First Amendment Folly (Part V): In Defense of Religious Liberty: James Madison’s Memorial & Remonstrance Against Religious Assessments

This is the sixth post in a seven part series evaluating Carl H. Esbeck’s “Protestant Dissent and the Virginia Disestablishment 1776-1786.” For previous posts in the series go to “Abusing History and the First Amendment.” 

James Madison

James Madison’s Memorial & Remonstrance Against Religious Assessments

In retrospect, it seems obvious that Madison had the better argument, but, as is so often the case, reason did not stand a chance against Patrick Henry’s soaring rhetoric and political prowess. With Henry’s election as governor the passage of the bill was no longer a forgone conclusion. In response to this well-timed departure from the House of Delegates, Madison gleefully declared that the friends of the assessment were “disheartened.” (1) Nevertheless, the bill moved forward. An overly confident conservative majority then made two tactical errors. First, they set the assessment bill aside to secure the passage of an incorporation bill which gave the Episcopal Church the power to secure its property; to the dissenting community this act appeared to be yet another privilege given to the established church by a biased legislature. Adding fuel to the fire, this perceived slight made the dissenting community even more determined to oppose all establishments of religion. Second, after finally returning to the bill for “Establishing a Provision for Teachers of the Christian religion” and narrowly securing its passage (44 to 42) they agreed to postpone the bill until the following November so that the populace could comment on it. (2) Believing they would win the support of the populace, it must have seemed like a wise political move. Whatever their reasoning, they would soon come to regret their decision.

As the fall session came to an end, Madison felt he had done his part and expected to leave the rest up to the population. Since the dissenting community was zealously opposed to religious assessments, he had good reason to be confident that the bill would be defeated. On the other hand, there was reason for concern; the Presbyterian position was uncertain, and as the largest dissenting group their support was critical. But this uncertainty is not what prompted Madison to enter the fray. He did so only after the brothers George and Wilson Cary Nicholas persuaded him that his services were needed. Acceding to the brothers’ pleas, Madison wrote one of the most significant contemporary statements on religious liberty, which is still rightly celebrated as a monumental achievement in American history. At the time, however, its authorship was unknown. Following common practice, Madison left the document unsigned.

Madison opened the petition with the declaration that they, the “subscribers, citizens of the said Commonwealth,” opposed the assessment bill because it was “a dangerous abuse of power.” From there he divided the document into thirteen sections, each laying out a different objection to the assessment bill. Following this layout, Esbeck provides his readers with a summary of each point and additional commentary as needed. For the sake of simplicity, I will follow the same point by point layout in my evaluation of Esbeck’s interpretation. A link to Madison’s Memorial is available here for those who wish to compare Esbeck’s summary, or my critique of it, with the original.

Esbeck’s summary of point 1: “Religion is ‘the duty which we owe to our Creator and the manner of discharging it.’ It ‘can be directed only by reason and conviction, not by force.’ Each man has a right to determine his own religion. This is a right as against other men, but as to God it is a duty. That is why it is unalienable. A duty to God precedes in both time and degree man’s obligations undertaken when entering into the social contract. Because man’s determination of his religion was never contracted away, indeed is a duty to God and thus not capable of being contracted away, government has no cognizance over religion.” (p. 82)

Before evaluating Esbeck’s summary, it is important to note that the “duty to our Creator” quote used by Madison, and repeated in Esbeck’s summary, was taken directly from Article 16 of the Declaration of Rights (DOR), which had been retained from Mason’s original version. Throughout the Memorial, Madison frequently turned to the DOR to illustrate how the religious assessment was in violation of the rights promised in this foundational document. This fact presents a significant problem for Esbeck’s claim that pleas against establishments were not about protecting rights.

Esbeck gives a broad overview of Madison’s first point that is not necessarily incorrect, but, as in his previous analysis of Madison’s notes, he ignores important details which prove problematic for his voluntaryism thesis. Esbeck notes only one of Madison’s two reasons explaining why the rights of conscience were inalienable: because it was “a duty towards the Creator.” Significantly, he leaves out the first reason: “It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.” The implication of this view is substantial and explains why Madison opposed all laws concerning religion, which necessarily impose the religious imperatives of a particular religion upon the consciences of others who do not believe in that religion.

Esbeck clearly recognizes the implications which Madison’s precept “that Religion is wholly exempt from its [Civil Society’s] cognizance” (the main point of this section of the Memorial) poses for his desire to allow religion into public policy. To bring Madison’s views in line with voluntaryism returns to his distinction between two categories of religious precepts: “specifically religious matters (‘religious truth’)” and “religious teaching that speaks to moral issues.” (p. 82) In the category of religious morality he includes “stealing, lying, neglect of one’s children, and murder.” From here he jumps to the conclusion that “[i]t is specifically religious matters over which the government has no cognizance, that is, no authority.” (p. 83) This concept is wholly Esbeck’s creation. As before, there is nothing in Madison’s Memorial, or in any of his extensive writings on this subject, that justifies reading this distinction into his argument. Madison plainly stated “that Religion is wholly exempt from its [Civil Society’s] cognizance,” and he was adamant that religion should not be used “as an engine of Civil policy” (see point # 5).

By construing the issue in this way, Esbeck is laying the constitutional groundwork, via original intent, to openly allow religious dogma to guide public policy. At first glance his position seems innocent enough. Who would deny that “stealing, lying, neglect of one’s children, and murder” should be a part of criminal law? This list of universally agreed upon immoral behaviors are a small subset of what would be considered “religious teaching[s] that speak[] to moral issues.” It is important to remember that this category would also include the more controversial moral dogmas of specific religions such as prohibitions against abortion, homosexuality, pre-marital sex, etc. And if Esbeck did not intend to include these controversial religious dogmas in his category of religious-based values his distinction is both meaningless and unnecessary. The crimes he listed are already constitutionally prohibited; there is no need to create a special category of religious morality to bring them into the realm of civil society. The relevant distinction is between universal (not religious) moral precepts, which are considered crimes (harms of man against man), and the moral dogmas of a particular religion. This important distinction was not the creation of modern secularists; it had been frequently invoked earlier by Baptists in their fight to separate religion and government.

The Baptist preacher John Leland, Madison’s ally in the fight for religious liberty, explicitly objected to bringing religious morality into the realm of civil law. Instead of lumping all moral issues together, Leland thought it was important to make a distinction between “sins” (religious morality), which he believed should be outside the realm of government control, and the crimes of man against man, which were clearly within the realm of civil law. In a diatribe against establishments, Leland explained that “when civil rulers undertake to make laws against moral evil, and punish men for heterodoxy in religion, they often run to grand extremes…In short, volumes might be written, and have been written, to show what havoc among men the principle of mixing sins and crimes together has effected, while men in power have taken their own opinions as infallible tests of right and wrong.” (3) In Leland’s extensive body of work, he consistently demanded that only crimes of man against man (not religious morality) are within the realm of civil government. To use the sword of the law to enforce religious sins was dangerous and violated the sacred rights of conscience.

While Madison never specifically spoke about the place of religious morality in law, it is likely that he approved of Leland’s distinction between sins and crimes. Madison had vehemently opposed religious tyranny all his life, and there is no reason to believe that he made an exception for religiously derived morality.

Another section ignored by Esbeck points to one of Madison’s greatest insights about the relationship between rights and republican governments. Madison wrote, “True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.” From this kernel of an idea Madison would upset longstanding thinking about republican forms of government. Standard thinking about republican governments claimed that legislative bodies would not threaten rights since, as representatives of the people they would never pass laws to oppress themselves. As Madison discovered, this turned out to be wishful thinking.

It was via his experience in Virginia that he saw the flaw in this thinking. despite the prohibition against it in the DOR, he witnessed the legislature’s repeated attempts to implement a religious assessment. As Madison explained to his friend Jefferson, “In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of Conscience it is well known that a religious establishment wd. have taken place in that State.” (4) Note that it was the violation of “the rights of Conscience” that provoked Madison’s ire, not a desire to protect religion or “the church.” It was for this reason that Madison originally opposed the creation of a bill of rights at the federal level during the heated debates over the ratification of the federal Constitution. As he later insisted, bills of rights were simply “parchment barriers” that could be, and had been, overrun by “overbearing majorities” imposing their will through legislative bodies. (5) This was at the heart of Madison’s opposition to the inclusion of a bill of rights within the federal Constitution, as well as his cherished idea of a federal veto, which because of the greater diversity would ensure that no majority could form to oppress minorities, while state governments were more likely to violate the rights of citizens.

Madison’s rights-centric argument is incompatible with Esbeck’s voluntaryism principle, but this only becomes obvious after examining the original. By ignoring, intentionally or not, important parts of Madison’s argument, Esbeck has constructed a misleading account of Madison’s views.

Esbeck’s summary of point 2: “If religion (as defined in ¶ 1) [Esbeck’s definition, not Madison’s] is exempt from the cognizance of government (as argued in ¶ 1), still less can religion be subject of the legislature. The legislature is but a department of the government. If the government has no jurisdiction over religion, then the same is necessarily true of the legislature. Not only is separation of powers among government’s three departments essential to limit government, but the departments must not ‘overleap the great Barrier’ that limits all government.” (p. 83)

Esbeck’s first sentence is puzzling. He is claiming that Madison was arguing that if religion was beyond the cognizance of the government, then “still less can religion be subject of the legislature.” This bit of reasoning implies that the legislature is not part of the government, which is absurd. Why would Madison make such an argument? He wouldn’t, of course. This is what he actually said: “Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body.” (italics mine) Why would Esbeck mischaracterize Madison’s claim that religion was exempt from the authority of society, especially when this was the main claim in his first section? Either Esbeck does not want to concede the principle that religion is beyond the concerns of “Society at large,” or he made yet another honest mistake. Whatever the explanation, this point is an important part of Madison’s argument against religious establishments. Its significance is highlighted by the fact that it was the opening claim of the Memorial.

From here, Esbeck’s interpretation becomes even more misleading. In his commentary he claims that Madison’s phrase “the great Barrier” was about drawing a line “between government and those aspects of religion outside the reach of government.” (p. 83) As explained above, nowhere in the document does Madison make this distinction. What is even more troubling about Esbeck’s assertion is the fact that the meaning of Madison’s phrase is unmistakable; even a casual reading of the Memorial, shows that Madison’s “great Barrier” is a reference to the Declaration of Rights. The significant section reads: “the great Barrier which defends the rights of the people.” What “barrier” defends the rights of the people? The Declaration of Rights, of course! This is interpretation is also backed by the fact that Madison references the DOR throughout the Memorial as the foundation upon which he makes his case against the assessment. But to admit this, would be to admit that Madison saw his fight against the assessment as a crusade in defense of the rights of the people, rather than one to protect the church.

Going beyond the Memorial itself, there is further evidence that Madison was referring to the DOR. As indicated above, Madison’s experience as a statesman in Virginia had a profound impact on him. Because the Virginia DOR had failed to stop the legislature from attempting to establish a general assessment Madison began to call bills of rights “parchment barriers.” For example, in a letter to Jefferson, Madison insisted that “[r]epeated violations of these parchment barriers have been committed by overbearing majorities in every State.” (6) (italics mine)

In contrast, there is no evidence that Madison’s reference to the “great Barrier” was about the line “between government and those aspects of religion outside the reach of government.” (p. 83) And there was no need for this kind of line drawing since “Religion [was] wholly exempt” from the “cognizance” of both government and society. (italics mine)

Esbeck’s summary of point 3: “Because it sets a precedent, it is proper to protest even small violations of our liberties. If government has the authority to establish Christianity, it has the authority to establish one denomination of Christianity to the exclusion of others. Or it can force one to contribute money to the support of an establishment, or conform to its practices.” (p. 83)

This is a fair summary of Madison’s third point.

Esbeck’s summary of point 4: “All men are by nature equally free, they enter into the social contract on equal terms, and they retain equal rights. This is particularly so with respect to religious freedom, which according to the dictates of conscience must be an equal right for all. The accommodation in the Assessment Bill for Quakers and Mennonites violates this principle of equality. One’s abuse of religious freedom is an offense against God, not an offense against the public order, so an account must be rendered to God alone.” (p. 83)

There are several problems with this interpretation. Esbeck presents a misleading impression of Madison’s principle of equality. By ignoring Madison’s first example illustrating how the assessment violates the principle of equality, while highlighting his second example (“granting others peculiar exemptions”) which implies that Madison saw equality in terms of sects, rather than individuals. This disingenuous interpretation is further compounded by the fact that Esbeck failed to explain that the phrase “All men are by nature equally free” came from the DOR. Article I of the DOR clearly states, “That all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity all men are by nature equally free and independent.” (7) As indicated above the DOR was the foundation upon which Madison built his case against the assessment. This fact is inconvenient for Esbeck’s contention that establishment complaints were not about individual rights.

After the first article, Madison added a slightly misquoted Article 16: “they [‘all men’] are to be considered as retaining an ‘equal title to the free exercise of Religion according to the dictates of Conscience.’” The language in the DOR, which Madison himself wrote, states that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” The mistake was probably intentional on Madison’s part as a way to highlight the fact that everyone had the same right to the free exercise of religion, and therefore no one’s religious beliefs should receive special status and/or privileges above anyone else’s. This logic is even clearer in Madison’s original proposal to the 1776 Convention: “all men are equally entitled to the full and free exercise of it accordg to the dictates of Conscience; and therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges; nor subjected to any penalties or disabilities unless under &c.” (8) To give themselves (Christians in this case) this freedom, but to deny it to others “whose minds have not yet yielded to the evidence which has convinced us” was a violation of the DOR. This conclusion, which follows from the above rights promised in the DOR, was the first example provided by Madison, and shows that Madison saw equality as something bestowed upon individuals. Notice that Madison’s reasoning here also undermines Esbeck’s claim that the free exercise of religion was a separate issue from concerns about religious establishments. Esbeck can credibly argue that the conservatives saw it this way, but he cannot credibly attribute this belief to Madison or the dissenters.

Madison’s second example fits more readily into Esbeck’s concept of voluntaryism, which rests upon the equality of denominations. Madison lamented the fact that the “Quakers and Menonists” were given “peculiar exemptions” in the bill because they did not have clergy. As dissenters, he was confident that these sects did not “covet pre-eminences over their fellow citizens” and would not “be seduced” by the privilege from opposing the measure. While this example focuses on these two denominations, as his first example illustrates, it does not follow that Madison saw equality in terms of denominations rather than individuals, as his first example demonstrates. If we follow the logic of Madison’s argument, we can see that the collective equality of denominations is derivative of each individual’s equal rights. He began his argument by pointing out the individual rights promised in the DOR, and from there he concluded that the “peculiar exemptions” given to the two denominations of “Quakers and Menonists” was in violation of those principles. The denominational equality sought by Madison and the dissenters necessarily followed from individual equality. As the DOR, and Madison, insisted “all men are by nature equally free and independent.” As we will see, a strong commitment to the equal rights of all citizens stood at the center of Madison’s conception of religious liberty. Interestingly, Esbeck acknowledges Madison’s premise that “all men enter civil society as equals, and thus in religious matters all men are equal before the law,” but then fails to see that this contradicts his rendering of Madison’s theory of church-state relations.

