In terms of the decision itself, what was notable about how the Court presented the history of the Second Amendment and guns?
Most notable is that the Court says it is going to look to history and tradition, but then ignores history and tradition. The Court says that only gun laws which have historical precedent are constitutionally permissible, and then the Court dismisses all of the historical precedents for heavy restrictions on concealed-carry laws as outliers. The Court says that it is going to look to history, but dismisses early English common law as too old. The Court says that it is going to look to history, but dismisses any laws that were adopted after the mid-eighteen-hundreds as too young. The Court says that it is looking to history, but also says that shall-issue permitting is constitutional, even though shall-issue permitting is a twentieth-century invention. So the Court says that it is doing history and tradition analysis, but conveniently ignores any history it doesn’t like.”
2. A post in Politico does a really great job debunking the Court’s Second Amendment originalist claims: “The Supreme Court’s Faux ‘Originalism’: The conservative Supreme Court’s favorite judicial philosophy requires a very, very firm grasp of history — one that none of the justices seem to possess.”
In the case of the Second Amendment, Congress sought to assuage the concerns of antifederalists who feared the rise of a large standing army that might stamp out Americans’ liberties, much as the British army had done in the 1760s and 1770s. The amendment provided that Congress could never deprive people the right to own firearms in the dispatch of their obligation to fulfill militia service. The right to own a gun for individual self-protection was a different — a matter of common law that, as Scribble Scrabble noted, could be expanded, modified or taken away by legislation.
The distinction between collective rights and obligations to bear arms, and individual rights to gun ownership, was widely understood. In Virginia, Thomas Jefferson attempted to include a specific individual right to bear arms in the state constitution, to complement the existing provision safeguarding militias. His effort failed. Similar efforts failed in other states.
One might argue that early state constitutions were distinct from the federal Constitution approved by convention in 1787. But these early state documents deeply informed the federal effort in Philadelphia. The discussion around their adoption lends an understanding of how Americans thought about rights in the late 18th century.
But to appreciate how the founding generation thought about firearm regulation, we can look at what they did, and not just what they said. James Madison, the author of the Bill of Rights, twice introduced state legislation in Virginia that would impose penalties on any individual who “bear[s] a gun out of his inclosed ground, unless whilst performing military duty.”
You read that right. The author of the Second Amendment drafted statewide legislation that was effectively a forerunner to the New York state law that the Supreme Court just struck down. The bill, which was really aimed at regulating deer hunting, did not pass. But it clearly demonstrated that Madison viewed individual gun ownership as well within the state’s regulatory prerogative.
3. The next two were published in The New York Review of Books:
“Ruling by Fear: The Supreme Court’s conservative justices paint a dark portrait of society, danger lurking in every shadow, to justify overturning a New York gun control law.” by Liza Batkin
“By enshrining a constitutional “right to carry a handgun for self-defense outside the home,” the Supreme Court’s decision in New York State Rifle & Pistol Association Inc. v. Bruen all but guarantees more guns on streets already bristling with them. It ushers in a world that many people will not be happy to inhabit. But the conservative justices are already living in that world. A dark and cynical view of society runs through their opinions and the questions they asked at oral argument. Danger lurks behind every corner, threatening to lunge at our heels, and the best we can do is arm up. It’s a Wild West worldview in the guise of an originalist, text-bound decision.”
“The Remaking of the Second Amendment: The Supreme Court’s expanding interpretation of the Second Amendment threatens longstanding democratic authority to enact gun safety measures.” by Duncan Hosie and Reva Siegel
Excerpt (reminder of recent “originalist” (not!) case establishing the Second Amendment as an individual right for the first time with emphasis on the 2008 part):
“That changed in 2008, when five Republican-appointed justices on the Supreme Court asserted that they had discovered the “original meaning” of the Second Amendment and used it to invalidate a law restricting handgun possession. The case, District of Columbia v. Heller, involved a challenge to a local law that barred most residents from owning handguns and required that firearms kept at home be unloaded and disassembled or bound by a trigger lock or similar device. The Court’s conservative majority held that the Constitution’s framers ratified the Second Amendment to protect an individual right to keep and bear arms for self-defense, especially in the home, where the need for defense of self, family, and property is “most acute.” This 5-4 decision changed the way most Americans read the Second Amendment. The Court brushed away the Amendment’s first clause—“a well regulated Militia, being necessary to the security of a free State”—as merely “prefatory” and instead emphasized “self-defense” as “the core lawful purpose” of the Second Amendment.”
On June 27, 2022, the Supreme Court (SCOTUS) issued a decision in favor of former Washington State high school football coach, Joseph Kennedy, who was terminated, as the 6-3 SCOTUS majority puts it, “after he knelt at midfield after games to offer a quiet personal prayer.”
This is where the lie begins– right out of the SCOTUS-supermajority starting gate– which makes me wonder if the SCOTUS conservative supermajority decided the outcome of this case and then tried to work backwards through the facts– selecting some, shaping some, and omitting some– in order to create a narrative in support of its creation, “quiet praying” Kennedy.
On its face, the SCOTUS supermajority’s version of events leads one to believe that once the district discovered that Kennedy was praying and offering a sort of catechism with his football players in the locker room before games as well as leading a prayer midfield immediately…
Did the Champion of Religious Freedom Oppose a Tax for the Support of “Teachers of the Christian Religion” to Protect “the Church”?
The advent of originalism in Constitutional jurisprudence has put the Founders front and center in a battle for the soul of the nation. The desire to enlist them in support of one’s preferred interpretation is irresistible. The result has been a lot of bad history. (1) When it comes to the First Amendment the most sought-after founding ally in the battle over its meaning is James Madison, whose substantial role in drafting the First Amendment makes his views indispensable. On the subject of religious liberty Madison’s views are well known and well documented. There are debates to be had about the exact contours and extent of his commitment to a strict separation of religion and government but the fact that he was devoted to a strong separation is undeniable. This fact has not stopped accommodationist devotees from trying to enlist him in their originialist projects. One of these attempts is the subject of this essay.
Challenging the rights-protecting function of the Establishment Clause the legal scholar Carl H. Esbeck argues that it was instead meant to be a structural mandate which is about “the management of power” between two centers of authority. (2) To justify this interpretation Esbeck turns to history. While he has examined the events at the First Federal Congress which wrote the clause, he has mainly focused on the history of disestablishment in the states to justify his theory on originialist grounds. (3) The history of the struggles to disestablish religion in the states reveals what Esbeck calls the American Settlement. This settlement was not “one of a hermetic separation between church and state in which all things religious are kept at arm’s length from government, its lawmaking, and other public affairs.” Instead, he claims that it was about “a free church and a limited state.” (4) The focus of his research has been on the religious dissenters because they made up the majority of those pushing for disestablishment, and they were doing so, according to Esbeck, not from a rationalist or secular perspective, “they were religious people who sought disestablishment for (as they saw it) biblical reasons.” (5) While acknowledging Madison’s rationalist bone fides he presents him as an exemplar of the American Settlement who was “writ[ing] from the perspective of a Christian.” (6) His interpretation is not based on a broad examination of Madison’s life’s work but is gleaned solely from Madison’s celebrated Memorial & Remonstrance Against Religious Assessments. (7)
This essay will examine Esbeck’s interpretation of Madison’s Memorial as presented in two of his more recent works on disestablishment. (8) A broader analysis of Esbeck’s work on disestablishment deserves attention, but since the goal here is to reveal how Esbeck uses history to support his interpretations of the Constitution a focused analysis is more useful. His approach to historical exegesis in this case is indicative of his approach more broadly.
The first section of this essay is a brief review of Esbeck’s American Settlement and its relationship to his structuralist interpretation of the Establishment Clause. This background sheds light on Esbeck’s otherwise mystifying interpretation of the Memorial. The next section provides a brief overview of the historical context in which Madison wrote his famous petition. The final section examines Esbeck’s interpretation of the Memorial and finds it wanting. Rather than finding support for Esbeck’s structuralist interpretation this essay demonstrates the rights-centric nature of Madison’s anti-establishment views.
Esbeck claims that the American Settlement’ as discerned from the history of disestablishment from 1776 to 1833, can be summed up as “a free church and a limited state.” This arrangement, according to Esbeck, satisfied the goals of the religious dissenters who wanted to protect church autonomy and unify the body politic. The term he uses to define this settlement is “voluntaryism.” Esbeck claims that he is using this “older spelling” “as a reminder that voluntaryism represents a specific package of ideas about religion, the nature of the church, and the limited role of the state.” (9) Both the term and the concept are curious since neither of them can be found in the historical record. Esbeck gives no specific source for this “older spelling” and a search through hundreds of relevant documents turned up nothing. The newer spelling “voluntarism” was frequently used, but it was not being used to convey a “package of ideas.” Whatever its historical merits, it does conveniently correspond with his views of the Establishment Clause.
Esbeck denies that the Establishment Clause has any rights protecting function. Instead, he insists, that the Establishment Clause was set up to serve a structural function which involves “the management of power” between two sovereign authorities. (10) Thus, the clause is about managing power between “the church,” by which he means organized religion, and the state. (11) Each of these two powers has its own competency. The church, accordingly, is designated “a competency centered in religion that is on a plane with that of civil government.” (12)
This arrangement has two purposes, according to Esbeck: “to avoid governmental interactions with religion that cause either a fracturing of the body politic (the civitas) along religious lines, or an undermining of the integrity of religion (religare) or religious organizations (the ekklesia).” As such, the Establishment Clause is meant to limit the government’s power to intervene in the domain that belongs to the church yet allows “the church” to influence the state. (13) In other words, the separation he is advocating for is a one-way street that limits only the state. And thus, he declares that the Establishment Clause “embodies this truism about the autonomy of religious organizations.” (14) Rather than protecting individuals the clause protects “churches,” and thus the Supreme Court’s role “is to police the boundary between government and religion looking to arrest overreaching by government, whether national, state, or local.” (15)
Undertaking that task, according to Esbeck, requires a set definition of “religion” that determines which of its aspects of it are within the bounds of state control. While Esbeck wants to keep the state out of the jurisdiction of religion he also wants to allow religious entities to bring religious morality to bear on government policy. Accordingly, he advocates setting the boundary at “those topics ‘respecting an establishment of religion,’ e.g., ecclesiastical governance, the resolution of doctrine, the composing of prayers, and the teaching of religion.” (16) Thus, leaving religious values and morality within the bounds of the government competency. This rendering of the Establishment Clause radically expands the power of organized religion to influence the state, while at the same time shielding it from governmental oversight.
To justify his two sovereign powers (the church and the state) theory Esbeck points to what he calls the “dual-authority pattern of church-state relations” in the West. He claims that this pattern was established in the fourth century when the Roman emperor Theodosius first established Christianity. This pattern, he insists, is “one of coexisting governmental and religious institutions, the former with authority over the civil and the latter having its province over the spiritual.” (17) This simplistic description of the complex relationship between the Christian Church and the state allows Esbeck to establish a framework that gives the church the same weight and authority as the state, never mind that in this arrangement the church actually lost much of its independence by aligning with the state. More troubling is its disconnect from the views of Madison and his religious allies.
Both the dissenters and Madison explicitly denounced this first establishment of Christianity. To them it marked the loss of Christian freedom and the beginning of ecclesiastical tyranny. They believed that the alliance between the church and the state corrupted religion. When the conservatives first attempted to enact a religious assessment in 1779, the Presbyterian minister John Todd wrote to Jefferson denouncing the establishment: “the experience of all the Churches Since Constantine, shew the absurdity of Establishments. Virtue and pure religion do better without earthly emoluments than with.” (18) (italics in original) In the Memorial Madison wrote in reference to the same period: “it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence.” (19) They wanted to undo the alliance by severing all ties between religion and government, rather than to secure “church autonomy” via a different kind of alliance between church and state.
Esbeck’s voluntaryism/structuralist framework denies any rights-protecting function to the no-establishment provisions in either the state constitutions or the First Amendment. The primary function of these mandates, in Esbeck’s estimation, is to secure church autonomy. This view guides his interpretation of the history of disestablishment and Madison’s Memorial.
Before diving into his interpretation of the document a brief background of the history leading up to its creation is necessary. The year 1776 was a momentous one for Virginia. It decided to join the other colonies in throwing off the yoke of British rule. A Convention assembled for that purpose also embarked on the project of creating a constitution and a bill of rights. The actual task of writing the documents was delegated to the respected statesman George Mason. His draft of the Declaration of Rights met with almost universal approval by the delegates and thus endured only two significant changes. One of those changes was prompted by the young and idealistic James Madison. The article dealing with religion sought only to secure mere toleration rather than true religious freedom. Having recently graduated from the Presbyterian College of New Jersey (Princeton), where he was fully immersed in Enlightenment thought, this offended his sense of justice. From his college years, one of Madison’s lifelong passions was religious liberty.
This obsession is evident in his letters to his friend William Bradford. In response to an incident in which several Baptists were jailed for “publishing their religious Sentiments,” Madison wrote to his friend of this outrage. He indicated that he had “squabbled and scolded abused and ridiculed” about the abuse but with little effect. “That diabolical Hell conceived principle of persecution rages among some and to their eternal Infamy the Clergy can furnish their Quota of Imps for such business.” Madison noted indignantly, “This vexes me the most of any thing whatever.” He asked his friend to pity him “and pray for Liberty of Conscience to revive among us.” (20) However, he had little hope of achieving this goal given that his fellow Virginians were “too much devoted to the ecclesiastical establishment to hear of the Toleration of Dissenters.” (21) Two years later he would be in a position to deal a major blow to that establishment.
