The First Federal Congress: Madison, Religious Liberty, and the Meaning of the Establishment Clause (Abusing History, Part III)

This post is the third and final part in a series examining Vincent Phillip Muñoz’s argument that the Establishment Clause was meant to protect each state’s unique “church-state arrangement” (a federalism provision) rather than individual rights, and therefore it should never have been incorporated to the states via the Fourteenth Amendment in “The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation.” (3) For second post in this series click here Abusing History (Part II).

Having survived Patrick Henry’s antics in Virginia, Madison now faced a Federalist-dominated Congress that was uninterested in his push to secure rights. Federalists thought the project was unnecessary and the hard-core Anti-Federalists thought the rights-protecting amendments proposed by Madison were “frothy and full of wind, formed only to please the palate.” (1) A sense of duty and the need to shore up support for the new government propelled Madison forward with what he called “the nauseous project of amendments.” (2) Madison’s dogged determination in the face of an indifferent Congress to see this project through to the end rightly earned him the designation “The Father of the Bill of Rights.” The Establishment Clause that came out of this struggle was, according to Muñoz, “unmistakably federal” and as such “made clear that Congress lacked power to legislate a national establishment or to pass legislation directly regarding state establishments (or the lack thereof).” (p. 630) Having failed to prove that the Anti-Federalists were clamoring for this kind of federalism proposal, Muñoz’s entire claim now rests on what happened in the First Federal Congress. To test his federal interpretation of the Establishment Clause, we will follow the progress of the amendment from Madison’s original proposal to the final version approved by a joint committee of both houses of Congress.

Madison’s Proposed Amendments

James Madison

Undaunted by a reluctant Congress, Madison pressed forward with his “nauseous project.” Prior to the ratification of the Constitution, Madison had been one of the staunchest opponents of bills of rights. Now that ratification had been secured, he became an ardent champion of amendments to secure rights. His first task was to draw up a list of amendments with which to achieve that goal, as demanded by Anti-Federalists. If Madison could satisfy these reasonable demands, he knew he could isolate the hard-core Anti-Federalists who would then be left stranded without the significant political support they would need to get the second convention they so desperately wanted. His strategy was obvious to all, especially the staunch Anti-Federalists who angrily denounced Madison’s efforts as “throwing a tub to a whale.” (3) In other words, they saw the rights-focused amendments as simply a distraction from the substantial structural changes they were seeking. If all involved saw Madison’s amendments project as an effort to secure rights, how would a structural establishment clause fit into it? Was it simply an exception? Were the descriptions inaccurate? Or, did the establishment clause actually serve a rights-protecting function?

In his famous June 8 speech to the House of Representatives, Madison explained that his purpose was to satisfy “the great mass of the people who opposed” the Constitution. Therefore, he argued, Congress should “conform to their wishes, and expressly declare the great rights of mankind secured under this constitution.” (4) He admitted that some desired structural changes were needed, but he informed his colleagues that he was “unwilling to see a door opened for a re-consideration of the whole structure of the government.”

Madison’s notes for his speech more clearly illustrate his objectives and thus the function of his establishment clause. After listing the three types of objections to the Constitution (structure, substance of power, and “rights & libertys”), he noted that the last of these was “most urged & easiest obviated.” (5) This was followed by a prompt to “Read the amendments,” which indicates that he understood those amendments as rights-securing ones. His notes also include a list for the “Contents of Bills of Rhts,” which clearly structured his own amendments. The first item (“assertion of primitive equality &c.”) he omitted from his proposal since, as he explained in his speech, “to be sure [this] is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a constitution.” (speech) Next, he indicated that rights associated with forming governments should be declared. The third item was labeled: “natural rights, retained—as Speech, Con[science].” (5) (italics in original) This is where his amendment for religious liberty fell, which he designated with the shorthand label “Con.” His “Con” amendment, as stated in his speech, included a “no establishment” clause: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or pretext infringed.” If the issue of religious establishments is unrelated to individual rights, why would Madison have imbedded it in a rights-protecting proposal?

In addition, Muñoz insists that Madison abandoned his principle of “noncognizance” (i.e. government has nothing to do with religion). (p. 625) Madison’s struggles in Virginia to disestablish religion show that he was a strong proponent of the separation of religion and government, as reflected in his Memorial & Remonstrance Against Religious Assessments where he insisted that religion should be “exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body.” For Muñoz’s federalism argument to work he must explain why Madison abandoned this cherished principle. His answer: Madison “specifically addressed the Anti-Federalists’ concern over a uniform national religion by prohibiting Congress from establishing one.” (p. 625) Yes, Madison directly targeted Anti-Federalist complaints, but these complaints, as already shown, were misconstrued by Muñoz (see Part II). In reality, Madison’s principle was compatible with Anti-Federalist cries to protect their religious liberty. Even those that saw some role for religion in the state governments wanted to ban the federal government from having any power over religious matters. In Madison’s view his entire amendment was consistent with his “noncognizanze” principle, as well as with Anti-Federalist demands. It also reaffirms what he always insisted when defending the Constitution: “There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.” (6)

Madison’s proposed amendment would now go to a committee for review. Did the changes that followed alter the purpose and meaning of the establishment clause?

The Debate in the House of Representatives

For unknown reasons the House committee scrapped Madison’s amendment and replaced it with “no religion shall be established by law, nor shall the equal rights of conscience be infringed.” This version of the amendment came up for debate in the Committee of the Whole House on August 15. The debate was brief and only a handful of Representatives chose to participate. Rather than indicating a passionate debate over a highly contested matter the record reveals the apathy with which Congress approached the amendments. This halfhearted effort led the esteemed scholar Leonard W. Levy to conclude: “That the House understood the debate, cared deeply about its outcome, or shared a common understanding of the finished amendment seems doubtful.” (7) Caution is also warranted by the fact that the record is marred by the shoddy work of the journalists who wrote the summaries of the speeches in the House. (8) Frustrated, the participants in the debates, including Madison, denounced the record as “defective, and desultory.” Nevertheless, Madison noted that “for the most part” the “ideas of the speakers” can be “collected from them.” (9) Therefore, the focus should be on the ideas not specific words or phrasing.

To frame this short House debate, Muñoz rejects the Supreme Court’s characterization as a debate “between those who favored non-preferential aid on the one hand and those who opposed any government aid on the other.” Instead, he argues that the debate was about finding language “that would not alter Congress’s power yet would satisfy the Constitution’s critics,” which he had inaccurately characterized as seeking to protect state establishments. (p. 626) In other words, in Muñoz’s telling, it was about structure not principle. The outcome, according to Muñoz, was a federalism proposal that prevented the federal government from intervening in state establishments or setting up a national establishment. He comes to this conclusion via a creative reconstruction of the debate that ignores the statements of some of the participants as well as the general flow of the debate.

His first move is to note the similar concerns of Peter Silvester and Samuel Huntington, who both feared that the clause could be “hurtful to the cause of religion.” This observation is accurate but skips over the other participants who spoke in between these two participants. Interestingly, Muñoz ignores Huntington’s larger point which could have been useful to his argument. We will examine Huntington’s concerns in more detail below. For now, we need to understand Muñoz’s analysis of the House debate. From this initial description of the debate Muñoz turns to Madison’s response, which he summarizes as a statement “meant to assure Sylvester and Huntington that the amendment would not abolish state establishments, which seems to have been their fear.” (p. 627) So, Muñoz goes from a concern about the potential of harm to religion to the characterization of their complaint as one about state establishments. It is possible to interpret Huntington’s statement in this way, but Muñoz ignores that part of his speech which supports this view. Even more problematic is Sylvester’s brief statement that cannot in anyway be construed as a concern about state establishments. He simply objected to “the mode of expression” since he thought it “might be thought to have a tendency to abolish religion altogether.” Madison’s statement is more cryptic but is better understood when seen as part of the larger conversation which Muñoz ignores. We will examine both of Madison’s contributions to the debate below, especially as Muñoz only briefly addressed them since the debate took “a decisive turn away from his proposed language.” (p. 627) Muñoz does briefly mention the participation of Roger Sherman and Elbridge Gerry, but brushes them aside as they do nothing to add to his rendering of the debate.

The “decisive turn” occurred when Samuel Livermore proposed to solve the problem by suggesting they use the language submitted by his state of New Hampshire: “congress shall make no laws touching religion, or infringing the rights of conscience.” According to Muñoz this “language more clearly acknowledged Congress’s lack of power to make a national establishment or to violate the rights of conscience and to recognize state sovereignty over establishments.” (p. 627)  This was the version that went forward and sets up the rest of the debate over the Establishment Clause as one about the relationship between the federal and state governments, thus Muñoz ignores Madison’s final statement.

A closer examination of the entire debate calls into question the plausibility of Muñoz’s interpretation. The first to speak was Peter Silvester, who, as explained above, feared that the amendment could be interpreted in such a way as “to have a tendency to abolish religion altogether.” (10) In response, John Vining suggested that they transpose “the two members of the sentence.” This would have put the “equal rights of conscience” before the no establishment clause. It is hard to see how this would have solved Silvester’s complaint, but it would have made the relationship between the two clauses clearer by emphasizing “the equal rights of conscience” since a ban on religious establishments would have necessarily followed from this equal right. But for unknown reasons Vining’s suggestion was ignored.

The Anti-Federalist Elbridge Gerry then chimed in, declaring that “it would read better if it was, that no religious doctrine shall be established by law.” This would have potentially left the door open to financial support, but it is hard to imagine Gerry approving a measure that added power to the federal government even as he supported the system of religious assessments in his own state of Massachusetts. It is no surprise that his suggestion was ignored. Roger Sherman then repeated his Federalist refrain that Congress had no power “to make religious establishments,” and therefore he “move[d] to have it struck out.” (10)

In response, Daniel Carroll came to the defense of the amendment. He reminded his colleagues that many agreed that the rights of conscience were “not well secured under the present constitution,” and, therefore, he “was much in favor of adopting the words.” The exact “phraseology” was not of that much concern to him as long as it “secure[d] the substance in such a manner as to satisfy the wishes of the honest part of the community.” (10) As a Catholic Carroll had good reason to rally in support of this amendment, but his nonchalant attitude to the exact wording reveals an unjustified apathy for someone who was a spokesman for the frequently reviled Catholic community.

Madison then spoke up for the first time in defense of his proposal. He obviously felt compelled to explain its meaning and purpose. Given its significance it is quoted in full:

he apprehended the meaning of the words to be, that congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience; whether the words were necessary or not he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion that under the clause of the constitution, which gave power to congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, or establish a national religion, to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit. (10)

Much ado has been made about his “establish a religion” statement, but this is most likely the consequence of the unprofessional way in which these speeches were created. Madison would never have accepted any kind of establishment of religion, much less a non-preferential one. It bears repeating, Madison was not seeking to add power of any kind to the federal government on the subject of religion, and as he repeatedly insisted, “There is not a shadow of right in the General Government to intermeddle with religion – Its least interference with it would be a most flagrant usurpation.” (11)

Notably, there is no indication here that Madison understood the Anti-Federalist position as a plea for the protection of state establishments. On the other hand, the wording in the second half of his statement appears to give support to Muñoz’s contention that the establishment issue was distinct from the desire to protect “the rights of conscience,” but to accept this we would have to reject everything we know about Madison before and after this debate.

It is at this point that Huntington shared his concern about potential harm to religion. While agreeing with Madison’s interpretation of the amendment he worried that “others might find it convenient to put another construction upon it.” Speculating, he wondered what would happen “[i]f an action was brought before a federal court on any of these cases, the person who had neglected to perform his engagements [pay tax in support of religion] could not be compelled to do it; for a support of ministers, or building of places of worship might be construed into a religious establishment.” (10) Huntington was most certainly aware that most Americans, even in conservative New England, considered financial support for religion “a religious establishment.” When Massachusetts’s defenders of their system of religious establishments several years earlier, the popular Baptist preacher Isaac Backus scolded those who began denying that it was an establishment by pointing out that the “legislature have constantly called those laws an establishment, for these eighty-seven years.” (12) (italics mine) Was Huntington just playing dumb? Doubtful, but his example does show that he was concerned about his own state’s establishment. While his concerns would have been shared by many of his fellow New Englanders, his views were increasing not shared by the majority of Americans, and they most certainly were not the ones expressed by the Anti-Federalists that Madison was trying to win over.

What Huntington’s statement indicates within this context is the need to express clearly which level of government is being restrained. Madison then tried to solve this problem by offering to insert the word “national” before religion. He “thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent.” (10) This would ensure that the state of Massachusetts would not be bound by this amendment, even as Madison’s “most valuable” amendment binding states to honor the rights of conscience would have. (13) Huntington did not weigh in on this amendment when it came up for a vote. Luckily for Huntington it did not pass the Senate.

This attempt to make clear which government was bound by the directive did not change the goal of the amendment (to protect rights); it simply clarified the party which would be bound by this rights-protecting measure. Samuel Livermore now jumped into the debate with a proposal that he thought would better solve the problem: “that congress shall make no laws touching religion, or infringing the rights of conscience.” (10) This is almost identical to the one proposed by his state of New Hampshire. The main version of the debate in the Annals of Congress includes no explanation with the proposal, but in another, usually less helpful version of these debates published in The Daily Advertiser there is a helpful note indicating Livermore’s intentions. Here it indicates that “tho’ the sense of both provisions was the same, yet the former might seem to wear an ill face and was subject to misconstruction.” (14) The addition of the word “Congress” solved the problem of which government (state or federal) was the target of the limit, without the implications that the term “national” implied, a complaint lodged by Elbridge Gerry who now joined the conversation.

As a staunch Anti-Federalist, Gerry disapproved of “the term national” because it implied a “form of government [that] consolidated the union.” Madison quipped in response “that the words ‘no national religion shall be established by law’ did not imply that the government was a national one,” but acquiesced in the change anyway. (10) Livermore’s motion passed 31 to 20.

The brief discussion indicates that the focus of the debate was to come up with language that made clear that it was the federal government which was banned from establishing religion, but to do so in a way that did not imply a consolidated government. The word “Congress” fit the bill. While this discussion was about the relationship between the federal and state government, it did not follow that it was a “federalism” clause meant to prevent the federal government from intervening in state establishments of religion. By targeting the federal governments, the amendment left the remaining state establishments intact, but protecting state establishments was not the goal of the amendment. The language, which would become that of the First Amendment (“Congress shall make no laws…”), solved this problem and not just for the Establishment Clause but for all of the other individual rights clauses (free exercise, speech, press, and assembly). All the clauses of the First Amendment were federal in this way, but they all remained substantive statements meant to protect individual rights at the federal level.

On August 20 Fisher Ames of Massachusetts moved to change the amendment to “Congress shall make no laws establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.” The main change was the addition of a free exercise clause, but it was replacement of the word “touching” for “establishing” that represents a significant change to the meaning of the establishment clause according to Muñoz. He argues that the change “more clearly focused attention on establishments,” and thus “recognized Congress’s lack of power over religious establishments.” (p. 628) This conclusion is hard to square with the evidence. There is nothing in the language or in the record to support this counter-intuitive interpretation. It simply banned Congress from making laws that fixed (i.e. established) religion.

The term “establish” was used broadly in the eighteenth century. It was a term that was not used exclusively to indicate a formal establishment (traditional or nonpreferential).  A widely used dictionary in America, Samuel Johnson’s A Dictionary of the English Language (1786), defined “Establishment” as

  1. A settlement; fixed state.
  2. Confirmation of something already done; ratification.
  3. Settled regulation; form; model.
  4. Foundation; fundamental principle.
  5. Allowance income; salary. (15)

The term simply meant that something was “fixed” via law. There is no specific reference to a legally supported or binding religion. While Anglicanism was considered “established by law” in England, this did not bring with it any specific, or exclusive, meaning. There was no requirement that “an establishment” be a single state-supported religion, or any specific features such as financial support. South Carolina officially established the “Christian Protestant religion,” but they did so without government funding. (16) For many, any law dealing with the subject of religion was an “establishment of religion.” The Baptists at a meeting in Virginia, expressed a common sentiment shared by religious dissenters when they declared that it was “repugnant to the spirit of the gospel for the Legislature thus to proceed in matters of religion; that no human laws ought to be established for this purpose, but that every person ought to be left entirely free in respect to matters of religion.” (17) (italics mine)

They even used it in reference to cherished concepts such as religious freedom and toleration. Most famously it was enshrined in Jefferson’s “Act for Establishing Religious Freedom.” In their fight against all forms of religious establishments, Virginia Baptists repeatedly requested that a “perfect and equal religious freedom may be established.” (18) Even some state constitutions used the word in this way. Article I, Section 3 of Connecticut’s constitution stated that the free exercise of religion was “hereby declared and established.” (19) (for more examples, see footnote 20 below) They were using the word “establish” in all these situations in its basic sense of “[t]o settle firmly; to fix unalterably.” By bringing something into law, it became fixed or “established.”

It is this meaning that makes more sense in this context. While there is no record to explain the change, the more commonly used term “establishing” was less vague than “touching.” It would have had the added benefit of permitting the Congress to pass laws protecting religious rights, which do not “establish” (or fix) religion in law. The proposal means exactly what it says it means, Congress is forbidden from making laws that fix religion, whether religious doctrines or practices. And it is religion in general that is banned, not a particular religion or a particular denomination. This would have reinforced that Federalist position that Congress had no power on the subject of religion. And since the ban is aimed at the federal government, the states would have been free to make their own rules concerning religion. The amendment now went to the Senate for debate.

The Senate

The Senate took up the issue on September 3. With reporters barred from the Senate we are left with only the official record of votes on motions and bills. This record indicates that the Senate considered various versions, which according to Muñoz were versions “of Patrick Henry’s Virginia submission” that would have “augmented congressional power” by “implicitly allowing Congress to legislate on religious matters so long as it did so in a non-preferential manner.” (pp. 628-9) All of these “no-preference” proposals were rejected. In the end, they sent to the House a version that could have been interpreted as barring only laws that “establish[ed] articles of faith or a mode of worship, or prohibiting the free exercise of religion,” thus potentially opening the door to financial support for religion. The House apparently greeted the Senate version with alarm; no doubt Madison in particular was horrified. When the House pressed the Senate to alter its version, they refused. They did give in, however, to reconciling the issue in a Joint Committee.

The Joint Committee

Three members from each chamber were assigned to the committee. Madison naturally managed to land on the committee, where he was no doubt was a powerful presence. After what must have been tense negotiations the Senate version was rejected, and a slightly altered House version was agreed to: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The committee dropped the “rights of conscience” clause, which they probably saw as redundant.

Following his earlier framing, Muñoz insists that the choice before the committee as one between “the House-proposed, New Hampshire inspired federalism text and the Senate-proposed, Virginia-inspired regulation language.” (p. 629) This framing sets up the debate in favor of Muñoz’s conclusion, but what he sees as the “key to unlocking the meaning of the Establishment Clause” is the addition of the word “respecting.” It is this change, he insists, makes it an “unmistakably federal” statement. (p. 629) In support of this interpretation, Muñoz relies on two pieces of evidence. First, he relies on his interpretation of Anti-Federalist concerns about state establishments. As already shown this interpretation is without merit (see Part II).

Second, Muñoz argues that the words “respecting an” indicate an absolute prohibition in contrast to the “regulatory power implied by the other participles” of the First Amendment. The “participles ‘prohibiting’ and ‘abridging,’” Muñoz contends, “regulate but do not categorically deny Congress power.” Whereas “‘respecting’ indicates Congress’s lack of jurisdictional authority over an entire subject matter.” The subject matter, according to Muñoz, was “establishments.” Therefore, he concludes, “The Establishment Clause thus made clear that Congress lack power to legislate a national establishment or to pass legislation directly regarding state establishment (or the lack thereof).” (p. 630)

The distinction between “respecting” and the other participles is dubious on its face, but we have powerful evidence that there is no distinction. After the passage of the Alien and Sedition Acts in 1799, Madison, incensed, went into overdrive to have these measures repealed. The Sedition Act was a blatant violation of the Constitution because it allowed for the regulation of the press. He adamantly denied that there was any distinction between the words “respecting” and “abridging,” the free press participle. In a report to the committee dealing with the issue in the Virginia House of Delegates, Madison forcefully challenged the claim made by those supporting the act that the press could be regulated as long as they did not abridge it since it did not say “they shall make no law respecting it.” This would mean, Madison argued, that by analogy the free exercise of religion could be regulated as long as they do not prohibit it. As a key player in the creation of the amendment, Madison denied that such a distinction was intended: “Words could not well express, in a fuller or more forcible manner, the understanding of the convention, that the liberty of conscience and the freedom of the press, were equally and completely exempted from all authority whatever of the United States.” (21) The liberty of conscience was not actually explicitly banned, but he meant that all things that infringed upon the liberty of conscience, which for Madison included establishments, were “exempted.”

While Muñoz was wrong about the distinction between the clauses, he is right to claim that the Establishment Clause imposes an absolute ban. But the ban comes from the language that all the clauses of the First Amendment share: “Congress shall make no laws…” Notice above that Madison did not use the word “respecting” (or “respecting an”) to indicate the absolute ban, he used the phrase “they shall make no law respecting it.” What is Congress forbidden to legislate on? Things “respecting an establishment of religion.” While somewhat vague, there is no indication that the focus of the ban was “establishments” as Muñoz conceives them.

This claim rests heavily on Muñoz’s problematic interpretation of Anti-Federalist concerns for state establishments. And it is hard to see how this would make sense given the fourteenth amendment passed by the House and sent to the Senate that explicitly banned the states from “infringing…the rights of conscience.” This would make no sense if the Establishment Clause was intended to ban federal intervention in a state’s church/state arrangement. Without any other concrete evidence indicating that it was specifically a federalism proposal Muñoz’s argument falls apart. In fact, evidence from Madison’s career during and after his tenure in the First Federal Congress cannot be squared with Muñoz’s interpretation.

Madison’s Views on the Establishment Clause

In addition to Madison’s copious writings about religious liberty, we have sufficient evidence indicating how he understood the First Amendment’s Religion Clauses. As a member of Congress and as President, Madison had several opportunities to put into practice his understanding of the Establishment Clause. During his tenure as a member of the House of Representatives, Madison encountered a couple of issues that clashed with the principles of the First Amendment which he had helped to create.

The first test of his resolve came during the same session in which the amendments were passed. The issue of chaplains proved especially troubling for Madison as his ideals clashed with colleagues wedded to the tradition. Madison’s record on the subject of legislative chaplains during his tenure in the House of Representatives is somewhat murky, but even a generous reading of the available evidence contradicts Muñoz’s thesis. Madison had to confront two different aspects of this issue: 1) his role in creating the rules for the appointment of chaplains; and 2) whether or not they should be paid with public funds.

As Congress was just getting off the ground, the Senate initiated the move to establish a chaplaincy.

To this end they created a five-member committee to establish rules governing the appointment and conduct of chaplains. They also recommended that the House do the same, and apparently with little pushback, the House complied. Most likely by choice, Madison landed on this committee, but not because he supported the chaplaincy. If he could not prevent the establishment of this institution, he could at least try to limit the damage. He obviously failed in that task. With no records from these committees we have no way of determining who and why the majority of the members voted in support of chaplains. As a tradition established by the Continental Congress, but not followed by the Constitutional Convention, many members probably gave little thought to the compatibility of this practice with the Federalist mantra that the federal government had no power on matters concerning religion.

He also failed to prevent the funding of these legislative chaplains. Early in the session a different committee had been set up to provide compensation for the President, Vice-President, and members of Congress. The addition of chaplains seems to have originated in the Senate late in the life of the bill. (22) This occurred after the House debates of the religious liberty amendment, but before the Senate took up debate on the House proposal on September 3. By this point Madison and his colleagues were desperate to pass the bill compensating members of the government. The bill was signed into law by President Washington on September 23, 1789.