Another problem with Esbeck’s interpretation concerns the reference to religion as a duty to God alone. According to Esbeck, Madison was pointing out that a “[f]ailure to extend religious freedom to all equally is an offense to God alone.” This is interesting, but neither Madison, nor anyone else, is argued that a failure to give equal religious freedom was an “offense against God alone.” Looking at the relevant section, Madison was clearly explaining the first point of his equality argument. Following his statement about denying “equal freedom to those whose minds have not yet yielded to the evidence which has convinced us,” he states, “If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man must an account of it be rendered.” In other words, the responsibility for one’s own salvation rested with one’s self, not the state. This argument has a long pedigree in tolerationist literature. The states of Western Christendom had long assumed the responsibility for the salvation of their subjects, and thus in opposing the resulting ecclesiastical tyranny those advocating toleration challenged the validity of this tradition. In this vein, Madison was referring to the abuse of the freedom of religion by individuals because it was their responsibility. Thus, Madison was not claiming the failure of the state to extend religious liberty to all citizens was “an offense against God;” he believed that the state should do so because this right was enshrined in the Declaration of Rights.

Finally, in his commentary, Esbeck returns to his obsession with line drawing. (p. 83) As before, there is nothing in Madison’s writings to justify this claim. The problems with this assertion have already been addressed (see point # 2).

Esbeck’s summary of point 5: “A civil magistrate is not competent to judge religious truth. For government to employ religion ‘as an engine of civil policy’ is an ‘unhallowed perversion’ of the Christian gospel.” (p. 83)

To clarify, Madison wrote that using religion “as an engine of civil policy” was “an unhallowed perversion of the means of salvation,” not “of the Christian gospel.” This is another reference to the argument against state-imposed religion as justified by the duty to save the souls of subjects. While not as egregious as Esbeck’s other misleading renderings, it implies that Madison’s argument was born out of a concern for “the Christian gospel,” rather than religious tyranny. Whatever Madison’s personal beliefs about “the Christian gospel” (unlike Jefferson, Madison left few clues as to his personal religious beliefs) his Memorial was written as a defense of the rights of conscience, not to protect religion or the church (although he believed that they would benefit if the rights of conscience were secured).

Esbeck’s Summary of point 6: “Christianity does not need the support of government. Indeed, the scriptures expressly teach against a dependence on worldly powers. Christianity flourished when government opposed it. Government support weakens the confidence of Christians in their own religion, and it raises suspicions by skeptics about Christians who apparently think so little of their religion that it needs propping up by the government.” (p. 84)

Esbeck’s summary is mostly accurate, but I think it is important to note that Madison once again referred to the assessment as an establishment of religion: “Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion.” (italics mine)

Esbeck’s summary of point 7: “From the establishment of Christianity in the Fourth Century the church was corrupted: in the clergy, pride and indolence; in the laity, ignorance and servility; and in both, superstition, bigotry, and persecution. Worthy of admiration is the primitive church before its establishment. A return to voluntary support of the church is predicted by some clerics to cause its downfall. Discount the prediction given the self-interest of these clerics in continued establishment.” (p. 84)

For the most part, this is a fair summary of Madison’s claim, although it is worth pointing out that Madison spoke in terms of religion and Christianity in general rather than specifically of “the church” or organized religion, as Esbeck indicates.

Esbeck’s Summary of point 8: “Government has no need of an establishment. What has been the consequence? Churches have dominated government and brought about spiritual tyranny. Governments have used establishments to reinforce political tyranny.” (p. 84)

This summary is partly correct, but it is also misleading. The way in which Esbeck presents Madison’s claims subtly downplays that Madison indicated that the loser of this church-state alliance was “the public liberty.” To better understand Madison’s point and how Esbeck’s version is misleading it will be helpful to review this section in more detail. Looking at the original, it is obvious that Madison was responding to one of his opponents’ main arguments in favor of establishments. The conservatives insisted that the state could not stand without religion, and therefore the government had a duty to support it. Expressing this pro-establishment view, “A Member of the Established Church,” wrote, “I take it for granted, that the necessity of the Christian religion, both with respect to our temporal and eternal welfare, is a point in Christian countries generally acknowledged; and, if so, it is undoubtedly the duty of those who are appointed to take care of a state to adopt the most likely method of having it propagated in the greatest purity.” (9) Hence, Madison opened this section: “Because the establishment in question is not necessary for the support of Civil government.” From here Madison turned to the devastating consequences establishments have had on the very states that implemented them.

He insisted that they “have been seen to erect a spiritual tyranny on the ruins of the Civil authority,” and “in many instances they have been seen upholding the thrones of political tyranny.” And in no case “have they [establishments] been seen [as] the guardians of the liberties of the people.” In fact, he asserted, “Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries.” Madison’s message was clear: the alliance between church and state corrupts the state and undermines the “liberties of the people.”

Rather than relying on religious establishments, Madison maintained that a “just Government” would “be best supported by protecting every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.” (italics mine) In other words, the best way to have a secure state was to protect the individual rights of “every Citizen” by not subjecting “any Sect” to particular burdens or privileges, or allowing one sect to violate the rights of other sects. Here, Madison’s logic is laid bare, showing that the equality of sects rested upon the equality of individuals. To give one sect privileges over and above others violated the rights of those individuals who were not members of the privileged sect.

This final section also presents another problem for the proposition that Madison was a proponent of the voluntaryism principle. Esbeck’s voluntaryism principle is built upon his assumption that the state needs to be barred from interfering in “the church,” but not the other way around. Here, however, he admits that Madison believes that “churches” engage in foul play, although Madison blames the clergy and the establishment for this “spiritual tyranny.” Madison claims that “[r]ulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries.” Rather than limiting state tyranny, Madison was pointing out that the church, more often than not, had been a companion in oppression. The solution, obviously, was not just to place limits on the state but on the church as well to prevent it from using the sword of the state to impose its own religious dogma in violation of the rights of others. Separation went both ways for Madison. This is what he meant when he claimed that religion was “wholly exempt from its [Civil Society’s] cognizance.”

Esbeck’s summary of point 9: “Because the Assessment Bill proposes an establishment and discriminates on the basis of religion, the bill will discourage non-Christians from moving to Virginia.” (p. 84)

Esbeck captures the general point, but by ignoring the details Esbeck fails to understand Madison’s argument. Before moving on to the main problem with Esbeck’s description, it should be noted that Esbeck tempered Madison’s forceful condemnation of the bill by using the word “discrimination,” instead of Madison’s much stronger “persecution.” The strength of Madison’s aversion to the scheme was reinforced by his claim that it “differ[ed] only in degree” from the “Inquisition.” To Madison, the severity of the offense went well beyond “discrimination.”

More significantly, Esbeck masks the offense at the heart of the persecution that Madison so loathed: the violation of individual rights. The assessment, Madison professed, “degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.” Religious dogma, in other words, had no place in civil law because it undermined the equal rights of citizens. Those whose wills were made to bend to the religion of another were the victims of “persecution.”

Also problematic is Esbeck’s interpretation claiming that the assessment would “discourage non-Christians from moving to Virginia.” Madison intentionally made no mention of “non-Christians” because the bill was a sign of oppression to many Protestant dissenters as well. What Madison said was that the “proposed establishment” (i.e. the assessment bill) was a problem because it departed from the tradition of “offering Asylum to the persecuted and oppressed of every Nation and Religion.” This may seem like a minor point, but it sets up a misleading impression of why the assessment was objectionable: it was a signal of persecution to some Christians, as well as to non-Christians.

Esbeck’s summary of point 10: “For the same reasons stated in ¶ 9, the bill will cause non-Christians to move out of Virginia.” (p. 84)

Esbeck uses the same misleading distinction here as above. Madison, once again, said nothing about “non-Christians.” Instead, Madison predicted that the assessment would “have a like tendency to banish our Citizens.” (italics mine) Madison feared that to the detriment of Virginia, the dissenters would leave the state in pursuit of a place with a more robust system of religious liberty, such as New Jersey, Delaware, or Rhode Island. Many dissenters objected to any kind of state support for religion, even if it benefited their own. To them, it was “Sinful & Tyrannical” to be forced to contribute even to one’s own religion, as they stated in their petitions (lifting the phrase from Jefferson’s Bill for Establishing Religious Freedom [10]). The dissenters, in stark contrast to some of the earlier tolerationists, were not seeking religious privileges for themselves alone, they wanted religious liberty for all, although there were a few exceptions to this generous stance.

Esbeck’s summary of point 11: “When government meddles with religion it destroys moderation and harmony among sects, generating animosities and jealousies. On the other hand, experience reveals that when government has withdrawn from involvement in religious disputes, the result is public health and prosperity.” (p. 84)

Esbeck is partly right, but misses some revealing details. Madison’s main point here is that the general assessment would “destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced among its several sects.” Madison adds weight to this argument by recalling the “[t]orrents of blood [that] have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion.” For much of the history of Western Christendom it was believed that uniformity in religion brought harmony; this myth began to unravel only after years of war, violence, and discord proved otherwise. As the evidence accumulated, tolerationists were proven right. The source of the problem was the imposed uniformity, not toleration. In light of this history, Madison believed that the less government engaged with matters of religion, the better would be the “health and prosperity of the State.” It was not government involvement in “religious disputes” that was the problem, it was the fact that the state would “intermeddle with Religion” at all.

To Madison, the solution to discord was “equal and compleat [sic] liberty.” The attempt to impose an assessment was an assault on religious liberty, and Madison warned, “If with the salutary effects of this system under our own eyes, we begin to contract the bounds of Religious freedom, we know no name that will too severely reproach our folly.” Restricting state power to intervene in religious matters, which entails a restriction on religious groups, created religious liberty and would prevent the violence and oppression that had produced so much bloodshed in Europe from plaguing Virginia. Thus, he asked, rhetorically: “What mischiefs may not be dreaded, should this enemy to the public quiet [the assessment] be armed with the force of law?”

Esbeck’s summary of point 12: “Christians want to impart their faith to others. Yet the bill’s discriminatory provisions will discourage non-Christians from moving to Virginia where they otherwise would be exposed to Christianity.” (pp. 84-5)

Esbeck misleads his readers by claiming that Madison is making a point about non-Christians being deterred from moving to Virginia (a point Madison had already addressed). Instead, Madison was pointing out the “adverse” effect that the bill would have on Christianity by “discourage[ig] those who are strangers to the light of revelation from coming into the Region of it,” and “by example [endorsing] the nations who continue in darkness, in shutting out those who might convey it to them.”

More problematic for Esbeck, Madison asserted that the problem with the assessment was the “wall of defence against the encroachments of error.” By protecting Christianity, the implementation of the assessment would hinder “the victorious progress of Truth.” Contrary to Esbeck’s assertions, Madison was not seeking to protect Christianity. He wanted, instead, to expose it to the light of rational debate by freeing it from the protective hand of the state. While Madison expressed confidence that Christianity would emerge victorious from this process, he was willing to risk its demise in pursuit of the ultimate Enlightenment virtue: truth.

Esbeck’s summary of point 13: “The enforcement of a law in a republic requires broad public support for the law. The enforcement of laws that are religiously obnoxious to many citizens will ‘slaken the bands of Society’ and undermine support for the government.” (p. 85)

This interpretation is, once again, somewhat misleading. Madison said nothing about laws being “religiously obnoxious” (implying that it was about laws obnoxious to religious sentiments). Instead, he declared that laws so “obnoxious to so great a proportion of citizens,” especially those “deemed invalid and dangerous” (like the proposed bill), tend to “slacken the bands of Society.” Madison and the dissenters believed that the laws were “invalid” because the government had no authority on matters of religion. This was dangerous because it threatened the peace of the society. As we will see when we turn to the dissenters’ petitions, the proposed bill was mainly obnoxious because it violated their rights of conscience. Because of the widespread opposition, Madison feared that the assessment would “slacken the bands of Society” and harm government’s “general authority.”

Esbeck’s summary of point 14: “A bill of this ‘delicacy’ should not be imposed without broad support. We hope the elected representatives will oppose this bill. However, if they disappoint us we are confident the people will reverse the decision of the legislature.” (p. 85)

Esbeck conveys the overall point, but there are a few minor details missing from Esbeck’s version that are worth examining because they help clarify Madison’s position. On a minor, but telling distinction, Esbeck used only the word “delicacy” to describe the bill, when Madison claimed that it was “of such singular magnitude and delicacy.” Madison’s wording indicates that the controversy was of much more significant magnitude than being simply a matter of “delicacy.”

Madison was concerned about the fairness of the system to accurately determine the will of the people, which he clearly believed was on his side. There was, at the time, no reliable method to measure support among the people and he was justifiably concerned that this state of affairs would favor the conservatives. He believed, or at least wanted to believe, that if the process was fair the bill would fail. He confidently boasted that if the bill succeeded, “a fair appeal” would “reverse the sentence against our liberties.” (italics mine) Note that this statement is further proof that Madison saw the bill as a threat to the liberties of the people (not the churches).

Esbeck’s summary of point 15: “Article 16 of Virginia’s Declaration of Rights safeguards the free exercise of religion. The will of the legislature is not the measure of its authority. The legislature exceeds its authority were it to adopt this bill. We pray that ‘the Supreme Lawgiver of the Universe’ illuminate the deliberations of the legislature and turn it from ‘every act which would affront his holy prerogative.’” (p. 85)

This is a clever rendering of Madison’s argument masks the link between individual rights and the proposed establishment that is at the heart of Madison’s view of religious liberty. Madison begins by quoting the significant section of Art. 16 that he helped to secure: “‘the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience.’” Madison slightly misquotes the passage in a way that is telling. Instead of “all men are equally entitled to the free exercise of religion,” Madison writes that it was “the equal right of every citizen.” This rendering highlights the equality of all citizens. If all citizens have an equal right to choose and practice their religion (or no religion) then it follows that the principles or practices of one religion (or denomination) cannot be privileged, or burdened, by the laws of the state. There is no way to place religion in law without violating this right, which is why he insisted that the legislature had “no authority to enact into the law the Bill under consideration.”

After this, Madison concluded that this right should be “held by the same tenure with all our other rights.” Madison was arguing that a threat to this right put all the others in danger. Either the legislature had the “power to sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred.” Madison saw this right as the basis for his claim against the general assessment, as well as all other establishments, disproving Esbeck’s assertion that the desire to end, or limit, establishments of religion had nothing to do with individual rights.

Esbeck’s last sentence comes from the concluding paragraph of the Memorial, and is not part of Madison’s fifteenth point. Unmentioned by Esbeck is the fact that Madison repeated his claim that the legislature had no authority to pass the bill, and that they (“the Subscribers” to the petition) opposed “so dangerous an usurpation.” Instead, he hoped that the legislature would “establish more firmly the liberties, the prosperity and the happiness of the Commonwealth.” It is also noteworthy that Madison, like many of the founders, was careful to use the more inclusive and universal language of enlightened Deism (“the Supreme Lawgiver of the Universe”) rather than the more specifically Christian “Jesus Christ” or “God.” Given that the Memorial was written in opposition to the establishment of Christianity this detail would have been important.


