In an attempt to undo some modern-born, poorly analyzed, and misconstrued notions of the Establishment Clause’s objective, some key points of history and context behind the Bill of Rights should first be elucidated. During the era of the U.S. Constitutional ratification, growing fear towards Federal overreach was sparked by some of the Anti-Federalists. Addressing James Madison, a known Federalist, Thomas Jefferson notes the element of breach of individual rights: “A positive declaration of some essential rights could not be obtained in the requisite latitude. Answer. Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.”
Other Anti-Federalists such as Patrick Henry served as a voice of concern during the Virginia convention of 1788. His landmark notice towards a lack of protection of individual trial by jury led to the guarantee of other liberties as well: “As to controversies between a State and the citizens of another State, his [James Madison] construction of it is to me perfectly incomprehensible. He says it will seldom happen, that a State has such demands on individuals. There is nothing to warrant such an assertion. But, he says, that the State may be plaintiff only. If Gentlemen pervert the most clear expressions, and the usual meaning of the language of the people, there is an end of all argument. What says the paper? That it shall have cognizance of controversies between a State, and citizens of another State, without discriminating between plaintiff or defendant. What says the Honorable Gentleman?—The contrary—That the State can only be plaintiff. When the State is debtor, there is no reciprocity.”
Pertaining to the subject at hand, two key points may be deduced from Henry’s concerns: The Constitution alone did not maintain a bilateral stream of balance between the sovereign and individual, and due to the unenumerated and beclouded rights granted to The People by the Constitution, a clearer, more concrete text must be drafted into Federal law. Eventually, this lead to first U.S. Congress to assemble in New York City’s Federal Hall. It was there that delegates from the thirteen States convened to compromise on a Bill of Rights. Despite Hamilton’s comparison of such a bill to antiquated and failed prototypes, his colleague, James Madison, proposed the following compromise (among many others) to be enumerated in the Bill of Rights: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” Let the aforementioned content serve as a precursor to defining key terms and understanding the context in which the Establishment Clause was written. It is not the legislative history which serves as a proof, but the clarity that it brings to the binding Texts of discussion is the significance of such elaboration.
By the time the First Amendment was voted into law, there seems to have been a general consensus that religious freedom was left to the domain of the States. Since the Colonial era through the early 19th century, the colonies of Virginia, Maryland, North Carolina, South Carolina, and Georgia had established regional religions. New York, Massachusetts, Connecticut, and New Jersey had multiple establishments of religion, Rhode Island, Pennsylvania, Delaware, and New Jersey had no colonial establishments. Put into context, pertaining to religious practice, the Free Exercise Clause prohibits Congress from making any law “prohibiting the free exercise thereof…”, which protects individuals against congressional interference with the right to exercise their conscience. This is contradistinction to the Establishment Clause, which does not purport to protect individual rights. In light of the above analysis, it is the States that are the direct beneficiaries of this Clause. Thus, the notion of Incorporation Doctrine via the Fourteenth Amendment to this clause gives rise to a paradoxical result which terminates the function of the Establishment Clause. As Justice Clarence Thomas carefully notes: “Applying the Clause against the States eliminates their right to establish a religion free from federal interference, thereby “prohibit[ing] exactly what the Establishment Clause protected.”” Further proof in support of this thesis may be drawn for the Tenth Amendment’s Reserved Power Clause: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In this vein, the early State constitutions were framed with this dichotomy in mind. See Del. Const., Art. I, §1 (1831): “[N]o man shall, or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry, against his own free will and consent…”, Me. Const., Art. I, §3 (1820): “[N]o one shall be hurt, molested or restrained in his person, liberty or estate, for worshiping God in the manner and season most agreeable to the dictates of his own conscience…”, Mo. Const., Art. I, §10 (1865): “[N]o person can be compelled to erect, support, or attend any place of worship, or maintain any minister of the Gospel or teacher of religion…”, R. I. Const., Art. I, §3 (1842): “[N]o man shall be compelled to frequent or to support any religious worship, place, or ministry what-ever, except in fulfillment of his own voluntary contract…”, and so on. The State establishments remained intact, while the freedom to practice one’s faith was never abridged.