As a delegate to the Convention of 1776 Madison was intent on going beyond the mere religious toleration George Mason had proposed in his draft. As opposed to equal religious freedom, toleration supposes a hierarchy of beliefs and believers. This was insulting to Madison’s enlightened sensibilities. He was committed to the ideals stated in the first article of Mason’s draft: “That all men are born equally free and independent…” (22) Thus, Madison proposed a substitute which would have ended the privileges of the established Church of England (soon to be the Protestant Episcopal Church) thus officially disestablishing it. This was something his Anglican colleagues were unwilling to do, and thus it was struck down. Determined, Madison made several other attempts until he finally received approval for a less ambitious alteration of the article. The language of toleration was replaced with a commitment to equality: “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” (23) This simple change of language set Virginia on the path to disestablishment and equal religious freedom. Without realizing it, the delegates had agreed to establish religious freedom and unwittingly set Virginia on the path to disestablishment.
Even without the explicit language from his original proposal the change from toleration to equality established the logic necessary to bring down the established church. By requiring equality in the exercise of religion it followed that all religious privileges be abolished. The religious dissenters, mostly Baptists and Presbyterians, understood the implications of the language and as soon as the Declaration was put into effect, they began sending petitions to the House of Delegates requesting not only that the establishment be dismantled but also
“that all laws now in force in this Commonwealth which countenance religious domination, may be speedily repealed—that all, of every religious sect, may be protected in the full exercise of their several modes of worship, and exempted from all taxes for the support of any church whatsoever further than what may be agreeable to their own private choice, or voluntary obligation. This being done, all partial and invidious distinctions will be abolished, to the great honour and interest of the State, and every one be left to stand or fall, according to merit, which can never be the case so long as any one denomination is established in preference to others.” (24)
They insisted “that the only proper objects of civil government are the happiness and protection of men in the present state of existence, the security of the life, liberty and property of the citizens, and to restrain the vicious and encourage the virtuous by wholesome laws, equally extending to every individual.” Eight petitions and two newspaper articles echoed these sentiments. (25)
Armed with the dissenters’ petitions Jefferson, who had recently returned from serving in the Continental Congress, drew up a bill that would have disestablished the Church of England while also “totally and eternally restraining the civil magistrate from all pretentions of interposing his authority or exercise in matters of religion.” (26) The conservatives in the House had other plans and scuttled Jefferson’s bid to disestablish their Church. However, parts of the bill were rescued, most significantly dissenters were relieved of their obligation to support the established church. (27)
Jefferson had been outmaneuvered. The conservatives not only scuttled the attempted disestablishment but were also able to sneak into the bill a troubling recommendation. They proposed a general assessment to support all Protestant denominations for future legislation. Whoever was behind the proposal mistakenly believed that the dissenters would back a broadly inclusive establishment that brought them into the fold. The conservatives understood that the tide of history was against single-denomination establishments and in an attempt to save the principle of establishment they proposed a more inclusive version. What they did not understand is that the dissenters were opposed to the principle, as they soon learned when a new batch of petitions came in again, this time they made sure to clarify their position. A petition from the Hanover Presbytery took aim at the recommendation: “as it is contrary to our principles and interest; and, as we think, subversive of religious liberty, we do again most earnestly entreat that our Legislature would never extend any assessment for religious purposes to us, or to the congregations under our care.” (28) The Baptists similarly denounced the suggestion, insisting that it was “pregnant with various Evils destructive to the Rights and Privileges of religious Society.” If it were to be implemented, they asserted, it would mean the end of the “last Article of the Bill of Rights” and “the free exercise of religion.” (29) Such opposition did not deter the pro-establishment Episcopalians who were just as determined to retain the tradition of establishments as the dissenters were to destroy it. Eight petitions in support of some form of establishment were sent to the legislature in 1777 and 1778.
The petitions were presented to the House of Delegates, but no action was taken until the end of the 1778 session and then only to postpone the matter for another year. During the fall session of 1779 a bill “concerning religion” was drawn up which would have essentially established the Protestant Christian religion by requiring that all participating religious societies to sign on to five articles of faith. The articles were broadly Protestant and would have brought most of the dissenters into the establishment fold. (30) Nevertheless, the bill failed. The lesson drawn by the pro-assessment crowd was that the required articles of faith doomed the project, not that religious assessments were unpopular.
In any case, the Revolutionary War put the issue on the back burner until 1783 when petitions for a general assessment made their way to the House of Delegates. The zealous Patrick Henry was the driving force behind the pro-assessment crusade. His popularity was sure to have persuaded the majority to pass a bill for such a purpose. But before he could get a bill across the finish line, he was conveniently elected Governor. It is widely believed, with good reason, that Madison had a hand in this auspicious affair. (31) If Madison and the anti-establishmentarians were to have any chance of blocking the assessment bill, they had to get rid of Henry. Even then, the bill was well on its way to being enacted when the pro-assessment delegates made a fateful error. The bill’s overconfident supporters agreed to postpone the vote until the next fall session so that the public could weigh in. Copies of the bill were sent out across the state for examination and public debate, most of which took place in 1785.
To the surprise of the pro-assessment faction the response from the public was overwhelmingly negative. There were some pro-establishment petitions, but they were dwarfed by the nearly one hundred anti-establishment memorials. Among them were thirteen copies of Madison’s petition, sent out anonymously, entitled Memorial & Remonstrance Against Religious Assessments. The majority of the petitions were from dissenters, but their arguments were in agreement with those of the Memorial and the dissenting petitions. (32) The lasting legacy of Madison’s petition is not simply a matter of Madison’s stature as a founder, it is also because of the clarity and force of its arguments. In Robert B. Semple’s History of the Rise and Progress of the Baptists in Virginia he praised the document for its “elegance of style, strength of reasoning, and purity of principle, it has, perhaps, seldom been equalled; [sic] certainly never surpassed by any thing in the English language.” (33) He astutely predicted that it would “ever hold a most distinguished place” in history. This praise comes from one of the Baptist leaders who was very much involved in the push to disestablish religion alongside Madison. He held the document in such esteem that he added it as an appendix to his history of the Baptists.
The structure of the Memorial is straight forward. It opens with a brief preamble, followed by fifteen arguments against the proposed bill for a general assessment and more broadly against all religious establishments. Where most people have interpreted the document as a plea for a strict separation of church and state, Esbeck sees it as an exemplar of “voluntaryism” and structuralism. Esbeck’s claim rests on the assumption that free exercise concerns (an individual right) and no-establishment concerns (structure) are separate issues. (34) He insists that the anti-establishment movement and opposition to the bill had nothing to do with “freedom of conscience, freedom of inquiry, or private judgment.” (35) Instead, he claims the goals were to protect the church from government interference and avoid discord among the various sects.
To fit the Memorial into his theory Esbeck needs to demonstrate that Madison wrote it within the dual-authority pattern framework discussed above, thus allowing him to use Madison’s petition as a vindication of his voluntaryism principle. Yet Madison did not speak in terms of two centers of power. Esbeck simply assumes that Madison is operating within this so-called Western church-state framework and makes no attempt to demonstrate that this was indeed how Madison understood the world. With this assumption in hand Esbeck turns to the task of interpretation.
The first two points of the Memorial are rights affirming arguments and as such they pose a serious challenge to Esbeck’s theory. As with all fifteen points, Madison begins his first objection with a “Because” statement: “Because we hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.’” The quote comes from the very article from the Declaration of Rights that Madison had a hand in altering, which opens with this statement. (36) In other words, the bill violates the right to the free exercise of religion and thus is unconstitutional. It is not a superfluous statement reminding the House that religion cannot be directed by force, it is a direct challenge to the bill.
To get around this obvious problem Esbeck attempts to obscure its meaning by summarizing the above section as:
“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.” (37)
The first thing to notice is that the quoted material is presented as if it were Madison’s own words rather than as a quote taken from the Declaration of Rights. In a footnote, which few readers would likely examine, Esbeck does acknowledge that it is a quote, and even then he misidentifies the source. He claims that it was taken from a 1776 petition penned by the Hanover Presbyterians. (38) While that language is in the Presbyterian petition, it is there because they were also quoting the Declaration of Rights. That document was central to both Madison’s and the dissenters’ case against the proposed bill; thus, Madison frequently quotes from it. It may have simply been an oversight on Esbeck’s part, but if so, it is a convenient oversight. Acknowledging it as the source of the quote would mean acknowledging that Madison’s objection was rights based.
As it is, Esbeck’s version presents the words as Madison’s own. His slight alteration of the quote is also misleading. The quote as presented by Madison reads “That Religion or the duty which we owe to our Creator…,” which accidentally leaves out the comma after “Religion.” It does not say “Religion is ‘the duty…,” as Esbeck presents it. Esbeck clearly wants to highlight the statement concerning one’s duty to “the Creator” and imply that they were Madison’s words, rather than George Mason’s. This helps him present Madison as someone coming from a religious rather than a secular perspective, which in Esbeck’s mind means that he could not possibly have wanted a secular republic. He also omits the phrase “or violence,” which is in both the Declaration and the Memorial, that follows “by force.” This is a minor detail, but it is hardly an accident. He leaves out all such references that associate religion with violence. (39)
Madison followed his opening statement with: “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.” Esbeck summarizes this as follows: “Each man has a right to determine his own religion.” Esbeck’s version implies that the right is simply about choosing one’s own religion whether that is Baptist, Catholic, or Hindu. This does not adequately capture Madison’s broader right of conscience. The right to choose one’s religion had existed in Virginia under the established Church of England, but what they did not have was freedom from state coercion in matters of religion. That required that religion be completely outside the realm of government jurisdiction, or as Madison put it, “Religion is wholly exempt from its [Civil Society’s] cognizance.” Hence, Madison’s insistence that it was an inalienable right, not just to determine one’s religion, but to be free from “the dictates of other men” in matters of religion.
Esbeck finds Madison’s second reason for the inalienability of the right more appealing:
“because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” (40)
Esbeck’s renders this line of reasoning in such a way as to make it seem that Madison was admonishing his colleagues to fulfill their “duty towards the Creator,” or as Esbeck rendered it “duty to God.” The real purpose of this argument should be obvious to anyone familiar with the basic arguments put forward by advocates of toleration. The logic of this argument can be clearly seen in Philip Furneaux’s 1773 Essay On Toleration:
“And from his being thus accountable to God alone, it follows, that as his judging and acting for himself in matters of religion is, with respect to his fellow men, a right which he holds independent of them; so, with respect to God, it is a duty which he owes to him: a duty, which he is bound to discharge, notwithstanding every attempt to induce him to process opinions, which he doth not believe; or adopt practices, which he doth not approve or acknowledge any authority, or any law, in the mere concerns of religion, except the divine authority, and the divine law. Absolute liberty, therefore, in the affair of religion, belongs to us, as reasonable creatures, dependent on, and subject to, the universal Sovereign and Judge. It is a right essential to our nature: whatsoever other rights, therefore, we are supposed to resign on entering into society, this we cannot resign; we cannot do it, if we would; and ought not, if we could.” (41)
In other words, because it is a duty to God alone and not to other men, “[a]bsolute liberty” in religious opinions and practice is required and it cannot be given up to the state. Madison was undoubtably influenced by Furneaux, as well as others, whose pamphlet he requested in 1775. (42) Thus, this line of reasoning is a fundamental argument meant to deny the state any jurisdiction in matters of religion.
Hence Madison’s conclusion “that in matters of Religion, no mans [sic] right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.” Notice that Madison clearly indicates that it is “Civil Society” that has no cognizance over religious matters, and that it is denied this jurisdiction because of an individual unalienable right. To obscure the obvious implications of this, Esbeck summarizes the statement in this way: “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.” (43) By replacing Madison’s “Civil Society” with “government” Esbeck can more easily fit the argument into his two centers of authority argument. The right that this exemption rests upon is similarly obscured. Where Madison talked about leaving religion “to the conviction and conscience of everyman,” Esbeck frames it as a choice to determine one’s own religion. Where Madison highlights individual rights, Esbeck highlights a duty to God. Where Madison speaks of civil society, Esbeck speaks of government. What had been a strong defense of individual rights thus becomes a modest statement about one’s duty to God and limiting the power of the government.
In addition to clever summaries Esbeck strategically omits significant sections of Madison’s argument. Here Esbeck notably ignores Madison’s conclusion which indicates “that the majority may trespass on the rights of the minority.” This observation was at the heart of Madison’s thinking about rights protection and thus its absence in Esbeck’s summary is notable. Standard assumptions about threats to rights put the onus on the executive, but what Madison learned in Virginia was that the greatest threat to rights came from majorities who sought to impose their will through the legislature, as he explained to Jefferson in a letter:
“Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. 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, if the legislative majority had found as they expected, a majority of the people in favor of the measure; and I am persuaded that if a majority of the people were now of one sect, the measure would still take place and on narrower ground than was then proposed, notwithstanding the additional obstacle which the law has since created. [The Statute for Establishing Religious Freedom] Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is cheifly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.” (44)
This insight famously led Madison to recommend that the problem be solved by delegating rights protection to federal oversight where the existence of the diversity of sects would make it more difficult for a majority to form. (45) Thus, he twice proposed to give the federal government “a negative in all cases whatsoever on the legislative acts of the States,” which he believed would prevent “the aggressions of interested majorities on the rights of minorities and of individuals.” (46) He failed to convince his colleagues of this measure, nevertheless it was an important element of his thinking about rights, and religious rights above all.
