The Framers’ Debates on Religion
The First Amendment and the Utah Constitution
Lesson III: The Utah State Constitution of 1895
Step 1. The Boundaries of Rights
Welcome & Overview
The Bill of Rights Applied to Federal Government, Not the States
James Madison believed the most important amendment proposed in the debates of the First Federal Congress was to apply the Bill of Rights to both the federal and state government. He proposed this amendment and it passed the House of Representatives multiple times, but the Senate killed it.
State influence in the Senate was too strong to allow the new federal government to require changes to the states. This meant that though the federal Bill of Rights restrained Congress from establishing a religion or constraining the free exercise of religion, the states could continue to do so. And they continued to do so for almost 150 years. Congress could make no law respecting religion — but for a long time the states could, unless their own constitutions prevented them.
The Bill of Rights slowly began to be applied to the states through the constitutional doctrine of incorporation. Incorporation used the “due process of law” clause from the Fourteenth Amendment to gradually apply clauses from the Bill of Rights to the states.
The Fourteenth Amendment was created after the Civil War when slavery became illegal. The Amendment provided civil and legal rights to Black Americans.
As cases made it to the Supreme Court, the justices began using the Due Process Clause to apply parts of the Bill of Rights to the cases they reviewed. This process is called “incorporation” and has often been controversial. Incorporating all of the Bill of Rights was a long process because relevant cases needed to be appealed through the judicial system to the Supreme Court.
The Free Exercise Clause was not incorporated until 1940 when a case about Jehovah’s Witnesses sharing their faith on the streets in a Catholic neighborhood came before the Court.
The Establishment Clause was not incorporated until 1947 when a case about the state subsidizing transportation for students attending a religious private school came before the Court.
This meant that when Utah created its state constitution in 1895, it was not constrained by the religion clauses of the First Amendment because they were not yet applied to the states. When drafting the Utah constitution, delegates to the state convention could have legally established a church if they wanted.