Defending Religious Freedom: Lessons From Pennsylvania’s 1873 Constitution Convention

John M. Broomall (1816-1894)

I came across these speeches from Pennsylvania’s 1873 Constitutional Convention when I was researching the evolution of the preambles in state constitutions. There are many wonderful speeches from various nineteenth-century constitutional conventions, but these comments seem particularly germane to current events. In the name of “religious liberty” conservative Christians are slowly but persistently undermining the very barriers put in place by the founders to protect religious freedom. Their view of religious liberty privileges a certain type of Christianity, sanctions discrimination if done under the guise of religion, and advocates state support and recognition of religion. In other words, it is the opposite of true religious freedom.

A well-coordinated movement to have “Almighty God” recognized in the state’s constitution culminated in a proposed amendment at the Constitutional Convention of 1873. Thus, the following addition to Pennsylvania’s preamble was presented to the delegates: “recognizing the sovereignty of God, and humbly invoking His guidance in our future destiny.” While the majority clearly favored this kind of addition to the constitution, several delegates spoke up in defense of the state’s long-standing secular preamble which the framers wisely established in 1790. (1) The handful of delegates who defended the traditional preamble, as well as those who had framed the constitutions of 1790 and 1838, were deeply religious, but they understood that separating religion and government was good for both church and state.

Since some of these speakers were long winded I included only the most substantial sections of their speeches. These men believed that religious liberty was a right that belonged to everyone, and thus could not be overridden by majorities. They also drew on the lessons of history that inspired the founders to separate religion from government. It is separation that protects both the state and the church and establishes the religious freedom that we all benefit from.

Here are excerpts from their speeches (2):

John M. Broomall:

…First, the words reported by the committee have no use there; no proper function. To those who believe in a Supreme Being, and I trust we all do—there may be those who do not, but I confess that I have not met them—to those who believe in a Supreme Being the phrase is useless, is unmeaning. To those who do not, (and while I doubt whether there are those who do not, I am not prepared to deny the possibility of their existence)—to those who do not; it is a pretence to something that I am afraid our proceedings too often show we do not always feel.

Let us bear in mind that we are proposing not to change the Constitution ourselves, but to submit certain propositions to the people for their adoption or rejection. Are gentlemen willing to submit to a majority of ballots the question of the existence and attributes of the Deity? I am not. What a question it is: The being and attributes of the Creator; the existence of a law-giver above all legislators, of law above all human laws, a law that sets aside all human laws when they conflict with it; a law that binds the individual not as a member of society, but as a man, and that commands him not to obey the civil law when it conflicts with this higher law. We propose to submit to a majority of ballots these great questions, whether there be a Ruler of the Universe, and whether we are responsible for our conduct to that Ruler of the Universe!

I know there was a day in the history of the world when it was supposed that councils called by men could settle the question of the being and attributes of God so as to bind the Great Ruler of the Universe; but we have long outlived that day. Now, those questions are for man, not as a citizen, but as a being responsible to his Maker—a child under the guardianship of his Father.

…Who asks that this question should be decided in our organic law at all? Who asks those questions to be decided here? Who submits to us the question? Who authorizes us to settle it? How can any delegate dare decide for his constituents whether there be a God and whether they own Him responsibility for their conduct? Who asks this decision? Whom will it bind? Do gentlemen who advocate this proposition say that they have authority from the Being most interested in the question, if we are to believe their doctrine, to suffer that question to be raised here and decided by an election mob? Do they pretend to say that that great Being has authorized them to submit His powers and His existence to that kind of tribunal?

Sir, it is quite time, at this late day, that it were understood that Christianity asks no aid from human governments; that religion can stand a great deal of crushing out without being injured, but when it is taken to the arms of the civil power, it falls degraded and dishonored. It was for this reason, and after the experience of centuries, that our forefathers divorced forever all church and State, and suffered religion to stand where it should stand, upon the consciences and the convictions of men!