The problem for Esbeck is that it contradicts his structuralist claims. In reference to the Establishment Clause he insists that the goal “is not to protect people from other people. Nor is it to protect minority religions from majority religions. Nor is it to protect the nonreligious from the religious. Nor is it to protect the government from the church…” (47) This interpretation does not square with Madison’s, nor the dissenters’, views about establishments, and thus he simply ignores Madison’s statement about majorities. In the Memorial Madison had not yet fully fleshed out what would become the core principle of his thinking on rights. (48) This came after this fight over the general assessment as Madison prepared for the Constitutional Convention of 1787. And there can be no doubt that this was about establishments of religion. The attempted establishment that Madison was fighting against was the result of “overbearing majorities” attempting to impose their wills through the legislative body despite the prohibition against doing so in the Declaration of Rights. Writing years later about the Memorial and the defeat of the assessment bill, Madison boasted “under the influence of the public sentiment thus manifested the celebrated bill ‘Establishing Religious Freedom’ enacted into a permanent barrier against Future attempts on the rights of conscience as declared in the Great Charter prefixed to the Constitution of the State [The Declaration of Rights].” (49) To write religion into law is an establishment that privileges the religion of some above others in violation of their rights of conscience. The source of this problem was majorities, and thus not trusting majorities to engage in forbearance he sought a solution that would not rely on their good will, hence his solution that relied on a multiplicity of sects to prevent majorities from forming.
The second section of the Memorial is a logical extension of the first section which opens with: “Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body.” This is so because legislative bodies are necessarily “creatures” of society, Madison explains, and thus have the same limits and boundaries as those placed on civil society. Once again Esbeck’s summary replaces “Society” with “government.” From here Madison’s explanation lends itself to Esbeck’s ends. (50) Rather than simply saying that the powers of the legislature are derived from and limited by the people as well as being limited by the other branches of government Madison says,
“Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments [i.e., the executive and judicial branches], more necessarily is it limited with regard to the constituents. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people.”
In other words, the separation of powers is one way to preserve a free government, but another way is through “the great Barrier which defends the rights of the people” (i.e., the Declaration of Rights). Even though Madison is mentioning the other branches of government only to illustrate one of the ways the legislature is limited, Esbeck seizes on that language as evidence that Madison is making a structuralist argument.
Thus, Esbeck summarizes Madison’s argument as: “Not only is separation of powers among government’s three departments essential to limiting government, but the departments must not ‘overleap the great Barrier’ that limits all government.” Notice that the subtle differences in language shifts the focus to limiting government. To fit it into his “two centers of authority” concept he asserts in his commentary, “There is a center of authority that exists apart from the government, an authority over religious matters.” (51) This authority in Esbeck’s theory is, of course, the church. There is nothing in Madison’s statements, nor in any of his writings, that justifies imposing this perspective on Madison, but Esbeck needs to do so in order to make Madison a disciple of voluntaryism.
More troubling is Esbeck’s explication of the meaning of “the great Barrier.” The “great Barrier” is actually a reference to the Declaration of Rights, but Esbeck turns it into a barrier that limits government from overleaping into the domain of another authority (the church) whose jurisdiction is religion. (52) To come to this conclusion Esbeck has to ignore the obvious clues that indicate that Madison was referring to the Declaration of Rights. The first major clue is the fact that he refers to it as something “which defends the rights of the people,” which is conveniently absent in Esbeck’s summary. In addition, the Declaration is the foundation on which Madison challenged the legitimacy of the bill, and references to it are found throughout the Memorial. Thus, Madison is accusing the legislature of overleaping the barrier meant to protect “the rights of the people”: The Declaration of Rights.
Beyond the document itself, ample other evidence for this interpretation can be found. Madison frequently used the word “barrier” to refer to bills of rights. In a famous letter to Jefferson in 1788, Madison tried to defend the federal constitution’s lack of bill of rights by explaining,
“experience proves the inefficacy of a bill or rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.” (53) (italics mine)
It was his experience dealing with the repeated attempts to enact a religious assessment in Virginia that taught him that bills of rights were “parchment barriers” rather than “great Barriers,” but “barriers” nevertheless. This profusion of evidence contrasts with the lack of evidence for Esbeck’s interpretation. Nevertheless, Esbeck uses the phrase to align Madison’s goals with his own.
Having determined that the barrier is a limit on government preventing it from stepping into the domain of the church, he explains that there is a need to determine “the proper location of this ‘great Barrier’ between government and those aspects of religion outside the reach of government.” (54) Because Madison obviously does not provide an answer to this, Esbeck wonders how Madison would have “parse[d] the meaning of ‘religion’ beyond its being a duty to God.” (55) Rather than looking to Madison’s life for potential answers, Esbeck speculates how Madison must have thought about it. Because Esbeck does not believe that Madison could have possibly meant all religion, he contends that Madison did not mean to exclude all religion from the jurisdiction of the state. (56) Esbeck clearly believes that religious principles should guide civil law and he speculates that Madison would have seen matters similarly because Madison could not possibly have meant to exclude “the many ill behaviors of our common life…such as on stealing, lying, neglect of one’s children, and murder” from the realm of government control. It is only “explicitly religious matters (for example, religious doctrine)” that, according to Esbeck, belong outside the state’s jurisdiction. (57)
The problem with Esbeck’s broad conception of religion is that he equates morality and crimes with religion. It is easy to see why Esbeck wants to frame the issue in this way. It leaves the door open for religion or religious groups to shape public policy, for which he has long advocated. The issue for him then is about whose morality will prevail. Esbeck suggests that competition “in the market-place of ideas, as well as the better organizational acumen to promote it,” something that often relies on the size of one’s group and the wealth that it possesses, should decide. (58) Thus, if a majority of people want traditional marriage to be the law of the land, so be it. Never mind that this is the dogma of a particular religion and if enforced by law it would bind others of a different persuasion to the religion of another. This kind of religious domination is exactly what Madison, and the dissenters were trying to prevent.
And it is doubtful that Madison would have conceived of the relationship between morality, crime, and religion in the same way as Esbeck. Like many of his contemporaries, Madison would have believed that religion fostered morality, but he did not conflate the two concepts. Morality and religion are not one and the same, even though some moral precepts are derived from religious traditions. It is important to distinguish between moral principles that are incorporated into religious systems because they are universal moral principles that make human societies possible, such as cheating or lying, and those that are unique to a particular religion or religious tradition. Moral doctrines that are derived from particular religions or denominations fall in the realm of religion and as such are religious dogmas and thus would be outside government’s jurisdiction in Madison’s system.
This distinction was often made in the tolerationist literature that Madison drew from and likely reflected his own views. Sins are moral principles that are specifically tied to the dogmas of a particular religion. While some believed that the state should punish these sins, most advocates of religious toleration did not since they did not harm one’s neighbors or civil society. John Locke explains this distinction:
“For it does not belong unto the magistrate to make use of his sword in punishing everything, indifferently, that he takes to be a sin against God. Covetousness, uncharitableness, idleness, and many other things are sins by the consent of men, which yet no man ever said were to be punished by the magistrate. The reason is because they are not prejudicial to other men’s rights, nor do they break the public peace of societies. Nay, even the sins of lying and perjury are nowhere punishable by laws; unless, in certain cases, in which the real turpitude of the thing and the offence against God are not considered, but only the injury done unto men’s neighbours and to the commonwealth.” (59)
Only civil concerns (“life, liberty, health, and indolency of body; and the possession of outward things”), not religious morality, should be within the jurisdiction of the state.
The same goes for crimes. No one would be foolish enough to believe that the state has no power to enact laws against crimes (harms to others or society), but most people would not equate crimes with religion even if most religions have prohibitions against certain crimes as part of their religious teachings. Religions condemn crimes because they make civil society impossible, not the other way around. In other words, crimes (harms of man against man) exist outside of religion, not because of religion. They are civil matters not religious ones. The best description of this view comes from one of Madison’s allies in the fight to disestablish religion, the fiery Baptist leader John Leland:
“What leads legislators into this error [religious establishments], is confounding sins and crimes together-making no difference between moral evil and state rebellion: not considering that a man may be infected with moral evil, and yet be guilty of no crime, punishable by law. If a man worships one God, three Gods, twenty Gods, or no God-if he pays adoration one day in a week, seven days, or no day-wherein does he injure the life, liberty or property of another? Let any or all these actions be supposed to be religious evils of an enormous size, yet they are 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.” (60)
Crimes of man against man are within the jurisdiction of the civil state. Thus, there is no need for “further refinement” of Madison’s definition of religion. He meant what he said, “Religion is wholly exempt from its [civil society’s] cognizance.” (italics mine) Neither Madison’s nor the dissenters’ position support the originalist implications Esbeck has asserted for it.
There is evidence that Madison would have rejected Esbeck’s demarcation that allows government funding for “social welfare” programs to be carried into effect by religious bodies. (61) As president Madison vetoed a bill that would have incorporated the Episcopal Church in Alexander in part because it would have given it the “authority to provide for the support of the poor and the education of poor children of the same, and authority which, being altogether superfluous if the provision is to be the result of pious charity, would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty.” (62) Thus, Madison would not be in favor of social welfare programs that provide funds to religious organizations to carry out what he sees as a public duty. In the Memorial Madison denounces the use of religion “as an engine of Civil policy.” (63)
A major part of Esbeck’s mission is to find support for his church autonomy doctrine, hence his assertion that motive to disestablish religion was driven by the desire to “protect the churches from the state,” but not the other way around. (64) This doctrine, Esbeck insists, is important, otherwise “civil society will lose organized religion as a check and limit on the pretensions of Caesar. And that would surely lead to a more authoritarian state.” (65) This seems to be more of an article of faith on Esbeck’s part than an empirically verified fact. There is ample evidence on the other hand that the influence of organized religion on governments has led to ecclesiastical tyranny, which is exactly why Madison and the religious dissenters wanted to sever the ties between religion and the government rather than simply preventing the state from intruding into the sphere of the church. In addition to protecting rights, the goal was to protect both religion and government from the corrupting influences that inevitably arise the more they mix together. Madison raises this issue in the Memorial: “What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny: in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries.” (66) During his retirement Madison even warned about “the danger of encroachment by Ecclesiastical Bodies” as could been seen in precedents already established. Troublingly this had occurred even granting the fact that “the separation between Religion & Govt. in the Constitution of the United States” is “[s]trongly guarded.” (67) In a letter to Robert Walsh, Madison reflected on the disestablishment of religion in Virginia and reports, “The Civil Govt, tho’ bereft of everything like an associated hierarchy, possesses the requisite stability and performs its functions with complete success, Whilst the number, the industry, and the morality of the Priesthood, & the devotion of the people have been manifestly increased by the total separation of the Church from the State.” (68)
In the Memorial, Madison never mentions churches, much less church autonomy. But we do know that he believed that they should be free to govern themselves, but that is a far cry from the church autonomy doctrine advocated by Esbeck which sees “the church” as an independent center of power on par with the state. Esbeck wants to free religious organizations from regulatory oversight even while receiving public funds. (69) He was after all, as Lew Daly has noted, the “brainchild” of the Charitable Choices program that sought to increase the share of funding from federal welfare programs for religious entities while minimizing government oversight of those entities. (70) In support of this practice he has argued that the “no-aid” principle of strict separation is “misguided” and incompatible with “historic separation” (i.e. structural separation). (71) To bar religious bodies would, according to Esbeck, be a sign of “hostility” toward religion. This refrain about hostility to religion is common on the right, but it is an imaginary slight born of modern political strategies and belied by the very history that Esbeck relies on for his work. Those who fought so doggedly to separate religion from government were pious religious dissenters who sought to maintain the purity of religion. They understood the corrupting influence of state support, as this Baptist petition against religious assessments explains: “The consequence of this is, that those whom the State employs in its service, it has a right to regulate and dictate to; it may judge and determine who shall preach, where they shall preach, and what they must preach.” (72) Madison agreed. Years later, after observing the fruits of his efforts in Virginia, he noted, “it is impossible to deny that Religion prevails with more zeal, and a more exemplary priesthood than it ever did when established and patronized by Public authority…[and] that Religion flourishes in greater purity, without than with the aid of Govt.” (73) It is about the purity of religion, not hostility to it.
Esbeck thinks he can get around Madison’s obvious “no-aid” principle by claiming that Madison objected to the proposed assessment only because it was “a special tax earmarked for religion, [and] nothing more.” By tying the tax to “the monetary support of religion,” Esbeck explains, it created a “causal link” between the taxpayer and support for religion thus making it a burden on the taxpayers’ conscience. The only evidence that he presents in support of this conclusion is an out of context quote which states, “the same ‘authority which can force a citizen to contribute three pence only of his property for the support of any one establishment,’ may force him to conform to any other establishment in all other cases.” (74) (the internal quotation marks enclose the portion quoted by Esbeck) The point Madison was making was that if the assessment was enacted it would set a precedent that could then be used to create any establishment. He queried, “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?” The statement is a warning about setting bad precedents in violation of a principle, not a statement about special ear-marked taxes. The claim is made even more absurd by the fact that there is no evidence anywhere to support it.