While Madison voted in support of this bill, it was not a vote in support of this institution. As Andy G. Olree explains, “Perhaps the most important reason for Madison’s vote in favor of the omnibus bill of 1789, however, was the fact that it was omnibus. Madison was trying to get the new government up and running; he could not afford to delay or possibly derail an already much-delayed compensation plan for the new national legislature in order to contest one line item.” (23) In fact, Madison later insisted that the establishment of the chaplaincy happened without his approval. In a letter to Edward Livingston, Madison wrote that “it was not with [his] approbation, that the deviation from it [“the immunity of Religion from Civil Jurisprudence”] took place in Congs. when they appointed Chaplains, to be paid from the Natl. Treasury.” (24) Besides denying that he approved this practice, he explained that it was in violation of the principle of “the immunity of Religion from Civil Jurisprudence,” which he undoubtedly understood to be part of the national compact.

A more detailed examination of this topic is found in what is known as the Detached Memoranda, a collection of musings on topics Madison thought were of some importance. In this collection, he devoted considerable attention to the issue of church-state relations, which had always been something of an obsession for Madison. He opened this section by announcing that the “danger of silent accumulations & encroachments by Ecclesiastical Bodies have not sufficiently engaged attention in the U.S.” After a brief defense of the merits of “unshackling the conscience from persecuting laws” and the example of Virginia, he declares, “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 precidents [sic] already furnished in their short history.” (25) (italics in original) Here he notes, but does not explain, some examples that will be addressed below. But here we see an explicit statement of Madison’s understanding of the First Amendment, and it reveals that he saw it as establishing a principle (separation), and as we’ll see it was a principle in the service of protecting individual rights.

Turning to the issue of chaplains, Madison set out to answer the question: “Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?” (italics in original) Unsurprisingly, he ruled in the negative on both counts. It violated the Constitution, he asserted, because it “forbids every thing like an establishment of a national religion.” (italics in original) So, it doesn’t just forbid the establishment of a national religion; it forbids “every thing like” one. In this case, the use of chaplains in the legislature. He explains,

The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation. (25)

While not strictly a national establishment of religion it promotes practices that mimic those of traditional establishments, and therefore was unconstitutional, according to Madison.

Madison went further. He insisted that it violated the “pure principle of religious freedom,” which the First Amendment was meant to protect. In contrast to mere toleration, religious freedom rests on the assumption of equality, thus Madison charged that “[t]he establishment of the chaplainship to Congs. is a palpable violation of equal rights, as well as of Constitutional principles.” It violates equal rights because it “shut[s] the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority.” (25) To those who would insist that the majority should have its way in these matters, Madison retorted: “To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers, or that the major sects have a right to govern the minor.” (25) This is the very essence of religious tyranny; the very thing that the Constitution was meant to banish.

It is also for this reason that he would have rejected any officially sanctioned prayer, whether by public funding or not. He certainly would have found it acceptable for individuals and/or groups to engage in prayer before the session began as long as participation was voluntary, the prayer was not officially endorsed, nor paid for with public funds. Which is why he insisted that religious practices must be carried out as “voluntary acts of individuals, singly, or voluntarily associated.” (25) Thus, in Madison’s understanding legislative chaplains violated the Constitution and the rights of conscience protected therein.

The same principles were violated by the “Chaplainships for the army and navy.” He admitted that the “object of this establishment is seducing; the motive to it is laudable.” (italics in original) “But is it not safer to adhere to a right principle, & trust to its consequences, than confide in the reasoning however specious in favor of a wrong one,” Madison asked rhetorically. Notice that Madison explicitly called the military chaplaincies an “establishment.” It wasn’t like an establishment, it was an establishment.

While Madison lamented the establishment of these dangerous precedents, he also realized that they were unlikely to be reversed. So, “[r]ather let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the aphorism de minimis non curat lex [‘The law does not concern itself with trifles’] or to class it ‘cum maculis quas aut incuria fudit, aut humana parum cavit natura” [‘I shall not take offence at a few blots which a careless hand has let drop, or human frailty has failed to avert.’] (26) Madison is not claiming here that the matter is trivial, as some have claimed, but rather that it is best to minimize the importance of this precedent that give it power as “a legitimate precedent.”

The following year, as the amendments were still going through the process of ratification, Madison made a revealing statement about dealing with clergy in the census. He reminded his colleagues in the House “that in such a character they can never be objects of legislative attention or cognizance. As to those who are employed in teaching and inculcating the duties of religion there may be some indelicacy in singling them out, as the General Government is proscribed from interfering, in any manner whatever, in matters respecting religion; and it may be thought to do this, in ascertaining who, and who are not ministers of the Gospel.” (27) Once again Madison confirms that it is religion in general that is banned from the cognizance of the federal government. So, much for the idea that Madison abandoned his beloved principle of noncognizance to satisfy the Anti-Federalists.

Another revealing incident came after he left Congress. In 1798 President John Adams signed the Alien and Sedition Acts into law. The Sedition Act included measures allowing government regulation of the press. Alarmed by the flagrant violation of the Constitution, as he understood it, Madison engaged in a determined campaign to have the laws repealed. As part of this effort, Madison drew up a report for the Virginia Assembly in which he responded to the defenders of the Sedition Act who argued that it was constitutional because the First Amendment “prohibits them only from abridging the freedom allowed to it by the common law,” Madison insisted that the clause “was meant as a positive denial to Congress, of any power whatever on the subject.” (28) As a noteworthy participant in drawing up the First Amendment, Madison took his opponents to task for misconstruing the meaning and purpose of its Free Press Clause. “It is painful to remark,” he informed his colleagues, “how much the arguments now employed in behalf of the sedition act, are at variance with the reasoning which then justified the constitution, and invited its ratification.” What was the “reasoning”? “[T]hat no powers were given beyond those enumerated in the constitution, and such as were fairly incident to them; that the power over the rights in question, and particularly over the press, was neither among the enumerated power, nor incident to any of them.” So, as far as the press went, the clause was meant to put in writing what the Federalists had insisted all along: the Constitution had no power on the subject. Did this reasoning extend to the Religion Clauses?

To bring home his point, Madison turned to those important clauses. By way of analogy Madison hoped to show the folly in the precedent being set by the faulty reasoning of the architects of the law. “Words could not well express,” he asserted, “in a fuller or more forcible manner, the understanding of the convention, that the liberty of conscience and the freedom of the press, were equally and completely exempted from all authority whatever of the United States.” (italics in original) As was common, he used the designation “liberty of conscience” as a shorthand stand-in for all the clauses protecting religious freedom in bills of rights. He didn’t literally mean that those rights were “equally and completely exempted” but that those things that violated those rights were exempted, which is why the subjects of religion and the press were not delegated powers given in the Constitution. Madison’s arguments against the Sedition Act show that he believed that the clauses of the First Amendment were consistent with his original refrain that the federal government had no power over the subject of religion, and to deny this was to endanger the rights of conscience:

They are both equally secured by the supplement to the constitution [the First Amendment]; being both included in the same amendment, made at the same time, and by the same authority. Any construction or argument then which would turn the amendment into a grant or acknowledgement of power with respect to the press, might be equally applied to the freedom of religion… (28)

Madison lost this battle in the short run, but the incident provided him with the opportunity to express his understanding of the First Amendment publicly.

Madison’s presidency provides another opportunity to understand his views on the First Amendment. As president he vetoed several laws on the subject of religion that provoked his ire because they were flagrant violations of the Constitution as far as he was concerned. In 1811, a law incorporating “the Protestant Episcopal Church in the town of Alexander, in the District of Columbia” landed on his desk. This merited a veto according to Madison because it “exceed[ed] the rightful authority to which Governments are limited by the essential distinction between Civil and religious functions, and violates in particular the article of the Constitution of the United States which declares ‘Congress shall make no law respecting a Religious establishment.’” (29) Note that Madison misquoted the Establishment Clause; though the mistake has no implications for Madison’s understanding of the clause. Madison’s veto message indicates that the Establishment Clause is a restatement of his longstanding belief that governments has no jurisdiction in matters of religion. His fellow framers of the clause may not have understood it in the same way, but it is undeniable that this is how Madison understood what he was doing.

Madison’s explanation also includes a reference to another one of his long-standing themes. He thought it set a bad “precedent for giving to religious Societies as such a legal agency in carrying into effect a public and civil duty” because it gave the church “authority to provide for the support of the poor and the education of poor children of the same.” (29) He had earlier denounced using “Religion as an engine of Civil policy” in his Memorial & Remonstrance. (30) His reading of his had taught him that these kinds of connections “leave crevices at least, thro’ which bigotry may introduce persecution; a monster, that feeding & thriving on its own venom, gradually swells to a size & strength overwhelming all laws divine & human.” Thus, he beseeched “Ye States of America” to revise their “systems” in accordance with proper divisions between those things that relate “to the freedom of the mind and its allegiance to its maker” and “legitimate objects of political & civil institutions.” (31) He obviously thought this had already been done at the national level since he followed this with the assertion, “Strongly guarded as is the separation between Religion and Govt in the Constitution of the United States…”

A week later Madison issued a second veto striking down a law that would have reserved land for use by a Baptist Church. Here Madison’s statement was short and straight to the point. He informed the House that the bill “comprizes a principle and precedent for the appropriation of funds of the United States, for the use and support of Religious Societies; contrary to the Article of the Constitution which declares that Congress shall make no law respecting a Religious Establishment.” (32) In a letter to the Baptist churches in North Carolina, which applauded Madison’s decision, he explained further: “Having always regarded the practical distinction between Religion and Civil Government as essential to the purity of both and as guaranteed by the Constitution of the United States, I could not have otherwise discharged my duty on the occasion which presented itself.” (34) (italics mine) Once again Madison states clearly that the principle behind the Establishment Clause is the separation between religion and government, which he saw as necessary for the protection of religious liberty. There is no hint here or anywhere else that Madison saw it in any other way.

There is a blight on Madison’s principled stance. During his presidency, he issued his two religious proclamations, one for a day of thanksgiving and the other for a “Day of Public Humiliation and Fasting and of Prayer to Almighty God,” during some of the darkest days of his presidency. (34) The grim situation that the new nation faced during the War of 1812 prompted Congress to call for two proclamations of thanksgiving and prayer. For Madison to have refused Congress’s request under such circumstances would have been foolish, as he himself admitted. He felt that it would not have been “proper to refuse a compliance altogether.” (35) Even the normally resolute Madison could not ignore the demands of the moment.

Nevertheless, he tried to mitigate the damage by making his proclamations voluntary and as broadly inclusive as possible. He thus crafted it “to deaden as much as possible any claim of political right to enjoin religious observances by resting these expressly on the voluntary compliance of individuals, and even by limiting the recommendation to such as wished simultaneous as well as voluntary performance of a religious act on the occasion.” And, like Washington, he spoke in the most broad and inclusive terms (“the Great Sovereign of the Universe” and “the Beneficent Parent of the Human Race”), rather than in exclusive Christian language. Despite these efforts, Madison regretted his decision to set such a dangerous precedent.

During his retirement years he set out to explain why this practice was dangerous and in violation of the principles established in the Constitution. “Altho’ recommendations only,” he asserted, “they imply a religious agency, making no part of the trust delegated to political rulers.” The Constitution did not give the representatives of the federal government any power on the subject of religion, and by engaging in this practice they were overstepping the boundaries of their authority.

From there Madison went on to list his objections. First, he rejected the idea of “an advisory government,” especially in regards to religion. (bold in original) In their official capacities as “members of a Govt.” the president cannot “be regarded as possessing an advisory trust from their Constituents in their religious capacities.” Next, he complained that these acts “see<m> <to> imply and certainly nourish the erroneous idea of a national religion.” (bold in original) If people want to “unite in a universal act of religion” they should do so through their “religious not of their political representatives.” It is the mere fact that these proclamations “imply” the existence “of a national religion” that makes them problematic. To explain why, Madison turns to history once again. Christianity, according to Madison, had “improperly a<d>opted” the theocratic model of “the Jewish nation.” This practice runs contrary to “reason and the principles of the Xn religion,” which require that “all the individuals composing a nation were of the same precise creed & wished to unite in a universal act of religio<n> at the same time,” and action “ought to be effected thro’ the intervention of their religious not of their political representatives.” This obviously is not possible in a nation as diverse as the U.S., and therefore to engage in such a practice here “is doubly wrong.” The underlying assumption of individual equality and its opposition to privileging some religious beliefs above others, animated his next objection as well.

Madison denounced “the tendency of the practice, to narrow the recommendation to the standard of the predominant sect.” Thus it tends to “terminate[] in a conformity to the creed of the major<ity> and of a single sect, if amounting to a majority.” Finally, though “not the least Objection” was the propensity of the practice to serve “political views; to the scandal of religion, as well as the increase of party animosities.” For such an example, Madison could turn to very recent history when President Washington’s proclamation followed on the heels of the Whiskey Rebellion in Pennsylvania and was largely seen as political. Therefore, he praised Jefferson’s refusal to engage in the practice. (36) So the practice was fundamentally unconstitutional, it undermined religious liberty, and was harmful to religion, politics, and the nation as a whole.

In his letter to Livingston Madison made similar points, but closed with a general discussion on the subject of church-state relations that provides a good summary of his general thinking on the subject. He rejected “the old error, that without some sort of alliance or coalition between Government & Religion.” This “error” had a “corrupting influence on both parties,” Madison warned. Therefore, “the danger can not be too carefully guard against.” (italics mine) To abolish this “error” he thought “[e]very new & successful example therefore of a perfect separation between ecclesiastical & Civil matters is of importance.” Rather than the unfortunate precedents that had already been provided, he advocated creating precedents in the opposite direction. “Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance.” (37) In his view separation was more compatible with “the full establishment” of “liberty.” (italics mine)

Madison’s writings after the creation of the First Amendment are inconsistent with Muñoz’s federalism interpretation of the Establishment Clause. Madison unequivocally saw it as a substantive principle (separation) meant to protect individual rights. His whole exercise in pointing out “the danger of encroachment by Ecclesiastical Bodies” in the Detached Memoranda was premised upon the fact that he believed firmly that “the separation between Religion & Govt.” was “[s]tongly guarded” in the Constitution.

Thus, from the Anti-Federalists to Madison’s views Muñoz’s argument has crumbled under the weight of the evidence. His reproach against the Supreme Court for their “alarming misuse of history” more aptly applies to himself. (p. 637)

Conclusion

  • Claim: The committee that created the final versions of the Establishment Clause “adopted language that was unmistakably federal,” thus creating an amendment that protected state establishments and prevented the establishment of a national religion.
  • False: The conclusion rests heavily on Muñoz’s problematic interpretation of Anti-Federalist concerns. Beyond this erroneous claim there is no evidence that the ban imposed by the Establishment Clause was against “establishments” rather than religion in general. As Madison insisted before, during, and after the First Federal Congress that created the clause: “There is not a shadow of right in the general government to intermeddle with religion.” Thus, contrary to Muñoz’s originalism claim that the clause was federal in intent and thus wrongly applied to the states, the Establishment Clause represents a substantive principle that can “be applied to modern day incorporated ‘no-establishment’ jurisprudence.” (p. 588)

Notes:

1) Aedanus Burke during Committee of the Whole debate June 13 to 18 in Kenneth R. Bowling, “’A Tub to the Whale’: The Founding Fathers and Adoption of the Federal Bill of Rights, Journal of the Early Republic, vol. 8, no. 3 (Autumn, 1988), 241.

2) James Madison letter to Richard Peters (August 19, 1789) Founders Online.

3) For more examples see Bowling “A Tub to the Whale.”

4) James Madison, Speech on June 8, 1789.” Founders Online

5) Madison, “Notes for Speech in Congress, [ca. 8 June] 1789,” Founders Online

6) Madison, General Defense of the Constitution, Virginia Ratification Convention (June 12, 1788). Founders Online

7) Leonard W. Levy, The Establishment Clause: Religion and the First Amendment, 2nd ed. (The University of North Carolina State University, 1994), 99.

8) James H. Hutson, “The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review vol. 65, no. 1 (November 1986), 36.

9) James Madison to Edward Everett (January 7, 1832). Founders Online

10) Helen E. Veit, et al., eds. Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore: The John Hopkins University Press, 1991). The full debate can be found on pp. 157-159.

11) Madison, General Defense of the Constitution, Virginia Ratification Convention (June 12, 1788). Founders Online

12) Isaac Backus, Policy, as well as Honesty, Forbids the use of Secular Force in Religious Affairs. Boston: Draper and Folsom, 1779.

13) Veit, Creating the Bill of Rights, 188.

14) Ibid., 150-151.

15) Samuel Johnson, A Dictionary of the English Language, eighth edition (London: J.F. and C. Rivington, et al., 1786).

16) 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.

17) Baptist Meeting (August, 1784) in Semple, Robert B. A History of the Rise and Progress of the Baptists in Virginia (Richmond: John O’Lynch, Printer, 1810), 71.

18) A Memorial of the Baptist Association (May 26, 1784) in Charles F. James, Documentary History of the Struggle for Religious Liberty in Virginia (Lynchburg, Virginia: J.P. Bell Company, 1900), 123.

19) The Public Statute Laws of the State of Connecticut, as Revised and Enacted by the General Assembly, in May, 1821, with the Acts of the Three Subsequent Sessions Incorporated… (Hartford: H. Huntington, Jr., 1824), 20.

20) Madison, Autobiography: “Happily it was not long before the fruits of Independence and of the spirit & principles which led to it, included a complete establishment of the Rights of Conscience, without any distinction of the sects or individuals.” Founders Online (italics mine)

Isaack Backus: “I am so far from thinking, with him, that these restraints would be broken down, if equal religious liberty was established….” Backus, Isaac. Government and Liberty Described, And Ecclesiastical Tyranny Exposed (Boston: Powars & Willis and Freeman, 1778), 12-13.

Quaker petition (Nov. 14, 1785): They claimed the proposed religious assessment was “an Infringement of Religious and Civil Liberty Established by the Bill of Rights” in Thomas E. Buckley, Church and State in Revolutionary Virginia 1776-187. Charlottesville, Virginia: University Press of Virginia, 1977), 148.

Baptist Memorial (Nov. 6, 1783): In opposing the privileges of the Episcopal Church (vestry and marriage laws) they called for “religious freedom established” (James, Documentary History, 120)

21) Madison, Report to Committee of Virginia’s House of Delegates on the Alien and Sedition Acts (late 1799-January 7, 1800) Founder Online

22) Journal of Senate (August 28, 1789), 67. The Senate journal can be found here: http://memory.loc.gov/ammem/amlaw/lwsjlink.html

The House debates of the First Congress can be found here: http://memory.loc.gov/ammem/amlaw/lwhjlink.html

23) Andy G. Olree, “James Madison and Legislative Chaplains,” Northwestern University Law Review 102, no. 1 (2008), 205.

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

25) Detached Memoranda. Founders Online

26) Detached Memoranda. The English translations from the Latin are found in footnotes 56 & 57. Founders Online

27) Madison on the Census (February 2, 1790) in House (Annals of Congress, 1145-6). The House debates of the First Congress can be found here: http://memory.loc.gov/ammem/amlaw/lwhjlink.html

28) The Report of 1800 (January 7, 1800) to the Virginia Assembly. Founders Online Founder Online

29) Madison, Veto Message to the House of Representatives of the United States (February 21, 1811). Founders Online

30) Memorial and Remonstrance Against Religious Assessments (June 29, 1785) Founders Online

31) Detached Memoranda. Founders Online

32) Madison, veto message to House of Representatives (February 28, 1811) Founders Online

33) Madison to the Baptist Churches in Neal’s Creek and on the Black Creek, NC (June 3, 1811). Founders Online

34) Madison, a Proclamation of Thanksgiving (July 23, 1813), and a Proclamation of a Day of Public Humiliation and Fasting and of Prayer to Almighty God (November 16, 1814).

35) Madison, Detached Memoranda, 562. Founders Online

36) Madison, Detached Memoranda, 562. Founders Online

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

 

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Ratifying the Constitution: Anti-Federalists Demand Protections for State Establishments of Religion? (Abusing History, Part II)

This post is the second part in a series examining Vincent Phillip Muñoz’s argument that the Establishment Clause was meant to protect each state’s unique “church-state arrangement” (a federalism provision) rather than individual rights, and therefore it should never have been incorporated to the states via the Fourteenth Amendment in “The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation.” (3) For first post click here Abusing History (Part I).

Constitutional Convention 1787

After the delegates in Philadelphia hammered out a new national Constitution to replace the Articles of Confederation in 1787, they then faced the daunting task of persuading a skeptical country to ratify it. The Federalist papers, written by Alexander Hamilton, James Madison, and John Jay, were part of an effort to blunt criticism and secure support for the proposed constitution. While helpful, they failed to quiet the voices of discontent. The delegates made a grave error when they failed to follow the advice of George Mason and Elbridge Gerry to draw up a bill of rights. This mistake nearly fatally doomed the entire project. Many Americans felt that without explicit statements securing rights they were inviting tyranny. Richard Henry Lee expressed the sentiments of many Americans, “It having been found from Universal experience that the most express declaration and reservations are necessary to protect the just rights and liberty of mankind from the silent, powerful, and ever active conspiracy of those who govern.” (2) This issue turned many otherwise supportive Americans against the Constitution. This issue was such an effective weapon against the Constitution that those who opposed the entire project used it, often disingenuously, to stir up anti-constitutional sentiment. Despite the varying views and intensity of discontent, all of those opposed to the Constitution during this period are known as Anti-Federalists. This diverse group is the central focus of Vincent Phillip Muñoz’s originalist argument concerning the Establishment Clause (“Congress shall make no laws respecting the establishment of religion”) since it was a sop to quell Anti-Federalist agitation. Thus, Anti-Federalist complaints hold the key to unlocking the meaning of this cryptic passage.

To understand Anti-Federalist arguments on this topic it is necessary to first understand the Federalist response to the rights issue. They had two main rejoinders, which were most famously articulated by James Wilson in his broadly-disseminated speech of October 6, 1787. The first was that the proposed government had limited and enumerated powers, and therefore it could not threaten the rights of the people (no power argument). “[E]verything which is not given, is reserved” by the states and the people, he insisted. Second, Wilson also asserted that it would be dangerous to explicitly articulate such rights because it could then “be construed to imply that some degree of power was given” to the national government in those areas (implied-power argument). (3) Wilson’s speech was printed in various newspapers across the country, and became the focus of many Anti-Federalist rants. Leading up to the ratification conventions in each state, the Anti-Federalists launched a campaign aimed at either securing a second convention or achieving some alterations to the document. Muñoz relies on a small sampling of these broadsides to uncover the fears and desires that he sees as central to understanding the meaning of the Establishment Clause.

From this evidence Muñoz lays out three related observations about the Anti-Federalist demands that influenced the creation of the clause:

  1. The Anti-Federalists were concerned about the threat posed by a consolidated government to the unique “church-state arrangements” found in each state. (p. 614)
  2. The “free exercise of religion” and/or “liberty of conscience” were considered individual rights. (p. 616)
  3. The issue of religious establishments was not about rights because the Anti-Federalists never mentioned a right to “no establishment,” or that “non-establishment was necessary to protect free exercise.” (1) (p. 617)

The first claim sets up the framing of the Anti-Federalist agenda as one focused on protecting each state’s particular “establishment (or lack thereof).” (p. 630) This means that the issue was about federalism (i.e. the relationship between the states and the federal government), not individual rights. Reinforcing this framing of the issue, Muñoz notes that the Anti-Federalists treated the free exercise of religion as an individual right, but not the issue of religious establishments. This distinction is important to his claim that the Establishment Clause should never have been incorporated to apply to the states what he calls “no-establishment” jurisprudence (i.e. the separation of church and state). (p. 588) Yet, this conclusion rests on a dubious interpretation of the Anti-Federalist complaints.

The thrust of Muñoz’s characterization of the Anti-Federalists is built upon the old trick of bait and switch. He sets up his argument with the bold assertion that “[i]n the minds of most Anti-Federalists…the differences in church-state arrangements at the state level signaled the impossibility of a harmonious, consolidated union.” (p. 614) Note that the focus of this claim is on the diversity of “church-state arrangements.” To support this assertion, he provides excerpts from three different Anti-Federalists. The first two (“Deliberator” and “A Countryman”) are about the threat a national establishment would pose to the religious diversity of the country (an interpretation that Muñoz himself agrees with), and the third one (“Agrippa”) provides only ambiguous support for his “church-state arrangement” conclusion. If this is his evidence his depiction of Anti-Federalist concerns is in serious trouble. How the first two essays support his federalism conclusion is a mystery. Fears about imposed religious uniformity cannot be translated into support for a claim about the fear of imposed uniformity in church-state arrangements. Nowhere do the “Deliberator” or “A Countryman” express a concern for their state’s establishment, or lack thereof.

