The U.S. Constitution Provides Fundamental Laws for Charitable Gift Planning


ConstitutionStatutory law did not create philanthropy in America, which was baked into the nation’s character from the start. Freedom to worship as they chose, including freedom from persecution by an official state church, attracted many of the colonists to America. Drafters of the United States Constitution assumed that people would form private churches and synagogues, schools and colleges, craft guilds, libraries, and many other voluntary associations independent from the federal government.

In 1789, the Constitution of the United States of America became the legal foundation for charitable gift planning through three co-equal branches of government: laws affecting charitable giving are enacted by Congress; tax regulations and rulings are issued by a Treasury Department and its Internal Revenue Service (IRS); and judicial review is provided by a federal court system, including the U.S. Supreme Court.

The longstanding American rights to form private, nonprofit organizations independent from the federal government are articulated in the First Amendment to the Constitution, adopted in 1791:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Touring America in 1831, Alexis de Tocqueville found it remarkable that people here naturally turned to private nonprofit organizations to accomplish public purposes that were a state responsibility in his home country of France:

Alexis de Tocqueville
Painting by Théodore Chassériau.

Americans of all ages, all conditions, and all dispositions constantly form associations …  of a thousand kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive. The Americans make associations to give entertainments, to found seminaries, to build inns, to construct churches, to diffuse books, to send missionaries to the antipodes; in this manner they found hospitals, prisons, and schools.

Democracy in America, published in 1835-1840

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