The Framers of the Ordinance-and thus the Framers of the First Amendment-believed that schools and educational systems were a proper means to encourage the "religion, morality, and knowledge" which they deemed so "necessary to good government and the happiness of mankind."
Subsequent to the passage of this Ordinance, when a territory applied for admission as a State, Congress issued an "enabling act" establishing the provisions of the Ordinance as criteria for drafting a State constitution. For example, when Ohio territory applied for statehood in 1802, its enabling act required that Ohio form its government in a manner "not repugnant to the Ordinance."74 Consequently, the Ohio constitution declared:
[R]eligion, morality, and knowledge being essentially necessary to the good government and the happiness of mankind, schools and the means of instruction shall forever be encouraged by legislative provision. 75
While this requirement originally applied to all the territorial holdings of the United States in 1789 (the Northwest Territory -- Ohio, Indiana, Illinois, Michigan, Wisconsin, and Minnesota), as more territory was gradually ceded to the United States (the Southern Territory -- Mississippi and Alabama), Congress applied the requirements of the Ordinance to that new territory76
Therefore, when Mississippi applied for statehood in 1817, Congress required that it form its government in a manner "not repugnant to the principles of the Ordinance." 77 Hence, the Mississippi constitution declared:
Religion, morality, and knowledge, being necessary to good government, the preservation of liberty and the happiness of mankind, schools and the means of education shall be forever encouraged in this State. 78
Congress later extended the same requirements to the Missouri Territory79 (Missouri and Arkansas) and then on to subsequent territories. Consequently, the provision coupling religion and schools continued to appear in State constitutions for decades. For example, the 1858 Kansas constitution require&
Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the legislature to make suitable provisions... for the encouragement of schools and the means of instruction. 80
Similarly, the 1875 Nebraska constitution required:
Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the legislature to pass suitable laws... to encourage schools and the means of instruction. 81
Numerous other territorial papers and State constitutions-past and present 82-make it clear that the Founding Fathers never intended to separate religious instruction or religious activities from the public or official life of America. Yet today the Courts have misinterpreted the First Amendment and Article VI to prohibit exactly what the Founders intended to protect
The dilemma outlined in this chapter was succinctly described by Justice William Rehnquist in Wallace v. Jaffree:
History must judge whether it was the Father of his Country in
1789, or a majority of the Court today, which has strayed from the
meaning of the [First Amendment]. 83
The historical "straying" from the Founders' original meaning for the First Amendment has been greatly facilitated by an overused, misused, and even regularly abused historical phrase: "the separation of church and state." Although these words are familiar to virtually the entire nation, few Americans know their history; where did this phrase originate?
69. United States Code Annotated (St. Paul: West Publishing Co., 1987), "The Organic Laws of the United States of America, p.1. This work lists America's four fundamental laws as the Articles of Confederation, the Declaration of Independence, the Constitution, and the Northwest Ordinance.
70. Debates and Proceedings (1834), Vol.1, p. 685, July 21, 1789.
71. Debates and Proceedings (1834), Vol.1, p. 57, August 4, 1789.
72. Acts Passed at a Congress of the United States of America Begun and Held at the City of New-York, on Wednesday the Fourth of March, in the Year 1789 (Hartford: Hudson & Goodwin, 1791), p.104, August 7,1789.
73. Constitutions (1813), p. 364, "An Ordinance of the Territory of the United States Northwest of the River Ohio," Article III
74. Debates and Proceedings in the Congress of the United States (Washington D. C.: Gales and Seaton, 1851), Seventh Congress, First Session, p.1350; see also The Public Statutes at Large of the United States of America (Boston: Little, Brown and Company, 1854), Vol.11, p.174, April 30, 1802.
75. Constitutions (1813), p.334, Ohio, 1802, Article 8, Section 3.
76. Acts Passed at a Congress... in the Year 1789, pp.178-179, May26, 1790.
77. Debates and Proceedings (1854), Fourteenth Congress, Second Session, p.1283, March 1,1817. See also, The Public Statutes at Large of the United States of America (Boston: Little, Brown and Co., 1854), Vol.111, p.349, March 1, 1817.
78. The Constitutions of All the United States According to the Latest Amendments (Lexington, KY: Thomas T. Skillman, 1817), p.389, Mississippi, 1817, Article 9, Section 16.
79. Laws of Arkansas Territory, Compiled and Arranged. .. Under the Direction and Superintendance of John Pope, Esq., Governor of the Territory of Arkansas (Little Rock, Ark. Ter.: J. Steele, Esq., 1835), p.31, "Organic Law. Chapter I, Section 14."
80. House of Representatives, Mis. Doc. No.44,35th Congress, 2nd Session, February 2, 1859, pp.3-4, Article 1, Section 7, of the Kansas Constitution.
81. M. B. C. True, A Manual of the History and Civil Government of the State of Nebraska (Omaha: Gibson, Miller, & Richardson, 1885), p.34, Nebraska, 1875, Article 1, Section 4..
82. States which currently have this provision include The Constitution of North Carolina (Raleigh: Rufus L. Edmisten, Secretary of State, 1989), p.42, Article 9, Section 1; Constitution of the State of Nebraska (Lincoln: Allen J. Beermann, Secretary of State, 1992), pp. 1-2, Article 1, Section 4; Page's Ohio Revised Code Annotated (Cincinnati: Anderson Publishing Co., 1994), p.24, Article 1, Section 7
83. Wallace v. Jaffree; 472 U.S. 38, 113, Rehnquist, J. (dissenting).