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

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

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

Madison’s Proposed Amendments

James Madison

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

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

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

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

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

The Debate in the House of Representatives

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Senate

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

The Joint Committee

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

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

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

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

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

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

Madison’s Views on the Establishment Clause

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Notes:

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

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

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

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

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

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

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

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

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

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

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

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

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

14) Ibid., 150-151.

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

16) The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the United States, Part II. Second edition. compiled by Ben: Perley Poore (Washington: Government Printing Office, 1878), 1626.

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

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

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

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

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

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

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

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

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

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

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

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

25) Detached Memoranda. Founders Online

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

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

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

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

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

31) Detached Memoranda. Founders Online

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

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

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

35) Madison, Detached Memoranda, 562. Founders Online

36) Madison, Detached Memoranda, 562. Founders Online

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

 

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

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

Constitutional Convention 1787

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Broadsides in the Newspapers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Ratifying Conventions

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

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

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

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

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

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

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

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

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

James Madison

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

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

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

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

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

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

Patrick Henry

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

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

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

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

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

The Proposed Amendments

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

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

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

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

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

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

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

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

Where does this leave Muñoz’s argument so far?

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

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

Click here to go to Part III

Endnotes:

  1. Vincent Phillip Muñoz, “The Original Meaning of the Establishment Clause and the impossibility of its Incorporation,” University of Pennsylvania Journal of Constitutional Law 8 (2006).
  2. Richard Henry Lee, “Amendments Proposed to Congress,” (September 27, 1787) in Declaring Rights: A Brief History with Documents by Jack N. Rakove (Boston: Bedford Books, 1998), 117.
  3. James Wilson, “Statehouse Speech,” (October 6, 1787) in Ibid., 122.
  4. Agrippa XII, part 1 (January 11, 1788) see http://teachingamericanhistory.org/library/document/agrippa-xii/
  5. Queries on the subject of religious establishments, Virginia Gazette (November 8, 1776) see Colonial Williamsburg online library: http://research.history.org/DigitalLibrary/va-gazettes/
  6. Virginia Declaration of Rights, Article 16, see https://founders.archives.gov/documents/Madison/01-01-02-0054-0002
  7. “A Countryman V” (December 20, 1787) see http://teachingamericanhistory.org/library/document/a-countryman-v/
  8. John Bach McMaster and Frederick D. Stone, eds. Pennsylvania and the Federal Constitution (1787-1788) (The Historical Society of Pennsylvania, 1788), 577 and 589.
  9. Ibid.