The only Anti-Federalist argument that could possibly be seen as protecting state “establishments” is this statement by “Agrippa,” as quoted by Muñoz:

Attention to religion and good morals is a distinguishing trait in our [Massachusetts] character. It is plain, therefore, that we require for our regulation laws, which will not suit the circumstances of our southern brethren, and the laws made for them would not apply to us. Unhappiness would be the uniform product of such laws; for no state can be happy, when the laws contradict the general habits of the people, nor can any state retain its freedom, while there is a power to make and enforce such laws. We may go further, and say, that it is impossible for any single legislature so fully to comprehend the circumstances of the different parts of a very extensive dominion, as to make laws adapted to those circumstances. (pp. 615-6) (4)

Notice that the author of this piece does not actually mention church-state arrangements or establishments. It is possible that he was thinking about Massachusetts’s religious establishment, which was seen by many as a necessary prop for morality. But if this was the case, it certainly was not a priority, since he never mentioned anything remotely in this vein in the rest of his copious Anti-Federalist writings other than this vague statement: “local laws are necessary to suit the different interests, no single legislature is adequate to the business.” But there is no evidence that this was referring to religious establishments specifically. Agrippa’s vague statements are hardly compelling or sufficient to stand in as the definitive Anti-Federalist position. Even more problematic is the fact that Muñoz ignores other important Anti-Federalist voices that contradict his interpretation. Before turning to the broader Anti-Federalist debate, there are a few more important problems with his argument that need to be addressed.

To make his argument work Muñoz needs the issue to be about “establishments” since his conclusion rests on the wording of the Establishment Clause (“Congress shall make no laws respecting an establishment of religion”). To Muñoz this clause “indicate[s] that Congress lacked power with reference or regard to a religious establishment.” (p. 630) The problem is that there is no evidence that the Anti-Federalists were actually concerned about protecting their own state’s establishments (not all had establishments of religion). In anticipation of this problem, Muñoz speaks of “establishments (or lack thereof)” (p. 630) and/or “church-state arrangements.” (p. 614) But if this is the case the wording of the Establishment Clause makes no sense. The language of the clause specifically uses the language of “establishments,” which seems like an odd choice of wording if what they were really trying to protect were the “church-state arrangements” of each state. An establishment of religion is a particular kind of church-state arrangement, but not all church-state arrangements include establishments. More frequently religious establishments were banned; in other words, they included “no establishment” provisions. Why would Congress have used the word “establishments” when they meant something different? The answer is that they did not, as we will see.

Muñoz’s second claim that the free exercise of religion was seen as an individual right by the Anti-Federalists is banal. The only reason he mentions it is to draw a contrast between it as an individual right and the issue of religious establishments, which he insists was not about rights. Unfortunately for Muñoz, this claim is undermined not only by the copious body of historical evidence, but even by one of his own exemplary Anti-Federalists (see below). Nevertheless, he insisted that the Anti-Federalists “never championed a right or a principle of ‘no establishment,’” or “argue[d] that non-establishment was necessary to protect free exercise at the local level.” (p. 617) They most certainly argued that “non-establishment was necessary to protect free exercise,” as we will see. But before we look at that evidence, it is important to note Muñoz’s framing of the issue in terms of “a right or a principle of ‘no establishment.’” Imposing this kind of convoluted wording on eighteenth-century Americans obscures their real sentiments on the subject, and guarantees that no such sentiments will be found, thus confirming Muñoz’s pre-determined conclusion.

Banning establishments of religion was not the right itself, the right was “the rights of conscience.” To honor the “rights of conscience” religious establishments must be banned, since by their very nature they impose the privileged religious beliefs or practices of some upon others who reject them. In other words, “no establishment” was the only arrangement compatible with the equal the rights of conscience. Muñoz only mentions the term “liberty of conscience,” which he equates with the free exercise of religion. They did frequently use the two phrases interchangeably, but he ignored the abundance of evidence outside of the ratification debate that gives a pretty clear picture of their general meaning, not to mention the fact that there are some Anti-Federalist tracts that clearly state what they meant by these terms.

When discussing establishments, it was more common to use the term “rights of conscience” rather than “liberty of conscience,” albeit not consistently. In the debates over establishments of religion in the states, the “rights of conscience” was frequently invoked as a reason to abolish all establishments, as illustrated by an article published in the Virginia Gazette (“Queries on the Subject of Religious Establishments”) in 1776:

IF the design of civil government does not imply, if the nature of religion does not admit, if the general character of rulers can neither challenge nor countenance, and if the principles of Christianity and Protestantism manifestly disclaim, a surrender, on the part of the people, of the rights of conscience, does not the magistrate stand disarmed of every plea by which he could be authorised to dictate in matters of religion? (5)

Even more problematic for Muñoz’s argument is the fact that Virginia’s successful push to disestablish the Church of England was carried out as a demand to obey the constitutional mandate that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” (6) Even conservatives, who were reluctant to go as far as the religious dissenters and rationalists, believed that certain kinds of establishments, usually single-denomination establishments, violated this sacred right. So, the link between no establishment and rights was understood by all; the disagreement was over how far the rights of conscience demanded limits on religious establishments. For the religious dissenters and their rationalist allies all ties except protection for religious rights violated the rights of conscience, whereas conservatives found some ties acceptable. Muñoz’s contrived distinctions between the issue of rights and establishments is unfounded.

Even one of Muñoz’s own Anti-Federalist protagonists illustrates this point. But this fact would have been hidden from readers of his article by the handy use of selective quoting. His quote from “A Countryman” reads: “make everybody worship God in a certain way, whether the people thought it right or no, and punish them severely, if they would not.” (p. 615) Muñoz uses this quote as an example of the Anti-Federalist fear that the federal government will impose uniformity of church-state arrangements. Put in context this interpretation seems absurd:

for if they were really honest, and meant to hinder the doing of a bad thing, why did they not also say, that the Congress should never take away, the rights of conscience, trial by jury, and liberty of the press? These are all rights we hold very dear, and yet we have often read, and heard of governments, under various pretences, breaking in upon them—and upon the rights of conscience particularly; for in most of the old countries, their rulers, it seems, have thought it for the general welfare to establish particular forms of religion, and make every body worship God in a certain way, whether the people thought it right or no, and punish them severely, if they would not: now, as it is known, that there has been a great deal of mischief done by rulers in these particulars, and as I have never read or heard of any great mischief being done by ex post facto laws, surely it would have been of more importance, to have provided against Congress, making laws to take away liberty of conscience, trial by jury, and freedom of the press, than against their passing ex post facto laws, or even their making lords. (7) (italics mine)

Rather than proving his point, this author’s statement undermines it. “A Countryman” is recounting the long history of religious tyranny created by religious establishments. This is a plea to protect the rights of the people, which he believed were in danger from a government that had no prohibitions against religious establishments. Protecting religious liberty is not just about the freedom to practice one’s own religion, it is also about banning state-imposed religious dogma. In other words, full religious liberty can only be achieved by separating religion and government.

Muñoz’s argument is already in serious trouble, and we have yet to test his claims against the existing Anti-Federalist statements concerning establishments. If we do not find any evidence consistent with his characterization of the Anti-Federalist position, it is hard to see how he can follow through with his federalism interpretation of the Establishment Clause.

Broadsides in the Newspapers

The debate over the Constitution largely played out in the newspapers, leaving us a wealth of information about Federalist and Anti-Federalist perspectives. Unfortunately, only a few of the published essays focus on the issue of religious liberty beyond simple appeals for a bill of rights. This leaves us with only a handful of relevant broadsides. However, this paucity of evidence allows us to examine each author in some detail.

In a series of popular essays under the pseudonym “Centinel,” the staunch Anti-Federalist Samuel Bryan railed against the Constitution’s failure to secure “invaluable personal rights” that were threatened by the centralizing power of the Constitution. (italics in original) And in particular he lamented the fact that there was

[n]o declaration that all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understanding; and that no man ought, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against his own free will and consent; and that no authority can or ought to be vested in, or assumed by any power whatever, that shall in  any case interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship… (8)

With the exception of a single clause this statement is copied almost word-for-word from the Pennsylvania Constitution. The original version included this clause immediately following the one banning the support of religion: “Nor can any man, who acknowledges the being of god, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship.” (9) This was not likely a mistake. It is possible that he was aware that it contradicted the state’s religious test for public office. Or maybe he left it out because he supported religious tests. But whatever the reason, what is important for our purposes is the fact that he used this article banning religious establishments as a solution to the problem of insecure rights. Like many other articles meant to protect religious liberty in state constitutions Pennsylvania’s constitution mixed protections for both the free exercise of religion with prohibitions against establishments of religion.

Pennsylvania’s article appeared in full in another Anti-Federalist piece. As a Quaker Timothy Meanwell knew all too well the need to protect “the liberty conscience,” and he offered this article as a solution to the problem. (10) It was articles such as this that Anti-Federalists were seeking in their calls to protect “the rights of conscience,” even if they did not explicitly include them in their essays it was broadly understood that this is what they meant. This failure to be specific, however, leaves us in the dark about their personal views on the relationship between church and state. Nevertheless, whatever their views about these issues at the local level, no one was clamoring to give the federal government more power on the issue of religion.

Other Anti-Federalists conveyed the same understanding of the relationship between religious rights and religious establishments without referencing existing state regulations. “An Old Whig,” the influential Anti-Federalist from Pennsylvania, George Bryan, in his fifth essay excoriated the delegates who wrote the Constitution for failing to secure the natural rights of the people. “LIBERTY OF CONSCIENCE” was “of the utmost importance for the people to retain to themselves,” he declared indignantly. Reflecting “upon the history of mankind” convinced him that it was their “duty to secure the essential rights of the people, by every precaution,” and in particular, “by the most express stipulations, the sacred rights of conscience.” The failure to secure this right left the door open to an establishment “if a majority of the continental legislature should at any time think fit to establish a form of religion.” (11) Here, an “Old Whig” makes an explicit connection between the threat posed by religious establishments and the insecurity of rights, and he nowhere expresses any concern about state establishments of religion.

A similar point was made in a published petition found in the Pennsylvania Independent Gazetteer (February 19, 1788), which declared that the powers that the proposed government planned to wield were “dangerous and inimical to liberty and equality amongst the people.” In a brief list of Constitutional flaws, the authors included the suggestion “[t]hat the rights of conscience should be secured to all men,” by which they meant “that none should be molested for his religion, and that none should be compelled contrary to his principles or inclination to hear or support the clergy of any one established religion.” (12) Once again, the possibility of an establishment was directly linked to a lack of security for the rights of conscience. The implication being that religious establishments were a threat to individual rights.

The formulation in the above petition seems to imply that these Anti-Federalists were not opposed to non-preferentialist types of establishments, but this is unlikely. In the debates over establishments of religion that had been raging across the nation from its founding, this type of language was often used by those who were opposed to all connections between church and state. (see What the Religious Right Gets Wrong About Religious Freedom). There had never been a system of state-supported religion in Pennsylvania thus it is highly unlikely that these Anti-Federalists would have been in favor of a non-preferential establishment at the federal level when they found it unacceptable in their own state. But whatever their exact sentiments on this subject, they saw religious establishments in terms of their threat to their natural rights.

One of the more interesting but perplexing set of essays comes from Maryland. In a series of complaints against the Constitution, a “Maryland Farmer” devoted two essays to the subject of rights and religious liberty. In his first essay he focused on the lack of a bill of rights to protection natural rights. He wondered why “the ablest men in America” could have failed to include a bill of rights because, as he demonstrated, these rights were so essential to the maintenance of a free society. In particular, he added, “the freedom of the press” and “liberty of conscience,” but he fails to give any details as to what this entailed. (13) Fortunately, he was more specific in his seventh essay, where he took up the issue of religious establishments.

In this long-winded article, he took his readers on a short romp through Roman and “Gothic” (by which he means Medieval and Early Modern Europe) history to illustrate the necessary links between rights, liberty, and the absence of church-state ties. He traces the origins of the “barbarity—cruelty and blood which stain the history of religion” to “the corruption of civil government.” (14) To him, a corrupt government was the opposite of a free government, which was necessarily “founded on the natural liberties of mankind.” To support this claim, he began his history lesson in Rome, where he contrasts the “enterprising and free” Republic, in which religion was “unstained by persecution,” with the despotic governments founded after the establishment of Christianity.

A similar corruption befell the “Gothic” age, which began in toleration even as many enthusiastically converted to Christianity. This happy outcome was secured, according the Farmer, by “[t]hose bold and hardy conquerors would never listen to Bishops who advised persecution and held in sovereign contempt all those metaphysical distinctions with which a pure religion has been disgraced, in order to cloak villainous designs and support artful usurpations of civil powers in feeble and turbulent governments.” Soon these free governments were corrupted “by the insolence and oppressions of the great” who availed themselves of religion as a tool of power. Religious tyranny and persecution then came to define the Gothic period. Nevertheless, there was a brief ray of light after the emergence of mixed monarchies, but sadly these too fell into corruption opening “a new scene of religious horror.” The Farmer also recounts that another round of persecution was brought on by the Protestant Reformation. In response to the threat posed by Protestantism “the sword of power leaped from its scabbard” with predictable consequences:

the smoke that arose from the flames, to which the most virtuous of mankind, were without mercy committed, darkened all Europe for ages; tribunals, armed with frightful tortures, were every where erected, to make men confess opinions, and then they were solemnly burned for confessing, whilst priest and people sand hymns around them; and the fires of persecution are scarcely yet extinguished.

The Farmer concludes from his review of the horrors of the past that

[c]ivil and religious liberty are inseparably interwoven—whilst government is pure and equal—religion will be uncontaminated:–The moment government becomes disordered, bigotry and fanaticism take root and grow—they are soon converted to serve the purpose of usurpation, and finally, religious persecution reciprocally supports and is supported by the tyranny of the temporal powers. (italics in original)

This understanding of good government associates security for individual rights with peace and tolerance, in contrast to a “disordered” government that uses religion and religious persecution to wield power. Based on this understanding of the past it is easy to see why this Anti-Federalist was so insistent that rights needed to be secured. This review of history also reveals the nature of establishments, which become the means by which the authorities abuse their power. He makes no mention of the Constitution, but his message is clear. To protect against such church-state alliances (i.e. establishments of religion) “civil and religious liberties” must be secured.

One other Anti-Federalist piece addresses the issue of establishments of religion. In Massachusetts, “Z” set out to expose what he saw as the defects of the Constitution. Like many other Anti-Federalists, he feared the unchecked power of the proposed government threatened “certain inherent unalienable rights.” In particular, he feared that the failure to secure “the rights of conscience,” could lead to an establishment of religion if “the government should have in their heads a predilection for any one sect in religion.” He saw this scenario as a real possibility since there was nothing in the Constitution to “hinder the civil power from erecting a national system of religion, and committing the law to a set of lordly priests,” who could then “vent their rage on stubborn hereticks, by wholesome severities.” (15) (italics in original) Like others, “Z” understood the real threat to rights was religious establishments. Therefore, he called for a bill of rights to secure such “inherent unalienable rights,” in order to prevent any establishments of religion in law.

While few in number, those Anti-Federalists who addressed the issue of religious establishments discussed them in the context of individual rights. They saw them as a threat to the rights that they held dearly, and thus implored their Federalist opponents to secure those rights via a bill of rights. Not one of them brought up the issue of protecting establishments in the states. If they brought up the topic of state laws it was to request that their provisions protecting rights, not establishments, be honored. But they sought not just to preserve these protections, they wanted similar protections limiting Congress from passing federal laws that impinged on individual rights. Federalist assurances that those powers not explicitly given were reserved to the people and the states had not reassured the Anti-Federalists. The views expressed in these Anti-Federalist essays run counter to Muñoz’s characterization of Anti-Federalist views. But so far, we have only examined the views expressed in the newspapers. The ratifying state conventions offer a further glimpse into Anti-Federalist complaints.

The Ratifying Conventions

The records from the ratifying conventions in the states are slightly more revealing than the newspaper rants, but they must be approached more carefully since they are seriously flawed. The record of debates from these conventions is incomplete, and there are no records at all from Delaware, New Jersey, and Georgia. More significantly, the integrity of the documents is questionable. The record is made up of the recollections of participants and/or the renderings of journalists with political agendas and limited shorthand skills. (16) Therefore, any conclusions based on this troubled documentary record should be made cautiously.

Whatever the flaws of this evidence, the few speeches on the subject of establishments provide a general picture that is consistent with the published essays examined above, further undermining Muñoz’s already dubious argument. In addition to these speeches the convention records include several Anti-Federalist lists of proposed amendments that include protections for religious liberty. Those that were included in the state’s ratification packet will be examined in the next section, but those that were rejected by Federalist majorities for political reasons are just as valuable in helping us understand the Anti-Federalists. So, we will examine the proposals from the Pennsylvania and Maryland conventions. But even more importantly, the history of Virginia’s state ratifying convention will help us understand Madison’s intentions as he headed to the First Federal Congress.

Outside of the issue of religious tests and general statements requesting that the rights of conscience be secured, there exists very little evidence from the state conventions on the subject of religious liberty. This leaves us with only two relevant pieces of evidence. The first comes from Massachusetts, where an undelivered speech from the Federalist William Cushing offers some insight into Anti-Federalist sentiments. The speech was to be delivered as a response to the concessionary amendments presented by John Hancock,  but for unknown reasons he did not deliver it. (17) A draft of his speech includes a summary of the Anti-Federalist complaint that he intended to address. According to Cushing, the Anti-Federalists were concerned that “without the guard of a bill of rights, Congress might even prescribe a religion to us.” (18) In other words, they wanted their rights secured in order to prevent the establishment of religion at the federal level.

In New York, “A Real Federalist,” whose true identity is contested, indignantly called out the failure of the constitutional framers

to secure to us our religious liberties, and to have prevented the general government from tyrannizing over our consciences by a religious establishment – a tyranny of all others most dreadful, and which will assuredly be exercised whenever it shall be thought necessary for the promotion and support of their political measures. (19)

Once again, the main threat to the rights of conscience was the “most dreadful” type of tyranny: religious establishments.

The first, and one of the most consequential, conventions was held in the very city where the Constitution had been drawn up. With a significant Federalist majority, the outcome of the Pennsylvania convention, which opened on November 20, 1787, was a forgone conclusion. Both camps came to the convention with their minds already made up, and no amount of reason would deter them from their positions. Or as the historian Owen S. Ireland described it, “forty-six had come to ratify the proposal; twenty-three to resist as best they could.” (20) The convention opened with an unwelcome proposal from Dr. Benjamin Rush, who suggested that “the business of the convention [open] with prayer.” (21) The other delegates, clearly annoyed, rejected the idea because they believed that it was a practice fraught with difficulties. Nor was it justified by necessity or tradition, they added, since the practice had not been undertaken by the General Assembly or the convention that framed the Pennsylvania Constitution. Not deterred, Rush retorted that that they were all broad-minded enough to unite in prayer and offered the Confederation Congress as a model. But it was his insinuation that the failure of the Pennsylvania Constitutional convention to open their proceedings with prayer left the state “distracted by their proceedings,” that was the last straw for his colleagues. (22) In response, John Smile quipped that this assertion was “absurd superstition.” (23) Rush was outvoted, and the issue never came up again. It was a fitting opening for deliberation over the “Godless Constitution.”

On the final day of the convention, the Anti-Federalist Robert Whitehill presented a list of proposed amendments. The first recommendation read, “The rights of conscience shall be held inviolable, and neither the legislative, executive nor judicial powers of the United States shall have authority to alter, abrogate or infringe any part of the constitutions of the several States, which provide for the preservation of liberty in matters of religion.” (24) Notice that it is the parts of the state constitution that protects religious liberty, which included both protections for free exercise as well as “no establishment” provisions, that these Anti-Federalists were seeking to protect, not the state’s “church-state arrangement.” The fear was not of an overbearing federal government imposing uniform religious establishments, it was the fear of an imposed uniformity of religious beliefs and/or practices.

Another relevant proposal that failed to be included as part of their ratification package was promoted by Maryland’s Anti-Federalists. It is important to keep in mind that these proposed amendments were not rejected because of disagreement with the sentiments they expressed; they were rejected for political reasons. Federalists in each state sought unconditional ratification as a show of strength and unconditional support for the system they hoped to set up in accordance with the Constitution. Like many of the other lists proposed by Anti-Federalists, the one in Maryland combined rights-related proposals with more substantive structural ones. Their religious liberty proposal read: “That there be no national religion established by law; but that all persons be equally entitled to protection in their religious liberty.” (25) The way this statement is constructed undoubtedly demonstrates the relationship between individual rights and “no establishment.” Instead of establishing religion, this proposal suggests that all individuals should be equally protected in religious liberty, implying that those two things are incompatible. While this proposal could be read as prohibiting the establishment of a single religion, this interpretation is unlikely. Marylanders had opposed all attempts to set up even a general religious assessment that would have been broadly inclusive, so it is doubtful that they would have been willing to tolerate any kind of support for religion at the national level. And like other Anti-Federalists they were not seeking to grant power to the federal government, they were attempting to limit its powers.

James Madison

As the Father of the Bill of Rights James Madison is the single most important figure on the subject of the First Amendment, and therefore his journey from framer of the Constitution to representative in Congress is of particular significance. After wrapping up his work at the Philadelphia convention Madison went to work helping Hamilton write the Federalist papers as part of an ambitious plan to sell the Constitution to the American people. At the same time committed Anti-Federalists in Virginia were conspiring against the Constitution with some success. The situation in Virginia was so dire that Madison’s friends began sending him alarming letters describing the mischief and begging him to return to Virginia as soon as possible. But his absence from Virginia was no mistake. Since he had no plans to seek a seat at the Virginia ratifying convention, which he saw as a matter of propriety given his participation in creating the Constitution, he thought he could better serve the cause from New York. His astonished friends beseeched him to reconsider. Arichibald Stuart pleaded with Madison, “for gods sake do not disappoint the anxious expectations of yr friends & let me add of yr countrymen.” (26) Madison finally gave in to the desperate entreaties but expressed that he did so with great reservations as he explained, “in this overture I sacrifice every private inclination to consideration not of a selfish nature.” (27)

With elections for the Virginia convention fast approaching, Madison appeared to be unruffled by the turmoil in Virginia as he leisurely made his way back to Virginia to the annoyance of his friends who insisted that he come “without delay to repair to this state.” (28) In Madison’s absence his nemesis Patrick Henry was stirring up trouble in communities that had formerly been cherished allies. The Baptists in particular were vulnerable to Henry’s machinations since they perceived that their hard-won victory for religious liberty was endangered by the proposed constitution. Thus, they reluctantly found themselves in alliance with hard-core Anti-Federalists like Henry, whose shameful partisan tactics were well known. In a letter written at a time when the ratifying convention was well under way, the Presbyterian minister John Blair Smith, a key figure in defeating Henry’s religious assessment bill only a few years earlier, recounted Henry’s bad behavior when he informed Madison that Henry had “descended to lower artifices and management on the occasion than I thought him capable of.” To support this point, Smith described one of Henry’s speeches so that Madison could see for himself “the method he has taken to diffuse his poison.” Henry had the audacity, Smith complained, to claim “that a religious establishment was in contemplation under the new government.” (29) As an implacable foe of all religious establishments this bit of news would have got under Madison’s skin, further souring an already bitter relationship.

Ignoring the entreaties from his friends, Madison did not leave New York until March 4, and even then, he did not head straight for Virginia. Somewhere on his leisurely journey home he received a letter from Captain Joseph Spencer informing him that his Anti-Federalist opponent in Orange County, Thomas Barbour, was engaging in a dishonest campaign against the Constitution. He also made sure to target the dismayed Baptists. Evidently these efforts were paying off, as Spencer informed Madison that “amongs [sic] his friends appears, in a general way the Baptists.” If anyone could counter the Anti-Federalist misinformation campaign, Spencer believed that it was Madison. Spencer was familiar with Madison’s long-standing relationship with the Baptists. As a young man fresh out of college, Madison “squabbled and scolded abused and ridiculed so long about” the mistreatment of several Baptists who had been beaten and thrown in jail for preaching without a license with little success. (30) More recently Madison had been a loyal ally in the struggle for religious freedom. They certainly trusted him more than the wily Henry who had been their archenemy during the long fight over religious assessments. As a trusted friend and fellow religious liberty warrior, Madison had a good chance of winning them over, but only if he could assure them that their hard-won religious freedom was not in danger.

