the Constitution.”

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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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. Especially if one understands that the Constitution sets up a limited government, that is, 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. 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.

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.

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10 Responses to Still looking? Again, here’s how to find “separation of church and state” in the Constitution

  1. [...] Still looking? Again, here’s how to find “separation of church and state” in the C… (timpanogos.wordpress.com) [...]

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  2. James Kessler says:

    To quote:

    The individual was using it to argue that the inalienable rights to Life, Liberty and the pursuit of Happiness meant abortion violated U.S. Law as stated in the Declaration. Didn’t matter what I said, he couldn’t be shaken of the notion that the Declaration was not U.S. Law.

    Tell the person who is saying that the DOI has no legal status or binding in the United States. It’s not a legal document, it’s not a document that sets up any laws. It’s nothing more then a polite “**** you” to King George the 3rd. And that is really all it is.

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  3. [...] Still looking? Again, here’s how to find “separation of church and state” in the C… (timpanogos.wordpress.com) [...]

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  4. [...] conservative judicial activism of the Roberts Court.”“Separation of state and church is woven throughout the Constitution, part of the warp and woof.”“The fact that The Lord’s Prayer has been the only [...]

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  5. Ed Darrell says:

    In that context, your opponent is taking the Declaration wholly out of context.

    The decision in Roe v. Wade is predicated mainly on the right to privacy of the mother, and the sanctity of the doctor/patient relationship in protecting that right. It says, essentially, the government has no right in a woman’s womb — it’s her private territory, and what happens there is the business of no one but the woman, perhaps in consultation with the doctor. That right to privacy was first enunciated in Griswold v. Connecticut, a case that found the State of Connecticut had no overriding interest in knowing that a married couple or any other couple used contraceptives during intercourse (and so the state’s making contraceptives illegal was wrong, and its prosecution of anyone for possession contraceptives was also wrong).

    The right to privacy is not specifically mentioned in the Constitution, nor in the Declaration. In Griswold it’s based on “penumbral” rights, from the penumbra of the 3rd, 4th, 5th and 9th Amendments.

    So, in essence, your opponent is arguing that the 3rd, 4th, 5th and 9th Amendments are not legal because of his odd reading of the Declaration of Independence. There are other problems with that reasoning, too. But let it suffice that the Constitution is not nullified by the earlier Declaration of Independence.

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  6. Phillip Moon says:

    The individual was using it to argue that the inalienable rights to Life, Liberty and the pursuit of Happiness meant abortion violated U.S. Law as stated in the Declaration. Didn’t matter what I said, he couldn’t be shaken of the notion that the Declaration was not U.S. Law.

    My wife has run into the same kind of belief with some of her Facebook friends. It’s good for bashing taxes, abortion, government in general, whatever they can read into it.

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  7. Ed Darrell says:

    You’re right, that the Declaration has no formal role in U.S. law. At times courts have referred to it, rather as they would refer to a speech in Congress, in determining some party’s intent on some issue, or for historical reference.

    One of the old law reporters, back in the paper days, put the Declaration in with the U.S. Code, but as a preface, and not part of anything codified in U.S. law. I have encountered many people who argue that action made the Declaration “a part of U.S. organic law,” but of course it doesn’t.

    I’ve been in meetings with wacko Congressmen who wished to pass a law stating that the Declaration is part of U.S. law, too — which is one more indication that it is not.

    As a pragmatic matter, there is nothing in the Declaration that makes it a law today. It is not a treaty. It has glowing words, a sort of master “purpose clause,” not unlike the Preamble to the Constitution, but it calls for no action that could be construed as a law today. The 28 or so grievances against the Crown of England have no effect today. No one thinks the U.S. still a part of England (and again, pragmatically, the Declaration did not create a new nation, but instead declared the independence of 13 different nations).

    How could anyone use the Declaration as an official document? What in the world are they trying to do with it?

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  8. Phillip Moon says:

    I’ll be posting a link to this on my Facebook page. Well done, short and to the point.

    Now, I have one question, only slightly off topic but somewhat connected.

    I have, on more than one occasion tried to explain that The Declaration of Independence, while an important historical document, is not a legal and binding document of the United States of America, which didn’t exist at the time of its acceptance
    .
    We are beholding to it, but it lays down no law or other item binding to Americans. Am I right on this, and given that I’ve run into people who try to use it as an official document, maybe one day you could write about it, too.

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  9. You also don’t find “everyone has the right to own a gun free of regulation” either. The 2nd amendment is very specific on who can have a gun and why.

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  10. flatlander100 says:

    You won’t find the phrases “checks and balances” or “separation of powers” or “states’ rights” in there either, but that doesn’t stop those now whining about “separation of church and state is not in the Constitution” from invoking them as fundamental constitutional principles when it suits their purpose.

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