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).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Broadsides in the Newspapers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Ratifying Conventions

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

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

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

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

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

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

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

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

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

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.

Click here to go to Part III

Endnotes:

20. 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).
21. Richard Henry Lee, “Amendments Proposed to Congress,” (September 27, 1787) in Declaring Rights: A Brief History with Documents by Jack N. Rakove (Boston: Bedford Books, 1998), 117.
22. James Wilson, “Statehouse Speech,” (October 6, 1787) in Ibid., 122.
23. Agrippa XII, part 1 (January 11, 1788) see http://teachingamericanhistory.org/library/document/agrippa-xii/
24. Queries on the subject of religious establishments, Virginia Gazette (November 8, 1776) see Colonial Williamsburg online library: http://research.history.org/DigitalLibrary/va-gazettes/
25. Virginia Declaration of Rights, Article 16, see https://founders.archives.gov/documents/Madison/01-01-02-0054-0002
26. “A Countryman V” (December 20, 1787) see http://teachingamericanhistory.org/library/document/a-countryman-v/
27. John Bach McMaster and Frederick D. Stone, eds. Pennsylvania and the Federal Constitution (1787-1788) (The Historical Society of Pennsylvania, 1788), 577 and 589.
28. Ibid.
29. 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
30. An “Old Whig V” (November 1, 1787) see http://teachingamericanhistory.org/library/document/an-old-whig-v/
31. 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
32. “A [Maryland] Farmer, no. 1,” (February 15, 1788) The Founders’ Constitution, Volume 1, Chapter 14, Document 35 see http://press-pubs.uchicago.edu/founders/documents/v1ch14s35.html
33. “A [Maryland] Farmer, no. 7” (April 11, 1788) in The Founders’ Constitution, Volume 5, Amendment I (Religion), Document 48 see http://press-pubs.uchicago.edu/founders/documents/amendI_religions48.html
34. “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
35. 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.
36. Kaminski, et al., The Documentary History of the Ratification of the Constitution, vol. V, 1428-1441.
37. Ibid., 1432.
38. 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
39. Owen S. Ireland, Religion, Ethnicity, and Politics: Ratifying the Constitution in Pennsylvania (University Park: The Pennsylvania State University Press, 1995), 74.
40. 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.
41. quoted Ibid., 214.
42. quoted in Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788. New York: Simon & Schuster, 2010), 102.
43. McMaster & Stone, Pennsylvania and the Federal Constitution, 421.
44. 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.
45. Archibald Stuart to James Madison (November 2,1787) Founders Online. https://founders.archives.gov/documents/Madison/01-10-02-0164
46. James Madison to George Washington (February 20, 1788) Founders Online. https://founders.archives.gov/documents/Washington/04-06-02-0100
47. James Gordon, Jr. to James Madison (February 17, 1788) Founders Online. https://founders.archives.gov/documents/Madison/01-10-02-0298
48. John Blaire Smith to Madison (June 12, 1788) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0075
49. Madison to William Bradford (January 24, 1774) Founders Online. https://founders.archives.gov/documents/Madison/01-01-02-0029
50. L.H. Butterfield, L.H. “Elder John Leland, Jefferson Itinerant,” American Antiquarian Society vol. 62, no. 2 (October 1952), 186.
51. 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.
52. L.H. Butterfield, “Elder John Leland, Jefferson Itinerant,” American Antiquarian Society vol. 62, no. 2 (October 1952), 191.
53. James Madison to Thomas Jefferson (October 17, 1788) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0218
54. John Leland, “Ten Objections by a Leading Virginia Baptist,” in The Debates, Part II, 267-269.
55. James Madison to George Eve (January 2, 1789) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0297
56. 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.
57. Bailyn, ed. The Debate on the Constitution, Part II, 690.
58. Ibid., 753.
59. Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (New York: Simon & Schuster, 2010), 306-308.
60. Irving Brant, James Madison: Father of the Constitution 1787-1800 (Indianapolis: The Bobbs-Merrill Company, Inc., 1950), 238.
61. James Madison to George Eve (January 2, 1789) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0297
62. Brant, James Madison, 240.
63. Quoted in Brant, James Madison, 242.
64. 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).
65. Pennsylvania: McMaster & Stone, Pennsylvania and the Federal Constitution, 421-423); and Maryland: Bailyn, ed. The Debate on the Constitution, Part II, 554.
66. See the lists drawn up by Agrippa XVI, February 5, 1788 (http://teachingamericanhistory.org/library/document/agrippa-xvi/) and the Albany Anti-Federalists, see DHRC vol. XXI, no. 3.
67. Kate Mason Rowland, The Life of George Mason, 1725-1792 (New York: J.P. Putnam’s Sons, 1892), 235.
68. George Mason to George Washington (October 2, 1785) Founders Online. https://founders.archives.gov/documents/Washington/04-03-02-0258
69. Madison, General Defense of the Constitution, Virginia Ratification Convention (June 12, 1788) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0077
70. Bailyn, ed. The Debate on the Constitution, Part II, 554.