Given that one of the most prominent Baptists, John Leland, was on Madison’s way home, Spencer recommended that he “call on him and Spend a few Howers in this Company.” (31) Whether or not Madison actually followed Spencer’s advice is unknown, but Mark S. Scarberry makes a good case for their meeting. (32) L.H. Butterfield has more doubts but admits that “[i]t is certainly plausible to suppose that the reason Madison did not keep to his schedule and disappointed his friends on the 22nd was his decision to go to Leland and remove the Baptist leader’s doubts about the Constitution.” (33)

Regardless of whether or not they met personally, Madison was intimately familiar with the sentiments of the Baptists, as they were remarkably similar to his own. Nor could there be any doubt on this issue since Spencer wisely included a note written by Leland detailing his sentiments on the Constitution in his letter. Madison would have been very sympathetic to Leland’s plea to secure the rights of conscience. The disagreement was a matter of how best to secure those rights. After his experience as a Virginia legislator fighting against the pro-establishment forces, Madison had come to the conclusion that they would be better secured if they were left unstated since bills of rights were simply “parchment barriers.” The fight over religious assessments taught him that bills of rights were of no use in situations in which determined majorities sought un-constitutional goals. Recounting the situation in a letter to Jefferson, Madison explained, “Notwithstanding the explicit provision contained in that instrument [Declaration of Rights] for the right of Conscience it is well known that a religious establishment wd. have taken place in that State [Virginia], if the legislative majority had found as they expected, a majority of the people in favor of the measure.” (34) The best security, he insisted, was to ensure that the federal government had no power on the subject of religion at all, as the Constitution with its delegated powers guaranteed. He was also convinced that diversity at the national level would ensure that domineering majorities could not form to oppress others.

Leland seems to have learned the opposite lesson from those same events. He understood the value of such “barriers,” even if only “parchment.” Thus, he regretted that what was “dearest of all” (“Religious Liberty”) had not been “not Sufficiently Secured.” This lack of explicit protections opened the door to what he dreaded most: religious establishments. Echoing Madison’s concerns about majorities, Leland surmised that  “if a Majority of Congress with the presedent favour one Systom more then another, they may oblige all others to pay to the Support of their System as Much as they please, & if Oppression dose not ensue, it will be owing to the Mildness of Administration & not to any Constitutional defense, & if the Manners of People are so far Corrupted, that they cannot live by republican principles, it is Very Dangerous leaving religious Liberty at their Marcy.” (34) In other words, religious rights were in danger because there was nothing stopping Congress from establishing religion. While sympathetic to this view, Madison could not yet come out in support of it. He felt that at this point any “alterations” would threaten “to throw the States into dangerous contentions, and to furnish the secret enemies of the Union with an opportunity of promoting its dissolution.” (36)

Patrick Henry

Eventually, Madison made it back to Virginia in time to be elected as a delegate to the state’s ratifying convention. Once at the convention, Madison had his work cut out for him. He was up against the respected George Mason and his notorious foe Patrick Henry. At every opportunity Henry was determined to stir up discontent. His goal, as described by Alan V. Briceland, was “to excite alarm, to expose the chains of tyranny lurking in every clause of the Constitution, and to fasten these imagined chains around every possible interest group.” (37) And, as always, Henry exploited the issue of rights. Madison did his best to respond to this vexing issue by deploying his carefully considered theory for protecting rights, which rested on the assumption that rights were more in danger at the state level where sectarian majorities were more likely to “concur in one religious project.” Whereas at the national level there was “such a vast variety of sects, that it is a strong security against religious persecution.” Madison assured his colleagues at the convention that there was “not a shadow of right in the General Government to intermeddle with religion – Its least interference with it would be a most flagrant usurpation.” (38) This argument gave little comfort to skeptical Anti-Federalists, but it illustrates that the Federalists were dogmatically wed to the idea that the federal government had absolutely no power to legislate on the subject of religion.

One of Madison’s staunchest allies in the convention, Zachariah Johnston, repeated the same line of reasoning in response to Anti-Federalist complaints that “religion is not secured.” He argued that the diversity of sects would make it difficult to “establish[] an uniformity of religion.” (39) As a retort to quell Anti-Federalist fears, this response reinforces the stance that religious establishments were at the forefront of Anti-Federalist concerns about individual rights.

Without a solid majority at the convention the Federalists were forced to make some concessions. On June 24, Henry presented a list of amendments that included a modified version of Virginia’s Declaration of Rights, as well as several other amendments aimed at the heart of the constitutional project itself. Unwilling to accept the suggested amendments wholesale, a twenty-man committee, which included both Madison and Henry, was created to hammer out a final list. In the end, the Anti-Federalists got most of what they wanted. (40) The recommended religious liberty amendment that was approved by the convention will be examined below since it was one of the few to be approved as part of a ratification package.

On June 25, four days after New Hampshire’s critical ninth vote that guaranteed the implementation of the Constitutional project, Virginia ratified the Constitution (89 to 79). The news of the successful ratification of the Constitution did not deter the Anti-Federalists. Still hoping for a second constitutional convention, they continued their assault on the Constitution. Henry kept up his zealous campaign and set out to block Madison’s bid first for the Senate and then the House of Representatives. After successfully blocking his nomination to the Senate in the Virginia legislature that he dominated, Henry continued his mischief by having the election map altered in favor of Madison’s opponent in the race for the House. The distinguished historian Irving Brant noted that this bit of trickery should have been named “Henrymander” after Henry rather than “Gerrymandering,” which was named after Elbridge Gerry whose mischievous manipulation of district lines occurred over twenty years later in 1812. (41) He also did his best to undermine Madison’s credibility, especially within the Baptist community. Given Henry’s popularity, he had some success, thus putting Madison in the uncomfortable position of defending his religious freedom bone fides once again.

But if Madison wanted to make it into the House of Representatives, he first needed to convince the Baptists of the falsity that he had “ceased to be a friend to the rights of Conscience,” as Henry claimed. In a letter to the Baptist leader George Eve, Madison explained that now that the Constitution had been approved and was no longer in danger, he agreed that the First Congress “ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude…” (42) The effort to convince Eve paid off after he stood up in defense of  Madison’s at a church service that had been turned into “an anti-Madison political meeting.” (43) Eve reminded his fellow Baptists of Madison’s solid history of defending religious liberty. Yet, Madison had a difficult road ahead. The competitive campaign against his friend James Monroe, required non-stop campaigning in addition to his letter campaign. He complained that “he had to ride in the night twelve miles to quarters; and got [his] nose frostbitten.” (44) In the end, he decisively defeated Monroe thanks in large part to the Baptists. The promises Madison made during this grueling campaign were not forgotten once he took his seat in the House. These promises did not include anything remotely resembling Muñoz’s characterization of the Anti-Federalist desire to protect religious establishments (or “church-state arrangements”). But even more important to his overall federalist argument are the proposed amendments sent by several states as part of their ratification terms.

The Proposed Amendments

By the time the First Federal Congress met in March 1789, five states had submitted amendments. Of these, only four had amendments dealing with religion (New Hampshire, Virginia, New York, and South Carolina). South Carolina’s amendment is irrelevant since it deals with the “no religious test” article. Two other relevant proposals from Rhode Island and North Carolina were submitted after Congress had already drawn up and passed a set of amendments. Of the three available proposed amendments, Muñoz divides these amendments into “two distinct approaches to address Anti-Federalist concerns.” (p. 621) The first, as exemplified by New Hampshire, was a structural amendment that “emphasized the limits on the new government’s power,” and “reaffirm[ed] the federal character of the new nation.” (p. 621). On the other hand, Virginia and New York “aimed to regulate how Congress might exercise its power.” (p. 621) In this scheme, New Hampshire’s federalism language becomes the lynchpin of Muñoz’s argument.

The federalist nature of New Hampshire’s amendment (“Congress shall make no Laws touching Religion, or to infringe the rights of Conscience”), according to Muñoz, can be deduced from its language as well as its placement in the ratification document. Its unqualified language (“no Laws”) indicates to Muñoz that it was meant “to ensure that the states would retain plenary power over religious matters.” From here, he confidently asserts, “It clearly prohibited federal interference with state religious establishments or the lack thereof.” (p. 621) This confidence seems misplaced. His argument is not convincing. It is hard to see how the straightforward language of the amendment yields such a counter-intuitive conclusion. While there is no doubt that New Hampshire’s proposal would have prevented the new government, if adopted, from interfering in state establishments of religion, there is no evidence in its language, or any of the Anti-Federalist debates, that justifies this conclusion. It is a blanket prohibition, but one that bans Congress from making any laws on the subject of religion at all, whether at the federal or state level. Thus, by implication it leaves religion to the states. If they had wanted to make it a federalism proposal protecting state “religious establishments, or lack thereof,” they could have easily done so.

To reinforce his federalism interpretation, Muñoz believes that the amendment’s placement in the document with other “structural” ones is significant. He explains, “Every state that proposed alterations (except for NH, the state to submit amendments) divided their proposals into two distinct lists, labeling those pertaining to structure, ‘amendments,’ and labeling those pertaining to individual rights, ‘declaration of rights.’” (p. 620) This seems like a compelling distinction until one looks a little closer and discovers that these different approaches were a matter of historical accident without any significant meaning. When the newly declared independent states began creating their first constitutions in 1776 there was no “correct” way to structure constitutions. Some states (South Carolina, New York, New Jersey, and Delaware) had no separate bills of rights, instead they included their rights-protecting articles in the same list as their form of government directives. (45) In doing so, they did not intend to add any additional meaning to their rights-related articles. Other states, most notably Virginia, added a separate bill/declaration of rights. It was therefore by historical accident whether a state chose to include a separate declaration of rights or not. This same pattern holds for Anti-Federalist lists of proposed amendments, whether sent to Congress or not. For example, the Anti-Federalist amendments proposed in Pennsylvania and Maryland combined structural and rights amendments in a single list. (46) This same pattern can be found in other Anti-Federalist writings that include lists of proposed amendments. (47) In none of these cases is there any indication that this practice had any significance for the rights directives that were listed with “structural” ones.

Muñoz’s scheme also ignores the fact that New Hampshire’s list included other rights-related amendments. And if this was the case why didn’t New Hampshire place the unarguably rights-protecting clause (“or to infringe the rights of conscience”) in a separate “bill of rights” list? Obviously, it was because New Hampshire was not making a statement, by placing it in the same list as non-rights related provisions, about the way its religious liberty article was to be interpreted.

Muñoz’s interpretation of the amendments from Virginia and New York is just as problematic. Since New York copied Virginia’s amendment with only a few minor changes, Muñoz appropriately focuses on Virginia. In contrast to New Hampshire’s blanket prohibition, he argues that the Virginia amendment “sought to regulate how Congress would exercise its expansive powers.” (p. 621) The key to this interpretation for Muñoz, was its “no-preference provision,” which states “that no particular religious sect or society ought to be favored or established in preference to others.” This provision was added to what was basically a copy of Article 16 from Virginia’s Declaration of Rights thus creating their religious liberty amendment. To Muñoz this amendment indicates Virginia’s desire to allow Congress to regulate religion. This is a curious conclusion given that almost all Anti-Federalists, and especially Patrick Henry, were struggling to limit the powers of Congress. To get to this conclusion, Muñoz makes several unjustified assumptions. The first of which is that the clause is a “no-preference provision.” This conclusion ignores the historical context in which it was written.

Muñoz mistakenly assumes that Patrick Henry, the champion of non-preferentialism, wrote the amendment since he introduced the amendments to the convention on June 24, 1788. (p. 623) It was actually the stately George Mason who took charge of the task of “preparing the bill of rights and amendments” while Henry was assigned the task of “speak[ing] for the cause.” (48) Mason, as well as the majority of Virginians, did not support these, or any other kind, of establishments. Only a few years earlier in 1785, this type of non-preferential establishment, which was pushed by Henry, went down to a resounding defeat. During this battle Mason even went so far as to help distribute Madison’s anti-establishment Memorial & Remonstrance Against Religious Assessments, which he endorsed because “the principles it avows entirely accord with my sentiments on the subject (which is a very important one).” (49) Why would Mason then turn around and give the federal government the power to create an nonpreferentialist establishment? Not to mention the fact that Madison would never have approved of such a measure in the committee, of which he was a member, that approved the final version.  And he never wavered in his conviction that “[t]here is not a shadow of right in the general government to intermeddle with religion.” (50) In a state that overwhelmingly rejected all establishments, including non-preferential ones, it is highly unlikely that the state ratifying convention would have endorsed an Anti-Federalist proposal that gave Congress the power to create any kind of establishment.

Additional evidence comes from the preamble to the Virginia ratification terms that was submitted with the amendments, which further suggests that they were not seeking to expand the powers of the federal government. Writing “in behalf of the people of Virginia” the convention declared that all powers not specifically granted in the Constitution were retained “with them and at their will,” therefore, no right “can be cancelled, abridged, restrained or modified” by the national government. Pressing this message even further they insisted that “the essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.” (51)

Muñoz’s interpretation of the Virginia amendment also exposes a contradiction in his argument. If Virginia’s amendment, which would allow for a non-preferential establishment according to Muñoz, was included in the “declaration of rights” section, then there must be some kind of relationship between establishments and rights. Therefore, not only has Muñoz failed to prove that the New Hampshire amendment was federalist in intent, he undermined his own claim that establishment concerns were not about protecting individual rights.

Where does this leave Muñoz’s argument so far?

  • CLAIM: The Anti-Federalists sought to protect each state’s “religious establishment, or lack thereof.” (p. 614)
    • FALSE. There is no evidence anywhere that this was an Anti-Federalist goal. They were concerned about protecting individual rights, not religious establishments.
  • CLAIM: The Anti-Federalists “never championed a right or principle of ‘no establishment,’” or claimed that “non-establishment was necessary to protect free exercise at the local level.” (p. 617)
    • FALSE. Muñoz sets up a strawman by creating a standard based upon misleading framing of the issue. No one used the awkward phrase “the right of ‘no establishment,’” but nevertheless they absolutely believed that religious establishments and individual rights were at odds with each other.
  • CLAIM: New Hampshire’s religious liberty amendment is a structuralist/federalism provision. (p. 621)
    • FALSE. Neither the language of the amendment (“Congress shall make no Laws touching Religion, or to infringe the rights of Conscience”) nor its placement in the ratification document supports such a claim.
  • CLAIM: Virginia’s (and thus New York’s) proposed religious liberty amendment was about regulating how Congress dealt with the issue of religion. (p. 621)
    • FALSE. This claim ignores the context in which the amendment was written, and more importantly it would lead to the absurd conclusion that Virginia’s Anti-Federalists, and Patrick Henry in particular, wanted to give Congress powers that the Federalists insisted it did not have.

So, where does this leave Muñoz’s argument? If his characterization of the Anti-Federalist position is completely without merit, it is hard to see how his federalism conclusion survives. Without this prop, his entire argument now rests on the more immediate evidence from the First Federal Congress. The next, and final, post will examine this evidence.

Click here to go to Part III

Endnotes:

  1. Vincent Phillip Muñoz, “The Original Meaning of the Establishment Clause and the impossibility of its Incorporation,” University of Pennsylvania Journal of Constitutional Law 8 (2006).
  2. Richard Henry Lee, “Amendments Proposed to Congress,” (September 27, 1787) in Declaring Rights: A Brief History with Documents by Jack N. Rakove (Boston: Bedford Books, 1998), 117.
  3. James Wilson, “Statehouse Speech,” (October 6, 1787) in Ibid., 122.
  4. Agrippa XII, part 1 (January 11, 1788) see http://teachingamericanhistory.org/library/document/agrippa-xii/
  5. Queries on the subject of religious establishments, Virginia Gazette (November 8, 1776) see Colonial Williamsburg online library: http://research.history.org/DigitalLibrary/va-gazettes/
  6. Virginia Declaration of Rights, Article 16, see https://founders.archives.gov/documents/Madison/01-01-02-0054-0002
  7. “A Countryman V” (December 20, 1787) see http://teachingamericanhistory.org/library/document/a-countryman-v/
  8. John Bach McMaster and Frederick D. Stone, eds. Pennsylvania and the Federal Constitution (1787-1788) (The Historical Society of Pennsylvania, 1788), 577 and 589.
  9. Ibid.
  10. Timothy Meanwell, Independent Gazetteer (October 29, 1788) see The Documentary History of the Ratification of the Constitution Digital Edition, ed. John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan. Charlottesville: University of Virginia Press, 2009. Canonic URL: http://rotunda.upress.virginia.edu/founders/RNCN-03-14-03-0003-0006 [accessed 12 Dec 2017] Original source: Commentaries on the Constitution, Volume XIV: Commentaries on the Constitution, No. 2
  11. An “Old Whig V” (November 1, 1787) see http://teachingamericanhistory.org/library/document/an-old-whig-v/
  12. Petition “To the Honorable the Representatives of the Freemen of the Commonwealth of Pennsylvania, in General Assembly met,” Independent Gazetteer (Feb. 19, 1788) in Pennsylvania and the Federal Constitution, edited by McMaster & Stone, 501-2. This petition from Franklin County appears to be a copy of a model petition (see Petition Against Confirmation of the Ratification of the Constitution (January 1788) see The Documentary History of the Ratification of the Constitution Digital Edition, ed. John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan. Charlottesville: University of Virginia Press, 2009. Canonic URL: http://rotunda.upress.virginia.edu/founders/RNCN-02-02-02-0004-0004-0002 [accessed 12 Dec 2017] Original source: Ratification by the States, Volume II: Pennsylvania
  13. “A [Maryland] Farmer, no. 1,” (February 15, 1788) The Founders’ Constitution, Volume 1, Chapter 14, Document 35 see http://press-pubs.uchicago.edu/founders/documents/v1ch14s35.html
  14. “A [Maryland] Farmer, no. 7” (April 11, 1788) in The Founders’ Constitution, Volume 5, Amendment I (Religion), Document 48 see http://press-pubs.uchicago.edu/founders/documents/amendI_religions48.html
  15. “Z,” Boston Independent Chronicle (December 6, 1787) see The Documentary History of the Ratification of the Constitution Digital Edition, ed. John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan. Charlottesville: University of Virginia Press, 2009. Canonic URL: http://rotunda.upress.virginia.edu/founders/RNCN-02-04-02-0003-0128-0004 [accessed 12 Dec 2017] Original source: Ratification by the States, Volume IV: Massachusetts, No. 1
  16. For a detailed analysis of the evidence see James H. Hutson’s “The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review 65 (1986): 1-39.
  17. Kaminski, et al., The Documentary History of the Ratification of the Constitution, vol. V, 1428-1441.
  18. Ibid., 1432.
  19. According to the editors of the Documentary History of the Ratification of the Constitution, Johnathan Elliot attributed this work to Thomas Tredwell but he “offered no explanation for his identification of Tredwell.” They suggest that John Lansing is another candidate for this speech. Appendix III “A Real Federalist,” Albany Register, Supplement (January 5, 1789) in The Documentary History of the Ratification of the Constitution Digital Edition, ed. John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan. Charlottesville: University of Virginia Press, 2009. Canonic URL: http://rotunda.upress.virginia.edu/founders/RNCN-02-23-03-0003 [accessed 13 Dec 2017] Original source: Ratification by the States, Volume XXIII: New York, No. 5
  20. Owen S. Ireland, Religion, Ethnicity, and Politics: Ratifying the Constitution in Pennsylvania (University Park: The Pennsylvania State University Press, 1995), 74.
  21. Quoted in Pennsylvania and the Federal Constitution 1787 – 1788, edited by John Bach McMaster and Frederick D. Stone (The Historical Society of Pennsylvania, 1888), 214.
  22. quoted Ibid., 214.
  23. quoted in Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788. New York: Simon & Schuster, 2010), 102.
  24. McMaster & Stone, Pennsylvania and the Federal Constitution, 421.
  25. Bernard Bailyn, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, Part II (New York: The Library of America, 1993) 554.
  26. Archibald Stuart to James Madison (November 2,1787) Founders Online. https://founders.archives.gov/documents/Madison/01-10-02-0164
  27. James Madison to George Washington (February 20, 1788) Founders Online. https://founders.archives.gov/documents/Washington/04-06-02-0100
  28. James Gordon, Jr. to James Madison (February 17, 1788) Founders Online. https://founders.archives.gov/documents/Madison/01-10-02-0298
  29. John Blaire Smith to Madison (June 12, 1788) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0075
  30. Madison to William Bradford (January 24, 1774) Founders Online. https://founders.archives.gov/documents/Madison/01-01-02-0029
  31. L.H. Butterfield, L.H. “Elder John Leland, Jefferson Itinerant,” American Antiquarian Society vol. 62, no. 2 (October 1952), 186.
  32. Mark S. Scarberry, “John Leland and James Madison: Religious Influence on the Ratification of the Constitution and on the Proposal of the Bill of Rights,” Penn State Law Review, vol. 113, no. 3 (2008-2009): 733-800.
  33. L.H. Butterfield, “Elder John Leland, Jefferson Itinerant,” American Antiquarian Society vol. 62, no. 2 (October 1952), 191.
  34. James Madison to Thomas Jefferson (October 17, 1788) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0218
  35. John Leland, “Ten Objections by a Leading Virginia Baptist,” in The Debates, Part II, 267-269.
  36. James Madison to George Eve (January 2, 1789) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0297
  37. Alan V. Briceland, “Virginia: The Cement of the Union,” in The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution edited by Patrick Conley and John P. Kaminski (Madison, Wisconsin: Madison House, 1988), 212.
  38. Bailyn, ed. The Debate on the Constitution, Part II, 690.
  39. Ibid., 753.
  40. Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (New York: Simon & Schuster, 2010), 306-308.
  41. Irving Brant, James Madison: Father of the Constitution 1787-1800 (Indianapolis: The Bobbs-Merrill Company, Inc., 1950), 238.
  42. James Madison to George Eve (January 2, 1789) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0297
  43. Brant, James Madison, 240.
  44. Quoted in Brant, James Madison, 242.
  45. See 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).
  46. Pennsylvania: McMaster & Stone, Pennsylvania and the Federal Constitution, 421-423); and Maryland: Bailyn, ed. The Debate on the Constitution, Part II, 554.
  47. See the lists drawn up by Agrippa XVI, February 5, 1788 (http://teachingamericanhistory.org/library/document/agrippa-xvi/) and the Albany Anti-Federalists, see DHRC vol. XXI, no. 3.
  48. Kate Mason Rowland, The Life of George Mason, 1725-1792 (New York: J.P. Putnam’s Sons, 1892), 235.
  49. George Mason to George Washington (October 2, 1785) Founders Online. https://founders.archives.gov/documents/Washington/04-03-02-0258
  50. Madison, General Defense of the Constitution, Virginia Ratification Convention (June 12, 1788) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0077
  51. Bailyn, ed. The Debate on the Constitution, Part II, 554.

 

Abusing History: Original Intent, the First Amendment, and Religious Freedom (Part I): A Critique of Vincent Phillip Muñoz’s “The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation”

In 1946 Everson v. Board of Education borrowed Thomas Jefferson’s simple phrase, “a wall of separation between Church and State,” (1) to describe the meaning of the Establishment Clause of the First Amendment. While the memorable metaphor caught the public’s imagination it also provoked the ire of those who sought a more prominent role for religion in public life. Unhappy with the implications of this separationist interpretation of the Establishment Clause (“Congress shall make no law respecting an establishment of religion”), conservatives mounted a campaign aimed at undoing Everson. While they have been largely unsuccessful in achieving that goal, they have had some success in chipping away at the wall of separation. The power of the Establishment Clause has been brushed aside in recent years to make way for an ever more expansive interpretation of the Free Exercise Clause by the conservative Roberts Court (see Trinity). A fatal blow to the clause could come from a new interpretation that is quickly becoming the standard interpretation in conservative circles. The “federalist” (or “jurisdictional”) interpretation denies that the Establishment Clause created any substantive rule concerning church-state relations. Instead, they insist, the clause was originally intended to prevent the federal government from intervening in state establishments, and, therefore, it is a mistake to apply a substantive rule (separation) to state governments via the Fourteenth Amendment. If applied this interpretation would return power to the states to make laws concerning religion while also preventing the establishment of a national religion. In other words, “the wall of separation” would be a thing of the past.