It is hard to reconcile Esbeck’s characterization of the Memorial with Madison’s own words. To turn Madison into a proponent of his “voluntaryism” principle, Esbeck ignored inconvenient evidence, distorted Madison’s text, and added meanings and concerns that cannot be justified by the evidence. Nothing in the text justifies Esbeck’s claim that Madison’s main concern was to protect religion, or the church. Contrary to Esbeck’s assertions, Madison primarily saw the proposed establishment as a threat to individual rights. In addition, Madison insisted that the assessment would harm religion, the state, and society. In other words, it was bad all the way around, but its primary sin was that it violated the equal rights promised in the Declaration of Rights.

Esbeck also claimed that Madison “sought disestablishment for the unity of the body politic.” (p. 103) This is a curious claim given that Madison never mentioned “unity” in the Memorial, or in any of his other writings on the subject of religious liberty. Madison was certainly concerned about peace and harmony, but this is not the same as unity, which implies uniformity. Not to mention the fact that the issue of harmony, while important, was only a minor issue in the Memorial.

The focus of the petition was unequivocally on individual rights. Contra Esbeck, Madison’s main objection to all religious establishments was that they violated the rights of conscience and equality. Religious dogmas imposed by law were establishments of religion and as such were in violation of the rights of those who did not share those religious beliefs. Madison was a proponent of the tolerationist mantra that persuasion, not force, should be the only means of compliance available to religion. Therefore, Madison’s view necessarily placed limits on religious societies in order to prevent them from using the sword of the law to impose their religious dogma. The fact that Madison wanted to place limits on both church and state can be seen more clearly in his later writings, where he railed against the “alliance or coalition between Govt. & Religion.” He insisted that “[e]very new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Govt. will both exist in greater purity, the less they are mixed together.” (11) He even explicitly warned against “the danger of encroachment by Ecclesiastical Bodies” in his final work on the subject. (12) Madison cannot in any way be considered a disciple of voluntaryism.


(1) James Madison to James Monroe (December 4, 1784) Founders Online.

(2) H.J. Eckenrode, Separation of Church and State in Virginia: A Study in the Development of the Revolution (Richmond: Davis Bottom, 1910), 102.

(3) John Leland, “The Yankee Spy,” in The Writings of the Late Elder John Leland: Including Some Events in His Life (New York, 1845), 221.

(4) Madison to Thomas Jefferson (October 17, 1788) Founders Online.  Madison’s explanation of his theory can also be found in his “Vices of the Political System of the United States,” (April 1787) Founders Online; and Federalists nos. 10, and 51.

(5) Madison to Jefferson (October 17, 1788) Founders Online.

(6) Madison to Thomas Jefferson (October 17, 1788) Founders Online.

(7) Draft of the Virginia Declaration of Rights, Article 1, quoted in Declaring Rights: A Brief History with Documents by Jack N. Rakove (Boston: Bedford Books, 1998), 81.

(8) James Madison, “Madison’s Amendments to the Declaration of Rights [29 May–12 June 1776],” Founders Online.

(9) A Member of the Established Church, “Mr. PURDIE, In your last paper I saw a piece entitled the sentiments,” The Virginia Gazette (Purdie), November 1, 1776.

(10) Northumberland (November 28, 1785); Powhatan Baptists  (November 3, 1785); and Nansemond (October 27, 1785).

(11) Madison to Edward Livingston (July 10, 1822) Founders Online.

(12) Madison, “Detached Memoranda,” Founders Online.


First Amendment Folly (Part IV, a): James Madison Clashes with Patrick Henry Over Religious Assessments

This is the fifth post in a six part series evaluating Carl H. Esbeck’s “Protestant Dissent and the Virginia Disestablishment 1776-1786.” For previous posts in the series go to “Abusing History and the First Amendment.” 

As the Revolutionary War wound down the issue of religious establishments returned to Virginia when conservatives, believing that society was awash in immorality and licentiousness, began petitioning the legislature to pass a law providing provisions for religion. The House of Delegates signaled its support for such a measure by declaring one of these petitions “reasonable” during the spring session of 1784. (1) However, the provision was postponed until the fall session, possibly with the assistance of Madison, who was now a seasoned statesman after serving in the Continental Congress. With Jefferson serving in France, Madison stepped up as the primary leader of the religious liberty coalition in the House of Delegates. Due to the growth of the dissenting communities, and the waning power of the conservative Episcopalian establishment there was finally an opportunity to break the stalemate over the issue of religious establishments.

James Madison

To be successful, however, Madison needed the enthusiasm and support of the dissenting community. Unfortunately, an unexpected volte-face by the Hanover Presbytery during the fall session threatened to undermine Madison’s efforts to deal a death blow to the conservative effort to establish a religious assessment. In a petition submitted earlier that year (their first since 1777) there was no mention of assessments, and no indication that their stance on religious establishments had changed in any meaningful way. It echoed the complaints of earlier petitions about the unjust advantages retained by the Episcopal Church and expressed “a desire of perfect liberty and political equality.” (2) No one expected what was to come next.

The Presbytery then sent shockwaves through the legislature during the fall session when they submitted another memorial which unexpectedly expressed support for a general assessment. Incensed by the change of heart, Madison wrote to his friend James Monroe that he did “not know a more shameful contrast than might be formed between their Memorials on the latter & former occasion.” (3) On the other hand, the conservatives warmly greeted the new position; their enthusiasm, however, was dampened by the particulars of the Hanover request. The members of the Presbytery opposed the exclusively Christian and Protestant schemes favored by conservatives. They were willing to support only an assessment that encompassed all religions. They also demanded more limits be placed on government involvement with matters of religion. Despite these exacting qualifications of support, the Presbytery’s new position was a dramatic reversal of their previous principled stance against all religious establishments. What had happened?

Some have argued that this particular petition was actually an expression of the true sentiments of the Presbyterian community. (4) However, this position is unconvincing since this was the only petition of all the other Presbyterian (lay and Hanover Presbytery) petitions that expressed any kind of support for religious assessments, and even this one was hardly an enthusiastic endorsement of assessments. The more likely explanation is that it was taken up as a strategy in the face of what they saw as a fiat accompli. It seems that the Presbytery was convinced that an assessment was going to take place, and they, therefore, believed that their best strategy was to limit the damage. According to Moses Hoge, a member of the Presbytery, he had suggested a petition “against all assessments whatever” but was dissuaded by “an individual possessed of information,” who insisted that there was going to be an assessment, and that it would be better to have some say in the inevitable outcome. (5) The “individual possessed of information” was most likely John Blair Smith, author of the petition and neighbor of Patrick Henry, the famous revolutionary and charismatic leader of the general assessment movement. The Presbytery strategy seemed reasonable, but, in the end, it would fail. As the bill was being set in its final form in 1785, a proposal to replace the word “Christian” with “Religious” failed by seven or eight votes according to Madison, who blamed the “discrimination” on “the pathetic zeal of the late governor Harrison.” (6) The previous year, Madison had hoped to kill the bill before it ever got to this stage, but in this effort, he had found himself up against the formidable Patrick Henry.

A Clash of Titans: James Madison vs. Patrick Henry

As the plan for a general assessment moved forward in the House of Delegates during the 1784 fall session, the debate intensified. In a clash of titans, the brainy Madison squared off against the master orator Patrick Henry. Unfortunately, all that remains of this remarkable debate is a brief outline Madison drew up in preparation for the debate. (7) These notes, along with Madison’s Memorial & Remonstrance, are the primary sources used by Esbeck to construct his interpretation of Madison’s views. In these sources, Esbeck finds a proponent of his voluntaryism principle. Having Madison on his side on this issue would add credibility to his “originalist” claim. In defense of this alignment between his own views and his interpretation of Madison, Esbeck would claim that his own views were derived from those of the founders, and not the other way around. As an originalist, he is, after all, simply the messenger of Madison’s (and the dissenters’) views.

To evaluate Esbeck’s interpretation is it will be necessary to evaluate his description of Madison’s outline in some detail. For the sake of simplicity, I will follow Esbeck’s point by point approach to evaluating Madison’s outline. In addition, I will include Madison’s notes for each point, as well as Esbeck’s summaries in full, so that the reader can determine whose interpretation is more in line with Madison’s views.

Point # 1:

Madison’s notes:

 I. Rel: not within purview of Civil Authority,
tendency of Estabg. Christianity

  1. to project of Uniformity
  2. to penal laws for supportg. it.

Progres[s] of Gen: Assest. proves this tendency
Difference between estabg. & tolerating errour– (8)

 Esbeck’s summary: Madison’s “first point was that religion was not within the ‘purview’ of civil authority.” (p. 77)

Response: Esbeck accurately describes the first line of Madison’s point, but by ignoring everything else he fails to give his readers a fuller understanding of Madison’s thinking on church/state matters. The content below his main claim about civil authority is important because it helps explain why Madison believed that religion was “not within purview of Civil Authority.” This content enumerates some of the consequences of establishing Christianity, mainly the coercive nature of laws imposing religious uniformity. Coercion in matters of religion was obviously abhorrent to Madison because it violated the rights of conscience. For this reason, he insisted that “Rel” (not religious societies) was “not within the purview of Civil Authority.” This important link (rights) between Madison’s conclusion and the remaining remarks is implicit here, but it will appear fully developed in his soon to be written Memorial & Remonstrance. This line of reasoning is at the heart of Madison’s opposition to all establishments, including the proposed general assessment.

Whether intentionally, or not, Esbeck misrepresents Madison’s understanding of religious liberty. It is curious, though, that the content ignored by Esbeck poses a significant challenge to his claim that rights were not the basis for claims against establishments.

Point # 2:

 Madison’s notes:

II. True question not—Is Rel: necesy.?
Are Religs. Estabs. necessy. for Religion? no.

  1. propensity of man to Religion.
  2. Experience shews Relig: corrupted by Estabt.
  3. downfal of States, mentioned by Mr. H[enry]. Happened where there was Estabts.
  4. Experience gives no model of Gel. Asst?
  5. Case of Pa. explained—not solitary. N.J.

See Const: of it. R.I.N.Y.D.
Factions greater in S.C.

  1. Case of primitive Christianity.

of Reformation
of Dissenters formerly.

Esbeck’s summary: “His second point was to properly rephrase the issue as not whether religion was necessary to support a republic (he believed it was), but whether an establishment of religion is necessary for religion to flourish (and thereby be of support to government). Madison cited evidence of government’s historical tendency to corrupt any religion it supports.” (p. 87)

Response: Esbeck has framed Madison’s position as one in which Madison wants religion free from government so that religion can flourish and thereby be of support to the government. There are several issues with this understanding of Madison’s statements. Esbeck begins by claiming that Madison believed that “religion was necessary to support a republic.” Notice that there is nothing in the above excerpt to support this claim. Madison was simply pointing out that the “True” question was not “Is Rel: necesy.?” Madison may have believed this since it was a common assumption at the time, but he never says this and it never played a significant role, if any at all, in his thinking about church/state relations. This may seem like a minor point, but it primes the reader to see Madison as a proponent of voluntaryism, which proposes to limit government intervention in religious societies but not the other way around. Even if Madison believed that a pious population boded well for the health of the state, it does not follow that he would have agreed with Esbeck’s conclusion that “moral values based on religion were welcomed in the marketplace of ideas and in the formation of public policy and law.” (9) In fact, Madison insisted in his Memorial & Remonstrance that the state should not “employ Religion as an engine of Civil policy.” To overcome this obstacle Esbeck will, later in his analysis, impose a distinction between things “specifically religious” and those that are not.

In his second point Madison was focusing on whether or not religious establishments were necessary for religion. This addresses one of the main arguments of his opponents, who complained that without state support religion would wither away. In response, Madison claims that this was not a threat to the flourishing of religion because man had a “propensity” to religion. Besides, he insisted, establishments corrupted religion.

Next, Madison turned to the harm done to states by religious establishments, a fact conveniently ignored by Esbeck. Madison was apparently responding to a point made by Patrick Henry about the “downfal of States.” Madison pointed out that it was states with establishments that had failed, therefore, establishments could not be bulwarks against state collapse. To cast doubt upon the efficacy of general assessments to achieve the goals promised by Henry, Madison drew attention to the fact that there were no examples of states with general assessments (assessments in support of all denominations, rather than a single denomination). Rather than pursuing such an experiment, Madison advocated following the success of several states that were thriving without any establishments (Pennsylvania, N.J., etc.). Interestingly, he sets South Carolina apart from the others as exhibiting greater factionalism. South Carolina was an interesting case, because it had established the Protestant religion, but had done so without providing any financial support for this establishment. (10) The factionalism noted by Madison would have originated in the privileging of Protestants over and above all other citizens. Here we can clearly see that it was not simply the financial support of religion that vexed Madison. The source of the problem was much broader. It was the unjust privileging of a particular religion, in violation of the equal rights of all citizens, that undergirded Madison’s critique of establishments. Finally, Madison indicated that he wanted to compare the first 300 years of Christianity with the violence and instability of its establishment as exemplified by the Reformation and the treatment of religious dissenters.

Point # 3:

Madison’s notes (# 3):

III. Decl: Rig[hts]. 7. Progress of Religious Liberty

Response: This point is completely ignored by Esbeck and in its place he uses Madison’s fourth point. It is possible that this is simply a mistake, but if it is, it is a very convenient mistake for his own argument. Madison’s third point explicitly highlights the link between rights and “the proposed establishment,” (11) as Madison frequently called the assessment bill. And if the link isn’t explicit enough here, in a letter to Richard Henry Lee written around the same time, Madison wrote that the assessment bill “was opposed not only on the general principle that no Religious Estabts. was within purview of Civil authority, but on the […] ground on which it was placed; and the infraction […] the last article of the Decl: of Rights.” (12) This link will become even more explicit in his Memorial & Remonstrance. This line of reasoning may be inconvenient for Esbeck’s central claim that the debates over religious establishments were about how two centers of authority (organized religion and the state) would relate to each other rather than protecting rights, but it is undeniable.

Point # 4:

Madison’s notes (# 4):

IV. Policy.

  1. promote emigrations from State

  2. prevent [immigration] into it as asylum

Esbeck’s summary (Madison’s fourth point): “Point three argued that an establishment would make Virginia inhospitable to dissenters, causing reduced immigration into Virginia as well as people leaving due to religious oppression.” (p. 78)

Response: This is a fair summary of Madison’s notes.

Madison’s notes (his point # 5):

V. Necessity of Estabts. inferred from State of Conty.
True causes of disease

  1. War common to other States &
  2. bad laws produce same complts. In N.E.
  3. pretext from taxes
  4. State of Administration of Justice.
  5. transition from old to new plan.
  6. policy & hopes of friends to G. Asst.

true remedies not Estabt. but being out war

  1. laws cherish virtue
  2. Administ: justice
  3. personal example—Association for R.
  4. By present vote cut off hope of G. Asst.
  5. Education of youth

Probable defects of Bill
dishonor Christianity
panegyric on it on our side
Decl: Rights.