While Madison did not specifically address the issue of churches, or organized religion, it is clear that they needed to maintain their independence by forgoing all ties from the state including public funding. But Madison did not support anything like Esbeck’s church autonomy doctrine which envisions organized religion as an authority on par with the state, but without the limitations on its reach. Madison understood that protecting religious rights required a full disestablishment that limited both church and state from intruding into the others sphere. To allow churches to influence the state is to invite the type of majoritarian tyranny that he was fighting against. In his retirement he explicitly warned against “[t]he danger of silent accumulations & encroachments by Ecclesiastical bodies” that were already evident in his day. (75) And if the civil authorities are barred from legislating on the subject of religion, then religious bodies must be denied the opportunity to use the law for religious ends.
The idea of limiting the church was shared by others including Locke who wrote that since the authority of the clergy “is ecclesiastical, it ought to be confined within the bounds of the church, nor can it in any manner be extended to civil affairs; because the church itself is a thing absolutely separate and distinct from the commonwealth.” (76) This view was shared by religious dissenters. In his sermon pleading for the separation of religion and government, the Baptist elder Samuel Stillman asserted: “This kingdom [Christianity] does not in any respects interfere with civil government…” (77)
Esbeck’s church centric claim also ignores the fact that those opposed to establishments were just as concerned about the integrity of the state, which had often been corrupted by the church, as this anti-establishment petition highlights: “[t]he Church and the State are two societies, and in their natures and designs, as different as Heaven and earth. And to unite them in one, is greatly to injure, if not utterly to ruin both together.” (78) Madison also warned of such consequences in the Memorial where he noted that established clergy had often been “convenient auxiliaries” for “[r]ulers who wished to subvert the public liberty.” He repeated similar refrains throughout his life: “Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded agst… Every 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.” (79) This view in not compatible with Esbeck’s voluntaryism.
Esbeck’s interpretation, having been built upon a foundation of obfuscation, omission, and rhetorical slights of hand, has been found wanting. Instead, a different focus emerges from the Memorial, namely that establishments of any kind are incompatible with the rights of conscience. This view was shared by the dissenters whose position is best expressed by the Baptist David Barrow: “That all religious tests, and ecclesiastical establishments, are oppressive, and infringe on the rights of conscience.” (80) To bracket off “the free exercise of religion” from the no-establishment principle is to misunderstand how the anti-establishmentarians saw the relationship between the two. Establishments stood in opposition to the free exercise of religion, thus they had to go.
Foundational to Madison’s rights-focused anti-establishment views was the principle of equality. It was, after all, Madison’s equality language that made the sixteenth article of the Declaration of Rights a mandate for disestablishment. This change, according to Madison, transformed the article into a statement “declar[ing] the freedom of conscience to be a natural and absolute right.” (81) And as a natural right it belongs to everyone equally, thus this principle underpins much of the Memorial.
While references to “equal and compleat liberty” are sprinkled throughout the document, the main focus of Madison’s fourth objection is that “the Bill violates that equality which ought to be the basis of every law, and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached.” Referencing Article 1 of the Declaration of Rights, Madison continues, “If ‘all men are by nature equally free and independent,’ all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights.” (82) This article further reinforces the demand for equality found in Article 16, which Madison also quotes: “Above all are they to be considered as retaining an ‘equal title to the free exercise of Religion according to the dictates of Conscience.’” (italics in original) Note that Madison’s slightly altered rendition of the article emphasizes “equal.” Given that the assessment bill did not live up to this standard it was unconstitutional.
Without equal enjoyment of the right of free exercise, the majority will be able to impose its dogmas on others. In pleading for equality, Madison invoked a version of the Golden Rule: “Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.” The tendency to see one’s own beliefs as superior and attempt to secure those beliefs via the power of the state, even in republics, was the driving force of ecclesiastical tyranny. Hence Madison’s concern with “overbearing majorities.” Madison was trying to convince his colleagues that they should grant others the same right that they themselves cherished.
The bill also violated the principle of equality in two main ways. First it violates this principle “by subjecting some to peculiar burdens,” namely those who would be excluded (i.e. non-Christians). But also, those whose consciences objected to coerced support for religion, even their own. Madison did not explicitly explain this in the Memorial, but he did object to all state-mandated support of religion. The dissenters, borrowing from Jefferson’s Statute for Religious Freedom, were more explicit. They insisted, “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. (83)
The bill also violated the principle of equality by “granting to others peculiar exemptions.” Those who drafted the legislation were keen to gain broad support for the bill and thus sought to accommodate Quakers and Mennonites. This complaint peaked the ire of the dissenters as well as this Baptists petition illustrates:
“That the indulgence grants to Quakers, and Menonists, is a partiality which our [?] cannot be well accounted for. It is 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.” (84)
The same appeal to equality underpins their objection to the exemption. Madison similarly decried the “extraordinary privileges” these sects were to be given. It gave them an unfair advantage by giving them a tool to “entice” others to join their sects. As expected, the Quakers denounced the bill on the grounds that it was contrary to their religion and “an infringement of Religious and Civil Liberty established by the bill of Rights.” (85) They all agreed, the proposed assessment was a clear breach of the equal religious rights laid down in the Declaration of Rights.
Madison’s concluding objection brings home the message that the bill was a threat to the rights that Virginians were entitled to. He once again quotes the key section of Article 16 along with a slightly altered quote from the preamble of the Declaration to conclude that “if we consult the ‘Declaration of those rights which pertain to the good people of Virginia, as the basis and foundation of Government’” we will find that the right of free exercise is “enumerated with equal solemnity” as all of the other rights in it. (86) Always concerned about precedents, he feared that if they could downgrade this right they could then “sweep away all our fundamental rights.” Thus, he begged them to “leave this particular right untouched and sacred.” He reminded his colleagues that they “have no authority to enact into law the Bill under consideration,” and that they, the “Subscribers” of the petition, were opposed to “so dangerous an usurpation.” The fight against the religious establishment in Virginia demonstrates that the free exercise of religion is not divorced from establishment concerns, but rather its protection demands that the state be barred from legislating on the subject of religion (i.e., establishing religion by law). (87)
Esbeck’s interpretation is compelling only if one forgoes reading the document. There is no getting around the fact that Madison’s main objection to the proposed establishment was its threat to the equal rights of all citizens. During his retirement Madison reflected on these events and the passage of Jefferson’s Bill for Establishing Religious Freedom in the wake of their victory against the assessment bill. He wrote that Jefferson’s statute “enacted into a permanent barrier against Future attempts on the rights of conscience as declared in the Great Charter prefixed to the Constitution of the State [i.e. the Declaration of Rights].” (88) (italics mine) Protecting those rights requires that religion be “wholly exempt from its [civil society’s] cognizance.” This is also how he understood the First Amendment. To him, it was meant to guard “the separation between Religion & Govt,” which he viewed as necessary in order to protect the rights of conscience. (89)
Esbeck’s Madison is the result of shoddy scholarship, which characterizes much of the originalist history written by legal scholars. Whether Esbeck knowingly distorted the historical record or not is debatable, but there is no doubt that he did so. Many legal scholars take history more seriously and make a serious effort to get the history right, but the temptation to create a politically useful past is great and the abundance of such scholarship gives advocates and Supreme Court justices intellectual respectability for politically motivated interpretations of the Constitution. Originalism was supposed to constrain justices from injecting their own biases and opinions into their decisions. Instead, it has encouraged personal preferences to guide interpretation, all while pretending to be objective actors who are simply declaring historical truths. As legal scholar Eric Berger observes “originalism’s pretense that it captures the Constitution’s singular, objective meaning creates an especially misleading illusion of certainty.” (90) The “illusion” is compelling, especially for those who want to believe it, but it is simply that an illusion. We can have reasonable debates about how strict Madison’s strict separationism is, but he cannot be made into something he clearly was not: a proponent of Esbeck’s voluntaryism. If he wants to advocate for that idea as a better church-state settlement he will have to do it without the help of Madison.
1) Robert Post & Reva Siegel, “Originalism as Political Practice: The Right’s Living Constitution,” Fordham Law Review 75 (2006): 573; Andrew Koppelman, “Phony Originalism and the Establishment Clause,” Northwestern University Law Review 103, no. 2 (2009): 729.
2) Carl H. Esbeck, “The Establishment Clause as a Structural Restraint on Governmental Power,” Iowa Law Review 84 (1998): 3.
3) Carl H. Esbeck and J. Den Hartog, eds., Disestablishment and Religious Dissent: Church-State Relations in the New American States 1776-1833 (Columbia, 2019); Carl H. Esbeck, “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review (2004): 1384-1592; “Protestant Dissent and the Virginia Disestablishment, 1776-1786,” Georgetown Journal of Law & Public Policy 7 (2009): 51-103. For his originalist take on the First Federal Congress see Carl H. Esbeck, “The First Federal Congress and the Formation of the Establishment Clause of the First Amendment,” 208-251 in T. Jeremy Gunn & John Witte, Jr., eds., No Establishment of Religion: America’s Original Contribution to Religious Liberty (New York, 2012), 208-251.
4) Esbeck, “Dissent and Disestablishment,” 1393 and 1396.
5) Esbeck, “Dissent and Disestablishment,” 1590.
6) Esbeck and Hartog, eds., Disestablishment and Religious Dissent, 154.
7) For a list showing the extent of the influence of Jefferson’s Statute of Religious Freedom and Madison’s Memorial and Remonstrance see John Ragosta, Religious Freedom: Jefferson’s Legacy America’s Creed (Charlottesville, 2013), 256-258n12.
8) Esbeck and J. Den Hartog, eds., Disestablishment and Religious Dissent; Esbeck, “Dissent and Disestablishment.”
9) Esbeck, “Dissent and Disestablishment,” 1395.
10) Carl H. Esbeck, “The Establishment Clause as a Structural Restraint on Governmental Power,” Iowa Law Review 84 (1998): 1-113 (quotation on 3).
11) Esbeck, “Protestant Dissent,” 54n8.
12) Esbeck, “The Establishment Clause,” 10-11.
13) Esbeck, “The Establishment Clause,” 13 and 9.
14) Esbeck, “Dissent and Disestablishment,” 1398.
15) Esbeck, “The Establishment Clause,” 12.
16) Esbeck, “The Establishment Clause,” 10-11.
17) Esbeck, “Dissent and Disestablishment,” 1589.
18) “To Thomas Jefferson from Rev. John Todd, 16 August 1779,” Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/01-03-02-0077. [Original 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.]
19) James Madison, “Memorial and Remonstrance against Religious Assessments, [ca. 20 June] 1785,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-08-02-0163. [Original source: The Papers of James Madison, vol. 8, 10 March 1784 – 28 March 1786, ed. Robert A. Rutland and William M. E. Rachal. Chicago: The University of Chicago Press, 1973, pp. 295–306.]
20) “From James Madison to William Bradford, 24 January 1774,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-01-02-0029. [Original source: The Papers of James Madison, vol. 1, 16 March 1751 – 16 December 1779, ed. William T. Hutchinson and William M. E. Rachal. Chicago: The University of Chicago Press, 1962, pp. 104–108.]
21) “From James Madison to William Bradford, 1 April 1774,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-01-02-0031. [Original source: The Papers of James Madison, vol. 1, 16 March 1751 – 16 December 1779, ed. William T. Hutchinson and William M. E. Rachal. Chicago: The University of Chicago Press, 1962, pp. 111–114.]
23) “Madison’s Amendments to the Declaration of Rights, [29 May–12 June 1776],” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-01-02-0054-0003. [Original source: The Papers of James Madison, vol. 1, 16 March 1751 – 16 December 1779, ed. William T. Hutchinson and William M. E. Rachal. Chicago: The University of Chicago Press, 1962, pp. 174–175.]
24) Memorial of the Hanover Presbytery, October 24, 1776, Library of Virginia: Digital Collections.
26) Thomas Jefferson, “Rough Draft of Jefferson’s Resolutions for Disestablishing the Church of England and for Repealing Laws Interfering with Freedom of Worship,” (written between October 11 and November 19, 1776), quoted in The Papers of Thomas Jefferson Digital Edition, vol. I, ed. Barbara B. Oberg and J. Jefferson Looney (Charlottesville: University of Virginia Press, Rotunda, 2008-2014), 530.
27) Ragosta, Religious Freedom, 65.
28) Hanover Presbytery petition, Timber Ridge (presented to the House June 3, 1777), Virginia Memory.
29) “Declaration of the Virginia Association of Baptists, [25 December 1776],” Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/01-01-02-0249. [Original source: The Papers of Thomas Jefferson, vol. 1, 1760–1776, ed. Julian P. Boyd. Princeton: Princeton University Press, 1950, pp. 660–661.] This petition was published in the Virginia Gazette (Dixon & Hunter) on March 28, 1777.
30) “A Bill concerning Religion” (1779) reprinted in Thomas E. Buckley, S.J., Church and State in Revolutionary Virginia 1776-1787 (Charlottesville, 1977), Appendix I: 186.
31) Buckley, Church and State, 100-1.
32) Madison’s Memorial garnered 1,552 signatures. The most popular petition boasted twenty-nine copies with 4,899 signatures (Founders Online “Memorial,” editorial note).
33) Robert B. Semple, A History of the Rise and Progress of the Baptists in Virginia (Richmond, 1810), 33.