  10. Timothy Meanwell, Independent Gazetteer (October 29, 1788) see The Documentary History of the Ratification of the Constitution Digital Edition, ed. John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan. Charlottesville: University of Virginia Press, 2009. Canonic URL: http://rotunda.upress.virginia.edu/founders/RNCN-03-14-03-0003-0006 [accessed 12 Dec 2017] Original source: Commentaries on the Constitution, Volume XIV: Commentaries on the Constitution, No. 2
  11. An “Old Whig V” (November 1, 1787) see http://teachingamericanhistory.org/library/document/an-old-whig-v/
  12. Petition “To the Honorable the Representatives of the Freemen of the Commonwealth of Pennsylvania, in General Assembly met,” Independent Gazetteer (Feb. 19, 1788) in Pennsylvania and the Federal Constitution, edited by McMaster & Stone, 501-2. This petition from Franklin County appears to be a copy of a model petition (see Petition Against Confirmation of the Ratification of the Constitution (January 1788) see The Documentary History of the Ratification of the Constitution Digital Edition, ed. John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan. Charlottesville: University of Virginia Press, 2009. Canonic URL: http://rotunda.upress.virginia.edu/founders/RNCN-02-02-02-0004-0004-0002 [accessed 12 Dec 2017] Original source: Ratification by the States, Volume II: Pennsylvania
  13. “A [Maryland] Farmer, no. 1,” (February 15, 1788) The Founders’ Constitution, Volume 1, Chapter 14, Document 35 see http://press-pubs.uchicago.edu/founders/documents/v1ch14s35.html
  14. “A [Maryland] Farmer, no. 7” (April 11, 1788) in The Founders’ Constitution, Volume 5, Amendment I (Religion), Document 48 see http://press-pubs.uchicago.edu/founders/documents/amendI_religions48.html
  15. “Z,” Boston Independent Chronicle (December 6, 1787) see The Documentary History of the Ratification of the Constitution Digital Edition, ed. John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan. Charlottesville: University of Virginia Press, 2009. Canonic URL: http://rotunda.upress.virginia.edu/founders/RNCN-02-04-02-0003-0128-0004 [accessed 12 Dec 2017] Original source: Ratification by the States, Volume IV: Massachusetts, No. 1
  16. For a detailed analysis of the evidence see James H. Hutson’s “The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review 65 (1986): 1-39.
  17. Kaminski, et al., The Documentary History of the Ratification of the Constitution, vol. V, 1428-1441.
  18. Ibid., 1432.
  19. According to the editors of the Documentary History of the Ratification of the Constitution, Johnathan Elliot attributed this work to Thomas Tredwell but he “offered no explanation for his identification of Tredwell.” They suggest that John Lansing is another candidate for this speech. Appendix III “A Real Federalist,” Albany Register, Supplement (January 5, 1789) in The Documentary History of the Ratification of the Constitution Digital Edition, ed. John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan. Charlottesville: University of Virginia Press, 2009. Canonic URL: http://rotunda.upress.virginia.edu/founders/RNCN-02-23-03-0003 [accessed 13 Dec 2017] Original source: Ratification by the States, Volume XXIII: New York, No. 5
  20. Owen S. Ireland, Religion, Ethnicity, and Politics: Ratifying the Constitution in Pennsylvania (University Park: The Pennsylvania State University Press, 1995), 74.
  21. Quoted in Pennsylvania and the Federal Constitution 1787 – 1788, edited by John Bach McMaster and Frederick D. Stone (The Historical Society of Pennsylvania, 1888), 214.
  22. quoted Ibid., 214.
  23. quoted in Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788. New York: Simon & Schuster, 2010), 102.
  24. McMaster & Stone, Pennsylvania and the Federal Constitution, 421.
  25. Bernard Bailyn, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, Part II (New York: The Library of America, 1993) 554.
  26. Archibald Stuart to James Madison (November 2,1787) Founders Online. https://founders.archives.gov/documents/Madison/01-10-02-0164
  27. James Madison to George Washington (February 20, 1788) Founders Online. https://founders.archives.gov/documents/Washington/04-06-02-0100
  28. James Gordon, Jr. to James Madison (February 17, 1788) Founders Online. https://founders.archives.gov/documents/Madison/01-10-02-0298
  29. John Blaire Smith to Madison (June 12, 1788) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0075
  30. Madison to William Bradford (January 24, 1774) Founders Online. https://founders.archives.gov/documents/Madison/01-01-02-0029
  31. L.H. Butterfield, L.H. “Elder John Leland, Jefferson Itinerant,” American Antiquarian Society vol. 62, no. 2 (October 1952), 186.
  32. Mark S. Scarberry, “John Leland and James Madison: Religious Influence on the Ratification of the Constitution and on the Proposal of the Bill of Rights,” Penn State Law Review, vol. 113, no. 3 (2008-2009): 733-800.
  33. L.H. Butterfield, “Elder John Leland, Jefferson Itinerant,” American Antiquarian Society vol. 62, no. 2 (October 1952), 191.
  34. James Madison to Thomas Jefferson (October 17, 1788) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0218
  35. John Leland, “Ten Objections by a Leading Virginia Baptist,” in The Debates, Part II, 267-269.
  36. James Madison to George Eve (January 2, 1789) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0297
  37. Alan V. Briceland, “Virginia: The Cement of the Union,” in The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution edited by Patrick Conley and John P. Kaminski (Madison, Wisconsin: Madison House, 1988), 212.
  38. Bailyn, ed. The Debate on the Constitution, Part II, 690.
  39. Ibid., 753.
  40. Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (New York: Simon & Schuster, 2010), 306-308.
  41. Irving Brant, James Madison: Father of the Constitution 1787-1800 (Indianapolis: The Bobbs-Merrill Company, Inc., 1950), 238.
  42. James Madison to George Eve (January 2, 1789) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0297
  43. Brant, James Madison, 240.
  44. Quoted in Brant, James Madison, 242.
  45. See The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the United States, Part II. Second edition. compiled by Ben: Perley Poore (Washington: Government Printing Office, 1878).
  46. Pennsylvania: McMaster & Stone, Pennsylvania and the Federal Constitution, 421-423); and Maryland: Bailyn, ed. The Debate on the Constitution, Part II, 554.
  47. See the lists drawn up by Agrippa XVI, February 5, 1788 (http://teachingamericanhistory.org/library/document/agrippa-xvi/) and the Albany Anti-Federalists, see DHRC vol. XXI, no. 3.
  48. Kate Mason Rowland, The Life of George Mason, 1725-1792 (New York: J.P. Putnam’s Sons, 1892), 235.
  49. George Mason to George Washington (October 2, 1785) Founders Online. https://founders.archives.gov/documents/Washington/04-03-02-0258
  50. Madison, General Defense of the Constitution, Virginia Ratification Convention (June 12, 1788) Founders Online. https://founders.archives.gov/documents/Madison/01-11-02-0077
  51. Bailyn, ed. The Debate on the Constitution, Part II, 554.