Esbeck’s summary (Madison’s point 5): “Madison’s fourth point sought to demonstrate that the social decay the assessment was intended to cure could in fact be remedied by social activity and personal example.” (p. 78)

Response: As a general description, this is a fair summary of Madison’s point, but I there are a few items worth examining briefly. The first is listed under “the true causes of disease [discord and disorder],” where Madison lists the following: “policy & hopes of friends to G. Asst.” The debate over the general assessment created such a storm of controversy and animosity that George Washington, who would have supported the bill if it was inclusive of all religions, hoped to see the bill fail since it would “be productive of more quiet the State.” (13) For Madison, this discord was not unexpected, it was an inherent feature of establishments. As an attempt to dictate religion (no matter how inclusive) via civil law, the assessment necessarily sowed dissention and discord as the religious views of some were privileged over the views of others. Accordingly, a solution to the malady was to “cut off hope of G. Asst.” This idea will be further developed in his Memorial, where he will recommend “equal and compleat [sic] liberty” for all citizens as an answer to the troubles brought about when governments “intermeddle with Religion.”

It is also important to note the inclusion, for the second time, of a reference to the “Decl: Rights.” Adherence to the DOR, or “the great Barrier that defends the rights of the people” as he calls it in the Memorial, was an essential feature of a just and stable government. And for Madison this would do more to cure the “disease” than any establishment of religion ever could.

Point # 5:

Madison’s notes (Outline A) (14):

Debate on Bill for Relig. Estabt proposed by Mr. Henry

  1. limited

  2. in particular

  3. What is Christianity? Courts of law to Judge

  4. What edition, Hebrew, Septuagint, or vulgate? What copy—what translation?

  5. What books canonical, what aprochryphal? the papists holding to be the former what protestants the latter, the Lutherans the latter what other protestants & papists the former

  6. In What light are they to be viewed, as dictated every letter by inspiration, or the essential parts only? or the matter in general not the words?

  7. What sense the true one, for if some doctrines be essential to Christianity, those who reject these, whatever name they take are no Christian Society?

  8. Is it Trinitarianism, arianism, Socinisnism? Is it salvation by faith or works also—by free grace, or free will–&c &c &c [etc etc etc]—

  9. What clue is to guide Judge thro’ this labyrinth? When the question comes before them whether any particular Society is a Christian Society?

  10. Ends in what is orthodoxy, what heresy?

Esbeck’s summary: “His fifth point addressed the practical problems of a multiple establishment, most significantly the difficulty of adjudicating religious questions in a court of law. Such questions were inevitable if only orthodox Christian churches were to be eligible to receive tax payments.” (p. 78)

Response: Esbeck’s oversimplified characterization misses the significance of Madison’s point. Madison is not simply pointing out “the difficulty of adjudicating religious questions in a court of law.” It was the consequences of such exercises in division (determining who was orthodox) that had, as Madison claimed in the Memorial, drowned Europe in “[t]orrents of blood” for over 200 years. Madison realized that if the state was going to support Christianity, as they proposed in the assessment bill, at some point they would have to decide, who was and who was not, eligible to receive state funds. This exercise would inevitably relegate some citizens to second class status, and as a result would be accompanied by the animosities and jealousies that sow discord.

Interestingly, Esbeck adds his own opinion as part of his summary making it appear as if it was part of Madison’s argument. He opines that the “difficulty” could be avoided “if only orthodox Christian churches” were eligible. This so-called solution would not have actually solved the problem. The question of determining who was and who was not eligible could not be avoided, and, as Madison was well aware, the inevitable determination would in and of itself create an orthodoxy.


Esbeck’s takeaway on Madison’s purposes and goals: “It is clear from Madison’s outline that his aim was to protect and liberate religion, not to control or curtail it, as well as to avoid the inevitable civic division that follows when government involves itself in specifically religious doctrine and observance.” (p. 78)

Response: As should be clear from the above review of Madison’s notes, Esbeck’s interpretation of Madison’s argument is problematic in its details. As a result, Esbeck’s general conclusions about Madison’s goals are also problematic. From the notes, Esbeck gleans two primary reasons for Madison’s opposition to the general assessment bill. First, Esbeck, claims that Madison wanted “to protect and liberate religion, not to control or curtail it.” This characterization of Madison’s goal implies that he wanted to “liberate religion” from state control without prohibiting its influence on government policy; a goal that is coincidentally in line with Esbeck’s own preferences. (15) While Madison did want to free religion from state control (as well as free the state from religious control), his goal was to free the people from tyranny, not to protect religion, as the above review of Madison’s notes indicate. And, as with all enlightened rationalists, it was establishments of religion that protected religion. To free religion was to open it up to criticism. One of the benefits of untethering religion from state protection was the progress of truth that would come from the freedom to debate and criticize religious dogma. As Madison insisted in his Memorial: “Instead of Levelling as far as possible, every obstacle to the victorious progress of Truth, the Bill with an ignoble and unchristian timidity would circumscribe it with a wall of defence against the encroachments of error.” (16) By freeing religion from the protection of government truth would win, and religion would become purer in the process. In other words, the critique of religion, not the protection of religious dogma, would be better for religion, the state, and freedom.

As far as not wanting to “control or curtail” religion, Esbeck is implying that Madison only wanted to prevent the state from intervening in religion, while at the same time allowing religion (or religious societies) to shape public policy. There is no evidence that Madison saw it this way. In fact, he stated clearly in the Memorial that the “Civil Magistrate” is not a “competent Judge of Religious Truth,” and may not “employ Religion as an engine of Civil policy.” To bring religion into law is to establish religion; something Madison was adamantly opposed to.

The second purpose divined by Esbeck from Madison’s notes is that he opposed the general assessment “to avoid the inevitable civic division that follows when government involves itself in specifically religious doctrine and observance.” (p. 78) Here Esbeck cleverly creates a distinction between things “specifically religious” and those that are not. This rendering of Madison’s intentions implies that Madison would allow government support for things not “specifically religious,” which, if true, would support Esbeck’s position that government can, and should, provide funds to religious organizations so long as they are for things not “specifically religious.” This would also justify his desire to have religious morality shape policy.

Esbeck is correct to note that Madison wanted to avoid “civic division,” but he misleads his readers by characterizing the source of the problem as resulting from government involvement “in specifically religious doctrine and observance.” (italics mine) Esbeck wants to present the problem as one of government intervention in church affairs, rather than as one of violating individual rights. However, this depiction of Madison’s understanding of the problem is not justified by the evidence. Based on what he wrote (here and elsewhere), it was state-imposed religion (the “project of uniformity”) which violated the equal rights of citizens, rather than the meddling in religious doctrine, that was the focus of Madison’s concern (see above discussion of “Outline A”). This is why the Declaration of Rights was the foundation upon which he constructed his arguments against the assessment bill in the Memorial. It was the privileging of some citizens over others which was contrary to the equal rights proclaimed by the DOR, and that created the animosities which led to “civic division.”

More problematic for Esbeck’s characterization is the fact that it rests on an incomplete accounting of Madison’s arguments. By ignoring so much of what Madison said, particularly concerning rights, Esbeck has created an ally of accommodation. The real test of this position will be Madison’s magnum opus of religious liberty: Memorial & Remonstrance Against Religious Assessments.


The dramatic debate between Madison and Henry, the two titans of politics changed few minds. According to Beverly Randolph, the future governor of Virginia, Madison’s speech was unsuccessful because “a majority of 17 [were] against him” despite his demonstration of “great Learning & Ingenuity, with all the Powers of a close reasoned.” On Henry’s performance, Randolph reported, that he “advocated with his usual art.” (17) No amount of reason, logic, or evidence had a chance against Henry’s soaring rhetoric and appeals to emotion. As long as Henry was there to defend the assessment bill, Madison knew that he would have little chance of stopping its passage. Fortuitously, Henry was elected governor on November 17. It is widely believed that Madison had a hand in this affair, although there is no conclusive evidence to support this charge. (18) If he did, Madison never indicated anywhere that he had aided in this bit of political maneuvering. Whatever, Madison’s role in this affair, it was a bit of good fortune for him and his allies. In a letter to his friend James Monroe, Madison happily reported that the supporters of the assessment “are much disheartened at the loss of Mr. Henry. Its fate is I think very uncertain.” (19) But for now, the legislation moved forward and the drama was about to shift from the legislature to the populace.


(1) H.J. Eckenrode, Separation of Church and State in Virginia: A Study in the Development of the Revolution (Richmond: Davis Bottom, Superintendent of Public Printing, 1910), 79-80.

(2) Petition of the Hanover Presbytery (May 26, 1784) at Library of Virginia: Digital Collection (hereafter LOVD).

(3) Madison to James Monroe (April 12, 1785) Founders Online.

(4) See Fred J. Hood, “Revolution and Religious Liberty: The Conservation of the Theocratic Concept in Virginia,” Church History, vol. 40, no. 2 (June 1971).

(5) See Eckenrode, Separation of Church and State, 89-90; Charles Grier Seller, Jr., “John Blair Smith,” Journal of the Presbyterian Historical Society 34 (December 1956), 212; and William Henry Foote, Sketches of Virginia: Historical and Biographical (2 series, Philadelphia: J.B. Lippincott & Co., 1856), 2:557.

(6) Madison to Jefferson (January 9, 1785) Founders Online.

(7) The main debates over assessment came later in the session (December 22-24) but a letter to James Monroe from Beverly Randolph indicates that Madison and Henry debated each other on this subject. Henry was elected governor on November 17 and so would not have been present for the later debates. Eckenrode believes that this is the most likely date for Madison’s speech. (Eckenrode, Separation of Church and State, 85)

(8) Madison’s Notes For Debates on the General Assessment Bill, [Outline B], [23-24 December 1784], Founders Online, National Archives ( [last update: 2016-03-20]). Source: The Papers of James Madison, vol. 8, 10 March 1784 – 28 March 1786, ed. Robert A. Rutland and William M. E. Rachal. Chicago: The University of Chicago Press, 1973, pp. 197.

(9) Carl H. Esbeck, “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review (2004): 1580.

(10) The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the United States, Part II. Second edition. compiled by Ben: Perley Poore. (Washington: Government Printing Office, 1878), 1626-27. This establishment was short-lived and was dismantled by a new constitution in 1790 that almost completely severed the ties between religion and government (Ibid., 1632).

(11) Madison, Memorial & Remonstrance Against Religious Assessments, Founders Online.

(12) Madison to Richard Henry Lee (November 14, 1784) Founders Online.

(13) George Washington to George Mason (October 3, 1785) Founders Online.

(14) “Madison’s Notes for Debates on the General Assessment Bill, [Outline B], [23-24 December 1784],” Founders Online. The editors of The Papers of James Madison (the source used by Founders Online) list this as a separate document because they claim there is nothing to support Hunt’s claim (editor of Madison, Writings) that the two segments were from a single debate. Instead, they believe that Madison “spoke on this subject several times, but the outline he used initially is uncertain.” (see footnote 1) Esbeck is following the work of others who have followed Hunt’s view on these notes.

(15) Esbeck, “Dissent and Disestablishment,” 1579-80.

(16) Madison, Memorial & Remonstrance, Founders Online.

(17) Eckenrode, Separation of Church and State, 85.

(18) Buckley, Church and State, 100-1.

(19) James Madison to James Monroe (December 4, 1784) Founders Online.

“How the US Began Its Empire” | by Jackson Lears | The New York Review of Books

Stephen Kinzer’s The True Flag: Theodore Roosevelt, Mark Twain, and the Birth of American Empire is both timely and important as we face significant foreign policy challenges.  Few Americans are familiar with this history and/or the strain of American thought that led to the “Birth of American Empire.” Jackson Lear’s review of this book is an excellent overview of this book, and makes a great case for its significance.

“Kinzer concludes by returning to the republican tradition: “Nations lose their virtue when they repeatedly attack other nations,” he writes.

That loss, as Washington predicted, has cost the United States its felicity. We can regain it only by understanding our own national interests more clearly. It is late for the United States to change its course in the world—but not too late.

The recovery of civic virtue and the clarification of national interest are urgently necessary goals, and the only way we can hope to achieve them is by reviving the debate over American empire.”

Source: How the US Began Its Empire | by Jackson Lears | The New York Review of Books

First Amendment Folly (Part III): Stalemate: The Defeat of Jefferson’s Bill for Establishing Religious Freedom and a Bill “Concerning Religion” (1779)

This post is part of a series on abusing history in constitutional law, and it is the fourth section examining  Carl H. Esbeck’s “Protestant Dissent and the Virginia Disestablishment 1776-1786.” For the first two posts in the series click on the following links: Intro, Part I, and Part II.

After a tumultuous 1776, debate on the subject of religious establishments waned but did not completely fade. The dissenters, happy to have been relieved from the burden of supporting religion, lost the sense of urgency that fueled their campaign in 1776. But the fact that the established Church remained intact, albeit weakened from the loss of funds, ensured that the dissenters would not rest content for long. The awareness of their inferior status was never far from their minds, even when distracted by the demands of revolution. Their complacency was likely aided by Jefferson’s successful blockade against any proposed religious assessments. Even as they lost their earlier public zeal, evidence of their concerns can be found in the minutes of their meetings.

After their last petition to the House in 1777, the Hanover Presbyterians expressed alarm that the “General Assembly may come to a final determination concerning church establishments, at their next session.” (1) Thus, they called for a special committee to meet in September. Regrettably, if it met there is no record of it. (2) For 1778 there is no indication that they thought about this matter at all. This inaction (at least on record) is hard to explain given their previous (and future) determination to end all establishments of religion. If we take their 1784 statement seriously, they abandoned their petitioning campaign out of a desire not to be seen as “taking advantage” during a time “of convulsion and war.” (3)

A similar lack of follow through afflicted the Baptist community after they assessed and documented their grievances at two separate meetings in 1778. In May, the General Association of Baptists agreed to send a petition complaining that the marriage laws, which gave the established ministers the sole authority to marry, were “partial and oppressive.” Alas, there is no record of any petition from the Baptists appearing at the General Assembly. A report from their October meeting, repeated their complaint against the marriage laws and declared their opposition to any general assessment, but again no petition was produced. They also elected Jeremiah Walker and Elijah Craig to represent them at the General Assembly. (4) While there is no record of their presence at the legislature (not surprising), the appearance of a bill “declaring marriages solemnized by dissenting ministers lawful” in 1778 may have been prompted by their efforts. (5)

The lack of public zeal by the dissenters has led some to blame them for the failure of Jefferson’s bill for religious freedom in 1779. While unfortunate, it is doubtful that a determined effort by the dissenting community would have made any difference. At that time, the dynamics within the legislature determined its fate, and no amount of pressure from the dissenting community would have prevented the conservative assault against it in the legislature. With the makeup of the legislature essentially divided between the conservative and progressive forces, the bitter struggles between the two camps more often than not ended in stalemate, as the failure of both Jefferson’s bill and a conservative bill meant to establish a general assessment demonstrate. Nevertheless, the contests of 1779 are revealing.

