The Establishment Clause Was Never a Wall—It’s a Limit on Congress

Ask most people what the Establishment Clause means and you will get the same phrase: "separation of church and state." It rolls off the tongue like it is written somewhere in the Constitution. It is not. The First Amendment says something sharper, narrower, and far more useful-if we read it as written.

The text is plain. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Look at the first word. Not "the government." Not "the states." Not "no one shall." It says Congress. And it does not say "no law establishing religion." It says no law respecting an establishment of religion. Every one of those words carries weight.

For most of American history, that weight pointed in one direction: the Establishment Clause was a federalism clause, not a secularism clause. It was written to keep the new national government out of religion-not to use religion as an excuse for federal judges to rule every crèche, prayer, and religious school case in America. That is the forgotten reading of the Establishment Clause, and it is the one our constitutional republic desperately needs to recover.

The First Word Everyone Forgets

The First Amendment opens with "Congress." That was not an accident. The men who wrote and ratified the Bill of Rights had just finished arguing about the new federal government's powers. Their fear was not that a local school board would say "Merry Christmas." Their fear was that a distant national government would do to American congregations what the Crown and Parliament had done to dissenters.

At the time, several states had official, tax-supported churches. Massachusetts kept a Congregational establishment until 1833. Connecticut kept one until 1818. New Hampshire did not formally disestablish until 1819. If the First Amendment had meant "no government anywhere may ever touch religion," those state establishments would have been instantly unconstitutional-and the same states would never have ratified the amendment. The founders understood the amendment as a limit on Congress, leaving states free to order their own religious affairs.

Joseph Story, the great early commentator on the Constitution, said it plainly in his 1833 Commentaries on the Constitution of the United States: the whole power over the subject of religion "is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions." That is not secularism. That is federalism.

A Truce Between the States

The Establishment Clause is best understood as a truce. Some states had established churches; others did not. Some wanted a national church; many feared one. The First Congress considered language that would have flatly barred "establishing religion." But the final text-Congress shall make no law respecting an establishment of religion-was a different animal.

The word "respecting" means "concerning" or "with respect to." In other words, Congress may not legislate on the subject of religious establishment at all. It cannot create a national church, and it cannot tear down state churches. The national government was made incompetent in the entire field. The clause was not an endorsement of secularism; it was a guarantee that the federal government would stay out of a matter where it had no enumerated power anyway.

Madison and the other architects accepted this language precisely because religion was not a delegated power. In Federalist 45, Madison wrote that the powers of the federal government are "few and defined," while those left to the states are "numerous and indefinite." Religion belonged to the states, to the people, to the churches themselves. The Establishment Clause simply confirmed that absence of federal authority. It was a structural protection for liberty, not a promise of a religion-free public square.

The Wall That Wasn't in the Text

So where did "separation of church and state" come from? A private letter. Thomas Jefferson wrote to the Danbury Baptist Association in 1802, reassuring them that the federal government would not interfere with religious conscience. He used the phrase "wall of separation between Church & State." It was a letter, not a law, not a constitutional amendment, not even a Supreme Court opinion. And the context matters. Jefferson was explaining why he, as president, would not issue proclamations of thanksgiving and prayer-not because religion was unwelcome in public life, but because the federal government had no authority over religion one way or the other.

The same Jefferson who wrote that letter also authored the Virginia Statute for Religious Freedom. He never suggested that religious expression should be banished from the public square. Quite the opposite. He saw religious liberty as the first freedom, and he understood that liberty meant the state could not coerce belief, not that the state had to pretend religion did not exist.

It was only in the twentieth century-most notably in Everson v. Board of Education in 1947-that the Supreme Court turned Jefferson's metaphor into a constitutional command and applied it against the states. The result is the great inversion of the Establishment Clause. A provision that says Congress shall make no law respecting religion became a reason for the federal government to make national rules respecting religion constantly.

Modern Courts Invert the Clause

Think about what happens when a federal judge orders a county to remove a cross from a public park, or a school to stop a prayer before a football game. The judge is not simply "keeping government out of religion." The judge is creating a national rule respecting religion-how it may be displayed, when it may be spoken, what counts as too much. That is the very thing the first word of the First Amendment was meant to prevent.