Since United States v. Cruikshank was decided, questions of Incorporation Doctrine have been left for The Court to decide on a case-to-case basis. In light of Amendment X, Chief Justice Morrison Waite’s opinion stands. His ruling also states all U.S. citizens are subject to two governments; their State government and the Federal Government: “The Government of the United States, although it is, within the scope of its powers, supreme and beyond the States, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States.” This led to The Court’s need to deal with later cases flowing from the narrowly constructed Cruikshank decision, most notably the 5–4 District of Columbia v. Heller ruling, McDonald v. Chicago, and United States v. Miller. Justice Scalia notes the unwarranted nature of Incorporation unless otherwise stated or indicated by Text of the Fourteenth Amendment. Pertaining to the Right to Bear Arms Amendment, there was no such clear indication: “With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.” 
Even though the disestablishment of State churches had begun prior to the Fourteenth Amendment’s ratification in 1868, this was due to a growing fiscal disinterest in such establishments. As James Hutson notes, this was “because citizens of both states tired of the incessant bickering about church taxes, especially as they watched tax-supported congregations split over the doctrine of Unitarianism and lawsuits over the tax revenues belonging to the now divided congregations increase…” Until today, the Massachusetts Constitution maintains provisions for State sponsored religious conduct: “Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.”
Notwithstanding these historical realities pertaining to State’s rights, constitutional provisions against the Federal Government, regarding matters relating to religion, still require clarification. When the First Amendment states “Congress shall make no law respecting an establishment of religion…,” how is establishment of religion accurately defined? Based on the 18th-century common understanding of the term, it would seem that religion consist not only of deity worship. It inherently includes sets of creed, such as reward and punishment. The term Establishment is likely in reference to a formal entity by which a national faith is imposed upon the people, as was the practice in England via the Anglican Church. See Blackstone’s The Commentaries on the Laws of England: “All ancient deans are elected by the chapter, by conge d’elire from the king, and letters missive of recommendation; in the same manner as bishops…” The acclaimed Justice, Joseph Story, relates a concurring understanding of the Establishment Clause: “The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government” (Commentaries on the Constitution 3:§§ 1865–73).
Thus, such a rendition would exclude congressional endorsement of “God”, or other non-denominational references to God, such as that on U.S. currency, and when the Pledge of Allegiance is recited on federally funded events. Indeed, among the first to espouse this view was none other than the black-robe wearing law & order Chief Justice, William Rehnquist. In his concurrence to Elk Grove Unified School District v. Newdow, the Justice goes to great lengths to cite a list of historical precedents pertaining to federal endorsement of the generic Creator of Man, concluding with the following: “All of these events strongly suggest that our national culture allows public recognition of our Nation’s religious history and character. In the words of the House Report that accompanied the insertion of the phrase “under God” in the Pledge: “From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.” H. R. Rep. No. 1693, 83d Cong., 2d Sess., 2 (1954). Giving additional support to this idea is our national anthem “The Star-Spangled Banner,” adopted as such by Congress in 1931. 36 U.S.C. § 301 and Historical and Revision Notes.”
Some, like Madison and Jefferson, argued for full separation of Church and State—the high-wall theory—while others preferred a system in which government support for one particular religion or denomination over another was banned, but an unbiased, impartial support for all religions was permitted. This doctrine was known as “nonpreferentialism.” Writing to the Danbuty Baptists in 1802, Jefferson relates: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.”