34) Esbeck maintains that the Free Exercise Clause is “regarded as a right vesting in each individual the ability to resist many government-imposed burdens on his religion,” and that the Establishment Clause is “regarded as an aspect of the Constitution’s overall structure of limited government, policing the boundary between civil authorities and organized religion.” (“Dissent and Disestablishment,” 1389)
35) Esbeck, “Protestant Dissent,” 53.
36) “Madison’s Amendments to the Declaration of Rights.”
37) Esbeck, “Protestant Dissent,” 82; Disestablishment and Religious Dissent, 154.
41) Phillip Furneaux, An Essay on Toleration: With a particular View to the Late Application of the Protestant Dissenting Ministers to Parliament, for Amending, and rendering Effectual, the Act of the first of William and Mary, commonly called the Act of Toleration (London: 1773), 12-13.
42) “From James Madison to William Bradford, 28 July 1775,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-01-02-0050. [Original source: The Papers of James Madison, vol. 1, 16 March 1751 – 16 December 1779, ed. William T. Hutchinson and William M. E. Rachal. Chicago: The University of Chicago Press, 1962, pp. 159–162.]
43) Esbeck, Disestablishment and Religious Dissent, 154.
44) “From James Madison to Thomas Jefferson, 17 October 1788,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-11-02-0218. [Original source: The Papers of James Madison, vol. 11, 7 March 1788–1 March 1789, ed. Robert A. Rutland and Charles F. Hobson. Charlottesville: University Press of Virginia, 1977, pp. 295–300.]
45) “Vices of the Political System of the United States, April 1787,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-09-02-0187. [Original source: The Papers of James Madison, vol. 9, 9 April 1786 – 24 May 1787 and supplement 1781–1784, ed. Robert A. Rutland and William M. E. Rachal. Chicago: The University of Chicago Press, 1975, pp. 345–358.]
46) “From James Madison to George Washington, 16 April 1787,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-09-02-0208. [Original source: The Papers of James Madison, vol. 9, 9 April 1786 – 24 May 1787 and supplement 1781–1784, ed. Robert A. Rutland and William M. E. Rachal. Chicago: The University of Chicago Press, 1975, pp. 382–387.]
50) Esbeck, Disestablishment and Religious Dissent,155.
53) “From James Madison to Thomas Jefferson, 17 October 1788,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-11-02-0218. [Original source: The Papers of James Madison, vol. 11, 7 March 1788–1 March 1789, ed. Robert A. Rutland and Charles F. Hobson. Charlottesville: University Press of Virginia, 1977, pp. 295–300.]
54) Esbeck, Disestablishment and Religious Dissent, 155.
55) Esbeck, Protestant Dissent, 82.
56) When it comes to the Establishment Clause of the First Amendment Esbeck suggests that “any definition for no-establishment purposes has to be narrow in order not to overturn social welfare and moral-based legislation.” (“The Establishment Clause,” 9)
57) Esbeck, Disestablishment and Religious Dissent, 155.
58) Esbeck, “The Establishment Clause,” 113.
59) John Locke, A Letter Concerning Toleration (1689 version, Buffalo, 1990), 51.
60) John Leland, “The Yankee Spy: Calculated for the Religious Meridian of Massachusetts, But will Answer for New Hampshire, Connecticut, and Vermont, without any Material Alterations,” in John Leland and L.F. Greene, The Writings of the Late Elder John Leland: Including Some Events in His Life (New York, 1835), 215-229 (quotation on 221). See also Isaac Backus, A Door Opened For Equal Christian Liberty, And no Man can shut it (Boston, 1783), 14: “Reason and revelation agree, in determining that the end of civil government is the good of the governed, by defending them against all such as would work ill to their neighbours; and in limiting the power of rulers there. And those who invade their religious rights of others, are selfcondemed, which of all things is the most opposite to happiness, the great end of government…”
61) Esbeck, “The Establishment Clause,” 9.
62) “From James Madison to the House of Representatives, 21 February 1811,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/03-03-02-0233. [Original source: The Papers of James Madison, Presidential Series, vol. 3, 3 November 1810–4 November 1811, ed. J. C. A. Stagg, Jeanne Kerr Cross, and Susan Holbrook Perdue. Charlottesville: University Press of Virginia, 1996, pp. 176–177.]
63) Madison, Memorial & Remonstrance, point # 5.
64) Esbeck, “Protestant Dissent,” 53.
65) Ibid., 103.
66) Madison, Memorial & Remonstrance, point # 8.
67) In Elizabeth Fleet, “Detached Memoranda,” The William and Mary Quarterly, Third Series, Vol. 3, No. 4 (October 1946), 555.
68) “From James Madison to Robert Walsh Jr., 2 March 1819,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/04-01-02-0378. [Original source: The Papers of James Madison, Retirement Series, vol. 1, 4 March 1817 – 31 January 1820, ed. David B. Mattern, J. C. A. Stagg, Mary Parke Johnson, and Anne Mandeville Colony. Charlottesville: University of Virginia Press, 2009, pp. 427–432.]
69) Esbeck, “Myths, Miscues, and Misconceptions,” 305.
70) Lew Daly, God’s Economy: Faith-Based Initiatives & the Caring State (Chicago, 2009), 53.
71) Esbeck, “Myths, Miscues, and Misconceptions,” 288n13.
72) “Declaration of the Virginia Association of Baptists, [25 December 1776],” Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/01-01-02-0249. [Original source: The Papers of Thomas Jefferson, vol. 1, 1760–1776, ed. Julian P. Boyd. Princeton: Princeton University Press, 1950, pp. 660–661.] Also published in the Virginia Gazette, Dixon & Hunter (March 28, 1777).
73) “From James Madison to Edward Livingston, 10 July 1822,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/04-02-02-0471. [Original source: The Papers of James Madison, Retirement Series, vol. 2, 1 February 1820 – 26 February 1823, ed. David B. Mattern, J. C. A. Stagg, Mary Parke Johnson, and Anne Mandeville Colony. Charlottesville: University of Virginia Press, 2013, pp. 542–545.]
74) Esbeck, “Protestant Dissent,” 90.
75) Elizabeth Fleet. “Detached Memoranda,” The William and Mary Quarterly 3, no. 4 (October 1946): 534-568 (quotation on 554).
76) Locke, Letter Concerning Toleration, 32.
77) Samuel Stillman, A Sermon Preached Before the Honorable Council, and the Honorable House of Representatives of the State of Massachusetts-Bay… May 26, 1779 (Boston, 1779), 27.
78) Quoted in Buckley, Church and State, 75. Other examples include: The Baptist minister Caleb Blood who disagreed with to “those, who wish for religious establishments by law; which never fail of pernicious consequences both to church and state.” Caleb Blood, A Sermon Preached Before the Honorable Legislature of the State of Vermont…October 11th, 1792 (1792), 27; and inGeorgia the attempt to enact a tax for the support of religion encountered opposition from Baptists who feared that “the late Act for the regular establishment and support of religion will be so far from subserving the interests of the Church or State, as perhaps, the framers might design that it will, if carried into execution, be injurious to both.” (Petition from the Baptist Association who “met at the Kiokee meeting house, the 16th of May, 1785, quoted in History of the Baptists Denomination in Georgia… [Atlanta, 1881], 262.)
79) “From James Madison to Edward Livingston, 10 July 1822.”
80) David Barrow, “Circular Letter, Southampton County, Virginia; February 14, 1798” printed in Carlos R. Allen, Jr., “David Barrow’s Circular Letter of 1798,” The William and Mary Quarterly 20, no. 3 (July 1963): 440-451 (quotation on 448).
83) Petition of the Powhatan, Baptist Association meeting of August 13, 1785; and the petitioners of the county of Northumberland, November 28, 1785 at Virginia Memory.
84) November 17, 1785, Orange, Baptist Association meeting on September 17, 1785, against assessment bill.
85) Petition of the Virginia Quakers, November 14, 1785 (two petitions. almost identical) at Virginia Memory.
86) The original reads: “A DECLARATION of RIGHTS made by the representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to us, and our posterity, as the basis and foundation of government.” (“The Virginia Declaration of Rights”)
87) See also Debra Neill, “The Disestablishment of Religion in Virginia: Dissenters, Individual Rights, and the Separation of Church and State,” Virginia Magazine of History & Biography 127, no. 1 (2019); Ellis M. West, The Free Exercise of Religion in America: Its Original Constitutional Meaning (2019); and John A. Ragosta, Wellspring of Liberty: How Virginia’s Religious Dissenters Helped Win the American Revolution & Secured Religious Liberty (Oxford University Press, 2010).
Sorry for the blunt title but I’m angry. The short answer to the question is obviously “a lot.” The adequate long answer would take at least a year to write. So, for now, I’ll have to settle for a few brief statements on the Espinoza school-funding case.
In 2017 the Supreme Court ruled in Trinity Lutheran that the state of Missouri violated the Free Exercise Clause of the First Amendment when it excluded a school run by the Trinity Lutheran church from participating in the state’s school playground resurfacing program. This radical decision, written by Chief Justice John Roberts, set the stage for last week’s equally bad ruling in Espinoza v. Montana. The Espinoza decision, also written by the Chief Justice, declared that the Montana Supreme Court was wrong to dismantle the state’s scholarship program that provided financial assistance to students who wished to attend private schools, both secular and religious. The Montana court did so because it was in violation of their states’ constitution, and they also wanted to avoid the problem of treating religious schools differently than secular ones, so they ended the entire program. This should have been the end of the case, but the Supreme Court nevertheless took it up (it was likely the four conservative justices Alito, Gorsuch, Thomas, and Kavanaugh who granted review).
What makes this case so radical, even though it could have been worse, is that the Court ruled that states must include religious schools an any scholarship programs for private education. Roberts concluded that by excluding religious families and schools from participating in the program the state had discriminated against them in violation of the Free Exercise Clause.
Though shocking, it was not unexpected. The Supreme Court had long ago abandoned the principle of separation, which the conservatives on the Court insist is hostile to religion (it’s not), in favor of an accommodationist approach to religion. This view is not a recent invention of the current court. It has a long history going back at least to the 1980s. In the 1989 Allegheny v. ACLU case, the now retired Justice Anthony Kennedy wrote:
Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage, and the Establishment Clause permits government some latitude in recognizing the central role of religion in society. Any approach less sensitive to our heritage would border on latent hostility to 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. (1)
Anything short of accommodating religion is declared hostile to it, as if there were no benign reasons to exclude religion. This rhetoric of hostility to religion is part of a compelling narrative that the Religious Right uses to discredit the principle of separation. It has become a truism in conservative circles.
In the school funding realm, the Court began breaking down the barriers that barred religious institutions from receiving public funds in the 1980s (see Witters and Zobrest). But the real shift began with the 1997 Agostini v. Felton case which proclaimed that facially neutral government programs that provided aid to religious schools via private choice were not in violation of the Establishment Clause. (2) Several cases following this ruling took the logic laid out in Agostini and expanded it even further. (3) These cases established the facial neutrality and private choice duo as the guiding rule for funding cases. To achieve this outcome, these cases were largely aimed at diminishing the power of the Establishment Clause to bar public funding of religion. It has taken even more hits since then.
At this point, the Establishment Clause is so diminished that it hardly matters anymore. In both Trinity and Espinoza Roberts disposes of it fairly quickly. In both he cites Locke’s “play in the joints” concept to justify his brushing it aside. (Espinoza, p. 6) This “play in the joints” between the two religion clauses is built upon the assumption that the two are in conflict with each other, when in fact they are not. Unfortunately, this mistaken view has guided much of the Court’s First Amendment jurisprudence. This misunderstanding of the relationship between the two clauses is the product of a lot of bad history (a topic for another day). For now, just note that this notion makes it easier Roberts to dispose of the Establishment Clause.
To shore up his dismissal of the clause he adds that the Court has “repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.” (Espinoza, p. 7) Some may find this statement shocking, but it is the result of many years of chipping away at the power and reach of the clause. With the Establishment Clause out of the way, Roberts proceeds to his main line of reason using the Free Exercise Clause.
There are several important aspects of Roberts’s argument in Espinoza, but here I want to focus on just one aspect of his reasoning since no one else has made this point, which exposes the radical nature of this Court and its disingenuous posturing as a neutral interpreter of constitutional law. One of the keys to understanding Roberts’ ruling is his clever use of language. He conflates the category “religion” with the contents of that category (particular sects/religions). This rhetorical sleight of hand underlies both the Trinity and Espinoza cases.
The Free Exercise Clause, Roberts explains, “‘protects religious observers against unequal treatment’ and against ‘laws that impose special disabilities on the basis of religious status.’” (Espinoza, p. 8) This framing of the clause suggests that the clause is about protecting those who are in this category called “the religious,” thus implying that the clause protects people who are religious rather than protecting people from religious discrimination and tyranny because of either their particular religious beliefs (e.g. denying the Trinity) or because of their religious identity (e.g. Jewish). The above statements quoted by Roberts comes from the Trinity case, which uses a 1993 case as precedent. In Church of Lukumi Babalu Aye, Inc. v. Hialeah the Supreme Court struck down several city ordinances in the South Florida town of Hialeah because they were targeted specifically, albeit not explicitly, at preventing the members of the Santeria religion from practicing animal sacrifice, a central aspect of their religion. (Trinity, p.6) They were targeted because they were members of an unpopular religion, not because they were “religious.”