The Bill for Establishing Religious Freedom

After a fairly quiet year in 1778, the public debate over establishments returned in 1779 when Jefferson introduced his bill for Establishing Religious Freedom. The meaning and extent of Jefferson’s achievement will be examined within the 1786 context in which it was passed since Esbeck’s interpretation hinges on that context. At this point the focus will be on the reason for the failure of the bill. According to Esbeck, it failed because “[t]he politics had turned against it.” (p. 73) He offers very little evidence for this claim, except a reference to Charles F. James’s Documentary History. But James’s account of the events of 1779 is hardly supportive of Esbeck’s claim. Rather than focusing on a changing political climate, James is trying to pin the blame for the failure of the bill on the Presbyterians. As a late nineteenth-century Baptist preacher, James wrote his book in response to those who tried “to rob our Baptist fathers of the peculiar honor which has ever been claimed for them—that being the foremost, most zealous, and most consistent and unwavering champions of soul liberty.” (6) In other words, James’s Documentary History is a partisan work and hardly a reliable source beyond the reprinted documents. More importantly, James fails to prove his own point. Most of the evidence he provides are general statements from sources of varying credibility praising the Baptists as the main champions in the struggle for religious liberty. Only a few excerpts focus on the events of 1779, and they fail to support his, or Esbeck’s, claim. Certainly, the Presbyterians were not as active as they had been, but the same state of inertia gripped the Baptists in 1779. And even if they had been, their campaigning is unlikely to have made a difference at that point. If it was neither Presbyterian apathy, nor a changed political environment, what explains the failure of the bill.

by Mather Brown. London,1786.

Thomas Jefferson, by Mather Brown. London,1786.

The real culprit of the bill’s downfall was the political maneuvering of the conservatives in a legislature that was just as divided in 1779 as it was in 1776. During this period, any legislation on the subject of establishments required some heavy lifting in a House in which neither side had a clear majority. At first it appeared that the religious liberty faction under Jefferson’s leadership might have the upper hand. The staunch conservatives Edmund Pendleton and Robert C. Nicolas, whom Jefferson described as “[o]ur great opponents” who were “honest men, but zealous churchmen,” were absent. (7) But the bill’s fate was sealed after Jefferson’s fellow legislators elected him to the governor’s seat by his before he had secured its passage. (8) Jefferson’s election to the governorship was likely no accident, the same trick will be used against Patrick Henry in 1785 during the final showdown over assessments. Just as the conservatives did in 1776, they took advantage of Jefferson’s absence to undermine his efforts. The bill survived two readings before its death was secured. (9) Then, in order to rouse conservatives and provoke a backlash, they had the bill printed as a broadside.

The ploy had its intended effect and several articles appeared decrying Jefferson’s dangerous ideas. For example, in the Virginia Gazette, a “Social Christian” complained that Jefferson’s bill put individual rights above collective rights and the common good. Instead, he advocated for the establishment of Christianity. While broader than the exclusive establishment they currently had, it was a far cry from the equality promised in the Declaration of Rights. To him, the fact that the majority of the state was Christian justified such an establishment. Not wanting to appear intolerant, he tempered his stance by recommending that “Jews, Mohamedans, Atheists or Deists” be tolerated (allowed to practice their faith, but denied equal citizenship). (10)

The opening of the fall session also provided conservatives with the opportunity to rail against the bill for religious freedom. A petition from Culpeper County predicted that “evils” would arise if the bill was enacted. Another petition notified the legislature that they were “much alarmed” by the bill and “consider[ed] it very injurious to the Christian Religion, and will be attended with the most baneful consequences if permitted to have an existence in this State.” Therefore, they requested that their representatives “Vote for the destruction of all such Diabolical Schemes.” A better option, they insisted, would be to enact regulations to maintain “the Public Worship and Teaching of the Christian Religion.” In addition, they thought that a “general assessment for the support of Religious Worship, wou’d be most agreeable.” (11) The petitioners from Lunenburg called for the establishment of “the Christian religion, free from the errors of popery.” (12)

In contrast to the six pro-establishment petitions, only two petitions in support of Jefferson’s bill appeared at the General Assembly that fall. One came from the “sundry inhabitants” of Augusta County, a heavily Presbyterian county, which “cordially approve[d] of” the bill for establishing religious freedom and hoped that it would “pass into a law.” (13) The other petition more forcefully expressed support for the bill. It praised Jefferson’s measure as “giving free and equal Liberty & Privileges in matters of Religion to all the Inhabitants of this Commonwealth.” Thus, they gave their “hearty assent concurrence & approbation to the purpose of the said Bill and desire[d] that the same may be passed into a Law.” Laying out the important distinction between toleration and religious liberty, they declared that they “most earnestly desire[ed] and pray[ed] that not only an Universal Toleration may take Place but that all the Subjects of this Free State may be put upon the same footing and enjoy equal Liberties and privileges, which we think (consistent with the 16th paragraph of the Declaration of Rights), can no longer with any shadow of Justice be withhold.”  (italics mine) They wanted religious liberty, not simply toleration. In pursuit of this goal, they instructed their representatives “to promote a Total & final Repeal of all Laws giving Rise to [‘unrighteous Distinctions’].” They closed their plea forcefully by declaring that they, members of the “Church of England = men; Presbyterians, Baptists & Methodists,” spoke “unanimously & with one voice.” (14) This closing statement was clearly meant to highlight the nonpartisan nature of their appeal. Interestingly, the Methodists, still part of the Episcopal Church, had not yet switched sides to join the dissenters on this issue, but apparently, there were already some members of that denomination in the fight against establishments.

Based on the paltry showing of petitions from supporters, it appeared that the dissenters were not behind it or its message, but this lack of public enthusiasm did not reflect their private sentiments. Some of the bill’s most enthusiastic supporters, like the Baptists, came out in support of it but failed in their follow through. (15) In October at a meeting of the General Association, the Baptists unanimously agreed to the following proposition: “On consideration of the bill establishing religious freedom, agreed: That the said bill, in our opinion, puts religious freedom upon its proper basis, prescribes the just limits of the power of the State with regard to religion, and properly guards against partiality towards any religious denomination. We, therefore, heartily approve of the same, and wish it to pass into a law.” They also ordered that their unequivocal support “be inserted in the Gazettes.” (16) For unknown reasons, no such statement has been found in any of the gazettes. Whatever the reason for their lack of follow through, the Baptists were clearly behind Jefferson and his bill.

The Presbyterians were silent on the subject publicly as well, with the exception of those individuals who signed the Augusta and Amherst petitions. This silence was probably due to multiple factors, including: internal divisions; war-related distractions; and, as already indicated, out of a desire to cooperate during a time of war. There is also no evidence that the Presbyterians disagreed with the sentiments expressed in the bill, but we do have some evidence that they were in favor of it. In addition to the petition from the heavily Presbyterian Augusta County, we have a letter written to Jefferson from one of the leading members of the Presbyterian community.

Reverend John Todd, member of the Hanover Presbytery, expressed strong support for the bill in his letter to Jefferson. Todd began by lamenting that his “hopes of ever seeing the sacred and civil rights of mankind secured to them on a fair and catholic [universal] basis,” which he attributed to the “gross ignorance of Some on the Subject.” (italics mine) He was happy to see men like Jefferson who were “zealous to bring to light and secure to all good men their rights without partiality.” (italics mine) He believed that the union of church and state had corrupted the clergy by turning them into “ready Tool[s] for the State” who collaborated with the state “in every design of Tyranny and oppression, &c.” In contrast, he averred, Jefferson’s plan would be best for religion and “the State.” In support of this claim, he repeated the frequent dissenter refrain that “all the Churches Since Constantine, shew the absurdity of Establishments.” In his view, “Virtue and pure religion do better without earthly emoluments than with.” In closing, he expressed hope that the bill “and the certain Security of our Rights on so large and righteous a foundation” would be established. (17) (italics mine)

Consistent with the previous Hanover petitions, this letter expressed a deep concern for, and desire to secure, equal individual rights, which he contrasts with the tyranny of establishments. For this reason, all establishments of religion had to go. That being done, the state will benefit from “reward[ing] all men according to their merit.” (italics mine) These views were essentially the same as those expressed by Jefferson in his famous bill for religious freedom. It was not for any disagreement with Jefferson’s bill that the Presbyterians failed to come out publicly in favor of it, and if they had it is unlikely that their efforts would have had any impact. Jefferson was still governor and his bill which had been killed during the spring session was not resurrected. Instead, the conservatives would take advantage of Jefferson’s absence and introduce a bill of their own.

A Bill “Concerning Religion”

With their confidence boosted by a handful of petitions in favor of a general assessment the conservative members of the House brought in a bill for the support of religion. This bill “concerning religion” would have essentially established the Protestant Christian religion. It required that all religious societies that wanted to be regarded as “by law established” had to subscribe to the following five articles:

First, That there is one Eternal God and a future State of Rewards and punishments.

Secondly, That God is publickly to be Worshiped.

Thirdly, That the Christian Religion is the true Religion.

Fourthly, That the Holy Scriptures of the old and new Testament are of divine inspiration, and are the only rule of Faith.

Fifthly, That it is the duty of every Man, when thereunto called by those who Govern, to bear Witness to truth.

In addition, the “Teachers, Pastors, or Clergy” of these societies were required to take an oath swearing to teach only what “may be concluded and proved from Scriptures” (a backhanded swipe at the Catholics) if they wanted to receive financial support from the state. In practice this establishment would have excluded Catholics, Quakers, and non-Christians. The bill even went so far as to grant toleration only to those who believed “that there is one God, and a future State of rewards and punishments, and that God ought to be publickly worshiped,” in defiance of the Declaration of Rights. (18) The illiberal nature of this bill most certainly contributed to its demise, although it is unlikely that it would have passed in any version. They had gone too far in dictating articles of faith. The conservatives would not make this mistake again.

Adding insult to injury, the Episcopal Church permanently lost the promise of funding from its own members after a bill “to repeal so much of the act for the support of clergy” passed into law. (19) This act freed the legislature from the decision to suspend the funds annually as it had done since the dissenters’ act was passed in 1776. Interestingly, George Mason, who introduced it, attached a preamble to the original bill that rebuked government-funded support for religion. Explaining the bill’s purpose, the preamble read: “To remove from the good People of this Commonwealth the Fear of being compelled to contribute to the Support or Maintenance of the former established Church, And that the Members of the said Church may no longer relye upon the Expectation of any Re-establishment thereof, & be thereby prevented from adopting proper Measures, among themselves, for the Support and Maintenance of their own Religion and Ministers.” (20) The harsh tone and scolding nature of this preamble was too much for the majority of the House, many of whom were members of this “said Church,” and it was scrapped before the bill’s final reading. Despite being rejected it gives us insight into the purpose of the bill. It was meant to discourage the Episcopal Church from all attempts to gain its livelihood from the state, which they believed was preventing it from taking the “proper Measures” to support itself. The passage of the bill was a partial victory for the anti-assessment coalition since it eliminated all remaining state funding of religion. The victory was only partial because it left open the possibility of a general assessment.

Another blow to the established church was delivered after a bill “for saving the property of the church heretofore by law established,” also introduced by Mason, was postponed. (21) While the established Church took several blows this session, it still retained its distinguished position as the church “by law established” and all the privileges that came with this title (minus financial support). While the two main dissenting communities found these remaining privileges repugnant, the Presbyterians remained silent for the remainder of the war. It was left to the Baptists to bear the burden of campaigning for religious liberty during this period. Their efforts in 1780 are particularly revealing and therefore worthy of examination.

The Baptists Press Forward in their Quest for Complete Religious Liberty

Given the hardships of war, it may seem surprising to find the Baptists pressing forward with their campaign, however, from their perspective it was the perfect time to pursue “the Blessings of Liberty.” (22) Just as they had thrown off the yoke of British oppression, it hardly made sense to them to allow another form of oppression to replace it. Therefore, they sent two petitions to the legislature in 1780, one of which was mentioned by Esbeck. In doing so, he only brought up their two specific complaints (the unjustness of the vestry and marriage laws) without explaining their rationale. (p. 75) It is only by examining the dissenters’ rationale that we can understand the dissenters’ theory of religious liberty.

The petition mentioned by Esbeck (the Baptists’ November petition) was one of the most substantial and inspiring of the dissenting petitions, which probably explains why its contents were ignored by Esbeck. Its sweeping defense of liberty stands in contrast to Esbeck’s portrait of the pious dissenter seeking only to protect his church. The opening paragraph sets the tone for the entire document and is worthy of quoting in full:

That a due Regard to the Liberty and Rights is of the highest Importance to the Welfare of the State – That this heaven born Freedom, which belongs equally to every good citizen, is the Palladium which the Legislature is particularly intrusted [sic] with the Guardianship of and on which the Safety and Happiness of the State depend – Your Memorialists therefore look upon every Law or Usage now existing among us, which does not accord with that Republican Spirit which breathes in our Constitution and Bill of Rights, to be extremely pernicious and detrimental, and that such Law or Usage should immediately be abolished. (italics mine)

Besides the emphasis upon “Liberty and Rights,” there are two other things of note in this opening statement. First, it establishes the theoretical foundation on which their argument against the privileges of the Episcopal Church rests. The privileges were objectionable because they awarded benefits to some citizens, and not others, in violation of principle of equal rights. Second, it plainly reveals their broad goals, in contrast to the more limited goals of voluntaryism. They wanted all laws contrary to the “Republican Spirit” (i.e. in violation of the principle of individual equality) be “immediately…abolished.” (22)

The foundational role of natural rights in their complaint against the marriage and vestry laws (establishments) was made even more explicit in the following section, where they asserted, “As Religious Oppression, or the interfering with the Rights of Conscience which God has made accountable to none but himself, is of all Oppression the most inhuman and insupportable, and as Partiality to any Religious Denomination is its genuine Offspring.” They also took the opportunity to scold their legislature and justify their need to protest: “your Memorialists have with Grief observed that Religious Liberty has not made a single Advance, in this Commonwealth, without some opposition.” (22)

Turning to their specific grievances they complained that the vestry laws were unjust. As part of the traditional establishment, the vestry system had endowed vestrymen, prominent lay members of the Episcopal Church, with several significant powers. They were in charge of hiring and firing the church rector, managing certain functions of the Church, and for maintaining moral and social codes. (23) They system was altered by the 1776 dissenters’ act, but what remained of the system continued to confer power to members of the Episcopal Church alone. While vestrymen were not able to collect monies for the Church itself, except for salaries that were in “arrears” and legal obligations already entered into, they retained the power to tax for the provision of the poor. (24) The Baptists were also concerned about their own “Poor” who would be “provided for at the Direction of those who may possibly be under the Influence of Party-Motives.” (22)

Their second complaint was against the marriage laws that prevented the dissenting clergy from legally marrying couples. Bluntly, they carped that “the ill Consequences” were “too obvious to need mentioning, [and] render[ed] it absolutely necessary for the Legislature to endeavor their Removal.”

In both cases, the core complaint was against the unjustness of laws that conferred privileges on members of a particular religious society in violation of the rights of all other citizens. This point was brought home in their conclusion where they expressed hope that the “Honorable House will take effectual Measures to redress these Grievances, in such a Way as may manifest an equal Regard to all the good People of this Commonwealth, however diversyfied by Appellations or Religious Sentiments…and in particular that you will consign to Oblivion all the Relicks of Religious Oppression, and make a public Sacrifice of Partiality at the glorious Altar of Freedom.” (italics mine) This sweeping defense of individual rights in opposition to two laws that established unjust privileges on the basis of religious affiliation exposes the deceit of Esbeck’s characterization of the dissenters’ views. The primary goal of the Baptists was not to protect “the church” or organized religion from the state, but to force the state to honor its commitment to equal individual rights, which, in consequence, would protect their church.