Look at the history of the world and see whether we dare propose to return to the old state of things! What was the condition of Christianity before the Roman emperors allied it to the government? As pure an emanation from heaven as ever blessed the earth. What was it after? A very demon of hell! And it is so always. Wherever religion rests alone, where it was intended to rest, upon the consciences and convictions of men, there it is an angel of purity; wherever it is joined with the civil arm and rests upon coercion, it is a curse to the country in which it is.

I could multiply examples on this point. Let us look at one closer to our own times. You know, sir, and every gentleman here knows, that in this counry [sic] the denomination of Episcopalians has produced as pure christianity and as many christians in proportion to the numbers as any other sect in the country, let it come from where it may. Contrast its condition here with its condition in England, where it is wedded to the civil power. There its officers are electioneered for as politicians electioneer for petty borough, town and county officers. Its benefices are sold in the market, sometimes for money, sometimes for political influence; and wherever it gets an opportunity to put its heel upon any system of christianity that is not favored by the government it does so ask the Catholics of Ireland; ask the Dissenters of England! Why is it that an organization so beneficent there is and engine of corruption and oppression there? It is polluted by the favor of the government.

…What was Puritanism in England before it came over to Boston? You could not imagine a better and brighter sample of the christianity of the Sermon on the Mount than that. But when it came to Boston and allied itself to the civil power of the State, what did it become? It turned itself to murdering Indians, hanging Quakers and banishing Baptists to starve in the wilderness.

It is not the fault of religion that this occurs. It is the fault of the government in undertaking to support religion. It is the unholy alliance. I say again, Christianity asks nothing form the government but to be let alone. It has shown in the history of the civilized world that it can bear the iron heel of oppression and survive it, that it can bear any amount of persecution and opposition, but that the smile of power pollutes it, changes it from an angel of light to an embodiment of hell.

It was well that our ancestors had some schooling, some experience in this business. They came away from a government that fostered religion with the civil arm, and they were very careful to put such provisions in their Bill of Rights and in their Constitution as would forever prevent any such foul combination, any such assistance as that; and the fact that they did not put the provision now proposed in the Constitution argues greatly in favor of leaving it out with me, because they were not only purer patriots than we ought to claim to be, but they were probably better christians, and they certainly did know what to put in the Constitution of the State and what to leave out, being fresh from the terrible ordeal of experience.

Now, I do not intend to occupy the time of the Convention, for I am not at all well, but I desire to say only that the law of christianity, the law of religion, depends in no way upon the same foundation with the laws of the State. The laws of the State, the laws of human government, depend, as a last resort, always upon coercion, and the moment you aid or pretend to aid the cause of religion by coercion, let it be with even the weight on the one side of a smile or the weight of a frown on the other, you destroy its beneficence; you render it, instead of what it is, something that is a curse to the country in which it is. Religion depends upon the consciences and convictions of men, of each individual man; every man must judge it for himself; he is responsible alone, not for anybody else, but for himself. ‘Let every man be fully persuaded in his own mind’ is the command; not be persuaded in the mind of a State Convention; not be persuaded in the mind of the State or of the government, but in his own. Hence I say that all favor shown to the cause of religion by the State is a disadvantage to it. Never yet did the civil arm extend itself to aid the cause of religion without polluting it, without destroying its usefulness, and therefore I will vote to keep out everything of the sort here lest we degrade a holy cause, lest we drag it down from its high position of resting upon the consciences and convictions of men and make it rest upon the mere arm of power. Sir, would you enforce with the sword a proposition of the kind you put here? I imagine not. Yet the sword is the ultimate resort of all civil government.