 

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

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

The U.S. Supreme Court 2017

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

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

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

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

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

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

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

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

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

Religious Establishments in the States: Virginia vs. Massachusetts

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

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

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

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

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

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

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

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

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

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

 

First Amendment Folly (Part 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.

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.

 

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

Click here for the Introduction.

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

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

James Madison

James Madison

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

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

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

How well do these claims hold up against the evidence?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion:

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

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

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

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

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

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

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

 

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

Several months ago I posted a blog on the abuse of history in constitutional law (“The Politics of Deception”), and this is the first of the promised evaluations exposing this abuse.

In the last several decades the Religious Right has cleverly repackaged itself as the champion of religious liberty. They have established law firms and organizations such as the Becket Fund for Religious Liberty that prominently display their religious liberty goals. (1) In 2009 numerous conservative religious and political leaders signed the Manhattan Declaration, which lists religious liberty among its other commitments to “human life,” marriage, and unjust laws. Among the victories of the phalanx of religious advocacy groups and their lawyers are state statutes modeled on the 1993 federal Religious Freedom Restoration Act (R.F.R.A.), which essentially allow businesses to discriminate in the name of religion. (2) As Linda Greenhouse rightly points out, this is a betrayal of the original mission of RFRA. It had been “embraced across the religious and political spectrum as a shield against the thoughtless oppression of religious minorities,” she asserts, “not [as] a sword in the hands of those who would invoke religion to carve a gaping hole in the fabric of civil society.” (3) This expansion of the free exercise of religion that benefits some at the expense of others has occurred at the same time that the powers of the Establishment Clause (EC) have been eroded. As a corrective, Greenhouse proposes a new piece of legislation: The Establishment Clause Restoration Act. Her suggestion is unlikely to go anywhere anytime soon, but it points to an often-overlooked aspect in the debates over the new religious liberty laws: the role of the EC. The combination of a strengthened Free Exercise Clause along with a weakened EC has gone a long way in tearing down Jefferson’s wall of separation. Under the guise of “religious liberty” the Religious Right has found a way to establish their religion in law, even if only partially.