Two other precedents used in Espinoza further illustrate Roberts’ trick. The first one comes from the landmark Everson case, from which Roberts quotes: “a State ‘cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation’” (Espinoza, p. 8) Note that the examples refer to discrimination against members of a particular religion and/or those who hold specific religious beliefs. The other case is the more recent Lying v Northwest Indian Cemetery Protective Assnin which the victims of discrimination were Native Americans whose particular religious beliefs clashed with the goals of the Forest Service. (Espinoza, p. 8) Again, the members of that Native American tribe were not victims of discrimination because they were religious, it was their particular religion that was the problem. In none of these cases were the individuals or groups targeted because they were religious per se.
In contrast to those cases, the state of Montana did not engage in that kind of prejudiced discrimination. There was no malicious or discriminatory intent by the state when it struck down the program. They didn’t discriminate against any particular religion; all religions were banned. Religion is singled out for special treatment in the state constitutions and in the U.S. Constitution for very good historical reasons, having nothing to do with hostility to religion. In fact, one of the reasons such anti-establishment provisions exist is to protect religion. Neither Montana, nor Missouri, engaged in the kind of “discrimination” that the Religion Clauses forbid. All religions, religious people, religious institutions, etc. are treated equally.
Nevertheless, Roberts chastised the Montana Department of Revenue and the Montana Supreme Court for following their state’s constitutional mandate that prohibits the use of “any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school…controlled in whole or in part by any church, sect, or denomination.” (quoted p. 3) This state constitutional provision is one of many state no-aid mandates which are often called “Blaines” or “Baby Blaines” in honor of the attempted federal constitutional amendment proposed by James G. Blaine in 1875. Blaine’s amendment was narrowly struck down in the Senate, mostly for states’ rights reasons. In the aftermath of this failure over the next 50 years 21 states adopted similar statements in their own constitutions. The claim made by those who oppose these constitutional mandates, and repeated by Roberts, is that they were “’born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general’” (Espinoza, pp. 15-16) and as such they are in violation of the Free Exercise Clause and must go. Justice Thomas has been harping on this issue for years. As is typical for him he plays the long game and has hammered this message home by repeatedly mentioning it in his opinions every chance he gets. The history is seriously flawed. Surprise! Surprise!
But in Espinoza it is Justice Alito who took on the task of laying out this history, briefly noted by Roberts in the majority opinion, in his concurring opinion. His recounting of this shameful history, as he sees it, is itself shameful. Lawyers, and Alito is no exception, have a tendency to start with the desired conclusion and then proceed to make the evidence fit that conclusion. His brief essay on this topic is a great example of how NOT to do history. (yet another topic for another day) For those of you who are interested in this controversy a great place to start is Steven K. Green’s “Blaming Blaine.” (4)
While on the subject of Professor Green, I think it worth quoting this excerpt from his pointed critique of the Espinoza case:
There is so much contained in the various opinions in Espinoza v. Montana Department of Revenue that a college instructor could use that one case to teach an entire course about American church-state law: discrimination based on religious free exercise; the private choice exception to the establishment clause; whether the establishment clause is incorporated to the states; the history of the common schools; 19th-century anti-Catholicism; and the origins and meanings of state no-aid provisions (state “Blaine Amendments”). If that instructor used Espinoza to teach an accurate account of those various issues, however, it would be a pretty bad course. (5)
True indeed. However, it would make a great course if it was used as an example of bad constitutional law. Green side stepped addressing all of those issues, except the Blaines, for the same reason I have. The response would be so long that it would try the readers patience, not to mention the amount of effort that would go into such an undertaking. No doubt in the coming months law journals will fill up with responses to the recent spate of Supreme Court cases, and all of these issues will be endlessly debated.
So, what will be the impact of this decision? Many states already have scholarship programs that fund both secular and religious private schools, and this ruling won’t change them, but it does have implications beyond that. In light of this ruling, states are now required to fund private religious schools if they enact any program to fund private education, even in states with Blaines. While the Court didn’t explicitly strike down the “Baby Blaines” they made them ineffectual. So, for now a state can avoid the dilemma as long as it doesn’t create a program for private secular schools. But it will likely inspire some states to create such programs with the intent of helping to fund private religious education, a major goal of many school choice proponents, including Betsy DeVos, the scandalous education secretary. The real danger, however, comes as the Court continues on this path, using the same logic, to further expand access to public funds by religious entities.
Our public education system is already on life support as states have for years inadequately funded public education while at the same time diverting money to charters and private schools, which are mostly religious. The fallout from this ruling will only exacerbate the problem. In addition, it will further exacerbate the inequities in our education system. Opening religious access to public funds will also create the “animosities and jealousies” that the founders were so keen to prevent. (6) Not all religious groups will be able to compete in the scramble for access to the funds. This situation will benefit those religious groups that are wealthier and more common. And what will happen when Muslims, Scientologists, or the Satanic Temple seek to benefit from such programs? To deny them access would be actual discrimination. Will taxpayer be willing to have their tax dollars go to support a religion with which they disagree? One of the most fundamental ideas driving the disestablishment movement during the revolutionary period was the idea championed by Thomas Jefferson in his famous Statute for Religious Freedom, and parroted by pious religious dissenters in Virginia and elsewhere was:
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. (7)
Those who believe that this decision will be a boon for religion, by which they mean Christianity, might want to revisit the reasons that so many religious dissenters pushed for the separation of church and state in the early Republic. Taking money from the state, even indirectly, has never been good for religion as they repeated in their petitions, essays, and pamphlets. In response to a future proposal for a general assessment (a tax to support ministers of different denominations as opposed to a single denomination), Virginia’s Baptists wrote in the Virginia Gazette:
The consequence of this is, that those whom the State employs in its service, it has a right to regulate and dictate to; it may judge and determine who shall preach, where they shall preach, and what they must preach. The mutual obligations between preachers and the societies they belong to, should this be the case, must be evidently weakened; yea, farewel [sic] to the last article of the bill of rights! Farewel to ‘the free exercise of religion,’ if civil rulers go so far out of their spheres as to take the care and management of religious affairs upon them. (8)
If those religious schools are receiving public funds, will they then be required to adhere to the same rules and regulations secular public schools do?
The Right has played the long game and invested in creating a conservative legal infrastructure complete with think tanks, advocacy groups, legal organizations, and law schools meant to change the legal and political culture of this nation. They invested in the courts and that effort is paying off, maybe not as much as they would like, but by capturing the courts they are well on their way to achieving their goals even as they are out of step with the majority in this country. Trump just appointed his 200th federal judge, many of whom are demonstrably not qualified. (9) This is important because most cases are settled by the lower courts, and the Supreme Court takes only a small percentage of the cases appealed to them. These appointed judges are ideologically vetted for their support for right-wing causes, rather for their impartiality. (10) Now is the time for the rest of us to take the courts seriously. If you think voting doesn’t matter, you’re wrong! If you’re thinking about not voting, or voting for a third-party candidate, think of the courts.
Don’t let some of the recent headlines fool you (e.g. “Supreme Court hands down major decision reaffirming abortion rights in Louisiana case” and “The Supreme Court Just Ruled 5–4 to Protect Abortion Rights”). (11) The victories for DACA recipients and women’s rights are something to be celebrated but they are, nevertheless, temporary victories. (12) The ruling in Bostock v. Clayton County was a more solid win, but Justice Gorsuch, who along with the Chief Justice, was moved not by a sudden appreciation for LGBTQ rights but instead by his textualist principles. None of these decisions should be taken as an indication of the reasonableness of the Roberts Court. Roberts is known for being politically astute and for his “death by a thousand cuts” approach to judicial rulings. The strategy is meant to avoid those shocking headlines which might mobilize the left or further damage the reputation of the Court. Yet, he aims to achieve the same ends that his fellow conservative colleagues share. The result has been a slow but steady march to the far right.
Ellen M. Wasilausky, “See Jane Read the Bible: Does the Establishment Clause Allow School Choice Programs to Include Sectarian Schools After Agostini v. Felton?” Washington and Lee Law Review 56 (1999).
See Mitchell v. Helms (2000) and Zelman v. Simmons-Harris (2002)
Steven K. Green, “‘Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle,” First Amendment Law Review, 107 (2004).
Jefferson wrote: “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 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, and whose powers he feels most persuasive to righteousness; and is withdrawing from the ministry those temporal[ry] rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind; that our civil rights have no dependance on our religious opinions…” https://www.monticello.org/site/research-and-collections/virginia-statute-religious-freedom
This particular quote comes from the petition from Northumberland County in Virginia during the fight over the general assessment bill (November 28, 1785). Jefferson’s phrase was also repeated in a petition from the 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.” (see http://www.virginiamemory.com/collections/petitions)
I came across these speeches from Pennsylvania’s 1873 Constitutional Convention when I was researching the evolution of the preambles in state constitutions. There are many wonderful speeches from various nineteenth-century constitutional conventions, but these comments seem particularly germane to current events. In the name of “religious liberty” conservative Christians are slowly but persistently undermining the very barriers put in place by the founders to protect religious freedom. Their view of religious liberty privileges a certain type of Christianity, sanctions discrimination if done under the guise of religion, and advocates state support and recognition of religion. In other words, it is the opposite of true religious freedom.
A well-coordinated movement to have “Almighty God” recognized in the state’s constitution culminated in a proposed amendment at the Constitutional Convention of 1873. Thus, the following addition to Pennsylvania’s preamble was presented to the delegates: “recognizing the sovereignty of God, and humbly invoking His guidance in our future destiny.” While the majority clearly favored this kind of addition to the constitution, several delegates spoke up in defense of the state’s long-standing secular preamble which the framers wisely established in 1790. (1) The handful of delegates who defended the traditional preamble, as well as those who had framed the constitutions of 1790 and 1838, were deeply religious, but they understood that separating religion and government was good for both church and state.
Since some of these speakers were long winded I included only the most substantial sections of their speeches. These men believed that religious liberty was a right that belonged to everyone, and thus could not be overridden by majorities. They also drew on the lessons of history that inspired the founders to separate religion from government. It is separation that protects both the state and the church and establishes the religious freedom that we all benefit from.
Here are excerpts from their speeches (2):
John M. Broomall:
…First, the words reported by the committee have no use there; no proper function. To those who believe in a Supreme Being, and I trust we all do—there may be those who do not, but I confess that I have not met them—to those who believe in a Supreme Being the phrase is useless, is unmeaning. To those who do not, (and while I doubt whether there are those who do not, I am not prepared to deny the possibility of their existence)—to those who do not; it is a pretence to something that I am afraid our proceedings too often show we do not always feel.
Let us bear in mind that we are proposing not to change the Constitution ourselves, but to submit certain propositions to the people for their adoption or rejection. Are gentlemen willing to submit to a majority of ballots the question of the existence and attributes of the Deity? I am not. What a question it is: The being and attributes of the Creator; the existence of a law-giver above all legislators, of law above all human laws, a law that sets aside all human laws when they conflict with it; a law that binds the individual not as a member of society, but as a man, and that commands him not to obey the civil law when it conflicts with this higher law. We propose to submit to a majority of ballots these great questions, whether there be a Ruler of the Universe, and whether we are responsible for our conduct to that Ruler of the Universe!
I know there was a day in the history of the world when it was supposed that councils called by men could settle the question of the being and attributes of God so as to bind the Great Ruler of the Universe; but we have long outlived that day. Now, those questions are for man, not as a citizen, but as a being responsible to his Maker—a child under the guardianship of his Father.
…Who asks that this question should be decided in our organic law at all? Who asks those questions to be decided here? Who submits to us the question? Who authorizes us to settle it? How can any delegate dare decide for his constituents whether there be a God and whether they own Him responsibility for their conduct? Who asks this decision? Whom will it bind? Do gentlemen who advocate this proposition say that they have authority from the Being most interested in the question, if we are to believe their doctrine, to suffer that question to be raised here and decided by an election mob? Do they pretend to say that that great Being has authorized them to submit His powers and His existence to that kind of tribunal?
Sir, it is quite time, at this late day, that it were understood that Christianity asks no aid from human governments; that religion can stand a great deal of crushing out without being injured, but when it is taken to the arms of the civil power, it falls degraded and dishonored. It was for this reason, and after the experience of centuries, that our forefathers divorced forever all church and State, and suffered religion to stand where it should stand, upon the consciences and the convictions of men!
Look at the history of the world and see whether we dare propose to return to the old state of things! What was the condition of Christianity before the Roman emperors allied it to the government? As pure an emanation from heaven as ever blessed the earth. What was it after? A very demon of hell! And it is so always. Wherever religion rests alone, where it was intended to rest, upon the consciences and convictions of men, there it is an angel of purity; wherever it is joined with the civil arm and rests upon coercion, it is a curse to the country in which it is.
I could multiply examples on this point. Let us look at one closer to our own times. You know, sir, and every gentleman here knows, that in this counry [sic] the denomination of Episcopalians has produced as pure christianity and as many christians in proportion to the numbers as any other sect in the country, let it come from where it may. Contrast its condition here with its condition in England, where it is wedded to the civil power. There its officers are electioneered for as politicians electioneer for petty borough, town and county officers. Its benefices are sold in the market, sometimes for money, sometimes for political influence; and wherever it gets an opportunity to put its heel upon any system of christianity that is not favored by the government it does so ask the Catholics of Ireland; ask the Dissenters of England! Why is it that an organization so beneficent there is and engine of corruption and oppression there? It is polluted by the favor of the government.