…Now I have only one other sentence to utter, and it is this: In the name of the religion that I revere, in which I was educated, and for which I have supreme honor and supreme regard, I ask that this Convention will withhold its hand. All it asks is to be let alone; but if you will touch it, better touch it to punish, better touch it to crush than to aid, because you can do it less damage by putting upon it the iron heel of oppression than you will by clasping it in the unholy grasp of the civil power. (pp. 761-3)

George W. Woodward:

Mr. Chairman: I do not rise to enter into this discussion at all, but simply to refer to one point in the remarks of the gentleman from Delaware. (Mr. Broomall.) In all that that gentleman said by way of deprecating a union of church and State, I do most heartily concur, but not exactly for the reasons that the gentleman has stated. I think all such unions of church and State are more injurious to the church than the State; but whether to the one party or to the other, I always applauded the sentiments of our forefathers which separated them, and I trust we shall always keep them separate in this country of ours… (p. 763)

David Craig:

It does not make any difference what Constitution is attempted to be amended in this way, the principle is the same…Now, sir, there is a difficulty in their minds, and that difficulty is the action in the French Assembly which declared that there was no God…whenever you open the door to vote upon it one way you must admit that the question may be decided the other way, that the vote may as readily be that there is no God, as that there is. Well, sir, put it upon the ground of majority, and let there be one many to-day in the State of Pennsylvania who does not believe in the sovereignty of God, and by what right do you undertake to disfranchise you. Oh! they say, it is a question of majorities is only a question of force, and not a question of right.

If you may to-day disfranchise any man because he does not believe in the existence of a God, to-morrow you may disfranchise a man because he does not believe in the plenary inspiration of the Scriptures, and the next day because he does not believe in the deity of Jesus Christ. This is the logical conclusion to this kind of legislation brings us. it is a question of the strongest denomination, if you make it a question of majority; and how else are you to determine it than by a vote of the majority?

…This is a question for every man’s judgment and conscience. It is not to be determined by a majority for me. It is a question which I am to settle for myself, and if I govern my conduct by the laws and rules of society that is all that society can ask of me. The Constitution is a matter for all the people; and when I say ‘all,’ I do not except any. A man who does not believe in the existence of God has as much right to participate in the government of the country as the man who does believe in it. No man has a right to call another in question about it. It is simply not the subject of legislation, and whenever we make it the subject of legislation, we make a mistake….(pp. 766-8)

Abraham B. Dunning:

….Sir, this proscriptive principle that has crept into the religious world, of the right of human governments to force a religion upon the people, is very much like that sort of religion spoken of by Paul, the great apostle of the Gentiles, when he said that he in all good conscience persecuted the Church of Christ, and he did it because he was brought up in the straightest sect of Pharisees, and he verily believed he was doing God service when he was on his way to Damascus with his pockets filled with letters from the authorities to take and capture every man who acknowledged the christian religion. Sir, there have been thousands of men from the days of Paul down to the present time who believed they were doing God service when they persecuted the men or the church or the community that did not subscribe to their ideas of faith. That has been true from the time the first creed was ever introduced into the world, and it is true to some extent to-day.

Therefore, I oppose the introduction of anything into the Constitution that shall bind the conscience of any man. Let every man stand free to act upon the principles that animate his heart, with a clear judgment and a just conscience before God. (pp. 769-70)

Notes:

  • The preamble to Pennsylvania’s 1790 and 1838 constitutions read: “We, the people of the commonwealth of Pennsylvania, ordain and establish this constitution for its government.” (constitutions II, 1548 and 1838: 1557). The final version of the 1873 constitution read: “We, the people of the commonwealth of Pennsylvania, grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking His guidance, do ordain and establish this constitution.” (II, 1570)
  • Debates of the Convention to Amend the Constitution of Pennsylvania: Convened at Harrisburg November 12, 1872; adjourned November 27, to Meet at Philadelphia, January 7, 1873, IV (Harrisburg: Benjamin Singerly, State Printer, 1873)
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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

 

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.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notes:

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

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

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

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

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

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

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

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

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

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

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

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

13) Foote, Sketches of Virginia, 338.

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

15) Foote, Sketches of Virginia, 341.

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

17) Ibid.

18) Ibid.