First-Amendment-Religious-Freedom

The EC has been a target of the Religious Right since the Supreme Court handed down its 1947 decision in Everson v. Board of Education, which declared that the EC created “a wall of separation between church and state.” To those opposed to this ruling originalism seemed to provide the solution to challenging the interpretation. One of the most influential of the early originalist challenges to Everson came from “nonpreferentialists,” those who maintain that the EC allows government support of religion as long as all religions were treated equally. (4) This “nonpreferentialist” interpretation has recently declined in influence after several prominent scholars exposed its flawed reading of history. (5) Currently, the main “accommodationist” challenge comes from what today is known as the jurisdictional or federalist interpretation. The “federalists” argue that the intent of the framers was to prevent the federal government from interfering in the establishments in the states, while at the same time preventing the federal government from setting up an establishment. (6) Carl H. Esbeck makes a similar argument. (7) However, in “Protestant Dissent and the Virginia Disestablishment, 1776-1786,” Esbeck forgoes this interpretation in favor of a different originalist interpretation. (8) Accepting the Everson case and its reliance on Virginia, he argues that its guiding principle is what he calls “voluntaryism,” a concept which he insists expresses the religious dissenters’ thinking on church-state relations in eighteenth-century Virginia. In other words, he accepts an Everson decision that has been refashioned to suit his purposes.

Esbeck defines “voluntaryism” as “the active support of religion must be voluntary and thus at the behest of the private sector, which is to say, not by the government.” (9) While it may appear to be a simple claim that religion is voluntary, implying “that there is an absence of government compulsion or coercion,” this is not what he means. To concede this would undermine his claim that the EC is not about rights. As a result, he relegates this right of non-coercion to the realm of free exercise of religion. (p. 61) Questions concerning religious establishments are about fixing the nature and extent of the relationship between the state and “organized religion,” according to Esbeck. Voluntaryism, as expressed in eighteenth-century Virginia, was about banning state intervention in “organized religion,” but not the other way around. This goal was pursued by the dissenters, in Esbeck’s telling, “out of a common desire to protect the church from undue control by the government,” whereas, the rationalists took up the cause because they were concerned about “the unity of the body politic.” (p. 103)

It is a term, according to Esbeck, that “the new nation called (and) spelled voluntaryism.” (pp. 51-2) However, he gives no source(s) supporting this claim in either “Protestant Dissent” or “Dissent and Disestablishment.” After searching hundreds of petitions, pamphlets, letters, and newspaper articles written by rationalists and dissenters across the new nation I have been unable to locate the term. This does not necessarily mean that the concept itself did not exist. If it is true that both the rationalists and religious dissenters “embraced” this form of church-state arrangement, we should be able to find it in the historical record.

Why Esbeck’s “Protestant Dissent”?

Given the flood of originalist works challenging the Everson precedent it may seem surprising that I selected a work that narrowly focuses on Virginia. But given Virginia’s prominent place in the history of both religious liberty and the EC it seems appropriate to begin with Virginia. The history of disestablishment in this newly independent state offers a more revealing glimpse into the perspectives on religious liberty in eighteenth-century America, than do the brief and flawed records of the First Federal Congress.

I also chose “Protestant Dissent” because Esbeck is a distinguished and well-connected constitutional scholar, who has been influential in shaping the interpretation of the First Amendment. According to his profile, he was “the progenitor” of the “Charitable Choice” initiatives, which were part of the 1996 welfare reform bill that allows religious social-service providers to contract with the government without having to compromise their religious identity. More significantly, he was part of George W. Bush’s task-force on faith-based initiatives. In this work, he had ties with the Center for Public Justice, a think tank that seeks “to equip citizens, develop leaders, and shape policy in pursuit of our purpose to serve God, advance justice, and transform public life.” Esbeck was also director of the Center for Law & Religious Freedom (CLRF) from 1999 to 2002. CLRF describes itself as “America’s oldest Christian advocacy ministry for religious freedom,” which “argues high impact cases and advises Congress on vital legislation to protect religious freedom.” On their website they boast that they “are blessed to serve as America’s RELIGIOUS LIBERTY ADVOCATES®.” In addition, he has written numerous articles on the meaning of the First Amendment’s Religion Clauses. (10) Currently, Esbeck is a professor of law at the University of Missouri, where he continues to advocate for his unique interpretation of the First Amendment.

Why does it matter?

