However, there are many who simply do not (or refuse to) understand the founder’s intent behind the Establishment Clause of the First Amendment. Thus, for the “strict constructionists” among us who insist on the relevance of intent, read the “Virginia Statute for Religious Freedom,” authored by Thomas Jefferson, and read his “Letter to the Danbury Baptists.” Both can be found online, and are a quick read.

Note also, that Jefferson and Madison shared very similar opinions with regard to church and state separation. In fact, it was Madison who successfully shepherded Jefferson’s statute through the Virginia legislature (adopted in 1785).

Among scholars who refuse to accept the intent of the Establishment Clause, was Chief Justice William Rehnquist. Rehnquist did not consider Jefferson’s views as relevant to the intent of the Establishment Clause because Jefferson was in France (1784-1789), and was not a member of Congress, when Madison ushered the Bill of Rights through Congress in 1789. This is a fallacious argument.

Rehnquist did not seem to understand that Madison used Jefferson’s “Virginia Statute for Religious Freedom” as the model for the Establishment Clause, and that Jefferson did not pack up his views and take them with him to France.

Justice Hugo Black had it right when he based his opinion on original intent (Everson v. Board of Education (1947), rather than later legislative history, as did Rehnquist.