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

Religious Freedom Belongs to Everyone Equally

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

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

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

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

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

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

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

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

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

Separating Religion and Government is Necessary for Religious Freedom

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Free Exercise of Religion is Not an Absolute Right

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

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

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

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

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

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

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

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

Separation Protects Religious Freedom and Religion

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

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

Conclusion

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

Notes:

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

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

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

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

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

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

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

Here are some examples of similar statements:

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

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

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

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

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

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

10. Hanover Presbytery (October 24, 1776).

11. Berkeley County (October 25, 1776).

Here are additional examples of this thinking:

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

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

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

12. Baptist Association (November 8, 1780).

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

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

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

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

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

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

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

16. Baptist Association (November 17, 1785).

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

18. Hanover Presbytery (November 2, 1785).

19. Chesterfield County (November 14, 1785).

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

Here are additional examples:

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

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

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

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

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

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

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

23. Rockbridge County (November 2, 1785).

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

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

Here are some additional examples:

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

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

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

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

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

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

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

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

27. Northumberland County (November 28, 1785)

Here is an additional example:

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

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

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

29. Foote, Sketches of Virginia, 341.

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

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

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

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

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

35. Baptist Association (November 3, 1785).

36. Chesterfield County (November 14, 1785).

37. Amherst County (December 10, 1785).

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

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

40. Jefferson, “Autobiography.”

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

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

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

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

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

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

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

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

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

47. Baptist Association (November 8, 1780).

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

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

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

51.

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

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

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

52. Here are some additional examples:

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

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

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

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

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

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

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

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

53. Baptist Association (November 8, 1780)

54. Surry County (October 26, 1785).

Here are several other similar statements:

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

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

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

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

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

56. Here are some additional examples:

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

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

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

57. Mecklenburg County (1785).

Here are some additional examples:

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

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

 

 

 

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

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

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

James Madison

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

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

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

A Clash of Titans: James Madison vs. Patrick Henry

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

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

Point # 1:

Madison’s notes:

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

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

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

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

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

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

Point # 2:

 Madison’s notes:

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

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

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

  1. Case of primitive Christianity.

of Reformation
of Dissenters formerly.
 

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

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

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

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

Point # 3:

Madison’s notes (# 3):

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

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

Point # 4:

Madison’s notes (# 4):

IV. Policy.

  1. promote emigrations from State

  2. prevent [immigration] into it as asylum

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

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

Madison’s notes (his point # 5):

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

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

——
true remedies not Estabt. but being out war

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

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

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

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

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

Point # 5:

Madison’s notes (Outline A) (14):

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

  1. limited

  2. in particular

  3. What is Christianity? Courts of law to Judge

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

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

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

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

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

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

  10. Ends in what is orthodoxy, what heresy?

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

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

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

Conclusion

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

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

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

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

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

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

 

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

Notes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Bill for Establishing Religious Freedom

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

by Mather Brown. London,1786.

Thomas Jefferson, by Mather Brown. London,1786.

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

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

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

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

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

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

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

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

A Bill “Concerning Religion”

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

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

Secondly, That God is publickly to be Worshiped.

Thirdly, That the Christian Religion is the true Religion.

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

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

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

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

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

The Baptists Press Forward in their Quest for Complete Religious Liberty

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

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

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

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

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

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

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

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

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

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

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

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

References:

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

 

First Amendment Folly (Part II): The Virginia Dissenters Campaign Against Religious Establishments (1776-1778)

This is the third posting in a six part series evaluating 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 and Part I.

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

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

After years of abuse and second class citizenship, the Declaration of Rights (DOR) gave the religious dissenters hope that they would finally become equal citizens. Standing in the way of this equality was the established Church of England, whose privileges could not be reconciled with the DOR. To remedy this situation, the dissenters sent a series of petitions to the newly created General Assembly in the fall of 1776. These petitions give us the opportunity to test Esbeck’s volunatryism principle to see how compatible it is with the dissenters’ sentiments.

Dissenting Petitions (1776): Exemplars of Voluntaryism?