We all have a stake in upholding our commitment to religious liberty, and thus in the meaning and interpretation of the EC. The stakes are much higher for those whose beliefs do not conform to the religious opinions of the majority. But those in the majority should care if for no other reason than the fact that they may someday find themselves in the minority. Of course, everyone claims to be devoted to religious liberty, but it is the very meaning of “religious liberty” itself which is at issue in the debates over the EC.  Esbeck claims to be advancing religious freedom as the founders and religious dissenters understood it. Based on this understanding, he argues that the EC “does not require a showing of coercion of religion-based conscience or other religious harm.” (pp. 61-2)

This interpretation opens the way for the accommodation of religion in the public square in ways that violate the rights of some. It does so by stripping the EC of two of its most basic functions: 1) preventing the privileging of a particular religion or religious denomination; and 2) protecting individual rights. In addition to allowing religious groups to shape public policy in accordance with their own religious dogma, Esbeck’s rendering of the EC has also opened the way for laws and policies that provide financial support for religious organizations as long as the support is for things “not specifically religious.” In accordance with his understanding of the EC, Esbeck supports equal access to public forums for religious individuals and organizations, including schools, to promote their religious beliefs and agendas (fn. 200, p. 99); government aid to religious organizations providing public services (p. 101); and the use of public funds for school vouchers that will be used at private religious institutions (fn. 210, p. 101).

Driving Esbeck’s quest for an accommodationist interpretation of the First Amendment is the belief that separating government “from all that is arguably religious (or arguably has a religious foundation) … is hostile rather than neutral to the influence of religion on society.” (11) This oft repeated mantra rings true only for those who are in the majority; few others would agree that a check on the power of the majority to impose itself on others is hostile. It is also contrary to the conception of religious liberty of those very religious dissenters that Esbeck claims he is representing. As members of the minority, the religious dissenters knew all too well the tyranny of the majority. Petitioning against laws privileging the Episcopal Church, Baptists in Virginia protested, “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, your Memorialists have with Grief observed that Religious Liberty has not made a single Advance, in this Commonwealth, without some opposition.” (12) It is not hostility to religion that necessitates separating all that is religious from government, it is hostility to religious tyranny that mandates such an arrangement.

In addition to the perception of hostility, Esbeck is motivated by the belief that “[w]ithout church autonomy, civil society will lose organized religion as a check and limit on the pretensions of Caesar. And that would surely lead to a more authoritarian state. Whether one is personally religious or not, we all have a liberty stake in that not happening.” (p. 103) It is this genuinely held believe that underlies Esbeck’s push to accommodate religion, and as a result to abuse history. He is not alone in producing ideologically motivated scholarship; however, this is no excuse for the distortions, misleading interpretations, and omissions of inconvenient evidence. By making claims to “original intent” Esbeck and others, have been able to present themselves as objective intermediaries of the original meaning of the First Amendment without having to defend the religiously derived assumptions upon which their interpretations rest. Originalism has become a mask for specious arguments.

 

The examination of Esbeck’s claims will appear in four separate blog posts, following the main phases of disestablishment in Virginia. The first post will examine the creation of the religious liberty clause (Article 16) in the Virginia Declaration of Rights, which was enacted in 1776 after declaring independence from Great Britain. It was in the creation of this article that James Madison made his first significant contribution to the struggle for religious liberty. The significance of this contribution will become clear in the next post reviewing the petitions calling for an end to all establishments of religion. With the help of Thomas Jefferson, who was serving in the House of Delegates, the dissenters succeeded in freeing themselves from the burden of financially supported the still established Church of England, newly named the Episcopal Church. This victory was significant, but not enough for the dissenters who sought to end all unequal privileging based on religious opinions. Sharing the dissenters’ ultimate goal of religious liberty Thomas Jefferson introduced his Bill for Establishing Religious Freedom in 1779. This effort will be the subject of the third post. The bill failed, leaving the issue of disestablishment unsettled as Virginians dealt with the pressing concerns of war. The fourth, and most significant, phase, which began as the Revolutionary War came to a close, will be the subject of the fourth post. In the final showdown between the conservatives and the rationalist/dissenter coalition, a bill for a general assessment in support of the Christian religion was soundly defeated. It was during this phase that Madison wrote his celebrated Memorial and Remonstrance Against Religious Assessments. He also capitalized on the momentum and secured the passage of Jefferson’s religious freedom bill. The final post will summarize the results and declare the final verdict on Esbeck’s use of history.