…What was Puritanism in England before it came over to Boston? You could not imagine a better and brighter sample of the christianity of the Sermon on the Mount than that. But when it came to Boston and allied itself to the civil power of the State, what did it become? It turned itself to murdering Indians, hanging Quakers and banishing Baptists to starve in the wilderness.
It is not the fault of religion that this occurs. It is the fault of the government in undertaking to support religion. It is the unholy alliance. I say again, Christianity asks nothing form the government but to be let alone. It has shown in the history of the civilized world that it can bear the iron heel of oppression and survive it, that it can bear any amount of persecution and opposition, but that the smile of power pollutes it, changes it from an angel of light to an embodiment of hell.
It was well that our ancestors had some schooling, some experience in this business. They came away from a government that fostered religion with the civil arm, and they were very careful to put such provisions in their Bill of Rights and in their Constitution as would forever prevent any such foul combination, any such assistance as that; and the fact that they did not put the provision now proposed in the Constitution argues greatly in favor of leaving it out with me, because they were not only purer patriots than we ought to claim to be, but they were probably better christians, and they certainly did know what to put in the Constitution of the State and what to leave out, being fresh from the terrible ordeal of experience.
Now, I do not intend to occupy the time of the Convention, for I am not at all well, but I desire to say only that the law of christianity, the law of religion, depends in no way upon the same foundation with the laws of the State. The laws of the State, the laws of human government, depend, as a last resort, always upon coercion, and the moment you aid or pretend to aid the cause of religion by coercion, let it be with even the weight on the one side of a smile or the weight of a frown on the other, you destroy its beneficence; you render it, instead of what it is, something that is a curse to the country in which it is. Religion depends upon the consciences and convictions of men, of each individual man; every man must judge it for himself; he is responsible alone, not for anybody else, but for himself. ‘Let every man be fully persuaded in his own mind’ is the command; not be persuaded in the mind of a State Convention; not be persuaded in the mind of the State or of the government, but in his own. Hence I say that all favor shown to the cause of religion by the State is a disadvantage to it. Never yet did the civil arm extend itself to aid the cause of religion without polluting it, without destroying its usefulness, and therefore I will vote to keep out everything of the sort here lest we degrade a holy cause, lest we drag it down from its high position of resting upon the consciences and convictions of men and make it rest upon the mere arm of power. Sir, would you enforce with the sword a proposition of the kind you put here? I imagine not. Yet the sword is the ultimate resort of all civil government.
…Now I have only one other sentence to utter, and it is this: In the name of the religion that I revere, in which I was educated, and for which I have supreme honor and supreme regard, I ask that this Convention will withhold its hand. All it asks is to be let alone; but if you will touch it, better touch it to punish, better touch it to crush than to aid, because you can do it less damage by putting upon it the iron heel of oppression than you will by clasping it in the unholy grasp of the civil power. (pp. 761-3)
George W. Woodward:
Mr. Chairman: I do not rise to enter into this discussion at all, but simply to refer to one point in the remarks of the gentleman from Delaware. (Mr. Broomall.) In all that that gentleman said by way of deprecating a union of church and State, I do most heartily concur, but not exactly for the reasons that the gentleman has stated. I think all such unions of church and State are more injurious to the church than the State; but whether to the one party or to the other, I always applauded the sentiments of our forefathers which separated them, and I trust we shall always keep them separate in this country of ours… (p. 763)
It does not make any difference what Constitution is attempted to be amended in this way, the principle is the same…Now, sir, there is a difficulty in their minds, and that difficulty is the action in the French Assembly which declared that there was no God…whenever you open the door to vote upon it one way you must admit that the question may be decided the other way, that the vote may as readily be that there is no God, as that there is. Well, sir, put it upon the ground of majority, and let there be one many to-day in the State of Pennsylvania who does not believe in the sovereignty of God, and by what right do you undertake to disfranchise you. Oh! they say, it is a question of majorities is only a question of force, and not a question of right.
If you may to-day disfranchise any man because he does not believe in the existence of a God, to-morrow you may disfranchise a man because he does not believe in the plenary inspiration of the Scriptures, and the next day because he does not believe in the deity of Jesus Christ. This is the logical conclusion to this kind of legislation brings us. it is a question of the strongest denomination, if you make it a question of majority; and how else are you to determine it than by a vote of the majority?
…This is a question for every man’s judgment and conscience. It is not to be determined by a majority for me. It is a question which I am to settle for myself, and if I govern my conduct by the laws and rules of society that is all that society can ask of me. The Constitution is a matter for all the people; and when I say ‘all,’ I do not except any. A man who does not believe in the existence of God has as much right to participate in the government of the country as the man who does believe in it. No man has a right to call another in question about it. It is simply not the subject of legislation, and whenever we make it the subject of legislation, we make a mistake….(pp. 766-8)
Abraham B. Dunning:
….Sir, this proscriptive principle that has crept into the religious world, of the right of human governments to force a religion upon the people, is very much like that sort of religion spoken of by Paul, the great apostle of the Gentiles, when he said that he in all good conscience persecuted the Church of Christ, and he did it because he was brought up in the straightest sect of Pharisees, and he verily believed he was doing God service when he was on his way to Damascus with his pockets filled with letters from the authorities to take and capture every man who acknowledged the christian religion. Sir, there have been thousands of men from the days of Paul down to the present time who believed they were doing God service when they persecuted the men or the church or the community that did not subscribe to their ideas of faith. That has been true from the time the first creed was ever introduced into the world, and it is true to some extent to-day.
Therefore, I oppose the introduction of anything into the Constitution that shall bind the conscience of any man. Let every man stand free to act upon the principles that animate his heart, with a clear judgment and a just conscience before God. (pp. 769-70)
The preamble to Pennsylvania’s 1790 and 1838 constitutions read: “We, the people of the commonwealth of Pennsylvania, ordain and establish this constitution for its government.” (constitutions II, 1548 and 1838: 1557). The final version of the 1873 constitution read: “We, the people of the commonwealth of Pennsylvania, grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking His guidance, do ordain and establish this constitution.” (II, 1570)
Debates of the Convention to Amend the Constitution of Pennsylvania: Convened at Harrisburg November 12, 1872; adjourned November 27, to Meet at Philadelphia, January 7, 1873, IV (Harrisburg: Benjamin Singerly, State Printer, 1873)
Olivier Douliery/Abaca Press/Sipa via AP Images from Mother Jones “Did the Supreme Court fall for a Stunt?” June 7,2018
Can those engaged in “expressive” endeavors such as making cakes be exempted from anti-discrimination laws which run contrary to their sincerely held religious beliefs? The Supreme Court failed to address the fundamental constitutional issues raised by this question in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The baker in this case, Jack Phillips, claimed that to force him to bake a cake for a same-sex couple violated his right to free speech and the free exercise of his religion. These claims were never addressed by the Court. Justice Anthony Kennedy, as the swing vote was in a bind. If he voted in favor of Phillips, he would have endorsed religiously-motivated discrimination. But if he ruled against Phillips he would have dealt a blow to religion, as he saw it. So, instead he sidestepped the core issue and charged Colorado’s Civil Rights Commission with violating Phillips’ rights by failing to act in accordance “with the State’s obligation of religious neutrality.” (1) While not the ruling Phillips and his supporters were hoping for, they nevertheless celebrated the decision. This celebratory reaction was more than a simple display of confidence; there were actually good reasons to declare victory. Having failed to address Phillips’ constitutional claims, the Court left the door open to bring them up for review once again, possibly in more favorable conditions (i.e. a new Supreme Court justice more favorable to their case). In addition, Kennedy’s ruling gave the religious a weapon to further erode the barriers that divide religion and government. In other words, the seemingly tempered ruling actually established a precedent that could potentially have far reaching consequences. It also reveals more troubling trends in First Amendment jurisprudence that are posed to further erode the barriers which actually protect the equal religious liberty that we so cherish.
Relieved that the Court punted on the issue of religiously-motivated discrimination, many on the left failed to see the radical implications of this “kick the can down the road” decision. The implications were not lost on everyone, however. The constitutional scholars Douglas Laycock and Thomas Berg immediately recognized the significance of Kennedy’s reasoning:
The Supreme Court has announced a powerful ideal. Even when a law has no explicit exceptions, hostile enforcement is unconstitutional. Single-issue agencies that enforce state civil-rights laws must approach claims to religious exemptions with tolerance and respect. And this is apparently an absolute rule; the court does not consider whether hostility might be justified by some state interest, compelling or otherwise. (2)
The implications of this “ideal” are troubling. Any hint of “hostility” in the creation or enforcement of generally applicable laws could be used to invalidate laws and/or their enforcement. This is not the first time the charge of hostility has been used to discredit laws, and even constitutional principles such as separation, as breaches of constitutionally required neutrality. A review of the Masterpiece ruling reveals some of the problems with the application of the neutrality principle as well as other troubling trends in First Amendment jurisprudence. The barriers that were erected to protect religious liberty are being slowly being dismantled by a conservative court bent on tearing down those prudent barriers.
The 5-4 decision in Masterpiece rests on a breach of neutrality by Colorado’s Civil Rights Commission when first determining whether or not Jack Phillips violated the state’s anti-discrimination law. Kennedy relies on two lines of evidence to make his case. The most substantial piece of evidence comes from a series of other baker-related rulings made by the Commission. In contrast to Phillips, the Commission ruled in favor of the bakers in three other similar cases, which according to Kennedy prove that the Commission was biased against Phillips and his beliefs. Critics of the decision have pointed out the important distinctions between these cases that make them invalid as points of comparison. (3) Having focused on this more substantial line of evidence, few have examined the statements from the member(s) of the Commission which supposedly confirm that the Commission failed to treat Phillips with the neutrality required by the Free Exercise Clause. In terms of evidence these statements seem trivial, which is why the focus has been on the comparison between the bakers’ cases. Most critiques dismiss the statements as irrelevant since they were a few comments made by at most two individuals in a much broader enterprise that involved many other “independent decisionmak[ers].” (4) This in and of itself should have invalidated the use of the comments, but having used them as evidence of hostility towards religion in a Supreme Court decision, their content matters. They have become examples of impermissible “hostility” towards religion. They are also exemplary of broader trends in First Amendment jurisprudence that rest on the abuse of history and language, therefore a review of the substance of these statements is a worthwhile endeavor.
Kennedy included three statements that supposedly expose the Commission’s hostility towards religion in general and Phillips’ religious beliefs in particular. The first two statements were made at a public hearing held on May 30, 2014, and, according to Kennedy, they show that the “commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” (5) This damning conclusion is hard to square with the modest statements made by a particular commissioner.
This is Kennedy’s rendering of the first comment: “One commissioner suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’” (5) Compare this to the full recorded statement:
I don’t think the act [Anti-Discrimination Act] necessarily prevents Mr. Phillips from believing what he wants to believe. And – but if he decides to do business in the state, he’s got to follow (inaudible). And I don’t think the Act is overreaching to the extent that it prevents him from exercising his free speech. (6)
The inaudible section is most certainly “the law” as is consistent with his earlier statements (e.g. “any person that chooses to do business in the state of Colorado has to recognize that they have to conduct business in an ethical and law-abiding way.”). (7) Notice how Kennedy’s addition of the phrase “but cannot act on his religious beliefs” takes the innocuous statement and turns it into something more menacing. It implies that this particular commissioner was broadly opposed to religion in the public square, rather than just opposition to actions that are against the law. To express support for the idea that businesses and their employees should follow the law, even when they disagree with it, is not controversial and it is certainly not an expression of hostility towards religion. If there is any hostility in the statement it is towards breaking the law.
The second statement made by the same commissioner is similarly mischaracterized by Kennedy. The full statement is longer and more nuanced than the first, but rather than quoting the statement in full, as would have been appropriate in this case, Kennedy pulls out a single sentence: “‘[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.’” (5) Maybe “compromise” was not the best word to describe the forbearance required in a religiously diverse society that supposedly respects the rights of everyone equally, but the idea he is conveying is not controversial, which is why, to Kennedy’s consternation, neither the other commissioners nor the “later state-court ruling” disavowed the statements. (5) Looking at the above quote in context we can see that this statement was an attempted paraphrase of Justice Chavez’s ruling in “the New Mexico case” (8) (i.e. Elane Photography v. Willock, 2013). This commissioner was saying nothing more than what the Justice from the New Mexico Supreme Court stated, even if he articulated the Justice’s ideas unartfully. In other words, whatever their personal religious beliefs, businesses serving the public must follow the law.
Recognizing that his interpretation of these statements is a bit of a stretch, Kennedy concedes that they “might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views.” (5) But he ultimately rejects this obvious and commonsense interpretation in favor of an interpretation that presents them as “inappropriate and dismissive comments showing lack of due consideration for Philips’ free exercise rights and the dilemma he faced.” (5) A comment made at a July 25 meeting convinced Kennedy that these statements were not innocent expressions of the logic behind anti-discrimination laws.
This is the statement that Kennedy portrays as “disparaging Phillips’ beliefs”:
I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others. (5)
Kennedy follows this with this assertion: “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.” (5) Notice how Kennedy reframed the statement as one “describe[ing] a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use.’” This commissioner, said no such thing. Instead, he was making the point that religion has all too frequently been used as an excuse to engage in horrible acts. History is littered with such examples. And it was this history that galvanized the movement toward toleration and eventually religious liberty. It was not faith in general but the use of religion to harm others that this commissioner found despicable. Whether or not the commissioner believed that Phillips’ religious claim was “merely rhetorical” is beside the point since he was speaking in general and he had no way of knowing whether or not the beliefs were sincerely held or not.
