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

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

The U.S. Supreme Court 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notes:

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

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

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

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

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

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

In Madison’s original proposal the above clause was followed by what he saw as the implications of his equal free exercise clause: “and therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges; nor subjected to any penalties or disabilities unless under the Colour of Religion, any Man disturb the Peace, the Happiness, or Safety of Society, or of Individuals.” (the italicized section was part of Mason’s original version) Understanding that this meant the disestablishment of the Church of England the mostly conservative Anglican delegates rejected this clause, but they did so without understanding that the accepted clause was all that was needed, as the clause which followed was derived from it. The dissenters immediately understood the implications, and began drawing up petitions calling for the disestablishment not just of the established church, but of all religion. It is also important to note the second section of Madison’s rejected first proposal. It indicates that neither Madison, nor Mason, believed that religion could be used as an excuse to harm society or individuals. This obvious limit to religious freedom was almost universally accepted.

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

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

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

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

Religious Freedom Belongs to Everyone Equally

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

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

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

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

In calling out the unjust marriage and vestry laws that privileged the Episcopalians, the Baptists called upon the legislature to “take effectual Measures to redress these Grievances, in such a Way as may manifest an equal Regard to all the good People of this Commonwealth, however diversyfied by Appellations or Religious Sentiments.” And while they specifically called out the marriage and vestry laws because they found them to be the most egregious, they demanded that the legislature to “consign to Oblivion all the Relicks of Religious Oppression, and make a public Sacrifice of Partiality at the glorious Altar of Freedom.” (12) (italics mine)

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

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

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

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

Separating Religion and Government is Necessary for Religious Freedom

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More than any other dissenter, Leland devoted his life to tearing down all religious establishments. His extensive writings on the subject offer the clearest and most consistent effort to articulate a coherent vision of religious liberty. In doing so he explained why sins (religious morality), as opposed to crimes, fell outside the bounds of civil law. Using history as his guide he pointed out that “when civil rulers undertake to make laws against moral evil, and punish men for heterodoxy in religion, they often run to grand extremes…In short, volumes might be written, and have been written, to show what havoc among men the principle of mixing sins and crimes together has effected, while men in power have taken their own opinions as infallible tests of right and wrong.” Even sins “of enormous size,” he averred, were “not crimes to be punished by the laws of state, which extend no further, in justice, than to punish the man who works ill to his neighbor.” (41)

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

The Free Exercise of Religion is Not an Absolute Right

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

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

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

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

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

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

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

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

Separation Protects Religious Freedom and Religion

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

Just as important as the theme of “ecclesiastical tyranny” was the theme of the corrupting influence of connections between religion and government. On this subject, they found history a useful guide. Pleas like the one found in the “Spirit of the Gospel” petition were common: “that the Blessed author of our Religion, supported and maintained his Gospel in this World for several Hundred years; not only without the aid of Civil Power, but against all the Power of the Earth.” Never was Christianity purer than it was prior to when it was established “by Human laws” by Constantine. (54) History, they insisted, “has shown that this dependence, where it has been effected, has been an injury rather than an aid.” The Presbyterian minister John Todd, in a letter to Jefferson opined that the union of church and state had corrupted the clergy by turning them into “ready Tool[s] for the State” who collaborated with the state “in every design of Tyranny and oppression, &c.” He repeated the frequent dissenter refrain that “all the Churches Since Constantine, shew the absurdity of Establishments.” In his view, “Virtue and pure religion do better without earthly emoluments than with.” (55) In other words, it was connections between religion and government that were hostile to religion. (56) Therefore, they wanted a separation in which “every man” would “be Left free from all Compulsion in this _ matter,” which would “be Best both for Church & State.” (57)

Conclusion

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

Notes:

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

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

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

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

5. A bill For exempting the different societies of dissenters from contributing to the support and maintenance of the church as by law established in The Statutes at Large: Being a Collection of all the Laws of Virginia, from the First Session of the Legislature, in the year 1619, vol. IX, edited by William Waller Hening (Richmond: J & G Cochran, 1821), 165.

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

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

Here are some examples of similar statements:

Amherst County petition (November 1, 1777): They informed the legislature that they “most earnestly desire[ed] and pray[ed] that not only an Universal Toleration may take Place but that all the Subjects of this Free State may be put upon the same footing and enjoy equal Liberties and privileges, which we think (consistent with the 16th paragraph of the Declaration of Rights), can no longer with any shadow of Justice be withhold.”

Amherst County petition (1779): They informed the legislature that they “most earnestly desire[ed] and pray[ed] that not only an Universal Toleration may take Place but that all the Subjects of this Free State may be put upon the same footing and enjoy equal Liberties and privileges, which we think (consistent with the 16th paragraph of the Declaration of Rights), can no longer with any shadow of Justice be withhold.”