  1. Gustav Niebuhr, “Conservatives’ New Frontier: Religious Liberty Law Firms,” The New York Times (July 8, 1995).
  2. David Cole, “The Angry New Frontier: Gay Rights vs. Religious Liberty,” The New York Review of Books (May 7, 2015).
  3. Linda Greenhouse, “Church, State, and the Supreme Court’s Moment of Truth,” The New York Times (Oct. 29, 2015).
  4. See Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (The American Enterprise Institute for Public Policy Research) 1978.
  5. See Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (Chapel Hill: The University of North Carolina Press), 1994.
  6. Steven D. Smith, Foreordained Failure 1995. For an extensive critic of this interpretation see Ellis West in The Religion Clauses of the First Amendment: Guarantees of States’ Rights? Lanham, Maryland: Lexington Books, 2011.
  7. Based on the debates from the First Federal Congress, Esbeck argues that the EC was designed to impose two limits on the powers of the federal government. First, it was meant to prevent the federal government from intervening in states’ church-state settlements. Second, it denied Congress only the power to legislate “respecting an establishment of religion,” thus leaving it free to legislate “respecting religion.” Esbeck, “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review (2004), 1576-7. There are many reasons why his argument is wrong, but here I will only briefly address the flaws in his claims. A more robust counter to this argument will have to wait until later. The first problem is with the primary sources from the First Federal Congress. James H. Hutson, in his study of the documentary evidence, warns that most of the documents are defective. He determined that many of them “have been compromised – perhaps fatally – by the editorial interventions of hirelings and partisans.” Therefore, he concludes that “[t]o recover original intent from these records may be an impossible hermeneutic assignment.” [“The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review 65 (1986): 2.] To get to what he calls a “structuralist” interpretation of the Establishment Clause (EC), Esbeck misconstrues and misinterprets the little evidence there is. In a future post I’ll more adequately address the flaws in his argument. Esbeck’s argument shares a lot in common with the “federalists” who argue that the EC was meant to prevent the federal government from intervening in the state establishments of religion. Ellis M. West in The Religion Clauses of the First Amendment: Guarantees of State’s Rights? (2011) exposes the flaws in this interpretation.
  8. Carl H. Esbeck, “Protestant Dissent and the Virginia Disestablishment, 1776-1786,” The Georgetown Journal of Law & Public Policy 7 (2009) 51-103.
  9. Esbeck, “Protestant Dissent,” 53 and 98. Esbeck makes the same claim in “Dissent and Disestablishment,” where he examines the history of disestablishment in the original thirteen colonies plus Vermont. (“Dissent and Disestablishment,” 1590-1)
  10. Some of Esbeck’s works on the First Amendment: “The First Federal Congress and the Formation of the Establishment Clause of the First Amendment,” in No Establishment of Religion: America’s original Contribution to Religious Liberty, edited by Jeremy T. Gunn & John Witte, Jr., 208-251. New York: Oxford University Press, 2012; “Protestant Dissent and the Virginia Disestablishment, 1776-1786,” The Georgetown Journal of Law & Public Policy 7 (2009): 51 – 103; “When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court’s Analysis,” West Virginia Law Review 110 (2007); “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review (2004): 1385-1592; “Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause,” Notre Dame Journal of Law, Ethics & Public Policy 13 (1999): 285-319; and “Five Views of Church-State Relations in Contemporary American Thought,” Brigham Young University Law Review (1986): 371-404.
  11. Esbeck, “Myths, Miscues and Misconceptions,” 309-10.
  12. “Baptist Association: Petition” (November 8, 1780) at the Library of Virginia: Digital Collection.