The U.S. Supreme Court 2017

As part of a larger trend towards originalism the advocates of this federalist interpretation insist that they are above the fray, and are simply recounting the “original intent” of the Founders. Originalism has become a significant force for change in constitutional law, including the infamous Supreme Court Cases Citizens United (opened the floodgates to large sums of money in politics) and Heller (declared that the Second Amendment was an individual right). These devastatingly consequential cases grew out of the radical fringes of constitutional jurisprudence, thanks in large part to the Federalist Society, a conservative networking organization. (2) The dubious historical grounding of these “originalist” interpretations have been pointed out by historians, but to no avail.

As noted by the constitutional scholar Eric Berger, what makes this flawed methodology particularly regrettable is “originalism’s pretense that it captures the Constitution’s singular, objective meaning creates an especially misleading illusion of certainty.” (3) Originalism, as it has been practiced, has been marred by the abuse of history as scholars attempt to bend the historical record to their preferences, while pretending to be simply disinterested bards revealing a forgotten past. Pre-determined conclusions require deceptive narratives. To make matters worse, originalists have further politicized their project as they seek to galvanize large segments behind their “originalist” interpretations. This has had a polarizing effect across America; the originalists paint themselves as objective purveyors of the original intent of the Founders, in contrast to their opponents who are portrayed as political actors seeking to insert their own biases into the law. It becomes a war of good vs. evil in which the originalists are the honest heroes fighting against an un-American other. (4) With that in mind, I took up this project of examining the scholarly integrity of influential ideas and people who put forward “originalist” interpretations of the First Amendment.

Rather than reviewing the growing “federalist” scholarship in this series, I will focus on a single representative example by a well-known and respected constitutional scholar in this camp. (5) Vincent Phillip Muñoz argues that the Framers of the First Amendment meant for the Establishment Clause to be a federalist provision that explicitly left the issue of religious establishments to the state. Consequently, he argues, it was a mistake to “constitutionalize one proper relationship between church and state” and then impose this solution on the states via the Fourteenth Amendment. (6) Only Justice Clarence Thomas, Muñoz boasts, is brave enough, “to appreciate the Founders’ original concern with federalism.” (p. 636) Whereas, he declares that the Supreme Court as a whole is guilty of an “alarming misuse of history.” (p. 637) He further heaps disdain upon them by claiming that the modern Court’s Establishment Clause jurisprudence is “little more than arrogance cloaked as humility,” a quote originally used by Justice William Brennan to criticize originalism. (7) In contrast, he presents himself as an unbiased messenger claiming to have found “the original meaning and clear intention” of the Establishment Clause. (p. 604) This confidence seems particularly out of sorts with the limited and flawed nature of the extant evidence surrounding the creation of the First Amendment. While this evidence sets limits on possible interpretations it is too fragmented to yield the certainties that Muñoz ascribes to his own findings, even if his scholarship had been rock solid.

All scholars have preferences and biases, but it is only when they interfere with one’s ability to fairly engage in objective scholarship that those preferences become a problem, especially when one is declaring that they have found “the original meaning and clear intention” of the Constitution. (p. 605) Two years before publishing “The Original Meaning,” Muñoz testified at a Senate subcommittee as a fellow of the conservative American Enterprise Institute, arguing that the Supreme Court’s separationist interpretation of the Establishment Clause encouraged hostility to religion in the public square. This common claim by conservatives is mistaken and at odds with the views of the evangelicals who fought for religious liberty during the Revolutionary years and the early Republic. (see What the Religious Right Gets Wrong about Religious Freedom) They insisted that the ends of government where civil, not religious, as is evident in this 1785 Presbyterian petition submitted to the Virginia legislature:

The end of civil government is security to the temporal liberty and property of mankind, and to protect them in the free exercise of religion. Legislators are invested with powers from their constituents for this purpose only; and their duty extends no further. Religion is altogether personal, and the right of exercising it unalienable; and it is not, cannot, and ought not to be, resigned to the will of the society at large; and much less to the Legislature, which derived its authority wholly from the consent of the people, and is limited by the original intention of civil association. (8)

The only role concerning religion appropriate for the government, according to these Presbyterians, was to protect their religious rights. This separationist stance was not seen by these devout Presbyterians as in any way hostile to religion. On the contrary, they saw it as essential to the purity of their religion:

Its Divine Author did not think it necessary to render it [Christianity] dependent on earthly governments. And experience has shown that this dependence, where it has been effected, has been an injury rather than an aid. It has introduced corruption among the teachers and professors of it wherever it has been tried for hundreds of years, and has been destructive of genuine morality, in proportion to zeal, of the powers of this world, in arming it with the sanction of legal terrors, or inviting to its profession by honors and rewards. (8)

There is nothing inherently hostile about a government that leaves religion to stand on its own, especially when this arrangement frees citizens to practice any religion, or no religion, freely. As a religious minority in a state dominated by Episcopalians, these Presbyterians understood that state support of religion in any way was the source of religious oppression.

Muñoz clearly does not share this perspective. Muñoz’s aversion to separation may have influenced his scholarship, but that does not necessarily mean that federalism is an illegitimate interpretation of the Establishment Clause. It must be judged on its merits alone, which is the aim of this series of posts. To do this I will follow the same basic chronological outline used by Muñoz, beginning with an examination of the establishments of religion in the states and ending with the deliberations of the First Federal Congress (1789). Rather than finding a serious historical enquiry, a review of Muñoz’s work revealed an “alarming misuse of history.” It turns out that Justice Brennan’s allegation was correct, originalism is “little more than arrogance cloaked as humility.”

Religious Establishments in the States: Virginia vs. Massachusetts

After the American colonies freed themselves from the yoke of the British Empire, they embarked upon the difficult task of creating their own constitutions. Guided by the republican principles of freedom and equality these new constitutions kicked off the experiment in American democracy. These documents shared many of the same characteristics as they exchanged ideas, and even language, from each other. Nevertheless, there were some significant differences on certain issues including the subject of religion. The treatment of religion rested upon distinct conceptions of religious liberty, which varied mostly by region. These regional differences are reduced to two basic church-state approaches by Muñoz: the “Virginia Understanding” and the “Massachusetts Way.” This simplified framing of church-state relations in the newly independent states sets up the essential framework for Muñoz’s federalist argument.

According to Muñoz the Virginia way is characterized by an arrangement that “effectively privatized religion,” whereas the Massachusetts way is defined by state support for religion. (p. 60) Any assessment of the merits of these arrangements is unnecessary, according to Muñoz, in order to “ascertain[] the original meaning of the Establishment Clause.” (p. 611) While there is no need to evaluate these systems on the basis of their compatibility with religious liberty, especially since most agree that the Virginia model is the clear winner, Muñoz’s over simplified description of the church-state arrangements that existed at the time is problematic. It creates a false equivalency and obscures the broader trend of separation.

This misleading overview, however, serves a purpose. It sets up his claim that those opposed to the proposed federal Constitution (Anti-Federalists) feared that it threatened their own particular state’s church-state arrangements, which then became the basis for the Establishment Clause as the representatives in Congress attempted to quell those fears after the Constitution was ratified. The contention that there was no way that the federal Congress could have agreed on any particular solution to the church-state problem is central to Muñoz’s argument. This is why the Establishment Clause specifically gave jurisdiction over the issue of establishments to the states, rather than settling on any particular solution such as separation, according to Muñoz.

There are several problems with this argument. The main problem is that Congress could have done, and did, both. Congress did agree upon a substantive solution, albeit one aimed specifically at the federal government, as the word “Congress” at the beginning of the Establishment Clause indicates. And, as such, this left the states free to legislate on the subject of religion in whatever way they saw fit. The clause was not specifically targeting the states; they were simply left free on this subject by default. The specifics of the making of the Establishment Clause will be addressed in the section on the First Federal Congress. The focus here will be on the issue of state establishments, or rather lack thereof. On this issue, Muñoz’s characterization is a misleading setup for the rest of his argument.

Muñoz sets up a false equivalency concerning church-state relations that leaves the impression that the “Massachusetts way” was equally as popular as the “Virginia way,” when in fact, most states had either never had a system of state-supported religion, or had abandoned it before the ratification debates. A clear majority of Americans actually favored separating religion and government. By the time of the First Congress in 1789 only the New England states (Massachusetts, Connecticut, New Hampshire, and Vermont) provided financial support for religion. Georgia and Maryland allowed religious assessments per their constitutions, but the pro-establishment forces in their states never succeeded in garnering enough support to pass any legislation for that purpose. Then in 1789 and 1810 respectively, these states passed constitutional amendments that banned all support of religion. (9) South Carolina had established the Protestant religion in 1778, albeit with no financial support, but abandoned it in 1790. (10) So, in reality, it was only the four New England states that maintained any kind of state-supported religion, and even there, support for establishments was waning. By 1833 all four had abandoned these relics of the past. The passion and momentum were clearly on the side of no establishments. As Muñoz notes, there were many across the new nation that did believe in government supported religion, but they were the minority in most states and their numbers were dwindling. So, it is disingenuous to set up the context of church-state relations in the states as if the two visions of church-state relations were equally popular.

While disingenuous, Muñoz’s false equivalency does not necessarily negate his point that there was no consensus on the issue, but it does indicate that there was more agreement on the subject than he claims, opening up the possibility that the representatives in Congress could have agreed on a substantive solution. What Muñoz must prove is that it was the desire to protect the distinct church-state solutions in each state that animated the Anti-Federalist opposition to the Constitution. If this was not their main concern, then Muñoz’s argument falls apart. The next post will examine the Anti-Federalist campaign against the Constitution to determine whether or not his argument holds up.

To go to second post click here Abusing History (Part II).

  1. Thomas Jefferson to the Danbury Baptists (January 1, 1802) Founders online https://founders.archives.gov/documents/Jefferson/01-36-02-0152-0006.
  2. Amanda Hollis-Brusy, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (New York: Oxford University Press, 2015) 31-89.
  3. Eric Berger, “Originalism’s Pretenses,” 16 University of Pennsylvania Journal Constitutional Law (2013-14), 329.
  4. Robert Post & Reva Siegel, “Originalism as a Political Practice: The Right’s Living Constitution,” Fordham Law Review 75 (2006) 545-574.
  5. For a broader critique of the federalist interpretation of the Establishment Clause see Ellis M. West, The Religion Clauses of the First Amendment: Guarantees of States’ Rights? (Lanham, Maryland: Lexington Books, 2011).
  6. Vincent Phillip Muñoz, “The Original Meaning of the Establishment Clause and the impossibility of its Incorporation,” University of Pennsylvania Journal of Constitutional Law 8 (2006), 604.
  7. 636.
  8. Ministers and lay representatives of Presbyterian Church (November 2, 1785) The Library of Virginia: Digital Collection (http://www.virginiamemory.com/collections/petitions)
  9. An 1810 amendment in Maryland precluded the possibility of any tax “for the support of any religion.” Ben Perley Poore, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States, Part II (Washington: Government Printing Office, 1878). Poore, The Federal and State Constitutions I, (Washington: Government Printing Office, 1877). The Constitution of 1798 finally gave Georgians full religious liberty:

No person within this State shall, upon any pretence, be deprived of the inestimable privilege of worshiping God in a manner agreeable to his own conscience, nor be compelled to attend any place of worship contrary to his own faith and judgment; nor shall he ever be obliged to pay tithes, taxes, or any other rate, for the building or repairing any place of worship or for the maintenance of any minister or ministry, contrary to what he believes to be right, or hath voluntarily engaged to do. No one religious society shall ever be established in this State, in preference to another; nor shall any person be denied the enjoyment of any civil right merely on account of his religious principles. Poore, The Federal and State Constitutions I, 395.

  1. The 1778 Constitution: “The Christian Protestant Religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State.” Poore, The Federal and State Constitutions, Part II, 1626. Nothing remained of this establishment in the 1790 Constitution. Instead, it stated: “The free exercise and enjoyment of religious profession and wordship, without discrimination or preference, shall forever hereafter be allowed with this State to all mankind: Provided, That the liberty of conscience thereby declared shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.” Ibid., 1632-3.

 

First Amendment Folly (Part V): Religious Dissenters in Virginia Establish Religious Liberty (1785)

This is the seventh 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.” 

Patrick Henry was the main sponsor of the Virginia bill “Establishing a Provision for Teachers of the Christian Religion” that was debated by the population in 1785.

Having agreed to postpone the bill to support “Christian teachers” for popular comment the conservative members of the House of Delegates quickly realized that they had misjudged the reception it would receive. The majority of the population greeted the prospect of a religious assessment with alarm. The dissenters in particular saw it as a step backwards in the direction of tyranny, and a betrayal of the Revolution for which they had shed their own blood. The prospect of a religious assessment woke them out of their slumber and galvanized them in their determination to once and for all secure full and equal religious liberty.

Leading up to 1785 legislative session the dissenters made their displeasure known and successfully mobilized large segments of their population in an effective petitioning campaign. When the fall session began the House of Delegates was overwhelmed with nearly one hundred anti-establishment memorials. (1) The majority of these were copies of three model petitions: The “Spirit of the Gospel” (SOG) petition; the petition from the Presbyterian Convention; and Madison’s Memorial & Remonstrance. (2) With the exception of Madison’s Memorial most of the petitions were written and distributed by dissenters. However, it this distinction was of little importance at the time since they used the same arguments and sought the same goal. This alliance was greatly valued by both the dissenters and the rationalists. As the popular Baptist preacher John Leland noted, both “Bible-Christians and deists” agree that “it is wrong to make religious laws” and therefore “have an equal plea against religious tyranny; and often unite together to repel religious tyrants.” (3) A review of the dissenting petitions reveals the overwhelming similarity, with only minor differences in language and tone.

Esbeck concedes that the two groups share a similar outlook concerning church-state matters. It was the concept of “voluntaryism,” he insists, that united them. We have already seen that Madison’s views did not conform to this principle, but the dissenters are potentially better candidates. If the dissenters were proponents of this concept, then the petitions should reflect its main principles which include the following claims: 1. establishment debates were about the proper relationship between “two centers of power” (the church and the state), not individual rights; and 2. anti-establishment protests were about banning state intervention in “organized religion,” but not the other way around. (4)

Esbeck presents the SOG petition as an exemplar of the dissenters’ “voluntaryism” stance, and therefore one would expect this petition in particular to be in line with the basic principles of “voluntaryism.” The principles and goals stated in the petition, however, seem at odds with Esbeck’s concept.

The exact origin of the SOG petition is unknown but it was most certainly the product of Baptist efforts to defeat the assessment bill. A clue to its origins may be found in language that coincidentally echoes some of the language found in the minutes of a Baptist meeting held in Powhatan County, where they declared that it was “repugnant to the spirit of the gospel for the Legislature thus to proceed in matters of religion; that no human laws ought to be established for this purpose, but that every person ought to be left entirely free in respect to matters of religion.” While this statement gives a religious reason for their opposition to establishments, it also clearly illustrates the link between individual rights and establishments. To them, the opposite of establishments (human laws concerning religion) was religious freedom for “every person.” In the conclusion they reiterated this point, insisting that the proposed establishment would “be destructive to religious liberty.” This stance directly contradicts Esbeck’s claim that opposition to establishments were not motivated by a desire to protect individual rights. The SOG petition echoes not just the language from this meeting, it follows the same logic: “establishments of religion undermine individual rights.”

After laying out their position on assessments the Baptists drew up a resolution urging “those counties which have not yet prepared petitions” to do so. (5) They also drew up their own petition, which because of its more overtly religious tone, was quite distinct from the other dissenting petitions. But the message was the same: they opposed “every combination of Civil and Ecclesiastical matters.” (italics mine) Consistent with the other petitions, it also insisted that establishments were harmful to religion (not the church or organized religion) as Esbeck conceives. They do refer to “the Christian Church,” not as organized religion, but as “a Spiritual body” which they saw as “distinct from and independent of all combinations of men for Civil Purposes.” Thus, they did not endorse Esbeck’s one-way-street policy in which religious concerns inform public policy, but not the other way around. Instead, they rejected “all combinations” mixing the two together. And besides harming religion, they warned the legislators, the proposed establishment would “lay a foundation for the total subversion of our Civil and Religious Liberties.” (6) While more religious in its language, this petition shared the same basic view of church-state relations as the other petitions submitted by dissenters.

Borrowing language from the Powhatan meeting, the SOG petition declared that the assessment was “contrary to the spirit of the Gospel.” They insisted that “Establishment has never been a means of prospering the Gospel.” To reinforce this point, they repeated the frequent complaint against the establishment of Christianity in the fourth century by Constantine. The result, they complained, was that the church became “over run with error, superstition, and Immorality.” The petitioners believed that by severing all ties between religion and government, as was the case prior to the establishment of Christianity, that religion would flourish in its native purity.

Immediately following the “spirit of the Gospel” was the phrase “and the Bill of Rights,” indicating that they rejected the bill not just because it was contrary to their religion, but also because it violated their individual rights. The order of the statements may indicate a more prominent place for their religious concerns, but it in no way diminishes their rights-based objection which provided the logic that delegitimized all establishments of religion. They asserted that the assessment bill was contrary to “articles one (‘all men are born equally free and independent’) and four (‘no man, or set of men, are entitled to exclusive or separate emolument or privileges’) of the Declaration of Rights.” Tellingly, they misquoted article four by excluding the collective (“or set of men”) leaving only a slightly altered reference to the individual (“no person in this Commonwealth”). This obvious link between individual rights and no-establishments reveals that these dissenters were not proponents of “voluntaryism.”

Addressing the conservative grievance that the lack of an establishment was to blame for the decline in religion and the influence of Deism, they insisted the problem “must be owning to other causes, and not for want of religious Establishment.” (7) Rather than an assessment, they believed the problem could be solved by enacting laws that “punish the Vices, and Immorality of the people.” Exactly what they meant by “vices, and Immorality” is not clear, but what is clear is that they abhorred state imposed religion, which presumably would include religiously-based morality, because it was tyrannical and harmed both religion and the state.

In conclusion, and once again invoking the language of the Powhatan meeting, the petitioners asked the House to “leave them intirely free in matters of Religion & the manner of supporting its ministers.” (8) Notice that they wanted to be “intirely free in matters of Religion” as individuals; they were not simply seeking to set “the church” free from state intervention. They were seeking to sever all ties between religion and government, except for the purpose of protecting religious liberty. Any other arrangement was a threat to the equal rights of conscience promised in the Declaration of Rights. Rather than being an exemplar of “voluntaryism” the SOG petition is a plea for the separation of religion and government.

Approximately half of the twenty-nine SOG petitions are exact copies of what must have been the original petition. The petitions that deviated from this model usually did so by adding additional arguments. For example, ten of the petitions inserted the following statement: “that the Legislature should not assume the power of Establishing modes of Religion, Directing the manner of Divine worship, or the method of supporting its teachers.” (9) This addition clarified these dissenters’ understanding of the state’s role in matters of religion. While it is partly in line with Esbeck’s claim that the goal of the dissenters was to prevent the state from intervening in the business of the church, the statement also reveals that prohibition against the state is much broader, and would prohibit the state from making laws that would establish any kind of religious dogma (“the Legislature should not assume the power of Establishing modes of Religion”). In other words, they wanted NO establishments of religion (i.e. “religious laws”). After all, to be “intirely free in matters of religion” one must be free not only to practice one’s religion, but also from state-imposed religion. This in turn imposes a restriction on religious actors who would like to see their religious doctrines and/or practices imposed via public policy. Two of the other altered petitions removed the sections on the harm to “the Church” and Deism. This gave these petitions a more rights-centered focus, and unmistakably illustrated the link between protecting rights and the desire to abolish all establishments of religion.

One of the more interesting variations to the standard SOG petition came from both the counties of Nansemond and Northumberland. These petitions added (without credit) the following excerpt from Jefferson’s bill for establishing religious freedom: “That to Compel a Man to furnish Contributions of money for the Propagation of opinions which he disbelieves and abhors is Sinful & Tyrannical, That even the forcing him to Support this or that Teacher of his own religious persuasion is depriving him of the Comfortable Liberty of giving his contributions to the Particular pastor whose morals he would make his Pattern.” (10) This excerpt highlights their conviction against all compulsion in matters of religion even when they themselves would have been beneficiaries. It was a matter of principle. They were seeking no establishments, not equality in establishments.

It is difficult to know the motives behind the deviations from the original, but it is safe to say that they often had the result of clarifying their position. In no case, though, did any of them put forward a position in line with Esbeck’s “voluntaryism.” Even if rights were secondary, which seems dubious, these dissenters saw the proposed establishment as a threat to individual rights, and uniformly called for the state to stay out of not just organized religion, but all matters concerning religion. A brief review of the remaining dissenting petitions will confirm this characterization of the dissenters’ view of religious liberty.

In addition to the SOG petitions and the Powhatan petition, there was one other Baptist petition received by the legislature that fall. This petition laid out a series of resolutions that reflected common dissenting positions. First, they insisted that the proposed assessment as legislation concerning religion was “quite out of the province of any Legislature upon earth.” Second, they objected to the claim that religion would decline without government support. This frequent conservative mantra, the petitioners averred, was “grounded neither on scripture, nor Reason, nor sound Policy.” On the contrary, they argued, any relationship between religion and government had the effect of corrupting religion. Next, they protested that the assessment violated the principle of equality, because “such [an] establishment” would mean that the legislature would determine who was, and who was not, worthy of receiving benefits. Since the bill was written to benefit “Christian” teachers only, the legislature would be in the position of determining which groups were Christian; a task fraught with dangerous consequences, not to mention the fact that it unjustly excluded non-Christians. Fourth, the petition complained that the law would open “the door to religious Tyranny.” They reasoned that if the legislature could establish all denominations it also had the power to establish just one, and would, therefore, ultimately result in the same “sanguinary horrors of persecution” as in the past. Resolutions five and six were protests against the incorporation bill, and glebes respectively. They closed their petition protesting that the bill was an “open offense; and in its native tendency will if imposed on this state, prove injurious to the peace, and tranquility of a people, who justly respect the enjoyment of equal privileges, according to the Bill of Rights.” (11) Like the others, this petition expressed a concern for religion in general (not organized religion) and individual rights, which were threatened by the proposed religious establishment.

As one of the largest dissenting communities the Presbyterian perspective is important to any analysis of dissenting views. The Presbyterians’ views on the issue of establishments became muddled in 1784, after the Hanover Presbytery shocked the legislators, and their own laity, by submitting a petition in support of a general assessment. However, this turnabout was more about politics than an actual change of heart. The Presbytery leadership had come to the conclusion that they could not defeat the assessment bill, and thus their best strategy would be to push for the least onerous type. (12)

In this effort to limit the damage that an assessment could cause, they proposed a very different kind of religious assessment. Rather than requesting a Christian (or Protestant) establishment, the Presbyterians wanted a system that was based on “the most liberal plan,” which would have been broadly inclusive but not without some restrictions. The petition itself does not state the boundaries of this “liberal plan,” but a clue can be found in the minutes of their October meeting where they indicated that the following beliefs were essential to society: God, providence, and “a future state of rewards and punishments.” (13) While still limited and in violation of the principle of equality, it was significantly more inclusive than the Christians-only versions proposed by the conservatives.

Despite this obvious betrayal of the principle of equality, they unequivocally maintained that equality was of vital importance to the foundations of the republic. Therefore, it was vital that the representatives of the people pay “careful attention to the political equality of all the citizens,” since everyone “ought to receive…a precious birthright of perfect freedom and political equality.” (italics mine) The Presbytery was trying to have its cake and eat it too; they wanted to have their assessment without sacrificing their sacred principles. In the end, they couldn’t square the circle, but they fact that they insisted on these principles shows how devoted to they were to them. They even opened their petition declaring that “rights are sacred and dear to them.” The broadly inclusive nature of their proposal probably eased any misgivings about the obvious contradiction between their stated principles and their actual plan. Even this petition in support of an assessment undermines Esbeck’s claim that establishment issues were not about protecting rights.