It is hard to see how the above statements demonstrate impermissible hostility towards religion in general, or Phillips’ religious beliefs in particular. The use of an ill-defined standard such as “hostility” is a formula for abuse. It is questionable whether or not hostility (as opposed to actual discrimination) is forbidden by the Constitution, but before turning to this question let’s review how this standard has been used, and abused, in First Amendment jurisprudence.
The use of the rhetoric of “hostility” is a byproduct of what is known as the neutrality principle, which holds that government cannot favor one religion over another, religion over non-religion, or vice versa. There is a case to be made against the neutrality principle in general, or at least in the way it has been applied, but here I want to focus only on two aspects of its application. First, is the application of the “hostility” standard. Second, the conflation of religion in general with specific religions. This conflation is significant since it has allowed the Court to bypass the Establishment Clause’s mandate to treat religion differently.
The language of hostility arose in conjunction with the so-called neutrality principle, first deployed in a significant way in several cases in the 1960s. (9) The neutrality principle has been championed by those who see it as more accommodating to religion than the principle of separation. For example, in Allegheny v. ACLU (1989) Justice Kennedy dissented against the majority that found a holiday display at the county court house in Pittsburg unconstitutional, arguing that their “view of the Establishment Clause reflects an unjustified hostility toward religion, a hostility inconsistent with our history and our precedents, and I dissent from this holding.” (10) Several years later in Rosenberger v. University of Virginia, he ruled that the University of Virginia violated the free speech rights of a student publication when it denied them funds from the Student Activities Fund because of their Christian “viewpoint.” Notice how he reframed the issue by identifying the group not as religious but as just another viewpoint protected speech under the Free Exercise Clause. But he still had to get around the Establishment Clause’s ban on public funding of religion. Here’s where the neutrality principle came in handy. He argued that a denial of funds to those simply presenting a religious viewpoint “risk[ed] fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires. There is no Establishment Clause violation in the University’s honoring its duties under the Free Speech Clause.” (11) (italics mine) While clever, it is a betrayal of the founders’ rights-protecting scheme.
The religious dissenters who fought so hard to disestablish religion during and after the Revolution would be shocked to hear of such a claim. In the fight against a proposed religious assessment in support of teachers of the Christian religion, several dissenters’ petitions repeated Jefferson’s phrase: “That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” (12) The assessment was soundly defeated, and Jefferson’s Statute for Establishing Religious Freedom was passed in its stead. It was this spirit of disestablishment that lead to the creation and enactment of the Religious Clauses of the First Amendment. To single out religion for special treatment is what makes religious freedom possible. To call this special treatment “hostility” is a betrayal of the legacies of those who fought so hard to disestablish religion and the religious liberty that it was meant to protect.
In a scathing critique of the Courts decision, Winnifred Fallers Sullivan mockingly pointed out that “’[p]reaching the word’ is not speech. It is religion.” He continued, “To treat religion as speech was a clever lawyer’s ploy, and it carried the day in Rosenberger. But something was lost in the process. To efface the difference is to forget history. The dissenters in Rosenberger want to hold onto the difference that religion makes. For them, our public language and our historic commitment to the difference that religion makes is enshrined in the First Amendment.” (13)
This same specious reasoning has become pervasive in conservative constitutional law circles, usually aimed at the principle of separation. Carl H. Esbeck’s statement is typical: “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.” (14) A demand for neutrality and equal treatment for religion has already done great harm to the protections established in the First Amendment meant to protect religious freedom, but another devastating blow to the wall of separation is already in the works. After Zelman v. Simmons-Harris (2002) opened the doors to public funding of religious institutions at the federal level as long as money goes to the individual first, the only real obstacle blocking school vouchers has been what are called “Baby Blaines” (state constitutional provisions that ban public funding of religious institutions). Hence there has been a concerted effort to destroy them. (15)
This effort got a big boost last year in Trinity Lutheran v. Comer. In 2012 Missouri’s Department of Natural Resources denied Trinity Lutheran’s Child Learning Center funding as part of their grant program because the state’s constitution banned transfers of public funds to religious entities. Having lost in the lower courts, the church appealed to the Supreme Court, where those rulings were overturned. Chief Justice John Roberts writing for the majority charged the state of Missouri with “discrimination” because it denied the church public funds “solely because it is a church.” (16) To pull this off Roberts had to elide important distinctions of language. Roberts did not use the language of “hostility” to describe the treatment of the church, instead he called it “discrimination.”
The first deceptive maneuver was to use one form of unconstitutional “discrimination” (treating a particular group differently out of prejudice) to declare a constitutional type of “discrimination” (discerning things that belong in the category religion) unconstitutional. Roberts’ argument also rests on another casual use of language. The Missouri Constitution bans public funding “directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such.” In other words, it bans public monies to religious entities (i.e. all religion). But the precedent he turned to (Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993) involves the discriminatory treatment against members of a particular religion (Santeria). Conveniently, Kennedy in Lukumi made this conflation possible. He worded the ruling in such a way that it failed to distinguish between religion in general and a particular religion:
The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights its secures. …Legislators may not devise mechanism, overt or disguised, designed to persecute or oppress a religion or its practices. (17) (italics mine)
In this scheme, there is no difference between singling out religion as a category from the religious groups that belong to that category. Once this distinction disappears it is easy to declare Missouri’s constitutional mandate to treat all things religious differently as unconstitutional discrimination. A ban meant to bar discriminatory treatment of particular religions or religious denominations, has now become a weapon to get around the barriers in the federal and state constitutions that separate religion from government. (for more detail on this ruling see The Battle for the Wall of Separation) This ruling is supposedly limited to this single situation, however, not all justices in the majority signed on to this limitation.
The stage has now been set to invalidate all state “Baby Blaines,” which is further attached as product of anti-Catholic animus and as such are in violation Establishment Clause’s neutrality principle. (18) Never mind that the principle of no-aid existed long before these little Blaines were enacted, or the fact that not all state bans on public funding of religion were born of anti-Catholic sentiment. (19) The purpose of this attack on these amendments is clear, as Marc D. Stern explains, it “is to invert the traditional church-state debate over aid to religious institutions. In this country, that debate always had been whether a particular form of aid was permissible or forbidden. Under the new approach, the question is whether aid is forbidden as an establishment of religion or mandatory to avoid discrimination against religion.” (20) Both the anti-Catholic and the “discrimination” against religion are likely to be deployed in the next challenge to these state prohibitions, and given the existing precedents and the conservative makeup of the Court, they are likely to succeed in achieving their aims. The Establishment Clause will be reduced to insignificance, a process that began over a decade ago, on the basis of a dubious constitutional principle.
What about the neutrality principle’s companion “hostility”? Does it have any validity as a constitutional principle? Discrimination against particular religious groups such as the Santeria religion are most certainly unconstitutional. This kind of discrimination was one of the primary reasons for the disestablishment of religion. Reflecting on his time in Virginia fighting for religious liberty, the popular Baptist preacher John Leland insisted that “government should protect every man in thinking and speaking freely, and see that one does not abuse another. 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, Pagans and Christians.” (21) To make laws that privilege some over others because of their religious opinions is contrary to the principles of religious liberty, but not toleration. Hence this kind of discrimination should not be tolerated.
But to make hostility, in and of itself, a standard of constitutionality seems absurd. It abridges no one’s ability to practice their religion, and it asks government officials to be robots. In the Lukumi case, if city officials had simply expressed disgust and disapproval of the Santeria religion, but did nothing, or enacted truly generally applicable laws for the purposes of public health, rather than specifically targeting their Church then there would be no breach of the Constitution. Or, conversely, had they said nothing demeaning about that religion but passed ordinances meant to punish the members of that religion it would have been unconstitutional. Statements can be useful, as they were in the Lukumi case, to determine whether or not the ordinances were truly neutral, but the hostile statements themselves should not be unconstitutional. To ask everyone associated with the government to refrain from expressing opinions about certain religions or religious practices is unreasonable and such comments, as horrible as some of them are, are not incompatible with religious liberty. Can you imagine declaring Thomas Jefferson’s Statute for Establishing Religious Freedom null and void because it was born of animosity towards religion? One of the main reasons Jefferson fought so hard to “establish religious freedom” was so that he could say whatever he wanted about religion, most of which was hostile towards it.
Linda Greenhouse’s fear “that the Supreme Court has imposed a regime of constitutional political correctness on how we talk about religion” seem well founded. (22) While insignificant in many ways, the Masterpiece ruling reveals a Court gone astray from the principles and purposes of the First Amendment. The dissenters who fought tirelessly to disestablish religion knew all too well the dangers of mixing politics and religion. Their goal of separating religion and government was not a project born of hostility towards religion, but out of a desire to protect religion, as well as the state. After learning of Madison’s veto of a bill providing a land grant to a Baptist Church in the territory of Mississippi on grounds that the support violated the Establishment Clause, two North Carolina Baptist Churches wrote in support of Madison’s decision:
Considering the said affair as proceeding from Some of our Religious Connections and that the Same is not Consistent with the Spiritual Interest of Religion and that the tendency of Such a procedure if perpetuated would inevitably give to Religious Societies an undue weight and Corrupt influence in public affairs at large and diminish Religious enlargement impairing our Civil and Religious liberties and in fine Contaminate our national morals we therefore desire to assure you that we entertain a high Sense of and Confidence in Your Illustrious objection against the Bill wherein we humbly conceive as eminent an Instance of patriotism have displayed as in any occurrence of the kind. (23)
Madison responded in appreciation: “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.” (24) It is to this alliance between pious religious dissenters and rationalists like Madison that we owe our legacy of religious freedom to. Knowing all too well the history of religious tyranny, they tirelessly fought to separate religion and government. Their hard work is slowly being undone by those who would ignore the lessons of history. We ignore this history at our peril.
18) For example see Philip Hamburger, “Prejudice and the Blaine Amendments,” First Things.
19) For a review of this history see Steven K. Green, “’Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle,” 2 First Amendment Law Review (2004).
20) Marc D. Stern, “Blaine Amendments, Anti-Catholicism, and Catholic Dogma,” First Amendment Law Review 2 (2004), 153.
21) John Leland, “A Chronicle of His Time in Virginia,” in L.F. Greene, ed. The Writings of the Late Elder John Leland: Including Some Events in His Life (New York: G. W. Wood, 1845, Public Domain Reprint), 118.
22) Linda Greenhouse, “How the Supreme Court Avoided the Cake Case’s Tough Issues,” The New York Times (June 7, 2018)
23) To James Madison from Jesse Jones and Others, 27 April 1811: From Jesse Jones and Others (April 27—1811). Founders Online
24) Madison to the Baptist Churches in Neal’s Creek and on the Black Creek, North Carolina (June 3, 1811). Founders Online
On this day in 1789, the French revolutionaries in search of arms stormed the Bastille, the former prison that stood as a symbol of tyranny, and in the process killed the governor of the Bastille, Bernard-Rene Jourdan de Launey. The Bastille was then dismantled brick by brick. It remains a symbol of the Revolution!
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
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
A settlement; fixed state.
Confirmation of something already done; ratification.
Settled regulation; form; model.
Foundation; fundamental principle.
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 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)
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)
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.”
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
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:
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)
The “free exercise of religion” and/or “liberty of conscience” were considered individual rights. (p. 616)
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.
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)
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.
John Bach McMaster and Frederick D. Stone, eds. Pennsylvania and the Federal Constitution (1787-1788) (The Historical Society of Pennsylvania, 1788), 577 and 589.
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
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
“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
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.
Kaminski, et al., The Documentary History of the Ratification of the Constitution, vol. V, 1428-1441.
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
Owen S. Ireland, Religion, Ethnicity, and Politics: Ratifying the Constitution in Pennsylvania (University Park: The Pennsylvania State University Press, 1995), 74.
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.
quoted Ibid., 214.
quoted in Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788. New York: Simon & Schuster, 2010), 102.
McMaster & Stone, Pennsylvania and the Federal Constitution, 421.
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.
L.H. Butterfield, L.H. “Elder John Leland, Jefferson Itinerant,” American Antiquarian Society vol. 62, no. 2 (October 1952), 186.
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.
L.H. Butterfield, “Elder John Leland, Jefferson Itinerant,” American Antiquarian Society vol. 62, no. 2 (October 1952), 191.
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.
Bailyn, ed. The Debate on the Constitution, Part II, 690.
Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (New York: Simon & Schuster, 2010), 306-308.
Irving Brant, James Madison: Father of the Constitution 1787-1800 (Indianapolis: The Bobbs-Merrill Company, Inc., 1950), 238.
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).
Pennsylvania: McMaster & Stone, Pennsylvania and the Federal Constitution, 421-423); and Maryland: Bailyn, ed. The Debate on the Constitution, Part II, 554.
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.
Amanda Hollis-Brusy, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (New York: Oxford University Press, 2015) 31-89.
Eric Berger, “Originalism’s Pretenses,” 16 University of Pennsylvania Journal Constitutional Law (2013-14), 329.
Robert Post & Reva Siegel, “Originalism as a Political Practice: The Right’s Living Constitution,” Fordham Law Review 75 (2006) 545-574.
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).
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.
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.
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.