 

The Politics of Deception: History, Knowledge, and the First Amendment

 In a 1988 lecture Supreme Court Justice Antonin Scalia declared that originalism was “The Lesser Evil” over other methods of constitutional interpretation. (1) Born out of a resentment against what was perceived as an activist liberal Supreme Court, the movement to make originalism the way to interpret the Constitution did not begin with Scalia’s speech, but his appointment to the Supreme Court in 1986 was a watershed moment for it. In the 1970s conservatives began calling for a return to the Constitution and its “fixed” original meaning as a way to restrain Justices and “depoliticize the law.” (2) As the movement expanded, history, as a resource in which to discover the original meaning, was set to go from a side-show in constitutional law to the main event. A contested past was now required to yield certainties, and to do so without the appearance of ideological bias. Nonetheless, it soon became clear that the push for originalism was a political strategy to reshape constitutional law in favor of conservative principles. (3) But for this to happen, originalism had to yield the “correct” original meanings. This need to yield the “correct” history ensured that the well-known abuse of history in law would reach new heights. Despite their ideological underpinnings, the products of originalist jurisprudence are packaged in the language of certainty and impartiality. For this reason, as noted by Eric Berger, “Originalism is particularly worthy of criticism.” By “creat[ing] an especially misleading illusion of certainty” it operates by deception. (4) Contrary to Scalia’s assertion, originalism is not, in fact, the lesser of two evils, but by virtue of its pretense to objectivity the greater evil. It is politics disguised as legitimate scholarship.

Associate Justice Antonin Scalia during the group portrait of the U.S. Supreme Court at the Supreme Court Building in Washington, Friday, Oct. 8, 2010. (AP Photo/Pablo Martinez Monsivais)

Associate Justice Antonin Scalia during the group portrait of the U.S. Supreme Court at the Supreme Court Building in Washington, Friday, Oct. 8, 2010. (AP Photo/Pablo Martinez Monsivais)

Despite its many flaws, especially the very problematic historical record, originalism has gained in popularity and enjoyed broad application. (5) Given its popular appeal and the fact that so many legal scholars and organizations are dedicated to this method it is unlikely to disappear any time soon. Even if the jurisprudence of originalism faded into obscurity, there is no doubt that history will remain a crucial resource to bolster legal arguments. History is seen to confer legitimacy upon constitutional arguments and enjoys broad popular appeal. But the motives, sensibilities, and training of legal scholars diverge considerably from that of a historian. This makes it more likely that they will abuse history in order to bolster their arguments in favor a pre-determined conclusion.

In response to the frequent misuse of history in law some have recommended that its use by jurists be abandoned altogether, but others recognizing the implausibility of this solution have instead offered advice and/or rules to help them use history responsibly. (6) Regrettably, there is little evidence that lawyers, judges, justices or legal scholars have taken the advice of these well-meaning scholars. With busy schedules and no professional consequences, other than the occasional historian calling them out for their mischief, there is little incentive to change. There are two factors that work in tandem to encourage the abuse of history. The first comes from within the field itself. Lawyers are trained in the adversarial method in which the point is to make the best possible argument in favor of a particular claim. This methodology is well-suited in the service of ideological goals. This gets to the second factor, which gets at the incentives and motives driving the abuse of history, and in part explains why attempts to improve historical scholarship in law have failed. The desire to further one’s ideological agenda is encouraged and supported by the proliferation of partisan political organizations, funded by wealthy donors. To understand how these considerations contribute to the poor state of historical scholarship in the legal profession, it will be necessary to examine each in more detail. Continue reading

“‘Advice & Consent’? No One Really Knows What the Founders Had in Mind.” | History News Network

Ray Raphael briefly reviews the history of the “advice and consent” clause of the Constitution at the HNN.

Afterwards he notes that “[t]he current Senate is more than eager to question ‘the judgment of the Chief Magistrate,’ and the avowed aim of Republican senators is to undermine the administration, not provide ‘stability.’ Nor, in this age of unrelenting media buzz, is there much interest in ‘a silent operation.’ Ironically, those who call themselves Originalists, and who hang on the framers’ every word, loudly broadcast their intention to thwart the Chief Executive at this and at every turn.”

Source: History News Network | “Advice & Consent”? No One Really Knows What the Founders Had in Mind.