This debate between high-wall theory and nonpreferentialism has never fully been settled, and likely will not for generations to come. In an unexpected turn of events, it was the progressive Justice William O. Douglas that was the first in the modern era to espouse the national hallmarks of religious traditions. In perhaps the fairest stalemate between these opposing and unflinching philosophies, in the 1952 case of Zorach v. Clauson, Justice Douglas wrote: “The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State… Otherwise the state and religion would be aliens to each other – hostile, suspicious, and even unfriendly… Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; “so help me God” in our courtroom oaths – these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: ‘God save the United States and this Honorable Court…’”
Justice Douglas continues: “We are a religious people whose institutions presuppose a Supreme Being…” It is here that the realization of a transcendent Creator of the Universe is made; the giver and enabler of those unalienable rights of discussion. It would be fundamentally antithetical to assume that the provisions in our national documents outlaw the source from which they stem. This deistic conception of a Creator is independent of any faith or religion. It is not in vain that the fifty-six signatories of the U.S. Declaration of Independence famously proclaimed: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Furthermore, the Justice states: “When the state encourages religious instruction… it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.” The Justice concludes: “We find no constitutional requirement which makes it necessary for government to be hostile to religion… We cannot read into the Bill of Rights such a philosophy of hostility to religion.”
 Jefferson, Thomas. Thomas Jefferson to James Madison . http://press-pubs.uchicago.edu/founders/print_documents/v1ch14s49.html. March 15, 1789.
 Henry, Patrick. Patrick Henry in the Virginia Convention, 20 June 1788. http://csac.history.wisc.edu/Patrick_Henry_in_the_Virginia_Convention(2).pdf.
 See Hamilton, Alexander. The Federalist Papers, No. 84: “Bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was the Magna Charta, obtained by the Barons, swords in hand, from King John.”
 Madison, James. Madison’s Speech Proposing Amendments to the Constitution. June 8, 1789.
 Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. P. 11, 29-51. See also Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. P. 32-33.
 Town of Greece v. Galloway, 572 U.S. ___ (2014) (Thomas, J., Concurring). May 5, 2014.
 U.S. Const. Amend. X.
 United States v. Cruikshank, 92 U.S. 542 (1875) (Morrison, C. J.). March 27, 1876.
 District of Columbia v. Heller, 554 U.S. 570 (2008) (Scalia, J.). June 26, 2008. For refutations on possible objections on may raise from the Text of the Fourteenth Amendment, see Amar, Akhil Reed. THE BILL OF RIGHTS AND THE FOURTEENTH AMENDMENT. Yale Law Journal, vol. 101, no. 1193, April 1992, pp. 1218-1241.
 Hutson, James. Religion and the New Republic. P. 196.
 See Massachusetts Constitution: Part the First: Article III for further examples.
 See Johnson, Samuel. Dictionary of the English language (1768, 3rd edition). P.4M, defining religion as “[V]irtue, as founded upon reverence of God, and expectation of future rewards and punishment… 2.- A system of divine faith and worship…” See also Blackstone, Sir William. Blackstone’s Commentaries on the Laws of England Book the First : Chapter the Eleventh : Of the Clergy, P.370: “A DEAN and chapter are the council of the bishop, to assist him with their advice in affairs of religion, and also in the temporal concerns of his fee . When the rest of the clergy were settled in the several parishes of each diocese (as hath formerly been mentioned) these were reserved for the celebration of divine service in the bishop’s own cathedral.”
 Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) (Rehnquist, C. J., Concurring). June 14, 2004.
 Jefferson, Thomas. Jefferson’s Letter to the Danbury Baptists. http://www.loc.gov/loc/lcib/9806/danpre.html. January 1, 1802. Early figures such as Roger Williams already echoed this theory. See The Bloody Tenet of Persecution for Conscience Sake and Mr. Cotton’s Letter Lately Printed, Examined and Answered: “First, the faithful labors of many witnesses of Jesus Christ, existing in the world, abundantly proving, that the Church of the Jews under the Old Testament in the type and the Church of the Christians under the New Testament in the anti-type, were both separate from the world; and that when they have opened a gap in the hedge, or wall of separation, between the garden of the Church and the wilderness of the world…”
 Zorach v. Clauson, 343 U.S. 306 (1952) (Douglas, J.). April 29, 1952.