Some will object that the Fourteenth Amendment incorporated the Establishment Clause against the states. But incorporation, even on its own terms, incorporates the right as originally understood-not a twentieth-century secularism test. The original clause did not say "no state shall ever acknowledge religion." It said Congress may not legislate on the subject. If that limitation is applied to the states, it bars a state from erecting an official church with coercive support. It does not authorize federal courts to scrub religion from public life.

The modern doctrine treats any public acknowledgment of faith as the first step toward a Church of England. But an "establishment of religion" meant something concrete: a state-supported church with legal privileges and coercive power. It did not mean a nativity scene in a town square, a student-led prayer, or a coach kneeling after a game. Those things may be contentious, but they are not establishments. Calling them that empties the word of its meaning and hands unelected judges a veto over every local religious tradition in America.

I am not arguing for a theocracy. The Free Exercise Clause protects all faiths-and no faith. But the Establishment Clause cannot be rewritten into a cudgel against religion. The text will not bear it, and the history will not support it. As Justice Scalia put it in his dissent in Lee v. Weisman, the modern doctrine is "a bulldozer of its own making," leveling every public acknowledgment of God because it offends someone's sensibilities. That is not constitutional law. It is judicial activism with a secularist bent.

The Unintended Consequences

Thomas Sowell taught us to judge policies by their results, not their intentions. The modern "wall of separation" promised religious peace and neutrality. What has it actually produced? More conflict, more litigation, and more centralized control over religious expression.

Instead of letting a thousand local communities work out their own accommodations-as the federalism of the founding intended-we now have a national, one-size-fits-all rule imposed by federal judges who claim to know better than the people themselves. Friedrich Hayek called this the knowledge problem. No central planner can gather the dispersed knowledge that free people use every day. The same applies to religion. A federal judge in Washington cannot know the traditions, sensibilities, and history of a small town in Texas or Pennsylvania. When he tries to impose a uniform secularism, he makes worse decisions, not better ones.

The result is not neutrality. It is hostility. A school can celebrate Earth Day but cannot mention the Creator of the universe. A town can display a rainbow flag but not a cross. A football coach can kneel after a game for any reason-except prayer. That is not keeping government out of religion. It is using government to push religion out of public life.

Recovering the Original Bargain

An originalist reading of the Establishment Clause yields a smaller but much clearer rule. The federal government may not establish a national church, may not prefer one denomination over another, and may not compel religious observance. Beyond that, it should keep its hands off.

In practice, that means the federal courts should stop acting as the national religion police. A local school district's moment of silence, a town's holiday display, or a state's decision to allow religious options in a school-choice program are not "establishments of religion" in any constitutional sense. They are decisions of free people in their communities.

That can seem untidy. Different states and towns will make different choices. Some will be more religious, some less. That is not a flaw. That is federalism. The whole point of the original settlement was to put these questions close to the people, not in the hands of a distant national authority. The Constitution was designed for a free and diverse people. It did not promise one national answer to every religious question. It promised that the national government would leave religion alone.

The good news is that the Supreme Court has begun, however haltingly, to recover this original meaning. In Kennedy v. Bremerton School District in 2022, the Court finally buried the absurd "Lemon test" that had haunted religious liberty for decades. In American Legion v. American Humanist Association in 2019, it allowed a World War I memorial cross to stand on public land. These decisions are a start, but they are not a full restoration. The Court still too often acts as if "separation of church and state" were a constitutional text rather than a private metaphor.

The First Word Still Matters

The real Establishment Clause is not a promise of a naked public square. It is a promise of a limited federal government. It says that Congress-the national legislature-may not pass a law respecting an establishment of religion. It does not say that a town cannot have a crèche at Christmas. It does not say that a student cannot pray before lunch. It does not say that a coach cannot kneel and thank God after a game. Those things are protected by the Free Exercise Clause, and they are none of the federal government's business.

Read it as written. The first word still matters. Congress.

The founders built a constitutional republic with a federal government of limited, enumerated powers. The Establishment Clause was one of those limits. It kept Congress out of religion. It did not empower federal judges to run religion out of America. If we want to restore religious freedom, we do not need a wall. We need to read the First Amendment the way the men who wrote it understood it. Starting with the first word.