The other Baptist petition, received during the spring session, was simpler and not as powerful as the above petition, but the basic message was the same. They wanted “to enjoy equal, Religious, as well as civil Liberty,” and therefore they opposed the marriage laws that privileged the established clergy. (25)

There was one other dissenting petition that was sent to the legislature that year. While not sent in the name of a particular denomination, it echoed the same rights-based argument against the marriage and vestry laws as the above Baptist petitions. The “sundry Inhabitants of Amelia County” complained about the remaining “Partiality,” while praising those “glorious Advances [already] made towards equal, Religious Liberty in this Commonwealth.” Accordingly, they requested that “the good People of this State [become] acquainted with their just Rights.” (26)

In response to the above petitions a bill “declaring what shall be a lawful marriage” was passed in December 1780, which Esbeck misleadingly claims to have solved the issue. The bill did grant the dissenters the right to marry, but it did so with various restrictions not shared by the Episcopal clergy. Falling far short of true equality, the Baptists continued to petition for a just marriage law. It was not until December 1784 that the issue was resolved to their satisfaction. Every concession they got was the result of relentless campaigning. They were up against a determined foe hoping to retain as much of the traditional establishment as possible.

The issue of the vestries was also addressed by the legislature, but no general solution to the problem was agreed to. Instead, “several” vestries were dissolved and overseers for the poor were appointed in the place of the vestrymen. (27) A piecemeal approach to dealing with vestries was probably all that was politically feasible at that time. For the most part 1780, just as 1779, ended in stalemate. It would not be until after the war that this deadlock would be broken as geographic and political forces turned the tide in favor of the dissenters and their rationalist allies.


  1. “Minutes of the Meetings of the Hanover Presbytery,” held at the Virginia Historical Society, 236.
  2. There is a reference to a committee meeting at the house of John Poage from the October 1777 meeting, but exactly which committee and what it achieved is missing. Ibid., 241.
  3. Reprinted in James H. Smylie, “Jefferson’s Statute for Religious Freedom: The Hanover Presbytery Memorials, 1776-1786” American Presbyterians (vol. 63, no. 4, Winter 1985) 366.
  4. Robert B. Semple, A History of the Rise and Progress of the Baptists in Virginia (Richmond: John O’Lynch, Printer, 1810), 64.
  5. Thom, William Taylor, The Struggle for Religious Freedom in Virginia: The Baptists (Baltimore: The John Hopkins Press, 1900), 63.
  6. James, Charles F. Documentary History of the Struggle for Religious Liberty in Virginia. (Lynchburg, Virginia: J.P. Bell Company, 1900), preface.
  7. Thomas Jefferson, Autobiography, Founders Online.
  8. Thomas E. Buckley, Church and State in Revolutionary Virginia 1776-187 (Charlottesville, Virginia: University Press of Virginia, 1977) 46.
  9. Ibid., 48.
  10. “Social Christian,” Virginia Gazette (Sept. 11 & 18, 1779) in Buckley, Church and State, 49-50.
  11. Culpeper County (October 21, 1779) and Essex County (October 22, 1779) petitions in H.J. Eckenrode, Separation of Church and State in Virginia: A Study in the Development of the Revolution (Richmond: Davis Bottom, 1910): 57-8.
  12. James, Documentary History, 94.
  13. Augusta County petition (October 27, 1779) LOVD.
  14. Amherst County petition (November 1, 1779) LOVD.
  15. Buckley, Church and State, 55.
  16. James, Documentary History, 107.
  17. “To Thomas Jefferson from Rev. John Todd, 16 August 1779,” Founders Online, National Archives ( [last update: 2015-02-20]). Source: The Papers of Thomas Jefferson, vol. 3, 18 June 1779-30 September 1780, ed. Julian P. Boyd. Princeton: Princeton University Press, 1951, pp. 68-69.
  18. “A Bill concerning Religion” (1779) in Buckley, Church and State, (Appendix I): 186.
  19. Journal of the House of Delegates [Oct. 4 – Dec. 24, 1779] (Williamsburg: John Clarkson and Augustine Davis, 1780), 120.
  20. Quoted in Daniel L. Dreisbach “George Mason’s Pursuit of Religious Liberty in Revolutionary Virginia,” The Virginia Magazine of History and Biography (vol. 108, no. 1, 2000), 5 – 44.
  21. J. Eckenrode, Separation of Church and State in Virginia: A Study in the Development of the Revolution (Richmond: Davis Bottom, 1910): 61.
  22. Baptist Association petition (November 8, 1780) LOVD.
  23. Ralph Ketcham, James Madison: A Biography. Charlottesville: University of Virginia Press,1990 (first published 1971). James Madison,
  24. “An act for exempting the different societies of dissenters from contributing to the support and maintenance of the church as by law established, and its ministers, and for other purposes therein mentioned,” in The Statutes at Large; Being a Collection of all the Laws of Virginia, From the First Session of the Legislature, in the Year 1619, vol. IX, edited by William Waller Hening (Richmond: J. & G. Cochran, Printers, 1821), 165.
  25. Baptist Association petition (May 1780) LOVD.
  26. Amelia County (May 12, 1780) LOVD.
  27. Eckenrode, Separation of Church and State, 66.


“How Journalists Covered the Rise of Mussolini and Hitler” | History | Smithsonian

“Reports on the rise of fascism in Europe was not the American media’s finest hour.”

“Dorothy Thompson, who judged Hitler a man of ‘startling insignificance’ in 1928, realized her mistake by mid-decade when she, like Mowrer, began raising the alarm. ‘No people ever recognize their dictator in advance,’ she reflected in 1935. ‘He never stands for election on the platform of dictatorship. He always represents himself as the instrument [of] the Incorporated National Will.” Applying the lesson to the U.S., she wrote, ‘When our dictator turns up you can depend on it that he will be one of the boys, and he will stand for everything traditionally American.’”

Source: How Journalists Covered the Rise of Mussolini and Hitler | History | Smithsonian

First Amendment Folly (Part II): The Virginia Dissenters Campaign Against Religious Establishments (1776-1778)

This is the third posting in a six part series evaluating Carl H. Esbeck’s “Protestant Dissent and the Virginia Disestablishment 1776-1786.” For the first two posts in the series click on the following links: Intro and Part I.

The Dunking of David Barrow… Oil on canvas by Sidney King, 1990Virginia Baptist Historical Society

The Dunking of David Barrow… Oil on canvas by Sidney King, 1990 Virginia Baptist Historical Society

After years of abuse and second class citizenship, the Declaration of Rights (DOR) gave the religious dissenters hope that they would finally become equal citizens. Standing in the way of this equality was the established Church of England, whose privileges could not be reconciled with the DOR. To remedy this situation, the dissenters sent a series of petitions to the newly created General Assembly in the fall of 1776. These petitions give us the opportunity to test Esbeck’s volunatryism principle to see how compatible it is with the dissenters’ sentiments.

Dissenting Petitions (1776): Exemplars of Voluntaryism?

As previously explained, Esbeck’s principle of voluntaryism included three related claims: the issue of free exercise of religion was separate from calls for disestablishment; questions about establishments were about the relationship between two centers of power (organized religion and government), not individual rights; and the goal was to limit government intervention in organized religion, but not the other way around. The dissenters pursued this arrangement, according to Esbeck, because they wanted “to protect the church from undue control by the government.” (103) (italics mine) As an archetype of the dissenting position, Esbeck offers the petition from the Hanover Presbytery – thus one would expect this petition to be an unambiguous representation of voluntaryism.

The Hanover petition was presented to the House of Delegates on October 24. An examination of the document reveals that its author, most likely the Presbytery clerk Caleb Wallace, chose to write the document in the language of the Enlightenment. Even the appeal to “the great Sovereign of the Universe” at the end of the document is a reflection of inclusive Enlightenment language of the Deists.

At the time, the Hanover Presbytery boasted a significant number of graduates of the College of New Jersey (Princeton), including Wallace. At that time, the college was a beacon of Enlightenment thought under the leadership of the Scottish Presbyterian minister John Witherspoon. Also among its most distinguished graduates was James Madison, who attended at the same time, but in different cohorts, as many of the Hanover Presbyterians. (1) Imbued with the same zeal for religious liberty and as steeped in the new Enlightenment learning as was Madison, Wallace would have been the ideal candidate to write the document. Therefore, it should not be surprising that the Hanover petition reads more like the work of an Enlightenment rationalist, than the work of a deeply pious minister, which Wallace certainly was. Given our current politics we tend to think of these two things as incompatible, but in late eighteenth-century America, Enlightenment rationality and religious piety were frequent companions within many dissenting communities. This should not be surprising given the fact that Enlightenment itself was largely the product of the fight waged by religious dissenters against intolerant governments that sought to impose religious uniformity upon them.

Turning to the petition Esbeck’s argument begins to break down from the start. The opening paragraph, which sets up their argument against religious establishments, makes a strong appeal to individual rights. Speaking for all “dissenters from the church of England [increasingly called the Protestant Episcopal Church],” the petitioners expressed gratitude for the Declaration of Rights (DOR), which they referred to “as the magna charta of our commonwealth.” This DOR was what they “rely[ed] upon” to secure their “free exercise of religion according to the dictates of our consciences.” (2) (italics in original) Now that they had secured these equal rights, they requested to be freed from “the religious grievances under which [they] have hitherto laboured.” Such a prominent place given to this review of their rights highlights their significance. Undermining Esbeck’s first two points separating rights from requests to disestablish religion, this paragraph alone illustrates the essential link between individual rights and disestablishment in the dissenters’ view.

This point is reinforced in the second paragraph, where they called attention to the fact that they had been subjected to “invidious, and disadvantageous restrictions” in support of “an establishment, from which their consciences and principles oblige them to dissent: all of which are confessedly so many violations of their natural rights; and in their consequences, a restraint upon freedom of inquiry, and private judgement.” (italics mine) In consequence, they expressed the hope that the legislature would “cheerfully concur in removing every species of religious, as well as civil bondage.” This request goes beyond simply a demand for the disestablishment of the Episcopal Church. They wanted an end to all privileges made on the basis of religious beliefs. To make their point they declared that they were opposed to even the establishment of Christianity since “there is no argument in favour of establishing the Christian religion, but what may be pleaded, with equal propriety, for establishing the tenets of Mahomed by those who believe the Alcoran; or if this be not true, it is at least impossible for the magistrate to adjudge the right of preference among the various sects that profess the Christian faith, without erecting a chair of infallibility, which would lead us back to the church of Rome.” This passage demonstrates the centrality of equal rights in their conception of church-state relations. They rejected even a privileging of Christianity because it violated the principle of equality. It also illustrates a concern beyond simply the fear of government intervention in “organized religion.” They saw the threat of tyranny in allowing the state to make decisions concerning what is, or is not, acceptable religious beliefs and/or practices.

This point is further clarified later, when they rejected an establishment of their own religion because this “would be giving exclusive or separate emoluments or privileges to one set (or sect) of men, without any special public services to the common reproach and injury of every other denomination.” Here the dissenters are referencing Article 4 of the DOR, which reads: “That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services…” (3) It is important to note that they are referring to the individuals within these “sets of men,” not organized religion, as is indicated by their statement that “all partial and invidious distinctions will be abolished” then “every one [will] be left to stand or fall according to merit, which can never be the case, so long as any one denomination is established in preference to others.” (italics mine)

The extent of the Presbyterians’ goals concerning the disestablishment of religion is explicitly stated. They insisted that “the only proper objects of civil government, are the happiness and protection of men in the present state of existence; the security of the life, liberty and property of the citizens; and to restrain the vicious and encourage the virtuous by wholesome laws, equally extending to every individual.” The extent of their desire to disestablishment religion goes far beyond the more limited goals of voluntaryism, which apply only to organized religion.

A further blow to Esbeck’s version of events is the fact that there is no mention of limiting the state to protect “organized religion” anywhere in the petition. This rights-centric petition bears little resemblance to the church-focused one described by Esbeck. In addition, there is nothing in this petition, even on a generous reading, that indicates that the primary motive behind their anti-establishment campaign was to protect “the church.” On the contrary, their message was clear, they wanted an end to all establishments on the grounds that these violated their individual rights and that the solution was to limit the state from intervening in matters of religion with the exception of protecting them in their rights. And “left in the quiet possession of their unalienable rights and privileges” Christianity would flourish in greater purity. This benefit to religion was a consequence of protecting rights and of putting religion outside the bounds of government jurisdiction.

There is no reconciling the Hanover petition with Esbeck’s voluntaryism principle. Rather than seeking to protect “the church” the Presbyterians were seeking to end all privileges and/or burdens on the basis of religious beliefs because these were “so many violations of their natural rights.” Rights were inextricably linked to their desire to separate church (religion) and state, and cannot be dismissed as extraneous flourishes in an otherwise church-focused petition. In addition, there is no mention of preventing the state from intervening in organized religion so that religion can be free to prevent state tyranny. To the dissenters, the source of tyranny was the alliance between church and state (i.e. establishments of religion), and church intervention in state affairs was just as much anathema to them as state intervention in religion. This will become increasingly clear as the campaign against religious establishments progresses.

Looking at the other petitions there is one, submitted by the German Congregation of Culpepper County, that somewhat resembles the dissenters of Esbeck’s imagination. Unlike the other dissenters, this congregation expressed support for the established Church and sought more limited goals: to be relieved from taxes in support of the establishment and to obtain full privileges for their ministers. In other words, they were not asking for full equality as citizens, they were seeking a more generous system of toleration for themselves. (4) This petition is interesting and partly conforms to Esbeck’s characterization of dissenting goals, but as an outlier from a small group it tells us little about the broader dissenting movement.

There is another petition that expresses a concern for “several Churches,” and is therefore a potential representative of Esbeck’s voluntaryism. But rather than supporting Esbeck’s contention that they were primarily concerned about “the church,” the dissenters were making a minor point in a much longer complaint that focused on the unjust privileges of the established Church. They made clear in their petition that any unjust privileging based on religious differences was in violation of their rights. Therefore, they hoped that the new government “would secure just & equal Rights to the Subjects.” (5) This same sentiment was expressed in the separate but almost identical petition from Albemarle, Amherst, and Buckingham counties. (6)

Similarly, the petitioners from the heavily Presbyterian Prince Edward County emphasized individual rights.  These petitioners praised “the last article of the Bill of Rights [Art. 16] as the rising sun of Religious liberty,” which they believed was meant “to relieve them from a long night of Ecclesiastical bondage.” Thus, they requested that the House “complete what is so nobly begun; that is, to raise Religious as well as Civil liberty to the zenith of glory.” To achieve this, they believed that “all Church establishments” should be pulled down, as well as ALL burdens “upon conscious and private judgment” so that “each Individual” could “rise or sink according to his merit.” (7) (italics mine) This petition unequivocally demonstrates the connection between rights and disestablishment, and nowhere do they indicate that their goal was to protect the church from the state.