They also had to square their long-standing claim that religion was outside the bounds of “human legislation” with their support for a religious assessment. To reconcile this contradiction, they created a distinction between religion as a spiritual matter and religion as a civil matter. They then they relied on one of the main arguments of their conservative opponents to accomplish their task: since religion was “absolutely necessary to the existence and welfare of every political combination of men in society to have the support of religion and its solemn institutions” it was matter of civil concern. As a result, they declared, it was within the bounds of government concern.

The Presbyterian reversal on the issue of religious assessments raised the ire of James Madison, who confided to James Monroe that he did “not know a more shameful contrast than might be formed between their Memorials on the latter & former occasion.” (14) Madison felt betrayed because the move undermined his efforts in the House to defeat the bill. Fortunately for Madison the Presbytery’s retreat from principle was short lived; a revolt from the Presbyterian laity prompted the Presbytery to rethink its support for assessment.

The Augusta Presbyterian congregation was so upset that they sent a petition to the Hanover Presbytery demanding to know what the word “liberal” meant in its petition. Confronted by the anger of the laity and by the legislature’s decision to incorporate the Protestant Episcopal Church, the Hanover Presbytery voted “unanimously” to oppose “any kind of an assessment by the General Assembly for the support of religion.” (15)

To unify their community and solidify their position, they decided to call a General Convention, which included representatives from across the state. At the top of their agenda was the creation of a new petition stating their unified opposition against all establishments of religion. The result was one of the most powerful and comprehensive examples of the dissenting view. They opened the petition expressing disappointment that the legislature was “slowly and unwillingly” removing “ancient distinctions among the citizens, on account of religious opinions.” To “increase the evil,” they continued, the legislature had “consider[ed] itself as possessed of supremacy in spirituals as well as temporal.” These abuses, among others, were evidence “of an impolitic partiality which we are sorry to have observed so long.” Therefore, they remonstrated against the assessment bill “absolutely” and the incorporation bill partially. (16)

The Presbyterians laid out four main objections to the assessment bill. First, they complained that it was “a departure from the proper line of legislation.” Rejecting their previous distinction between civil and religious uses of religion, they now declared that “[r]eligion is altogether personal, and the right of exercising it unalienable; and it is not, cannot, and ought not to be, resigned to the will of the society at large; and much less to the legislature.” This statement reveals even more clearly than the previous petitions how the Presbyterians viewed the relationship between the free exercise of religion and government. The power to impose religion by law was fundamentally in conflict with the rights of conscience. Because the right of exercising religion was inalienable, it could not, therefore, be the subject of the society or the legislature. Reinforcing this conclusion, they asserted that the proper ends of civil government extend only to “the temporal liberty and property of mankind, and to protect them in the free exercise of religion.” (17)

Second, the Presbyterians insisted that the assessment was unnecessary and inadequate to its professed purpose. Rather than nurturing morality, as the conservatives insisted, establishments of religion had been “destructive” of it. They insisted that Christianity nurtured morality more effectively “when left to its native excellence… and free from the intrusive hand of the civil magistrate.” (18) This is somewhat in line with Esbeck’s claim that the goal of the dissenters was to prevent government interference in “the church,” but it was “Christianity,” as a religion, not as organized religion, that they were expressing concern over. They also insisted that by separating religion from government, Christianity would better nurture morality. But from there they did not claim that religiously-based morality was “welcomed in the marketplace of ideas and in the formation of public policy and law.” (19) To allow this would be in contradiction with their desire to divorce religious concerns from the state and usher in the ecclesiastical tyranny which they so abhorred.

Third, they pointed out some of the impolitic consequences that would occur if the general assessment were to be enacted. Two of these focused on its negative consequences for the state. They believed that it would weaken the government because “it disgust[ed] so large a proportion of the citizens,” and by discouraging foreigners to settle in Virginia, while at the same time encouraging their “own citizens to immigrate to other lands of greater freedom,” the bill would harm the prosperity of the state. More importantly, the bill was impolitic because it excluded non-Christians. The assessment would “unjustly subject[] men who may be good citizens, but who have not embraced our common faith, to the hardship of supporting a system, they have not as yet believed the truth of; and deprives them of their property, for what they do not suppose to be of importance to them.” It was a clear violation of the individual right to equality. Thus, fourthly, religious assessments were “a direct violation of the Declaration of Rights which ought to be the standard of all laws.”

They concluded once again emphasizing their commitment to individual rights by expressing their “regret that the full equality in all things, and ample protection and security to religious liberty, were not incontestably fixed in the constitution of the government.” To remedy the situation they suggested the passage of Jefferson’s bill for Establishing Religious Freedom. (20) The new petition was enthusiastically endorsed by the predominantly Scotch-Irish laity in twenty-two separate petitions. (21)

In addition, a few heavily Presbyterian counties decided to send their own independent petitions, which further undermine Esbeck’s “voluntaryism” theory. Most of the petitions were rights-centric and insisted that government had no jurisdiction in matters of religion. The petitioners from Rockbridge County declared that the assessment bill was contrary to the DOR and a “glaring violation of our Religious Liberty.” They insisted that the legislature should have no role in religious affairs because in “the discharge of the duties of Religion every man is to account for himself as an Individual,” and as a consequence religion “ought not to be made the object of any Human Law.” (italics mine) And they insisted that religion was “wholly Destitute from the secular affairs of public society.” (22)

The heavily Presbyterian county of Botetourt railed against the assessment bill on the grounds that it was outside of the “purview of the Legislature and a Most flagrant violation of the Bill of Rights.” They reminded the legislature that they had “a natural and constitutional Right of professing [their] Religious opinions agreeable to the Dictates of Conscience.” Article 16, they asserted, gave “men of Every persuasion who are Citizens an Equil Right to the free exercise of Religion according the dictates of Conscience.” The point was reinforced in their conclusion, where they insisted that they saw the assessment as parting “from the Chief Cornerstone of our Government [illegible] of our Religious Liberty which Reason and Conscience left us are the Natural and unalienable Rights of Mankind is a sacrifice which we cannot nor will not make.” (23)

The remaining miscellaneous petitions varied widely in terms of tone and content, but they followed the basic logic of the other petitions. Even the most religious-centered petitions relied on rights-based arguments to express their hostility to the assessment. A good overall summary of the main objections presented in the dissenting petitions can easily be summed up by a statement from Dinwiddie County. These petitioners stated unequivocally that the proposed assessment, as all as other establishments, were “injurious to the liberties of the people, destructive to true Religion, and which may be fatal to the happiness, and prosperity of this Commonwealth.” (24) Pleas to honor their individual rights were woven throughout the petitions, and played a crucial role in their overall thinking on the subject of establishments. This stance cannot be reconciled with Esbeck’s “voluntaryism.”

Esbeck’s characterization of the dissenters as pietistic protestors out only to protect “the church” from the state does not square with the evidence. The dissenters mobilized in opposition to all establishments of religion (i.e. religion supported by secular law) on the grounds that they violated their individual rights and harmed both religion and the state. To them, any privileging of one religion or one denomination by the state was tyrannical and violated the equal rights of all citizens. This is why they insisted that the government had no jurisdiction to legislate on the subject of religion, except to protect them in their rights. As a persecuted minority, the dissenters understood the value of a true religious liberty that treated all citizens equally irrespective of their religious opinions. Having first-hand experience of the burdens of second class citizenship, as well as psychological and physical abuse, the wisdom of these dissenters should give us pause before we go any further in dismantling the protections they fought so hard to put in place. Far from seeing separation as hostile to religion, the religious dissenters saw it as necessary to protect the purity of religion. They understood that the best way to protect religion was to protect the individual rights of every citizen equally.

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

The flood of anti-assessment petitions ensured that the assessment bill would not even be taken up during the fall session in 1785. Having averted “the danger of a direct mixture of Religion & civil government” Madison took advantage of the anti-establishment fervor to push through Jefferson’s bill for Establishing Religious Freedom in January 1786. It was a great victory for religious liberty.

Notes:

1) Thomas E. Buckley, Church and State in Revolutionary Virginia 1776-187 (Charlottesville: University Press of Virginia, 1977), 145. I counted 97 anti-assessment petitions, whereas Buckley counted 90 petitions. (Church and State, 147) The discrepancy is probably due to how we decided to count the several petitions of the same type submitted on the same day. I counted them as separate petitions, since copies of the same petitions submitted on separate days were counted as distinct. I think that this method is further warranted by the fact that they had circulated in different areas and had different signatures.

2) There were thirteen copies of Madison’s petition with 1,552 signatures. The twenty-nine copies of the “Spirit of the Gospel” version included 4,899 signatures (Ragosta, Wellspring of Liberty, 131).

3) John Leland, Van Tromp Lowering His Peak with a Broadside Containing a Plea for the Baptists of Connecticut (Danbury, Stiles Nichols, 1806), 14.

4) Carl H. Esbeck, “Protestant Dissent, and the Virginia Disestablishment, 1776-1786,” The Georgetown Journal of Law & Public Policy 7 (2009), 53 and 98. Esbeck makes the same claim in “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review, 2004, pp. 1590-1), where he examines the history of disestablishment in the original thirteen colonies plus Vermont.

5) Robert B. Semple, A History of the Rise and Progress of the Baptists in Virginia (Richmond: John O’Lynch, Printer, 1810), 71.

6) The Baptist Association, Powhatan County (November 3, 1785). The petitions used in this essay can be found at the Library of Virginia: Digital Collection (LVDC).

7) Buckley, Church and State, 149; Surry County (October 26, 1785) LVDC.

8) Surry County (October 26, 1785) LVDC.

9) Richmond County (October 27), Essex County (November 2), King and Queen County (November 5), Middlesex County (November 10), Spotsylvania County (November 28) (4 separate petitions), and two from Caroline County (October 27) LVDC.

10) Nansemond (October 27, 1785); and Northumberland (November 28, 1785) LVDC.

11) Baptist Association, Orange County (November 17, 1785) LVDC.

12) H.J. Eckenrode, Separation of Church and State in Virginia: A Study in the Development of the Revolution (Richmond: Davis Bottom, 1910): p. 89-90; Charles Grier Seller, Jr., “John Blair Smith,” Journal of the Presbyterian Historical Society 34 (December 1956), 212; Thos. Cary Johnson, Virginia Presbyterianism and Religious Liberty in Colonial and Revolutionary Times (Richmond: Presbyterian committee of publication, 1907),105; William H. Foote, Sketches of Virginia: Historical and Biographical (Philadelphia: William S. Martien, 1850), 557.

13) Foote, Sketches of Virginia, 338.

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

15) Foote, Sketches of Virginia, 341.

16) Ministers and lay representatives of Presbyterian Church (November 2, 1785) LVDC.

17) Ibid.

18) Ibid.

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

20) Ministers and lay representatives of Presbyterian Church (November 2, 1785) LVDC.

21) Nineteen came in on November 12 from various counties, one on November 15 from Frederick County, and one on November 18 from Berkley County in support of this Presbyterian petition, LVDC.

22) Rockbridge County (November 2, 1785) LVDC.

23) Botetourt County (November 29, 1785) LVDC.

24) Dinwiddie County (November 28, 1785) LVDC.

 

In the Battle for the Wall of Separation between Church and State the Supreme Court Now has a Wrecking Ball

The Trinity Lutheran v. Comer Supreme Court decision has unfortunately not received the attention it deserves. This is partly a result of the distractions of the all-consuming Trump show, and partly because it was portrayed in the media as a limited decision of little importance beyond the specific case. However, the accompanying footnote that supposedly limited the decision was rejected by three of the seven (Chief Justice Roberts, and Justices Thomas and Gorsuch) who signed onto the decision. More significantly, the principle established by this ruling cannot, legitimately at least, be limited to this specific case. If their rulings are to mean anything, the Supreme Court must be guided by a set of principles which they apply consistently, rather than by arbitrary, ad hoc decisions. Sotomayor, writing for the minority (herself and Justice Ginsburg), clearly understands the implications: “In the end, the soundness of today’s decision may matter less than what it might enable tomorrow.” And what makes this case of such great consequence is that it “is about nothing less than the relationship between religious institutions and the civil government–that is, between church and state.” (see entire ruling here)

The U.S. Supreme Court 2017

The radical nature of this decision is best illustrated by this statement made by Chief Justice Roberts, writing for the majority: “Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.” What he is saying is that the decision made by Missouri’s Department of Natural Resources to deny a religious institution a grant paid for with public monies for constitutional reasons is discrimination against a church because of its religious status. This is stunning! Religion is THE thing called out by both the Missouri state constitution and the U.S. Constitution for special treatment. Of course, Roberts knows exactly what he is doing. Conservatives have long dreamed of dismantling the wall of separation of church and state. With the Supreme Court’s help, they have been dismantling it brick by brick, but the pace of destruction has accelerated. Now, with the principles established by the Trinity Lutheran ruling, they have a wrecking ball.

While radical in its scope this ruling is a continuation of the conservative push to emasculate the Establishment Clause while bolstering free exercise rights. To conclude that the state of Missouri violated the Free Exercise Clause by denying the grant to the church “solely because of their religious character,” Roberts needed to brush aside the constitutional prohibitions of both the Missouri State Constitution (“no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof”) and the U.S. Constitution’s Establishment Clause (Congress shall make no law respecting an establishment of religion”). According to Roberts, these seemingly clear prohibitions against public funding of religion were outweighed by the more substantial claims of the church to freely practice its religion.

Under the rules of strict scrutiny he dismisses Missouri’s state disestablishment requirement by insisting that the state’s “religious establishment concerns” were not a sufficiently “compelling” state interest. This flippant attitude towards something (the disestablishment of religion) which the religious dissenters fought so hard to achieve at this nation’s founding is astonishing. It shows a complete disregard for the protections which the “no establishment” principle provides for the rights of conscience. (see What the Religious Right Gets Wrong About Religious Freedom)

His disdain for establishment limits is also apparent in his treatment of the Establishment Clause. Roberts barely finds it necessary to explain its irrelevance. Ironically, it is the landmark Everson case that erected “the wall of separation” which provides the workaround. While Everson had generally set the precedent for a “high and impenetrable” wall between church and state, it also unwittingly provided the means with which to dismantle the wall. By ruling that the public funding of bus transportation to Catholic schools did not violate the Establishment Cause, the Everson majority established a precedent that ran contrary to its “high and impenetrable wall” metaphor. The glaring contradiction between the principle of separation and the green light given to the public funding of transportation to a private religious school did not go unnoticed. Justice Jackson, writing one of the minority opinions, highlighted the fact that “the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion, yielding support to their commingling in educational matters.” The implications of the incongruous Everson opinion were not lost on the four dissenting Justices.

The logic that prompted the usually discerning Justice Hugo Black to rule as he did was the idea that the bus services for school children were “public services,” such as police and fire protections, that do not fall under the rubric of impermissible religion-state entanglements. This same logic also underlies the Trinity decision, and convinced Justice Breyer to join the conservative majority. But the analogy is false, as Justice Jackson indicated when Justice Black first proposed it: “A policeman protects a Catholic, of course, — but not because he is a Catholic; it is because he is a man, and a member of our society. The fireman protects the Church school – but not because it is a Church school; it is because it is property, part of the assets of our society. Neither the fireman nor the policeman has to ask before he renders aid, ‘is this man or building identified with the Catholic church?’” State-funded transportation to a religious school is not like the vital services of police and fire protection.

Even more problematic was the distinction between the secular and religious functions of religious institutions, as Justice Rutledge in a separate dissenting opinion pointed out: “Payment of transportation is no more, nor is it any the less, essential to education, whether religious or secular, than payment for tuitions, for teachers’ salaries, for buildings, equipment, and necessary materials.” In other words, supporting the secular aspects of a religious institution is no different than supporting its religious purposes. Sotomayor, in Trinity, also highlighted the flaw in this thinking: “The Church’s playground surface—like a Sunday School room’s walls or the sanctuary’s pews—are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.”

Despite such flawed thinking the Roberts Court finds the Everson precedent useful in brushing aside the Establishment Clause. Sotomayor rightly scolds the majority for this astonishing break from the past, which “slights both our precedents and our history.” It “slights” history because public funding of religion was nearly universally rejected early in our history. In regards to precedents, the Trinity case is the first time the Court has approved direct public funding of religion without any “assurances that public funds would not be used for religious activity, despite the religious nature of the institution.” As problematic as these earlier precedents are, they were the precedents that should have guided the Trinity case. Instead, Roberts decided to push the envelope and approve the direct public funding of religion with no limits except in cases where the state can prove it has a compelling “state interest ‘of the highest order.’”

With all establishment concerns dismissed, Roberts can now turn to the Free Exercise Clause which forms the basis of his decision in favor of Trinity Lutheran Church. Roberts insists that the state’s discriminatory act “impose[d] a penalty on the free exercise of religion” of the church, thereby violating the Free Exercise Clause. Here, his case turns on the charge of “discrimination.” By denying the grant to the church’s learning center the state discriminated against the church “solely because it is a church.” Notice his slide from a constitutional mandate to “discriminate” (i.e. to treat differently) against religion and turned it into an act of illegitimate “discrimination” made on the basis of prejudice or hostility. A review of the precedents used by Roberts may help illustrate how he turned Missouri’s legitimate action into a case of unconstitutional “discrimination.”

In 1993 the Supreme Court (Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993) found a series of laws passed by the city of Hialeah unconstitutional because they were neither “neutral” nor “generally applicable” laws. These laws were clearly an attempt by the city to prevent the members of the Santeria religion from sacrificing animals, which were an essential part of their religious ceremonies. This is clearly a case of religious discrimination, but is this the same kind of discrimination as that found in the Trinity case? Notice that the city of Hialeah was singling out a particular religion, whereas the state of Missouri was acting in compliance with a constitutional prohibition against all religions. The Trinity Lutheran Church in Missouri was not singled out, or denied, out of any hostility towards Lutheranism. Therefore, this case does not provide the precedent he needs to charge the state with “discrimination” against religion itself.

Another precedent provided by Roberts illustrates the same kind of deceptive maneuvering. In McDaniel v. Paty (1978) the Court struck down a Tennessee law that forbade ministers from participating as delegates in the state’s constitutional convention. Roberts characterizes this case as one representing discrimination against the “religious identity” of the ministers. The problem with this conclusion is that the exclusion was made on the basis of occupation, not “religious identity.” If the state had made a prohibition against anyone with a “religious identity” there would have then been a very small pool of qualified candidates for the convention. In addition, the constitutional ban against the clergy was enacted in order to prevent any potential church-state entanglements that might take them back down the road to ecclesiastical tyranny. Tennessee was not the only state to enact such laws, and the vast majority of those who supported this kind of ban were deeply religious. They were trying to protect both religion and government, thus they were clearly not doing it out of any kind of animosity towards religion. Once again, this precedent doesn’t provide the needed constitutional basis with which to charge Missouri with discrimination against religion itself.

To bring his point home Roberts includes a quote from H.M. Brackenridge’s 1818 speech in defense of a bill that would have allowed Jews to serve in public offices in Maryland:

If, on account of my religious faith, I am subjected to disqualifications, from which others are free…I cannot but consider myself a persecuted man…An odious exclusion from any of the benefits common to the rest of my fellow-citizens, is a persecution, differing only in degree, but of a nature equally unjustifiable with that, whose instruments are chains and torture. (1)

Brackenridge, who was not a Jew, was not complaining about a general ban on “religious faith” as it might appear based on this out of context quote. Instead, he was protesting against the unjust exclusion of members of a particular religion (Judaism) from holding public office. The religious test in Maryland was not a discriminatory ban against religion, it was discriminatory against Jews and all other non-Christians. Here again we see another attempt to equate prejudicially-motivated discrimination with actions made in compliance with the constitutional mandates of Missouri state and U.S. Constitutions. This unjustified move was called out by Sotomayor, who reminded the majority that “in this area of law, a decision to treat entities different based on distinctions that the RCs [Religion Clauses] make relevant does not amount to discrimination.”

This ruling has taken a constitutional state action and turned it into a case about discrimination against religion. This is partly because Roberts, like other conservatives, believes that the separation principle is itself a form of hostility to religion. They forget that the disestablishment of religion was essential to protecting not just their religious liberty but also religion itself. (see What the Religious Right Gets Wrong About Religious Freedom) Justice Jackson’s charge against the majority in Everson applies more aptly to the Trinity case: “the Court today is unconsciously giving the clock’s hands a backward turn.”

Notes:

  1. For more information on this “Jew Bill” see E. Milton Altfeld, The Jew’s Struggle for Religious and Civil Liberty in Maryland (Baltimore: M. Curlander, 1924), 110.

What the Religious Right gets Wrong About Religious Freedom: Lessons from the Religious Dissenters of Revolutionary Virginia

Finding itself more often than not on the losing end of the culture wars the Religious Right has taken up a new strategy to regain their lost supremacy in American culture. (1) They have cast themselves as the victims of a hostile secularism, which they claim is out to destroy their Christian values and religious freedom with it. To defend themselves, and to restore an endangered religious freedom, they launched a campaign against the progressive forces that they see as incompatible with their religious beliefs. Behind this movement is a well-organized network of advocacy organizations, think tanks, and various legal organizations. Their cleverly crafted “religious freedom” campaign has paid big dividends in the culture wars, from the passage of numerous Religious Freedom Restoration Acts (RFRA) and Government Nondiscrimination Acts (GNA) that allow individuals and companies to discriminate in the states, to the Hobby Lobby Supreme Court case, which allowed two “closely-held” companies with owners who objected to certain forms of birth control, to drop out of federal requirements to provide contraception to its employees. Their strategy rests upon a super-charged right to the free exercise of religion unrestrained by an enfeebled Establishment Clause. How does this “religious freedom” square with that championed by those who fought to disestablish religion at the founding of our nation?

The current self-styled champions of religious liberty claim to be defending the same values as the generation that was responsible for binging us the religious freedom we so cherish as a nation. But the “religious freedom” of the Religious Right seems at odds with those of the founding generation. To understand how the new champions of religious liberty differ from their eighteenth-century predecessors, a comparison may be useful. Most histories of religious freedom focus on the efforts of Thomas Jefferson and James Madison, but given the current rhetoric that portrays the fight as one between the religious and non-religious (although this has never been the case) this essay will focus on the pious dissenters who were Jefferson’s and Madison’s closest allies in their fight to disestablish religion. The alliance may seem surprising at first, but the alliance makes sense when one realizes that those who fall outside the dominant or favored religion have just as much of a stake in separating religion from government as do more secular groups.

In an effort to discredit separationist interpretations of the First Amendment, some have tried to set the views of the dissenters apart from those of the rationalists. Rather than agreeing with the strict separationist stances of the rationalists, they argue that the dissenters wanted “moral values based on religion…welcomed in the marketplace of ideas and in the formation of public policy and law.” (2) However, the evidence for this claim, and others like it, is problematic. (see detailed examination of Esbeck’s claims here). The dissenters were actually aligned in their goals, even if some of their reasons for doing so were not.

Given the importance of Virginia in shaping our understanding of religious liberty and the First Amendment, this essay will focus on the religious dissenters in that state. The creation of a Declaration of Rights, drawn up by the distinguished statesman George Mason, kicked off a decades-long fight for religious liberty. At the prompting of the budding statesman James Madison, a change in the document gave the dissenters of the established Church of England the legal basis to challenge all establishments of religion. In the estimation of Mason’s revolutionary document had a serious flaw. Article 16, meant to protect religious freedom, promised only “toleration.” With the help of his future nemesis Patrick Henry, Madison successfully had the unfortunate wording replaced with the promise of equal liberty: “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” (3)

In Madison’s original proposal the above clause was followed by what he saw as the implications of his equal free exercise clause: “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 the Colour of Religion, any Man disturb the Peace, the Happiness, or Safety of Society, or of Individuals.” (the italicized section was part of Mason’s original version) Understanding that this meant the disestablishment of the Church of England the mostly conservative Anglican delegates rejected this clause, but they did so without understanding that the accepted clause was all that was needed, as the clause which followed was derived from it. The dissenters immediately understood the implications, and began drawing up petitions calling for the disestablishment not just of the established church, but of all religion. It is also important to note the second section of Madison’s rejected first proposal. It indicates that neither Madison, nor Mason, believed that religion could be used as an excuse to harm society or individuals. This obvious limit to religious freedom was almost universally accepted.