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

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

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

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

10. Hanover Presbytery (October 24, 1776).

11. Berkeley County (October 25, 1776).

Here are additional examples of this thinking:

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

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

Hanover Presbytery (June 3, 1777): They opened their petition declaring their hope that “their fellow subjects” would join them “to repel the assaults of tyranny and to maintain their common rights.” They gave a “hearty approbation” to the DOR as the document that protected these rights. They also applauded the act “for dissenters,” which they saw as “declaring that equal liberty, as well religious as civil, shall be universally extended to the good people of this country.” (italics mine)

12. Baptist Association (November 8, 1780).

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

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

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

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

13. Hanover Presbytery (November 12, 1784). Financial support for the church was suspended per the Act For exempting the different societies of dissenters from contributing to the support and maintenance of the church as by law established. The dissenters were relieved of all obligations to support religion while the members of the Episcopal Church were supposed to continue in their obligations, but at the last minute this obligation was suspended. In 1779, that obligation was legally abolished. (H.J. Eckenrode, Separation of Church and State in Virginia: A Study in the Development of the Revolution [Richmond: Davis Bottom, Superintendent of Public Printing, 1910], 61).

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

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

16. Baptist Association (November 17, 1785).

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

18. Hanover Presbytery (November 2, 1785).

19. Chesterfield County (November 14, 1785).

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

Here are additional examples:

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

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

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

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

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

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

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

23. Rockbridge County (November 2, 1785).

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

25. “Declaration of the Virginia Association of Baptists,” Virginia Gazette (Dixon & Hunter) (March 28, 1777), 6-7: The proposed general assessment bill them was an example of “civil Rulers go[ing] so far out of their Sphere as to take the Care and Management of religious Affairs upon them!”

Here are some additional examples:

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

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

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

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

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

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

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

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

27. Northumberland County (November 28, 1785)

Here is an additional example:

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

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

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

29. Foote, Sketches of Virginia, 341.

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

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

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

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

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

35. Baptist Association (November 3, 1785).

36. Chesterfield County (November 14, 1785).

37. Amherst County (December 10, 1785).

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

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

40. Jefferson, “Autobiography.”

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

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

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

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

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

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

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

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

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

47. Baptist Association (November 8, 1780).

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

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

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

51.

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

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

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

52. Here are some additional examples:

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

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

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

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

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

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

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

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

53. Baptist Association (November 8, 1780)

54. Surry County (October 26, 1785).

Here are several other similar statements:

Hanover Presbyterians (October 24, 1776): “Neither can it be made to appear that the gospel needs any such civil aid. We rather conceive that when our blessed Saviour declares his kingdom is not of this world, he renounces all dependence upon State power, and as his weapons are spiritual, and were only designed to have influence on the judgment and heart of many, we are persuaded that if mankind were left in the quiet possession of their unalienable rights and privileges, Christianity, as in the days of the Apostles, would continue to prevail and flourish in the greatest purity by its own native excellence and under the all disposing providence of God.”

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

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

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

55. “To Thomas Jefferson from Rev. John Todd, 16 August 1779,” Founders Online, National Archives ( [last update: 2015-02-20]). Source: The Papers of Thomas Jefferson, vol. 3, 18 June 1779-30 September 1780, ed. Julian P. Boyd. Princeton: Princeton University Press, 1951, pp. 68-69.

56. Here are some additional examples:

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

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

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

57. Mecklenburg County (1785).

Here are some additional examples:

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

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

 

 

 

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

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

James Madison

James Madison’s Memorial & Remonstrance Against Religious Assessments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion:

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

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

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

Notes:

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

James Madison

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

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

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

A Clash of Titans: James Madison vs. Patrick Henry

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

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

Point # 1:

Madison’s notes:

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

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

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

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

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

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

Point # 2:

 Madison’s notes:

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

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

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

  1. Case of primitive Christianity.

of Reformation
of Dissenters formerly.
 

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

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

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

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

Point # 3:

Madison’s notes (# 3):

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

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

Point # 4:

Madison’s notes (# 4):

IV. Policy.

  1. promote emigrations from State

  2. prevent [immigration] into it as asylum

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

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

Madison’s notes (his point # 5):

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

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

——
true remedies not Estabt. but being out war

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

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

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

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

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

Point # 5:

Madison’s notes (Outline A) (14):

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

  1. limited

  2. in particular

  3. What is Christianity? Courts of law to Judge

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

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

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

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

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

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

  10. Ends in what is orthodoxy, what heresy?

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

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

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

Conclusion

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

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

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

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

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

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

 

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

Notes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Bill for Establishing Religious Freedom

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

by Mather Brown. London,1786.

Thomas Jefferson, by Mather Brown. London,1786.

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

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

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

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

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

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

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

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

A Bill “Concerning Religion”

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

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

Secondly, That God is publickly to be Worshiped.

Thirdly, That the Christian Religion is the true Religion.

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

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

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

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

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

The Baptists Press Forward in their Quest for Complete Religious Liberty

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

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

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

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

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

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

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

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

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

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

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

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

References:

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

 

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

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

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

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