A petition organized by the Baptists received 10,000 signatures, an impressive number for the time. The petition notified the House that their hopes had “been raised and confirmed by the Declaration of Rights” in regards “to equal Liberty. EQUAL LIBERTY!” which was the “Birthright of every good member of society.” The explicit reference to the equality of “every good member of society” leaves no doubt that it was the equality of individuals, not of religious societies, that they were seeking. They concluded with a request that the establishment “as well as every other yoke, may be broken, and the oppressed may go free.” In other words, these petitioners sought to end all privileges based on religious beliefs, and they insisted that the only proper role for government in religious matters was “to support them in their just Rights and equal privileges.” (8)

On October 25, two petitions from Berkeley County informed the House of Delegates that their hopes had “been raised & confirmed by the Declaration of your Honourable House in the last Article of rights [article 16].” Following the pattern of the other petitions, they pronounced that the “Ecclesiastical Establishment” was “a grievous Burden & inconsistent with the rights of humanity either Civil or religious.” They believed that “the rights of human Nature (& religious Liberty in its fullest extent is one of these) …should have every protection & Ground of Security which Laws & the Policy of free States can give them.” In consequence, they demanded “that No Laws which are indefensible & incompatible with the rights of Conscience should be Suffered to remain unrepealed.” (italics mine) This would include any laws that privileged a particular religion (including a particular religious belief or practice), or religious denomination. In line with this they also insisted that “the rights of human Nature (& religious Liberty in its fullest extent is one of these) …should have every protection & Ground of Security which Laws & the Policy of free States can give them.” (9)

Similarly, the petitioners from Augusta County wanted all “unequal Burthen[s]” based on religious beliefs to be abolished. They believed that these “Burthens[s]” were “Inconsistent with Justice, & with that Virtuous Civil as well as religious Liberty that every Christian would wish to enjoy for Himself and that ought to be the portion of Every Good member of Society.” (10) While these petitioners seemed to believe that all members of society were Christians, which was mostly true at that time, they also indicated that “Every Good member of Society” should receive the same treatment, which would presumably include non-Christians. Consistent with a more inclusive goal they claimed that they were “Struggling in Defence of the Common Rights of Mankind.” Like other dissenters, these petitioners believed that their equal rights as citizens were incompatible with any religious establishments because these unjustly privileged some above others.

These petitions are hard to square with Esbeck’s characterization of the dissenters’ views. The main focus in almost all of these petitions was on securing rights, which in their view meant that all religious establishments must be torn down. This is the link that Esbeck denies existed, but it is undeniable if we are to take the dissenters at their word. References to “the church” or organized religion were rare, and when they did appear they were not central to the main message. It was not that they were not concerned about their own churches, it was rather that they saw that the best way to protect religion, and their own church, was by securing their individual rights. This in turn meant that government must get out of the business of religion altogether, as they repeatedly insisted. “[I]f mankind were left in the quiet possession of their unalienable rights and privileges, Christianity, as in the days of the Apostles; would continue to prevail and flourish in the greatest purity, by its own native excellence, and under the all disposing providence of God [not the state].” By ignoring the consistent and frequent references to individual rights Esbeck has distorted the dissenting view of religious liberty, and has falsely championed them as disciples of an accommodationist view of church-state relations.

The Bill for Dissenters (1776)

In response to the petitions the legislature attempted to placate the dissenters. Jefferson, back from his stint at the Continental Congress, where he had written the Declaration of Independence, led the fight for religious liberty in Virginia as a representative in the House of Delegates. As a member of the Committee for Religion (COR), which had been given the task of dealing with the petitions, he sought to go all the way in fulfilling the dissenters’ plea to sever the ties between religion and government in Virginia. To his dismay, the conservative Episcopalians, who dominated the legislature, obstructed his efforts. He later described these events as “the severest contests in which I have ever been engaged.” (11) The fights over establishment of religion in 1776 are revealing. In the end, the established Church would remain intact, but the dissenters would get some relief from their burdens. In addition, the bill for dissenters, which passed during the fall session, shifted the central issue of the debate towards a fight over general assessments (taxes supporting all denominations).

by Mather Brown. London,1786.

Thomas Jefferson, by Mather Brown. London,1786.

Also on the COR was the budding statesman James Madison, whose famous friendship with Jefferson had yet to develop. Even though Madison’s victory at the Convention set the stage for the dissenters’ campaign against religious establishments, his role in the House was overshadowed by his already distinguished colleague. As members of the Anglican Church these rationalists and their supporters led the dissenters cause from within the seat of power. As unlikely as this alliance between pious dissenters and rationalists may seem they shared similar goals, even if their motives were different, when it came to religious liberty. How closely these two groups worked together is unknown, but the frequent lobbying at the legislature by the dissenters would have brought them into frequent contact. This alliance was also aided by Madison’s outspoken objections to the persecution of dissenters, as well as his acquaintanceship with some members of the Hanover Presbytery, whom he knew from his time at the College of New Jersey. (12) After a protracted battle these allies eventually succeeded in bringing down establishments of religion in Virginia, but unbeknownst to them the battle in 1776 was just the beginning of a very long and taxing war between two competing visions of religious liberty.

As a member of the COR Jefferson drafted a far-reaching bill (“Resolutions for Disestablishing the Church of England and for Repealing Laws Interfering with Freedom of Worship”) to satisfy the requests from the dissenters. This bill would not only have dismantled the established Church and banned religious assessments, it also would have eliminated all laws on the subject of religion, including the total banishment of laws constraining free inquiry on the subject of religion. The extent of his separationist intent can be seen in this fragment of his draft calling for “<totally and eternally restraining the civil magistrate from all pretentions of interposing his authority or exercise in matters of religion>.” (13) Jefferson’s core views on religious liberty are already visible in this early work on the subject, which are best summarized by his famous metaphor (“a wall of separation between church and state”).

Thanks to conservative intransigence, the final version of the bill reflected more modest concessions for dissenters, as indicated by the new title: For exempting the different societies of dissenters from contributing to the support and maintenance of the church as by law established. This legislative act gave dissenters relief from paying taxes in support of religion but other burdens remained, including the existence of the established Church. It also called for the repeal of all acts or statutes “of England or of Great Britain” that “renders criminal the maintaining any opinions in matters of religion,” attendance at church, or the exercise of religion. (14) Virginia laws that had similar effects, which Jefferson also desired to either eliminate or severely weaken, were left intact.

The conservatives also managed to sneak in a suggestion for “a general assessment” to support “ministers and teachers of the gospel who are of different persuasions and denominations.” The implementation of any such assessment, according to the act, had been postponed until after “the opinions of the country in general may be better known.” (15) Understanding that the privileged status of the Anglican Church would eventually crumble under the weight of the republican principles of equality and freedom, the conservatives sought to establish a broader Christian establishment as a way to preserve some kind of establishment. They probably believed that this broader establishment would placate the dissenters since it would benefit them just as much as the Episcopal Church. If this was the case, they were mistaken, which shows that they fundamentally misunderstood the dissenters’ position.

The origins of the proposal are unknown but there is no doubt that Jefferson was adamantly opposed. In his Autobiography, Jefferson claimed that his camp was able only to hold off the creation of an actual assessment bill until 1779, which will be the subject of the next post. (16)

In the meantime, the bill “for dissenters” passed on December 9. While happy to be freed from the burden of taxes in support of religion, the dissenters were incensed by the suggestion of a religious assessment, and in response the Baptists and Presbyterians submitted another round of petitions. The focus of these petitions was slightly different from their earlier ones since they took aim at the general assessment, but the same basic principles of religious liberty can be seen in their opposition to the proposed general assessment.

The Hanover Presbyterians opened their petition declaring their hope that “their fellow subjects” would join them “to repel the assaults of tyranny and to maintain their common rights.” (17) They gave a “hearty approbation” to the DOR as the document that protected these rights. They also applauded the act “for dissenters,” which they saw as “declaring that equal liberty, as well religious as civil, shall be universally extended to the good people of this country.” (italics mine) Once again rights are front and center in their petition.

Angered by the suggestion for a general assessment, they felt compelled to repeat their previous request: “That dissenters of every denomination may be exempted from all taxes for the support of any church whatsoever, further than what may be agreeable to the private choice or voluntary obligation of every individual; while the civil magistrates no other wise interfere, than to protect them all in the full and free exercise of their several modes of worship.” (italics mine) Here we can clearly see their reasoning against this establishment of religion. The DOR promised them equal rights as individuals, including their religious rights that left them free to make their own choices concerning religion, which were threatened by the assessment scheme. To rectify this situation and to secure their rights they demanded that the government have no jurisdiction in matters of religion except to protect them in their “full and free exercise of their several modes of worship.” This is obviously a much broader prohibition against government involvement in religious affairs than simply the limit concerning “organized religion” proposed by Esbeck.

The opening paragraph ends with the reference to religious conscience. Here the Presbyterians, following the reasoning in Art. 16, argued “that the duty which we owe our Creator, and the manner of discharging it, can only be directed by reason and conviction, and is no where cognizable but at the tribunal of the universal Judge.” From here it follows that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” In other words, religion is a matter between individuals and their God, and therefore not subject to government intervention. This reasoning is rooted in the historical legacy of Western Christendom in which states, with the prompting of the Church, had designated themselves as responsible for the salvation of their subjects. (18) Religious dissenters in post-Reformation Europe challenged this tradition by maintaining that they alone were responsible for their own salvation. Although not the originator of this argument, John Locke used this same line of thought in his well-known defense of toleration: “How great soever, in fine, may be the pretence of good-will and charity, and concern for the salvation of men’s souls, men cannot be forced to be saved whether they will or no. And therefore, when all is done, they must be left to their own consciences.” (19) We can see the same reasoning in the Hanover petition: “that to judge for ourselves, and to engage in the exercise of religion agreeable to the dictates of consciences is an unalienable right, which upon the principles that the gospel was first propagated…can never be transferred to another [i.e. the state].” This is the premise upon which the case against state intervention in religious affairs is built. Appeals to the rights of conscience cannot be dismissed as simply a matter of the free exercise of religion, and having nothing to do with demands to disestablish religion.

Unlike their previous petition, there is some indication that concern for “the church” motivated the Presbyterians to object to the proposed assessment. In laying out their objections, the Presbyterians claimed that the assessment would be “an injury to the society to which we belong.” On its own this seems to verify Esbeck’s claim, but examined in context this contention falls apart. This statement was part of an argument against the claim that assessments were needed to prop up religion. To counter their opponent’s argument, they denied that “the church of Christ” needed support from the state. Rather, they insisted that this support would “be an injury to the society to which we belong.” As a specific response to a specific argument, it does not support Esbeck’s contention that it was only organized religion which the dissenters were concerned about and wanted to put outside the bounds of government control. In fact, the Hanover Presbyterians followed the above argument with the conclusion that “the kingdom of Christ, and the concerns of religion, are beyond the limits of civil control.” (italics mine) And to be clear, they explained that for this reason they rejected “any emoluments [for themselves] from human establishments for the support of the gospel.”

There is an additional section that Esbeck has seized upon to support his claim that “organized religion” is the core concern of the dissenters. In this section, the Presbyterians pointed out that if the state had “any rightful authority over the ministers of the gospel in the exercise of their sacred office,” then they could decide “who shall preach, what they shall preach; or to impose any regulations and restrictions upon religious societies that they may judge expedient.” This particular argument was aimed at the proposed general assessment which would have given support directly to “ministers and teachers of the gospel who are of different persuasions and denominations.” While the dissenters expressed concern for the freedom of preachers of the gospel and religious societies, their goals were much broader than this specific complaint against the assessment. It does not change the fact that they also twice stated that “religion” should be completely outside the bounds of control by the civil government. In addition, they concluded their petition by twice stating that “any assessment for religious purposes” was “subversive of religious liberty.” (italics mine) On both points (they wanted the government limited only in matters of “organized religion” and that they were concerned only about harm to “the Presbyterian Church”) Esbeck is wrong.

What about the Baptists? The Baptists, like the Presbyterians, began their complaint with rights. They informed the legislature “that preachers should be supported only by voluntary contributions from the people, and that a general assessment (however harmless, yea useful some may conceive it to be) is pregnant with various Evils destructive to the Rights and Privileges of religious Society.” (20) Note that the rights they referred to were not the rights of religious societies but “religious Society” (i.e. society). The danger they saw was a danger not just to the church per se, but to their rights as individuals, as indicated by their reference to the “last article of the bill of rights” (Art. 16). Rather than being coerced by the state, they believed that contributions to religion should be given on the basis of “the freedom of their own will” (a freedom that belongs to individuals).

Echoing the Presbyterians, the Baptists asserted that the connection with the state set up by the assessment would have a corrupting effect on the clergy. It was obvious to them that “those whom the State employs in its Service, it has a Right to regulate and dictate to; it may judge and determine who shall preach; when and where they shall preach; and what they must preach.” They reminded the legislature that it had no business intervening in matters of religion. To them, the proposed assessment was an example of “civil Rulers go[ing] so far out of their Sphere as to take the Care and Management of religious Affairs upon them!” (italics in original) To the Baptists, it was “religious Affairs,” not organized religion, that was out of bounds for government intervention. This petition, like the others, grounded its claims against establishments on individual rights and individual choice.


It is already clear that Esbeck’s voluntaryism with its focus on protecting organized religion is not representative of the dissenters’ own views. Only by ignoring much of what the dissenters said can the principle of voluntaryism be claimed to represent their views on the relationship between church and state. In reality, the dissenters’ vision of religious freedom was much broader, and rights-based. And they consistently insisted that the government had no business interfering in matters of religion except to protect them in their religious rights. This vision will become even clearer as we go through the remaining history of disestablishment.

Next we will turn to the events of 1779, when the battle for religious liberty ended in a stalemate after both sides failed in their attempt to implement new legislation. On one side, the conservatives attempted to pass an actual bill establishing a general assessment while, while at the other end of the spectrum, Jefferson attempted to pass his celebrated Bill for Establishing Religious Freedom. This legislative clash of world views is revealing and will help us understand the dissenter/rationalist perspective.


