The establishment clause of the First Amendment probably counts as the provision in the Bill of Rights most twisted from its original purpose.
The establishment clause was intended as a further limitation on federal power, prohibiting the establishment of a national church and barring Congress from favoring on sect over another.
But through a bastardization of the 14 Amendment, judges transformed it into a massive federal billy club used to control religious expression at the state and even local level.
What was meant to limit the reach of the general government was transformed into a massive expansion of federal authority.
It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the Constitution are retained: that the Constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government.
I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed.
It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent.
The “necessary and proper” clause, along with treaty powers, were both brought up as possible vessels the federal government could use to establish a religion or infringe on free exercise. 15, 1789, Madison explained the meaning of the religious clause as recorded in the congressional record. Madison said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience; whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the Constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe on the rights of conscience, or establish a national religion, to prevent these effects he presumed the amendment was intended, and he thought it well expressed as the nature of the language would admit. In fact, several states did involve their governments in religion.
Notice there was no mention of protecting religious freedom in the states. For instance, the Massachusetts constitution stated that “the happiness of a people, and the good order and preservation of civil government, essentially depend on piety, religion and morality,” and provided for the collection of a tax with funds distributed for support of religious organizations of the taxpayer’s choice.