Long despised, and frequent victims of abuse, the dissenters (mostly Baptists and Presbyterians) greeted the Declaration of Rights with enthusiasm; it promised them the equality that they had long craved. Accordingly, they showered the document with unfettered praise, especially Article 16, which they called “the rising sun of Religious liberty, [meant] to relieve them from a long night of Ecclesiastical bondage.” (4) Under its banner they called for the disestablishment of religion. In an attempt to appease them the legislature passed a bill exempting them from the burden of supporting the privileged church, but it fell short of their ultimate goal to destroy all establishments, which meant that the dissenters continued their petitioning campaign. (5) But given the distractions of war the main showdown had to wait until after General Cornwallis had surrendered in Yorktown.

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

The issue returned with a vengeance after the legislature distributed the bill “Establishing a Provision for the Teachers of the Christian Religion” for comment at the end of the 1784 legislative session. This effort awoke a sleeping giant, and prompted the dissenters to flood the legislature with nearly one hundred petitions. The stunned legislature was forced to abandon all attempts to support religion; this gave Madison the momentum he needed to finally secure the passage of Jefferson’s Bill for Establishing Religious Freedom in 1786.

In contrast to these eighteenth-century religious dissenters, who suffered under the yoke of a privileged religion, the of the Religious Right of today advocates for a very different kind of religious liberty: one that sanctions discrimination and seeks privileges from the state. The petitions which the religious dissenters sent to the legislature from 1776 to 1786 offer unique insight into their conception of religious liberty, thus exposing the folly of the Religious Right’s “religious freedom” campaign.

Religious Freedom Belongs to Everyone Equally

The American Revolution accelerated a shift in thinking about religious toleration that had important implications for the future of the young nation. The idea of toleration as a necessary characteristic of any civilized society was the product of years of religious conflict that had soaked Europe in blood in the aftermath of the Reformation. Nevertheless, this major achievement of humanity was hopelessly out of step with the republican principles that the Americans were fighting for. The excitement of the moment is unmistakable in this Presbyterian petition, where they declared their support for the Revolution and “the necessity of casting off the yoke of tyranny, and of forming independent governments upon equitable and liberal foundations.” They looked forward to the prospect of being “freed from all the encumbrances which a spirit of domination, prejudice, or bigotry, hat interwoven with most other political systems.” (6)

The problem with toleration was that it countenanced a hierarchical system. This reasoning was lucidly expressed by the popular Baptist preacher John Leland, who declared: “The liberty I contend for is more than toleration. The very idea of toleration is despicable; it supposes that some have a pre-eminence above the rest to grant indulgence, whereas all should be equally free, Jews, Turks [i.e. Muslims], Pagans and Christians.” (7) as is evidenced by Madison’s rejection of Mason’s original proposal for toleration in the Declaration of Rights this sentiment was not one only supported by the dissenters, who obviously had the most to gain from a shift to a more equitable scheme. If they were going to fight under the banner of freedom and equality they rightly demanded these for themselves. Hence, they took up the mantle of religious liberty, which rests on the conviction that the rights of conscience belong to everyone equally.

In an effort to make good on the promise of equal rights and armed with the legal backing of the Declaration of Rights, the dissenters set out to banish all religious establishments. They reasoned that if all citizens are equally in possession of the same rights then all privileging made on the basis of religious opinions must go. This logic was spelled out in an article published in the Virginia Gazette later that year: “when men form the social compact each reserves to himself the right of choosing and acting for himself in what relates to religion and conscience, does it not follow that every individual is equally entitled to protection in the exercise of this, as much as of any other unresigned right, to obtain which they were induced to part with so great a portion of their natural liberty, and which they (all) parted with in an equal measure?” (8) It was this logic of universal equality that prompted the dissenters to petition the legislature to disestablish, not just the Church of England, but religion altogether. (9)

From the fact that all citizens were equal members of society, as secured by the Declaration of Rights, the dissenters understood that any law that privileged any one religion, denomination, or religious doctrine was an unjust privilege and in violation of the equal rights of those who did not adhere to those beliefs or practices. Thus, the Presbyterians demanded that “that all laws now in force in this Commonwealth which countenance religious domination” should be repealed. (10) Similarly, the dissenters from the Tuscarora Congregation demanded that “[n]o Laws which are indefensible & incompatible with the rights of Conscience [illeg.] be Suffered to remain” (11)

In calling out the unjust marriage and vestry laws that privileged the Episcopalians, the Baptists called upon the legislature to “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 while they specifically called out the marriage and vestry laws because they found them to be the most egregious, they demanded that the legislature to “consign to Oblivion all the Relicks of Religious Oppression, and make a public Sacrifice of Partiality at the glorious Altar of Freedom.” (12) (italics mine)

Even symbolic privileges were seen as a form of domination and incompatible with a republican form of government. After losing government funding, the Episcopal Church retained its title as the established church; the Presbyterians found this kind of favoritism intolerable, and complained to the legislature about this “superiority and distinction in name” (i.e. “established church”). (13)

In particular, the dissenters’ reaction to the proposed bill “For Establishing a Provision for Teachers of the Christian Religion” illustrates the centrality of individual equality to their notion of religious freedom. There were two aspects of the bill that the dissenters saw as in conflict with the principle of equality. The first concerns an accommodation given to the Quakers and Mennonites as denominations without “teachers.” The legislature proposed that the monies collected from them would go to a “general fund,” which could then be used in a manner “best calculated to promote their particular mode of worship.” (14) Rather than seeing this as a thoughtful gesture by the legislature the dissenters denounced it as unforgivable privileging. Indignant, the Presbyterians complained that the “partiality” was based on the false assumption that the “Quakers and Menonists” were “more faithful in conducting the religious interests of their society than the other sects.” (15) The Baptists complained that this “indulgence” was “an open offense; and in its native tendency will if imposed on this state, prove injurious to the peace, and tranquility of a people, who justly respect the enjoyment of equal privileges, according to the Bill of Rights, which we still esteem as the Basis of any present happy constitution.” (16) The Quakers were in agreement with their fellow dissenters. They carped that it was an “an infringement of Religious and Civil Liberty established by the bill of Rights,” as well as an affront to “the convictions and tender scruples of their own minds.” (17)

But more importantly in this context, it is the dissenters’ rejection of any state-favoritism for Christianity that demonstrates their commitment to full equality. This is at odds with the claim that the dissenters wanted to infuse public policy with Christian moral values. While many Virginians were comfortable with a broadly inclusive Christian establishment, the dissenters were not. It would have been a betrayal of the very principles for which they were fighting for. Excluding non-Christians, they insisted, “unjustly subjects men who may be good citizens, but who have not embraced our common faith, to the hardship of supporting a system they have not as yet believed the truth of; and deprives them of their property.” (18) Another petition implored the legislature, after they proposed to provide provisions to Christian “teachers,” to “let Jews, Mehometians, and Christians of every Denomination injoy religious liberty…therefore thrust them not out now by establishing the Christian religion.” (19) Similar pleas can be found in many of the dissenters’ petitions. (20)

It seems reasonable to conclude that if these dissenters were simply seeking full equality for all religions they would therefore be satisfied with state support as long as it included all religions, but this is to misunderstand the dissenters’ conception of religious freedom. They sought to end all connections between religious and government, except those which protected religious liberty. This was because, as Leland so forcefully explained, “Let it suffice on this head, to say, that it is not possible, in the nature of things, to establish religion by human laws, without preventing the design of civil law and oppressing the people.” (21)

Separating Religion and Government is Necessary for Religious Freedom

The obvious religiosity of the dissenters has led some to conclude that they therefore could not have been in favor of a secular government that banished religion to the private sphere. This may seem intuitive from their perspective, but in the dissenters’ veiw it was precisely because they so valued their religion and their right to make their own choices on this matter that they supported the separation of church and state. Their petitions leave no doubt as to what they wanted (separation of religious concerns from civic concerns) and why (to protect their rights, the state, and religion).

Placing religion in law, and thus establishing it, was seen as anathema to the dissenters because it necessarily violated the equal rights of conscience. (22) As the antidote to the religious oppression created by establishments the dissenters demanded the separation of religion and government as one of the most consistent themes in their petitions to the legislature. Following John Locke, they divided society into two mutually-exclusive spheres (civil and religious). In this scheme religion was “wholly Destitute from the secular affairs of public society” and in “the discharge of the duties of Religion every man is to account for himself as an Individual.” Accordingly, religion “ought not to be made the object of any Human Law.” (italics mine) To do otherwise would be a “glaring violation of our Religious Liberty.” (23) Similarly, the Presbyterians complained that the bill was “a departure from the proper line of legislation.” Religion, they insisted, “is altogether personal, and the right of exercising it unalienable; and it is not, cannot, and ought not to be, resigned to the will of the society at large; and much less to the legislature.” (24) Similar expressions of separation were found in the majority of their petitions to the legislature. (25)

The only role they saw for the state in matters of religion was “to support them in their just rights and equal privileges.” (26) To do otherwise, even if it benefited themselves, would be a violation of their equal rights of conscience, which is why the dissenters rejected the general assessment bill that would have included benefits for their own denominations. They reasoned that it was not only “Sinful & Tyrannical” “to Compel a Man to furnish Contributions of money for the Propagation of opinions which he disbelieves and abhors,” that it is equally tyrannical to force “him to Support this or that Teacher of his own religious persuasion” because that would be “depriving him of the Comfortable Liberty of giving his contributions to the Particular pastor whose morals he would make his Pattern.” This is why they insisted “[t]hat Matters of Religion are not the Object of Civil Government, not under its Jurisdiction.” (27)

Despite previously insisting that they wanted “no ecclesiastical establishment for” themselves, the Hanover Presbytery briefly supported a general religious assessment, but only if it was “the most liberal plan” possible (i.e. not limited to Christianity). However, this move was strategic, rather than a genuine change of heart. They were convinced that an assessment was a fiat accompli so they reasoned that it would be better to at least try to limit the damage by pushing the legislature in a more inclusive direction. (28) What the Hanover Presbyterians did not account for when they took up this strategy was the negative reaction from their own lay population. The outrage from the broader Presbyterian community, coupled with anger over the incorporation of the Episcopal Church, convinced the Presbytery to reverse course again. The Presbytery voted, therefore, “unanimously” to oppose “any kind of an assessment by the General Assembly for the support of religion.” (29)

In an effort to speak with one voice, the members of the Presbytery, in a joint effort with the broader Presbyterian community, drew up a new petition that came out strongly against all religious establishments. Unambiguously, the Presbyterians asserted, “Religion is altogether personal, and the right of exercising it unalienable; and it is not, cannot, and ought not to be, resigned to the will of the society at large; and much less to the Legislature, which derives its authority wholly from the consent of the people, and is limited by the original intention of civil associations.” True religious freedom could only be achieved by severing the ties between church and state.

Since some have insisted that the dissenters did not support a strict separation of religion and government because “they were religious people who sought disestablishment for (as they saw it) biblical reasons,” (30) it will be necessary to briefly examine the evidence for this claim. Support for this claim is usually based on the fact that some of the petitions called for laws to punish vice and immorality. The problem with this argument is that only a few of the petitions called for “wholesome laws,” and of these even fewer actually support such a conclusion.

The 1776 and 1777 petitions of the Hanover Presbytery indicated that the state should “restrain the vicious and encourage the virtuous by wholesome laws, equally extending to every individual.” (31) What they meant by “wholesome laws” is unclear, but there is no evidence that this included “moral values based on religion.” (32) They never pressed for such laws, except when they briefly supported a “liberal” general assessment. But, as indicated above, they did it for strategic reasons, not as a matter of principle. And after 1777 this kind of ambiguous language was gone.

The more representative Presbyterian petition of 1785 states in no uncertain terms:

Religion is altogether personal, and the right of exercising it unalienable; and it is not, cannot, and ought not to be, resigned to the will of the society at large; and much less to the Legislature, which derived its authority wholly from the consent of the people, and is limited by the original intention of civil association.

In addition, they declared that dependence “on earthly governments” was “destructive of genuine morality” since religion and morality depended on “the internal conviction of the mind,” something that laws cannot accomplish. (33) This unambiguously shows that they did not make any exceptions for religious morality in their separationist stance.

The popular 1785 “Spirit of the Gospel” (SOG) petition is not as clear cut as the Presbyterian position, but still fails to provide any substantial evidence in support of the dissenters’ desire to bring religious morality to bear in the making of public policy. While the petition called for laws punishing “the Vices, and Immorality of the people,” there is no indication that this included religious dogma. (34) And given the fact that they also stated that they wanted the legislature to “recommend Religion” only through “pious example” (not law) makes it unlikely that this is what they were seeking. Another petition addressing the issue of morality is even more problematic for the accommodationist position. This petition explicitly requested “Laws of morality,” but only those “which are necessary for private and publick happiness.” It is possible that the moral principles in this category included religiously derived ones, but this is doubtful since they also asserted “that the Church as a Spiritual body, has a polity of its own intisily distinct from and independent of all combinations of men for Civil Purposes.” (35) The petitioners of Chesterfield County made an almost identical argument, claiming that “Immorality” could be punished only in “so far as Society is injured.” (36) If these dissenters had argued otherwise they would have contradicted the very principles they were so desperately trying to put into practice. To allow the state to impose the morality of someone else’s religion results in the very ecclesiastical tyranny that they found abhorrent.

There was only one dissenter petition, out of over one hundred sent to the legislature from 1776 to 1786, which unambiguously supported state-mandated religious morality. A petition from Amherst County called for the enforcement of the act “for more Effectual Suppression of Vice__ Restraint of [illegible] & Punish men of Openly Profain & __.” (37) This was a law that enforced some aspects of Christian morality before independence, but as part of the revisal of laws it was due to be repealed and replaced with the proposed law “for Punishing Disturbers of Religious Worship and Sabbath Breakers.” The new version, like many of the bills that were part of the revision project, had yet to be enacted in 1785 when the Amherst petitioners sent their grievances to the legislature. So these petitioners were undoubtedly in favor of the harsher version, which bound citizens to some aspects of Christian dogma. However, this was an outlier within the dissenting community that was otherwise broadly united on this issue. It therefore cannot be used to represent the general position of the dissenters.

It is also important to note that the revised “Sabbath” law, which finally passed in 1786 was not, as some have claimed, in response to the dissenters. This law had been part of the revisal of that began in 1777, with most of the work carried out by Thomas Jefferson, George Wythe, and Edmund Pendleton. (38) Jefferson himself wrote the so-called Sabbath law. While the bill “compeled the observance of Sunday as a day of rest” was very liberal in comparison to the existing law it was meant to replace, which punished atheism, “blasphemies,” profane swearing, drunkenness, as well as compelled attendance at “divine service at his or her parish-church or chapel.” (39) The only thing retained in the revised law was the directive to not labor on Sundays. It may seem surprising that Jefferson would approve of this religiously-based mandate, but it is important to remember that the revised laws needed to be approved by the entire revisal committee and eventually it had to pass through the legislature which was still dominated by conservative Episcopalians. Jefferson was not given free rein to make laws according to his own liking. Jefferson also indicated in his Autobiography that the committee agreed “to undergo as few Changes as possible” when revising the laws. (40) When it eventually passed in 1786 it was because Madison was determined to finally complete the revisal of laws which had begun in 1776. The Sabbath bill was not passed at the prompting of the dissenters.

There was some support among the dissenters for the “day of rest,” despite the fact that it enforced an obviously Christian practice in contradiction to their impassioned opposition to religious coercion. But this support was not universal. One of the most determined foes of Sunday laws was Leland, who recognized that they were contrary to the principles of religious liberty, as well as Christianity. Therefore, he insisted “that the appointment of much stated holy-days,” should not be “part of human legislation.” He rejected such establishments for both religious and secular reasons, claiming that he could not “deduce it from the source of natural right, so neither can I find a hint in the New Testament, that Jesus or his apostles, ever reproved any for the neglect of that day; or that they ever called upon civil rulers to make any penal laws about it.” (41)

More than any other dissenter, Leland devoted his life to tearing down all religious establishments. His extensive writings on the subject offer the clearest and most consistent effort to articulate a coherent vision of religious liberty. In doing so he explained why sins (religious morality), as opposed to crimes, fell outside the bounds of civil law. Using history as his guide he pointed out 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.” Even sins “of enormous size,” he averred, were “not crimes to be punished by the laws of state, which extend no further, in justice, than to punish the man who works ill to his neighbor.” (41)

The dissenters saw separation as a necessary condition of religious freedom, which in turn protects religion, the state, and society. Does separation put some burdens and restrictions on religion? Yes, but necessarily so. To establish in any way religion by law privileges the religion of some at the expense of everyone else, and this takes us back to the religious tyranny that the dissenters were trying to abolish. To this end, Leland asserted, “May the combination of rulers and priests, church and state, be dissolved, and never re-unite.” (41)

The Free Exercise of Religion is Not an Absolute Right

As the Religious Right continues now to press for an unconstrained free exercise of religion (for Christians anyway) at the expense of everyone else it is worthwhile to examine the necessary limits to this right. Like all other eighteenth-century Americans, the dissenters never imagined an absolute freedom to practice one’s religion. (42) There was broad agreement that one’s right to practice one’s religion did not include the right to harm others. Locke’s admonition against discrimination would have been met with near universal approval. He asserted, “no private person has any right in any manner to prejudice another person in his civil enjoyments, because he is of another church or religion. All the rights and franchises that belong to him as a man, or as a Denison, are inviolably to be preserved to him. These are not the business of religion NO violence nor injury is to be offered him, whether he be Christian or pagan.” (43) Any state committed to equal religious liberty cannot condone religious-based discrimination. Everyone is responsible for themselves and cannot compel (directly or indirectly) others to conform to one’s own religion. Persuasion is the only option available in a free society. This is the foundation upon which religious freedom is built.

Related to this obvious “no harm” principle is one that is less obvious but just as important. The ban on establishments of religion necessarily places limits on religion and its advocates. This is why the dissenters fought so aggressively against establishments, by which they meant laws concerning religion “except for protection.” (44) Before the Revolution the dissenters had the right to practice their religion, albeit with some restrictions, but what they didn’t have was religious freedom. They were second-class citizens in an Anglican (Episcopalian after independence) world. Hence they insisted that religion and government should be separate, as shown above.

Did this mean that some Virginians would have to lose some of their privileges, even ones that were in line with their deeply held religious beliefs? Most certainly. Religious freedom can only exist when all citizens are given equal rights of conscience (i.e. no one’s religion is privileged by the state). This meant that the members of the Episcopal Church had to give up their sacred relationship with the state. Not surprisingly, Episcopalians resisted what they perceived to be an assault on their religion. One member of the Episcopal Church lamented the attack against his church, which he saw as “depriv[ing] men of what they have always enjoyed, and been taught to regard as their right.” (45) In the end, they had to sacrifice their cherished way of life to the republican commitment to equal liberty. Anything less would have been a continuation of the system of toleration, not religious liberty.

This is why the Establishment Clause is so important. It protects citizens from state-imposed religious dogma. And just as importantly it limits the free exercise of religion. Religious individuals or groups are not free to enlist the state in their religious endeavors. Just as the state is forbidden to intervene in religion, religion is barred from intervening in the affairs of the state. If the state is forbidden from making laws concerning religion then religious individuals or groups cannot use their power to place religious doctrines into law, even if they insist that it is required by their sincerely held religious beliefs.

However, many on the Right have convinced themselves that the Establishment Clause (EC) limits only the state, not “the church.” The problem with this argument is that this one-way prohibition sets up the very conditions to recreate the religious oppression that the EC was meant to prevent. If we value religious freedom then religion must also be restrained from intervening in civil concerns. This was the point of Locke’s two spheres, which the dissenters more faithfully adhered to: “Ecclesiastical authority, whether it be administered by the hands of a single person or many, is everywhere the same; and neither has any jurisdiction in things civil, nor any manner of power of compulsion, nor anything at all to do with riches and revenues.” (46) The temptation to have one’s own religious doctrines enshrined in law is great, but those who do so must understand that their attempts to do so undermine religious liberty. In order to “consign to Oblivion all the Relicks of Religious Oppression,” legislators must be willing to “make a public Sacrifice of Partiality at the glorious Altar of Freedom.” (47) The last clause of article 16 was not simply a nicety; it was a plea to remind those who might be tempted to disregard the rights of others “that it is the mutual Duty of all, to practice Christian Forbearance, Love and Charity towards Each other.”

If the legislature is forbidden to bring religion into law, then any requests by the church or individuals to do so cannot be granted. Some have taken the fact that as a Baptist minister Leland participated in politics as evidence that he and other dissenters supported the influence of religion in the making of public policy. (48) But this is a misunderstanding of Leland’s views on the relationship between religion and government. Yes, Leland and other members of the dissenting clergy participated in politics, but they did not do so in order to bring their own religious dogmas or practices into law. They participated as citizens in matters that were within the realm of the state (civil concerns) most important to secure their religious rights. Leland explained why this is a necessary component of religious liberty: “private judgment and religious opinions are inalienable in their nature, like sight and hearing, and cannot be surrendered to society. Consequently, it must be impious usurpation for ecclesiastics or civilians to legislate about religion.” (49)

Against those who violated this principle Leland cautioned, “How improper, how unjust, how anti-Christian it must be, for one man or one party of men to get that kind of religion interwoven into the civil constitution, which they believe is best, under the pretence that their consciences are wounded if others do not believe like themselves. The plea of conscience, in such cases, is the art of ill design. or the effect of imposition, which none but tyrants or bigoted enthusiasts will make.” (50)

This strong stance against all establishments of religion was the logical consequence of their devotion to the equal rights of conscience. This link between rights and no establishments (i.e. no laws on the subject of religion) runs through the dissenters’ petitions as shown above. This is why they embraced a strict separation of religion and government.

Separation Protects Religious Freedom and Religion

The argument that the separation of church and state is hostile to religion is now common on the Right. (51) This is not how the religious dissenters saw it. To them, the strict separation of religion and government was necessary to protect religion and religious liberty. (52) They were motivated to separate religion and government out of hostility to religious tyranny and a love for their religious liberty. State-imposed religion (i.e. establishments of religion) violated the sacred rights of conscience, and was “of all Oppression the most inhuman and insupportable.” (53)

Just as important as the theme of “ecclesiastical tyranny” was the theme of the corrupting influence of connections between religion and government. On this subject, they found history a useful guide. Pleas like the one found in the “Spirit of the Gospel” petition were common: “that the Blessed author of our Religion, supported and maintained his Gospel in this World for several Hundred years; not only without the aid of Civil Power, but against all the Power of the Earth.” Never was Christianity purer than it was prior to when it was established “by Human laws” by Constantine. (54) History, they insisted, “has shown that this dependence, where it has been effected, has been an injury rather than an aid.” The Presbyterian minister John Todd, in a letter to Jefferson opined 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.” 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.” (55) In other words, it was connections between religion and government that were hostile to religion. (56) Therefore, they wanted a separation in which “every man” would “be Left free from all Compulsion in this _ matter,” which would “be Best both for Church & State.” (57)

Conclusion

The religious dissenters of Virginia sought a religious liberty that was grounded in equal rights, and was best secured by a strict separation of church and state. This, they believed, was best for religion, government, and society. This vision is the opposite of the “religious liberty” championed by the Religious Right today. A religious liberty that allows discrimination, seeks privilege, and frequently infringes on the rights of others is not religious liberty; it is religious domination. Forgetting the lessons of the past the Religious Right is undermining what their forbears so wisely put in place.

Notes:

1. Reva Siegel & Douglas NeJaime, “Conscience and the Culture Wars,” The American Prospect (June 29, 2015).

2. Carl H. Esbeck, “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review, 2004), 1580. Similarly, Thomas E. Buckley argued that the dissenters “expected that government, in caring for the general welfare, would institutionalize certain Christian norms and values,” in Church and State in Revolutionary Virginia 1776-187 (Charlottesville: University Press of Virginia, 1977), 182.