  1. Thos. Cary Johnson, Virginia Presbyterianism and Religious Liberty in Colonial and Revolutionary Times (Richmond, 1907), 57-74.
  2. Hanover Presbytery Petition (October 24, 1776), Library of Virginia: Digital Collection (hereafter LOVD). (accessed 12/14/16).
  3. The Virginia Declaration of Rights (1776), The Founders’ Constitution (Volume 1, Chapter 1, Document 3) The University of Chicago Press (accessed 12/14/16).
  4. Petition of the German Congregation of Culpepper County (October 22, 1776) LOVD.  (accessed 12/14/16)
  5. Petition from Albemarle and Amherst counties (November 1, 1776) LOVD.  (accessed 12/14/16)
  6. Petitions from Albemarle, Amherst and Buckingham counties (two on October 22 and one on November 1) LOVD. (accessed 12/14/16)
  7. Prince Edward County Petition (October 11, 1776) LOVD.  (accessed 12/14/16). And in the Journal of the House of Delegates of Virginia (Richmond: Samuel shepherd & Co., 1828), 7. Hereafter cited as JHD. All dates for these petitions are from the dates they were submitted to the Assembly.
  8. “Ten-thousand name” petition by Dissenters (October 16, 1776) LOVD.  (accessed 12/14/16).
  9. Berkeley County petition, Dissenters of Tuscarora Congregation (October 25, 1776) LOVD. (accessed 12/14/16) The Journal of the House of Delegates states that two petitions were presented on October 25 but only one petition appears in the LOVD collection. (26)
  10. Augusta County petition (November 9, 1776) LOVD.  (accessed 12/14/16).
  11. Thomas Jefferson, Autobiography, Founders Online.
  12. In a letter to William Bradford (January 24, 1774), Madison wrote in response to the persecution of some Baptist preachers: “That diabolical Hell conceived principle of persecution rages among some and to their eternal Infamy the Clergy can furnish their Quota of Imps for such business. This vexes me the most of any thing whatever. There are at this [time] in the adjacent County not less than 5 or 6 well meaning men in close Goal for publishing their religious Sentiments which in the main are very orthodox. I have neither patience to hear talk or think of any thing relative to this matter, for I have squabbled and scolded abused and ridiculed so long about it, to so little purpose that I am without common patience. So I leave you to pity me and pray for Liberty of Conscience to revive among us.” Founders Online.
  13. Thomas Jefferson, “Rough Draft of Jefferson’s Resolutions for Disestablishing the Church of England and for Repealing Laws Interfering with Freedom of Worship,” (written between October 11 and November 19, 1776) Founders Online.
  14. Journal of the House of Delegates of Virginia, 1776 (Richmond: Samuel Shepherd & Co., 1828), 63.
  15. William Waller Hening, ed. The Statutes at Large; being a Collection of all the Laws of Virginia, from the First Session of the Legislature in the Year 1619. vol. IX. (Virginia: 1808), 165.
  16. Thomas Jefferson, Autobiography, Founders Online.
  17. Petition of the Hanover Presbytery (June 3, 1777) LOVD.
  18. For example, many European states took steps to eradicate heresy, in part, because the Third Lateran Council (1179) threatened excommunication for those rulers who did not “extirpate” heresy. John Marshall, John Locke, Toleration and Early Enlightenment Culture (New York: Cambridge University Press, 2006), 216.
  19. John Locke, A Letter Concerning Toleration, translated by William Popple (1689). See Google Books (p. 33)
  20. “The SENTIMENTS of THE BAPTISTS with regard to a GENERAL ASSESMENT,” Virginia Gazette (Dixon & Hunter), 28 March 1777, pp. 6-7. See the Colonial Williamsburg Foundation: Digital Library.


“The First Amnesty” – The New York Times

“America’s first illegal-alien amnesty wasn’t the biggest in our history, but it was the most influential.”

“Thanksgiving is a lovely story we tell ourselves, about kindness and tolerance and white people fitting in. The American story got richer and deeper over time, with many grave sins and slaughters, not least for indigenous peoples, but generally hewing to a spirit of growing inclusion and welcome for newcomers. How alien that all feels today, in the dawn of Donald Trump’s America.”

This may not be the most uplifting Thanksgiving message, but it is, nevertheless, fitting.

Happy Thanksgiving!

Source: The First Amnesty – The New York Times

“Climate Change in Trump’s Age of Ignorance” – The New York Times

“as an instrument of deception on issues like global warming.” I don’t think this topic gets the attention that it should. The successful campaigns of deception by self-interested corporations has had a devastating effect on the health and well-being of many people here in the U.S. and across the globe. It may be difficult to educate the general population on this subject in the “Age of Ignorance,” but we should at least try. Ignorance is particularly dangerous in this “Age of Deception.”

I also think that us educators need to seriously think about how we prepare our students to sort through all the nonsense they are bombarded with in the age of the internet. We also need to teach our students how, and why, science works, not just the basic findings of science.  This is one of the reasons why the testing craze that promotes rote memorization over thinking is so destructive.  If there ever was a time that critical thinking skills were absolutely critical to our well-being, it is now!

Excerpt from the article: “We now live in a world where ignorance of a very dangerous sort is being deliberately manufactured, to protect certain kinds of unfettered corporate enterprise. The global climate catastrophe gets short shrift, largely because powerful fossil fuel producers still have enormous political clout, following decades-long campaigns to sow doubt about whether anthropogenic emissions are really causing planetary warming. Trust in science suffers, but also trust in government. And that is not an accident. Climate deniers are not so much anti-science as anti-regulation and anti-government.”

Source: Climate Change in Trump’s Age of Ignorance – The New York Times

First Amendment Folly: An Evaluation of Carl H. Esbeck’s “Protestant Dissent and the Virginia Disestablishment 1776-1786” (Part I)

Click here for the Introduction.

I. James Madison and the Virginia Declaration of Rights (1776)

After declaring independence from Britain in 1776, delegates at a special Convention took up the tasks of creating a state constitution and a Declaration of Rights (DOR). As one of the first bills of rights created by the newly independent states, Virginia’s DOR was held up as a model expressing the enlightened values that were to shape the new nation. The distinguished statesman George Mason had been enlisted to draft this foundational document, and Mason did not disappoint. His draft was greeted with overwhelming praise in and outside the Convention. (1) As a result, few changes would be made to Mason’s draft, but one of these changes was prompted by the young and idealistic James Madison. Determined to set Virginia on the path toward religious liberty, Madison succeeded in altering the article concerning religious rights (Article 16).

James Madison

James Madison

The original article promised that “all Men should enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience.” Aware of the implications of this wording, Madison vigorously objected. The word “toleration” implies a hierarchy of religions in which some groups (or only one) are privileged, while all others are merely tolerated. After several attempts, and with the help of his future nemesis Patrick Henry, Madison’s wording (“all men are equally entitled to the full and free exercise of it [religion] accordg to the dictates of Conscience”) replaced Mason’s. (2) Madison indicated that his change “declared the freedom of conscience to be a natural and absolute right.” (3) Madison’s modification had important implications for the established Church of England, which had not been not legally disestablished at the Convention of 1776.

Concerning these events at the Convention, Esbeck makes several claims:

  1. Madison believed that “a civil state had no jurisdiction in matters of organized religion.” (p. 67)
  2. the “equality” clause was about the equality of religions, not individual equality. (p. 69)
  3. there was a “bifurcation of the protection of individual religious conscience, on the one hand, and religious disestablishment on the other.” (p. 70)

How well do these claims hold up against the evidence?

1. Did Madison believe that “a civil state had no jurisdiction in matters of organized religion”?

By claiming that it was “organized religion” alone that Madison saw as outside the bounds of governmental powers, Esbeck gives a misleading characterization of Madison’s views. Rather than speaking in terms of “organized religion,” Madison consistently claimed that it was “Religion” that was “wholly exempt from its [government’s] cognizance.” (4) (italics mine) (see endnote for more examples from his writings) This is a much broader limit on government’s power. If religion in general is beyond the jurisdiction of government then the legislature cannot pass any laws on the subject of religion except those protecting rights, as Madison and the dissenters frequently professed. For example, a popular dissenter petition requested that “the Legislature interfere[] only to support them in their just Rights and equal privileges.” (5)

Madison’s broader limit also places all government support (financial, legal, or symbolic) of religion outside the bounds of governmental powers. This strict separation of religion and government was seen as necessary to protect the individual rights of conscience. In Madison’s Memorial & Remonstrance protesting against a proposed tax to support religion, he wrote, “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” (M&R, point 1) Just as central to Madison’s case against “the establishment proposed by the Bill” was equality. It was Madison’s contention that

the Bill violates the equality which ought to be the basis of every law, and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached. If ‘all men are by nature equally free and independent,’ all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an ‘equal title to the free exercise of Religion according to the dictates of Conscience.’ (M&R #4)

These two individual rights, which were enshrined in the Virginia DOR, were the foundation of Madison’s case against the establishment of a tax for religion. This cannot be squared with Esbeck’s “voluntaryism” principle, which denies that the movements against establishments were about protecting individual rights. Rather than speaking about establishments in terms of the relationship between two centers of power (“government and organized religion”), (6) Madison saw all establishments of religion as a threat to the natural rights of all men.

2. Did the new clause refer to individual equality or equality “among all religions”?

Consistent with his claim that establishment issues are not about individual rights, Esbeck claims that Madison’s equality clause “could be read to imply equality not with respect to individuals, but among all religions.” (p. 69) The only evidence presented in support of this claim comes from Edmund Randolph’s History of Virginia. In the relevant section, Randolph recounts that Patrick Henry was asked whether the article “was designed as a prelude to an attack on the established church, and he disclaimed such an object.” (7) There is seemingly nothing in this brief account of events that indicates that the clause was about the equality of religions. To understand how Esbeck sees proof in this simple statement for his position we need to keep in mind Esbeck’s conviction that objections to establishments were not about protecting rights. He therefore, insists that individual equality could not be the basis for “an attack on the established church,” and from there it follows that Madison’s clause had to be about the collective equality of all religions. To Esbeck only the equality of all religions “would disestablish the Church of England.” (p. 69)

The problem with Esbeck’s inference is that it rests on his own assumptions about the relationship between rights and establishments, for which he has not so far found any evidence in the eighteenth-century sources. In fact, all the evidence points in a different direction. The most obvious conclusion is that some were concerned that the individual right promised in Article 16 required the disestablishment of the Church of England, something the conservative Anglicans at the Convention were unwilling to do. They must have been reassured by Patrick Henry’s statement. Henry was most certainly unaware of the implications of the clause and, therefore, honestly saw no threat to the “established church.” Madison, aware that his proposal would fail if its implications had been known, seems to have decided to remain silent on the issue.

More problematic for Esbeck’s claim is the fact that the article itself undermines his claim. Here’s the entire final version Article 16:

That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. (8)

Notice that the equality of “all men” follows from the conscience of individuals. There is nothing in the passage about the equality of all religions or religious denominations. The article declares an individual right, which belongs to all equally.

The issue raised at the Convention was not about the distinction between individual and collective rights, but whether or not the individual right given in Article 16 necessitated the disestablishment of religion. To Madison and the dissenters, it certainly did. After the Convention, the dissenters immediately began their campaign demanding that “all Church establishments might be pulled down” on the on the grounds that it was contrary to the individual rights enshrined in the Declaration of Rights. (9)

The conservative delegates, who were Anglicans devoted to the establishment of their Church, failed to see the implications of Madison’s change to the article, and were, therefore, stunned when the dissenters began demanding the disestablishment of the Church of England. They had earlier rejected part of Madison’s first proposal (in italics below), but they failed to realize that this statement was a logical extension of Madison’s equality phraseology, as can be seen from his original proposal (the section in brackets is from Mason’s version):

[That Religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion,] all men are equally entitled to the full and free exercise of it accordg to the dictates of Conscience; and therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges; nor subjected to any penalties or disabilities unless under &c. (10)

The “and therefore” makes it clear that the second (third if Mason’s opening clause is included) follows from the first (second). There is no way to see this as a statement about the equality of religions as opposed to the equality of individuals. This statement of individual rights would become the legal foundation of the dissenters’ case against all establishments of religion.

Once again Esbeck’s version of events does not hold up. The clause unequivocally places the individual at the center of its concern. The question now becomes, as it had at the Convention, about the relationship between this right and disestablishment.

3. Was there was a “bifurcation of the protection of individual religious conscience, on the one hand, and religious disestablishment on the other”?

Separating the individual right to the free exercise of religion from the issue of establishments is central to Esbeck’s project; his whole church-state theory rests on the assumption that individual rights have nothing to do with disestablishment. While it is true that states could and did grant all citizens the right to practice their religion while still maintaining an establishment, this arrangement is one of toleration and is not compatible with the religious liberty advocated by Madison and the dissenters. Maintaining establishments while granting the free exercise of religion creates a system of toleration, rather than religious freedom. Since this arrangement privileges the religious opinions of some citizens above others it is not compatible with religious liberty, which assumes individual equality. This is why, even without Madison’s “no privileges” clause, the dissenters began calling for the disestablishment of the Church of England, and all other privileging of a particular religion or denomination, on the grounds that establishments of religion are incompatible with Article 16. Esbeck’s assumption that the two issues are separate is undermined by this fact.


So far there is little evidence supporting Esbeck’s voluntaryism principle. Given the minimal evidence associated with the Convention and the creation of the DOR, there is still the possibility that the dissenters advocated for a church-state arrangement along the lines of Esbeck’s principle. The real test of his claims will come with a review of the campaign against establishments that followed the enactment of the DOR. The first stage of this campaign begins with the closing of the Convention in 1776 and goes through 1779, when Jefferson attempts to pass his bill for Establishing Religious Freedom.

  1. Mason’s proposed DOR appeared in the Virginia Gazette (May 27, 1776).
  2. Madison’s Amendments to the Declaration of Rights, [29 May-12 June 1776],” Founders Online, National Archives (last update: 2014-12-01]). Source: The Papers of James Madison, vol. 1 16 March 1751-16 December 1779, ed. William T. Hutchinson and William M.E. Rachal. Chicago: The University of Chicago Press, 1962, pp. 174-175.
  3. James Madison, Autobiography (December 1830) at Founders Online.
  4. James Madison, “Memorial and Remonstrance Against Religious Assessments” (June 20, 1785) at Founders Online. Here are some other examples from Madison’s writings (italics mine):

“Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former.” (Memorial & Remonstrance, Point # 2)

“The settled opinion here is that religion is essentially distinct from Civil Govt and exempt from its cognizance; that a connection between them is injurious to both…” (Madison to Edward Everett, March 19, 1823) at Founders Online.

“I observe with particular pleasure the view you have of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace.” (Madison to Edward Livingston, July 10, 1822) at Founders Online.

“Strongly guarded as is the separation between Religion & Govt. in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history.” (Detached Memoranda, ca. 31 Jan. 1820) at Founders Online.

  1. “‘Ten-thousand name’ petition by Dissenters from whole state, for ending established church, and for institution of religious equality.” (October 16, 1776) at Library of Virginia: Digital Collection.  (accessed November 2016). Since the original document is difficult to read a summary of the petition can be found in the Virginia Journal of the House of Delegates of Virginia, 1776 (Richmond: Samuel Shepherd & Co., 1828), 15.
  2. Esbeck asserts that “the Establishment Clause was not so much about protecting individual rights qua rights (the Free Exercise Clause serves that role), as it is about the proper structuring of the relationship between two centers of authority, government and organized religion.” (61)
  3. Moncure Daniel Conway, Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph, 2d ed. (New York: G.P. Putnam’s Sons, The Knickerbocker Press, 1889), 30. The account by Randolph was written years after the event and was found among Randolph’s papers after his death. He also describes Patrick Henry as the author of the sixteenth article, which is contradictory to the majority of the evidence.
  4. Article on Religion Adopted by Convention, [12 June 1776],” Founders Online.
  5. The Virginia Journal of the House of Delegates (1776), 7.
  6. Madison’s Amendments to the Declaration of Rights, [29 May – 12 June, 1776]” at Founders Online.