As previously explained, Esbeck’s principle of voluntaryism included three related claims: the issue of free exercise of religion was separate from calls for disestablishment; questions about establishments were about the relationship between two centers of power (organized religion and government), not individual rights; and the goal was to limit government intervention in organized religion, but not the other way around. The dissenters pursued this arrangement, according to Esbeck, because they wanted “to protect the church from undue control by the government.” (103) (italics mine) As an archetype of the dissenting position, Esbeck offers the petition from the Hanover Presbytery – thus one would expect this petition to be an unambiguous representation of voluntaryism.

The Hanover petition was presented to the House of Delegates on October 24. An examination of the document reveals that its author, most likely the Presbytery clerk Caleb Wallace, chose to write the document in the language of the Enlightenment. Even the appeal to “the great Sovereign of the Universe” at the end of the document is a reflection of inclusive Enlightenment language of the Deists.

At the time, the Hanover Presbytery boasted a significant number of graduates of the College of New Jersey (Princeton), including Wallace. At that time, the college was a beacon of Enlightenment thought under the leadership of the Scottish Presbyterian minister John Witherspoon. Also among its most distinguished graduates was James Madison, who attended at the same time, but in different cohorts, as many of the Hanover Presbyterians. (1) Imbued with the same zeal for religious liberty and as steeped in the new Enlightenment learning as was Madison, Wallace would have been the ideal candidate to write the document. Therefore, it should not be surprising that the Hanover petition reads more like the work of an Enlightenment rationalist, than the work of a deeply pious minister, which Wallace certainly was. Given our current politics we tend to think of these two things as incompatible, but in late eighteenth-century America, Enlightenment rationality and religious piety were frequent companions within many dissenting communities. This should not be surprising given the fact that Enlightenment itself was largely the product of the fight waged by religious dissenters against intolerant governments that sought to impose religious uniformity upon them.

Turning to the petition Esbeck’s argument begins to break down from the start. The opening paragraph, which sets up their argument against religious establishments, makes a strong appeal to individual rights. Speaking for all “dissenters from the church of England [increasingly called the Protestant Episcopal Church],” the petitioners expressed gratitude for the Declaration of Rights (DOR), which they referred to “as the magna charta of our commonwealth.” This DOR was what they “rely[ed] upon” to secure their “free exercise of religion according to the dictates of our consciences.” (2) (italics in original) Now that they had secured these equal rights, they requested to be freed from “the religious grievances under which [they] have hitherto laboured.” Such a prominent place given to this review of their rights highlights their significance. Undermining Esbeck’s first two points separating rights from requests to disestablish religion, this paragraph alone illustrates the essential link between individual rights and disestablishment in the dissenters’ view.

This point is reinforced in the second paragraph, where they called attention to the fact that they had been subjected to “invidious, and disadvantageous restrictions” in support of “an establishment, from which their consciences and principles oblige them to dissent: all of which are confessedly so many violations of their natural rights; and in their consequences, a restraint upon freedom of inquiry, and private judgement.” (italics mine) In consequence, they expressed the hope that the legislature would “cheerfully concur in removing every species of religious, as well as civil bondage.” This request goes beyond simply a demand for the disestablishment of the Episcopal Church. They wanted an end to all privileges made on the basis of religious beliefs. To make their point they declared that they were opposed to even the establishment of Christianity since “there is no argument in favour of establishing the Christian religion, but what may be pleaded, with equal propriety, for establishing the tenets of Mahomed by those who believe the Alcoran; or if this be not true, it is at least impossible for the magistrate to adjudge the right of preference among the various sects that profess the Christian faith, without erecting a chair of infallibility, which would lead us back to the church of Rome.” This passage demonstrates the centrality of equal rights in their conception of church-state relations. They rejected even a privileging of Christianity because it violated the principle of equality. It also illustrates a concern beyond simply the fear of government intervention in “organized religion.” They saw the threat of tyranny in allowing the state to make decisions concerning what is, or is not, acceptable religious beliefs and/or practices.

