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The first 10 amendments to the U.S. Constitution are collectively known as the Bill of Rights. Largely the product of James Madison, the 10 amendments officially became part of the Constitution in 1791, after being approved by Congress in its initial session in 1789. Initially, 12 amendments were adopted by Congress and sent to the states for ratification or rejection; the first two amendments were not approved, thus leaving the 10 amendments as we know them today. Madison's speech in the U.S. House of Representatives on June 8, 1789, in which he argued persuasively for the insertion of a document to the Constitution that would protect "the great rights of mankind," still stands today as one of the most consequential speeches in the annals of Congress.

Within the Bill of Rights, the critical provisions concerning religion are contained in the first 16 words of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These words mandate that the American political system in general and the judiciary more specifically address the nature and extent of the role of religion in American public life. While religion is in no way defined in these two clauses, the Establishment Clause and the Free Exercise Clause, we do know that laws respecting religion's establishment are prohibited, as are laws precluding its free exercise. The interpretation and application of the First Amendment's religion clauses has been the peculiar province of the judiciary, especially the U.S. Supreme Court, and particularly since roughly the midpoint of the 20th century. Although several cases concerning these clauses transpired in the 19th century, the effective "making sense" of the two clauses began in the 1940s, beginning with the case of Cantwell v. Connecticut in 1940. In Cantwell, the Supreme Court ruled for the first time that the Free Exercise Clause applied to the states as well as to the national government. However, for most of the rest of the 20th century, the primary work of the Court with the religion clauses centered on the Establishment Clause, beginning with the case of Everson v. Board of Education of Ewing Township, New Jersey.

In Everson the Supreme Court incorporated or applied the Establishment Clause to the states for the first time. In so doing, the Court, through the majority opinion of Justice Hugo Black, constitutionalized Thomas Jefferson's "wall of separation" metaphor as the animating principle of the Establishment Clause. According to Black, "In the words of Jefferson, the clause against establishment of religion by law was intended to erect a 'wall of separation' between church and state." Black continued in his opinion for a bitterly divided Court: "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach." However, in Everson the Court, in spite of its rhetoric, did permit what it considered "permissible" aid to be given to students attending parochial schools, thus unleashing the debate concerning the difference between permissible and impermissible aid--a debate that continues in American constitutional law and politics, as witnessed in the case of Mitchell v. Helms. . .

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