3. Madison’s Amendments to the Declaration of Rights (29 May – 12 June 1776) Founders Online.

4. Petition from Prince Edward County (October 11, 1776) in Journal of the House of Delegates of Virginia, 1776 (Richmond: Samuel Shepherd & Co.), 1828, p. 7.

5. A bill For exempting the different societies of dissenters from contributing to the support and maintenance of the church as by law established 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, 1821), 165.

6. Hanover Presbytery Petition (October 24, 1776). The petitions used in this essay can be found at the Library of Virginia: Digital Collection.

7. John Leland, “The Virginia Chronicle” in The Writings of the Late Elder John Leland: Including Some Events in His Life by John Leland and L.F. Greene (New York: G. W. Wood, 1845, Public Domain Reprint), 118.

Here are some examples of similar statements:

Amherst County petition (November 1, 1777): They informed the legislature 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.”

Amherst County petition (1779): They informed the legislature 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.”

George Washington (letter to Hebrew congregation in Newport, RI, 1790): “All possess a like liberty of conscience, and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.”

For other examples see The First Prejudice: Religious Tolerance and Intolerance in Early America by Chris Beneke and Christopher S. Grenda, (Philadelphia: University of Pennsylvania Press, 2011) p. 291.

8. “Queries on the Subject of Religious Establishments” Virginia Gazette (Purdie) November 8, 1776.

9. Prince William Baptists (June 20, 1776); Prince Edward (October 11, 1776); Hanover Presbytery (October 24, 1776); “Ten-thousand name” petition (October 16, 1776); Albemarle, Amherst, and Buckingham counties (October 22, 1776); Berkeley, Dissenters of Tuscarora Congregation (October 25, 1776); Albemarle and Amherst counties (November 1, 1776); and Augusta County (November 9, 1776).

10. Hanover Presbytery (October 24, 1776).

11. Berkeley County (October 25, 1776).

Here are additional examples of this thinking:

Albemarle and Amherst Counties (November 1, 1776): “Your Memorialists flattered themselves, that the form of Government, that would secure just & equal Rights to the Subjects, would be the Choice of every Individual, both from the Consideration of the Justice, & good Policy, that should be contained in it, and also from the Convention, that, by the joint and strenuous Endeavors of every one our Liberty, our all would be defended against the unjust violations, thereof & which therefore all should enjoy equal Privilege.”

 “Ten-thousand name” petition (October 16, 1776): “Ten-Thousand Name” petition: they expressed hope at the prospect of “equal liberty,” which they believed was “the birthright of every good member of the State.” They therefore requested to be freed from the “burthen of an ecclesiastical establishment…as well as every other yoke.”

Hanover Presbytery (June 3, 1777): They 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.” 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)

12. Baptist Association (November 8, 1780).

Here are some additional examples from other dissenting petition against the unjust marriage and vestry laws:

Baptist Association (June 3, 1782): “That it is evident that Dissenters are not on an equal Footing with Churchmen as they are subject to taxation without a fair and Equal Representation by the Vestry Law, and their  Ministers so ignominiously distinguished from Episcopal Ministers in the latter Clause of the Act declaring what shall be a lawfull Marriage. Your Memorialists therefore hope that your wisdom and Justice will suggest to you the Expediency of removing the Ground of Animosity, which will remain while Preference is given, or peculiar Favours are granted in our Laws to any particular Religious Denomination.”

Baptist Association (November 6, 1783): “…we have patiently waited, while the great matters of the war, was the subject of deliberation, but as that struggle is now happily over we hope that our former petitions, & memorials, may be attended to, in loandrg[?] session, & humbly pray for a redress of our grievance & that no law may pass, to connect the church, & state in the future [illeg…].”

Amelia County (May 1783): “Nothing can be more evident, than that the Partiality of the above mentioned Laws, will be construed as a Design to bestow Badges of Honor on Churchmen, and to fix Marks of Disgrace upon Dissenters, which can only tend to gratify Pride and Spleen on the one Hand, and excite Envy and Discontent on the other; and will serve to keep the otherwise dying Embers of Animosity still alive – Your Memorialitsts therefore hope you will put the finishing Hand so the Religious Freedom of all your Constituents, and that no invidious Distinctions may hereafter remain in our Laws between Churchmen and Dissenters.

13. Hanover Presbytery (November 12, 1784). Financial support for the church was suspended per the Act For exempting the different societies of dissenters from contributing to the support and maintenance of the church as by law established. The dissenters were relieved of all obligations to support religion while the members of the Episcopal Church were supposed to continue in their obligations, but at the last minute this obligation was suspended. In 1779, that obligation was legally abolished. (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], 61).

14. A bill “Establishing a Provision for Teachers of the Christian Religion” (1784) in Buckley, Church and State, 189.

15. Ministers and lay representatives of Presbyterian Church (November 2, 1785).

16. Baptist Association (November 17, 1785).

17. Quakers (two petitions. almost identical) (November 14, 1785).

18. Hanover Presbytery (November 2, 1785).

19. Chesterfield County (November 14, 1785).

20. Northumberland County (November 28, 1785): “Those who are not of the Christian Religion are by the assessment Bill denied the Privileges which by Nature they are said to be entitled to, and from the Declaration of Rights they might reasonable Expect.”

Here are additional examples:

Amherst County (December 10, 1785): “That it is unjust especially towards those who under the Sanction of our (hitherto) mild & Tolerant Laws & Constitution have Emigrated to this Country and by complying with the Laws have become free Denizans or Franchise Citizens of the State__ But most now (if not yet Converted to Christianity) seek an Asylum elsewhere or be Subject to the Penalties of the Law that is, Contribute to the Support of a Religion to which their Consciences have not yet Assented__ And therefore (how Excellent soever the thing is in itself or to its Real Professors) must at least be one mode of Persecution with reference to them.”

Botetourt County (November 29, 1785): “This Article gives men of Every persuasion who are Citizens an Equil Right to the free Exercise of their Religion according to the dictates of Conscience, and to Compell Jews by law to support the Christian Religion which the * as an arbitrary & despotick usurpation Which Christians ought to be ashamed of * and so long as Constitution has force of a Constitution we Consider it a Duty we owe to ourselves and posterity to defend it from the outrage even of a majority.”

Washington County (December 10, 1785): “it will enslave a considerable part of the good citizens of this country to hardships of a scheme, they have not adhered to:__ and consequently, foreigners averse to the common theory of christianity * their fortunes in other parts of the earth where more liberal sentiments prevail.”

Chesterfield County (November 14, 1785): “In trust let Jews, Mehometans, and Christians of every Denomination find their advantage in living under your laws religion is of god to man the civil law is of you to your people, then let it be your great wisdom and goodness to study our strength and wealth which will for ever be the glory and Boast of the nation (for liberty & Freedom) and let the church of Christ and religion alone.”

21. Leland, “The Rights of Conscience Inalienable, and, therefore, Religious Opinions Not Cognizable by Law; or, the High-Flying Churchman, Stripped of his Legal Robe, Appears a Yahoo,” (1791) in The Writings of the Late Elder John Leland, 187.

22. Baptist Meeting of the General Association (April 1777) In a report examining the laws of Virginia the Baptists designated “numerous laws…as offensive, prominent among which was the law which required all marriages to be performed by Episcopal clergymen, with the ceremonies of the Established church, and made all otherwise performed illegal and void; and all the laws establishing the Episcopal church as the religion of the State, and providing for its support from the public purse. As the best method to procure their removal from the statute book, continued agitation among the people and petitions to the Legislature were recommended; and, as expressive of such government action as was desired, a law was drawn up in form and reported, entitled, ‘An Act for the Establishment of Religious Freedom,’ to be presented to the Legislature, with an earnest petition that it might be adopted as a law of the State.” (Charles F. James, Documentary History of the Struggle for Religious Liberty in Virginia [Lynchburg, Virginia: J.P. Bell Company, 1900], 102-3.)

Rockingham County (1784): “it is our Humble Opinions that any Magistrate or Legislative Body that takes upon themselves the power of Governing Religion by human Laws Assumes a power that never was committed to them by God nor can be by Man for the Confirmation of which Opinion we shall Cite no less authority than the Great Mr. Lock who says ‘that the whole jurisdiction of the Majestrait [sic] reaches only to civil Concernments and that all civil power Right and Dominion is bounded and confined to the only care of promoting these things’ which is so Pertinent that we need not Expatiate on it.”

23. Rockbridge County (November 2, 1785).

24. Ministers and lay representatives of Presbyterian Church (November 2, 1785).

25. “Declaration of the Virginia Association of Baptists,” Virginia Gazette (Dixon & Hunter) (March 28, 1777), 6-7: The proposed general assessment bill them 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!”

Here are some additional examples:

Surry County (October 26, 1785): “if such Tax is against the spirit of the Gospel; if Christ for several Hundred years, not only without aid of civil power, but again all powers of the world supported it, If Establishment has never been a means of [propagating?] the Gospel. If no more faithful men would be called into the ministry by it; if it would not revive decayed Religion nor stop the Growth of Deism, nor serve the purpose of Government, & if against the bill of rights; your Petitioners trust that the wisdom & uprightness of your Honourable House will leave them intirely free in matters of Religion & the manner of supporting its ministers, and they shall ever pray” [This petition represents the standard version of the popular “Sprit of the Gospel” petition (25 separate petitions that followed the basic narrative of the original, but with some variations)]

Bedford County (October 27, 1785): “the Legislature has no right to Interfere in matters of Religion as we think that it would be a violation of the rights of the Good People of this state our Bill of Rights…”

 Northumberland County (November 28, 1785): “That Matters of Religion are not the Object of Civil Government, not under its Jurisdiction.”

Botetourt County (November 29, 1785): “we Consider it indisputable as well from the nature of things as the History of Mankind that Civil government & Religion are, and ought to be. Independent of Each other to [?….] _ The one have for its object a proper Regulation of the Eternal conduct of men towards each other to Regulate this the Business of Legislature; the latter have for its object our internal or spiritual welfare & is beyond the reach of human Laws”

Amherst County (December 10, 1785): “That As the Christian Religion neither Originated from Nor is Dependent on Human Laws for its Support so neither can it be Subject to their Cognizance.__ Because being in its * Properties of a Divine & Spiritual Nature It is altogether an invisible Thing residing only in the Mind & Conscience according to the Evidence & Connections There wrought by its Divine Author___ Therefore as it has no Necessary Dependence on or connexion with the Institutions of Civil Society * & Designs being wholly Different) So any attempt to blend them together necessarily Confounds the Order of things as may be seen by the unhappy Consequences of such Attempt throughout the Christian World in almost every Age & nation where this Unnatural System hath been adopted.’”

Washington County (December 10, 1785): “It is generally agreed at the present era, that religion is a personal, privilege, hence we suppose an attempt rational; when legislative capacity seems to afford it protection:__ and we understand should not be left, in any other extent to the legislator:__ to controul us in that most valuable birthright: wo’d be robbing us indeed of the highest blessing Heaven affords us.”

26. “Ten-thousand name” petition (October 16, 1776).

Ministers and lay representatives of Presbyterian Church (November 2, 1785): “We never resigned to the control of government our right of determining for ourselves in this important article; and acting agreeably to the convictions of reason and conscience, in discharging our duty to our Creator. And, therefore, it would be an unwarrantable stretch of prerogative in the Legislature to make laws concerning it, except for protection.”

27. Northumberland County (November 28, 1785)

Here is an additional example:

Baptist Association (November 3, 1785): “That to compel man to furnish contributions of money to support that Religion which they disbelieve and abhor * sinful and tyrannical that to compel even * to support the Gospel who profess to believe it, is inconsistent both with the * and independent Spirit of the Christian Religion, and the custom of the Primitive Church.” (the asterisk denotes sections that are illegible)

This wording actually comes from Jefferson’s bill “For Establishing Religious Freedom,” which had yet to pass the legislature: “That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves [and abhors], is sinful and tyrannical; that even the forcing him to support their or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern.”

28. Eckenrode p. 89-90, Charles Grier Seller, Jr., “John Blair Smith,” Journal of the Presbyterian Historical Society 34 (December 1956), 212; Thos. Cary Johnson, Virginia Presbyterianism and Religious Liberty in Colonial and Revolutionary Times (Richmond: Presbyterian committee of publication, 1907),105; William H. Foote, Sketches of Virginia: Historical and Biographical (Philadelphia: William S. Martien, 1850), 557.

29. Foote, Sketches of Virginia, 341.

30. Esbeck, “Dissent and Disestablishment,” 1590.

31. Hanover Presbytery (October 24, 1776 and June 3, 1777).

32. Esbeck, “Dissent and Disestablishment,” (1580).

33. Ministers and lay representatives of Presbyterian Church (November 2, 1785).

34. Carl H. Esbeck: “a separation of religion-based values from government and public affairs would have been received with wide disapprobation in the new nation. This is because civic virtue, now to be formed in the independent sectors of home, church, voluntary society, and school, was still deemed essential for the orderly exercise of liberty and acquisition of the self-discipline necessary to sustaining a republic.” (“Dissent and Disestablishment,” 1579-80); and Thomas E. Buckley: “A central tenet of this generation maintained that the success or failure of the republican experiment depended ultimately on the virtue of the people and the leaders they selected.” (Establishing Religious Freedom: Jefferson’s Statute in Virginia [Charlottesville: University of Virginia Press, 2013], 62)

35. Baptist Association (November 3, 1785).

36. Chesterfield County (November 14, 1785).

37. Amherst County (December 10, 1785).

38. The original committee had two additional members (George Mason and Thomas Ludwell Lee) but they did not participate in revising the laws because they, according to Jefferson, excused themselves as “unqualified for the work.” (Thomas Jefferson, “Autobiography”)

39. “Act for the effectual suppression of vice, and restraint and punishment of blasphemous, wicked, and dissolute persons” in Henning, Statutes at Large, III, 358-62.

40. Jefferson, “Autobiography.”

41. Leland, “The Yankee Spy” (224 and 221); and “Oration, etc.” (269) in The Writing of the Late Elder John Leland.

42. Queries on the subject of Rel. establishments, Virginia Gazette (Nov. 8, 1776):

The author begins by grounding his argument in the state of nature, where “any man, or collection of men, might embrace what doctrines of faith, and worship the deity in what form they pleased, without interfering with the same, or any other natural right of their neighbors.”

To the Clergy and Laity of the Church formerly established in Virginia, Virginia Gazette (April 24, 1778): “as uniformity of sentiment is a chimera of the brain alone, it becomes the duty of each to endeavour to maintain that form which they think most useful and agreeable to themselves, most likely to preserve order and decency in their public worship, and most promotive of learning and morality, as far as such endeavours do not interfere with the civil rights of others.”

John Leland: “The freedom here contended for, is not founded on the toleration or benevolence of those in authority, but in nature, inalienable right, of which individuals cannot be deprived, but by impious tyranny. I call it impious; for a man cannot give greater evidence that he is ignorant of the precepts and spirit of Christianity, than when he resorts to legal coercion to compel others to perform what the himself believes to be religious duties. If a man works ill to his neighbor, punish him according to his crime whether he pled religious impulse or devilish instigation, the fact alone is to be attended to. But where conscience begins, empire ceases.” (see footnote 49)

43. John Locke, Letter Concerning Toleration (1689).

44. Ministers and lay representatives of Presbyterian Church (November 2, 1785).

45. The Virginia Gazette (November 1, 1776).

46. John Locke, Letter Concerning Toleration (1689).

47. Baptist Association (November 8, 1780).

48. Carl Esbeck claims that “Although Leland fought vigorously against any legislation favoring the church, he had no qualms about a robust involvement of the church or her members in political activity.” (“Dissent and Disestablishment,” 1522) Esbeck argues that Leland was a proponent of what he calls “voluntaryism” which is a principle that sees issues of establishment in terms of the proper boundaries between the two institutions of church (not religion) and state. In other words, the objects against establishments were not about rights or separating religion and government. A quick glance at Leland’s extensive writings on the subject of religious liberty clearly shows that Leland was no proponent of Esbeck’s made up concept of voluntaryism (see First Amendment Folly).

49. Leland, “Which Has Done the Most Mischief in the World, the Kings-Evil or Priest-Craft?” in The Writings of the Late Elder John Leland, 488.

50. Leland, “Short Essays on Government, And the Proposed Revision of the Constitution of Government for the Commonwealth of Massachusetts,” in The Writings of the Late Elder John Leland, 474.

51.

Supreme Court Justice Anthony Kennedy in Allegheny: “Rather than requiring government to avoid any action that acknowledges or aids religion, the EC permits government some latitude in recognizing and accommodating the central role religion plays in our society…Any approach less sensitive to our heritage would border on latent hostility toward religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious.”

Philip Hamburger: “Whereas the religious liberty demanded by most dissenters was a freedom from the laws that created these establishments, the separation of church and state was an old, anticlerical, and, increasingly, antiecclesiastical conception of the relationship between church and state.” (Separation of Church and State. [Cambridge: Harvard University Press, 2002]10)

Carl H. Esbeck: “A separation of government from all that is arguably religious (or arguably has a religious foundation) would result in a secular public square, one that is hostile rather than neutral to the influence of religion on society.” (“Myths, Miscues and Misconceptions: No-Aid Separationism and the Establishment Clause,” Notre Dame Journal of Law, Ethics & Public Policy 13 (1999)], 309-10)

52. Here are some additional examples:

“Ten-thousand name” petition (October 16, 1776): “having long groaned under the burthen of an ecclesiastical establishment, they pray that this, as well as every other yoke, may be broken, and that the oppressed may go free, that so, every religious denomination being on a level, animosities may cease, and Christian forbearance, love, and charity, practised towards each other, while the Legislature interferes only to support them in their just rights and equal privileges.”

Freeman’s Remonstrance (1777): “…a religious tyrant is the worst of all tyrants; and no wonder, for a tyrant can have no true religion. O Virginia! beware of Churchmen who are for climbing above your heads! I think it might be easily proved, that ecclesiastical establishments, instead of tending either to the civil or religious advantage of States, are, in fact, great obstacles and impediments to both. Yea, they have been the principal, and not the only causes of all the plots, conspiracies, war and bloodshed that have been the plagues of Christendom for many centuries past. And I verily believe, had there never been an established Church in the British Empire, we should have been to this day, an united, peaceable, and happy people.” (“A Freeman of Virginia,” The Freeman’s Remonstrance Against an Ecclesiastical Establishment: Being Some Remarks on a Late Pamphlet, Entitled The Necessity of an Established Church in any State [Williamsburg: John Dixon and William Hunter, 1777], 11-12)

Amherst County (December 10, 1785): “Therefore as it has no Necessary Dependence on or connexion with the Institutions of Civil Society * & Designs being wholly Different. So any attempt to blend them together necessarily Confounds the Order of things as may be seen by the unhappy Consequences of such Attempt throughout the Christian World in almost every Age & nation where this Unnatural System hath been adopted.”

Baptist Association (November 17, 1785): “That passing said Bill into a law would be opening the door to religious Tyranny. For that Legislature which has authority to establish all, most certainly have an equal power to establish any one Denomination of Christians, to the disparagement, and oppression of all the rest. And that we fear, would be followed with all the sanguinary horrors of persecution.”

Baptist Association (November 3, 1785): “[Happiness?] from the History of Establishments in Religion that they have generally been unfavourable not only to the progress of real piety and Charity; but to the Liberties of those States where they have existed which is a further reason why they should most seriously object against the Bill in Question. for allowing it to have been form’d with the most benevolent intentions towards the State, there is no surety that it may not be made in some future period a foundation on which men of alliberal or mistaken principles, may raise a Superstructure of Domination, totally destructive of our present system of liberty.”

Pittsylvania County (November 7, 1785): “When mature deliberation on the Said Bill, we Humbly conceive that the most fatal consequences may result from its passing into a Law: both the Libertys of the people as well as, the subversion of all true Religion.”

Chesterfield County (November 14, 1785): “In trust let Jews, Mehometans, and Christians of every Denomination find their advantage in living under your laws religion is of god to man the civil law is of you to your people, then let it be your great wisdom and goodness to study our strength and wealth which will for ever be the glory and Boast of the nation (for liberty & Freedom) and let the church of Christ and religion alone is our mature Deliberations and conclusions.”

Dinwiddie County (November 28, 1785): “We therefore with much confidence present * to this Honorable House, to inform, them that we formerly petitioned for an Assessment, and that on more mature consideration, * now opposed to it as  a measure, injurious to the liberties of the people, destructive to true Religion, and which may be fatal to the happiness, and prosperity of this Commonwealth, As their and many other, Fatal consequences, may appear before you, to the Same purpose, Your petitioners flatter themselves, that your Unprejudiced minds, will deliberately Confides and penetrate into every evil, that may * from that same. And they shall ever pray &c., &c.”

53. Baptist Association (November 8, 1780)

54. Surry County (October 26, 1785).

Here are several other similar statements:

Hanover Presbyterians (October 24, 1776): “Neither can it be made to appear that the gospel needs any such civil aid. We rather conceive that when our blessed Saviour declares his kingdom is not of this world, he renounces all dependence upon State power, and as his weapons are spiritual, and were only designed to have influence on the judgment and heart of many, we are persuaded that if 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.”

Amherst County (November 1, 1779):Fully Persuaded Gentlemen That the Religion of Jesus Christ may and ought to be Committed to the Protection Guidance & Blessing of its Divine Author and needs not the Interposition of any Human Power for its Establishment & Support.”

Rockingham County (November 18, 1784): “To which we would add that is certain Christianity was first planted and was propagated through the World for three hundred years by truth and love without and often against the use of Secular force can then the power thereof be more plainly denied in any way than by saying (as some does) that it would soon fail if not supported by Tax and Compulsion…Now we would ask is Religion Lost in any of those places or whether there is not as much of it there as where thought to be well Guarded by human Laws we believe there is and that there are proofs enough to Shew that this Liberty hath greatly Contributed to their Wellfare [sic] both Civil and Religious and sure we are that there hath not appeared any thing amongst them more Contrary to the Spirit of true Christianity than what is before Related.”

Chesterfield County (November 14, 1785): We therefore do most Dutifully Declare against it to be contrary to the Gospel & sound Policy for the Author of the Christian Religion declares this Kingdom is not of this world and for the men of world to undertake to Legislate for their subjects in matters of Religion in Violating of his Kingly prerogative, even those of the Christian church have no right to Amend his Laws by adding to the Command of Holy Writ as a Legislator but only to Judge of as a Judicator according to reason conviction and the Dictates of Conscience.”

55. “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.

56. Here are some additional examples:

Ministers and lay representatives of Presbyterian Church (November 2, 1785): “Its Divine Author did not think it necessary to render it dependent on earthly governments. And experience has shown that this dependence, where it has been effected, has been an injury rather than an aid. It has introduced corruption among the teachers and professors of it wherever it has been tried for hundreds of years, and has been destructive of genuine morality, in proportion to zeal, of the powers of this world, in arming it with the sanction of legal terrors, or inviting to its profession by honors and rewards.”

Pittsylvania County (November 7, 1785): “When mature deliberation on the Said Bill [religious assessment], we Humbly conceive that the most fatal consequences may result from its passing into a Law: both the Libertys of the people as well as, the subversion of all true Religion.”

Baptist Association (November 3, 1785): “from the History of Establishments in Religion that they have generally been unfavourable not only to the progress of real piety and Charity; but to the Liberties of those States where they have existed which is a further reason why they should most seriously object against the Bill in Question. for allowing it to have been form’d with the most benevolent intentions towards the State, there is no surety that it may not be made in some future period a foundation on which men of alliberal or mistaken principles, may raise a Superstructure of Domination, totally destructive of our present system of liberty… On the whole as it appears the Bill is not adopted promote true piety, but rather to destroy it if brought into a law of the state, that being contrary to the sentiments of different religious societies as such, and to many individuals perhaps in every society.”

57. Mecklenburg County (1785).

Here are some additional examples:

Amelia County (November 9, 1785): “Then shall Light break out in Church & State, knowledge cover the Earth. We shall be like * of Nations, and all oppression forever Extirpated.”

 Brunswick County (November 28, 1785): “We do believe, that it is best for Church and State, and most agreeable to the Gospel of Christ that all Men should be free from all Compulsion in this Matter; except that of their own Reasons and Conscience.”

 

 

 

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.

Conclusion:

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.

Notes:

(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.