This point is further clarified later, when they rejected an establishment of their own religion because this “would be giving exclusive or separate emoluments or privileges to one set (or sect) of men, without any special public services to the common reproach and injury of every other denomination.” Here the dissenters are referencing Article 4 of the DOR, which reads: “That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services…” (3) It is important to note that they are referring to the individuals within these “sets of men,” not organized religion, as is indicated by their statement that “all partial and invidious distinctions will be abolished” then “every one [will] be left to stand or fall according to merit, which can never be the case, so long as any one denomination is established in preference to others.” (italics mine)

The extent of the Presbyterians’ goals concerning the disestablishment of religion is explicitly stated. They insisted that “the only proper objects of civil government, are the happiness and protection of men in the present state of existence; the security of the life, liberty and property of the citizens; and to restrain the vicious and encourage the virtuous by wholesome laws, equally extending to every individual.” The extent of their desire to disestablishment religion goes far beyond the more limited goals of voluntaryism, which apply only to organized religion.

A further blow to Esbeck’s version of events is the fact that there is no mention of limiting the state to protect “organized religion” anywhere in the petition. This rights-centric petition bears little resemblance to the church-focused one described by Esbeck. In addition, there is nothing in this petition, even on a generous reading, that indicates that the primary motive behind their anti-establishment campaign was to protect “the church.” On the contrary, their message was clear, they wanted an end to all establishments on the grounds that these violated their individual rights and that the solution was to limit the state from intervening in matters of religion with the exception of protecting them in their rights. And “left in the quiet possession of their unalienable rights and privileges” Christianity would flourish in greater purity. This benefit to religion was a consequence of protecting rights and of putting religion outside the bounds of government jurisdiction.

There is no reconciling the Hanover petition with Esbeck’s voluntaryism principle. Rather than seeking to protect “the church” the Presbyterians were seeking to end all privileges and/or burdens on the basis of religious beliefs because these were “so many violations of their natural rights.” Rights were inextricably linked to their desire to separate church (religion) and state, and cannot be dismissed as extraneous flourishes in an otherwise church-focused petition. In addition, there is no mention of preventing the state from intervening in organized religion so that religion can be free to prevent state tyranny. To the dissenters, the source of tyranny was the alliance between church and state (i.e. establishments of religion), and church intervention in state affairs was just as much anathema to them as state intervention in religion. This will become increasingly clear as the campaign against religious establishments progresses.

Looking at the other petitions there is one, submitted by the German Congregation of Culpepper County, that somewhat resembles the dissenters of Esbeck’s imagination. Unlike the other dissenters, this congregation expressed support for the established Church and sought more limited goals: to be relieved from taxes in support of the establishment and to obtain full privileges for their ministers. In other words, they were not asking for full equality as citizens, they were seeking a more generous system of toleration for themselves. (4) This petition is interesting and partly conforms to Esbeck’s characterization of dissenting goals, but as an outlier from a small group it tells us little about the broader dissenting movement.

There is another petition that expresses a concern for “several Churches,” and is therefore a potential representative of Esbeck’s voluntaryism. But rather than supporting Esbeck’s contention that they were primarily concerned about “the church,” the dissenters were making a minor point in a much longer complaint that focused on the unjust privileges of the established Church. They made clear in their petition that any unjust privileging based on religious differences was in violation of their rights. Therefore, they hoped that the new government “would secure just & equal Rights to the Subjects.” (5) This same sentiment was expressed in the separate but almost identical petition from Albemarle, Amherst, and Buckingham counties. (6)

Similarly, the petitioners from the heavily Presbyterian Prince Edward County emphasized individual rights.  These petitioners praised “the last article of the Bill of Rights [Art. 16] as the rising sun of Religious liberty,” which they believed was meant “to relieve them from a long night of Ecclesiastical bondage.” Thus, they requested that the House “complete what is so nobly begun; that is, to raise Religious as well as Civil liberty to the zenith of glory.” To achieve this, they believed that “all Church establishments” should be pulled down, as well as ALL burdens “upon conscious and private judgment” so that “each Individual” could “rise or sink according to his merit.” (7) (italics mine) This petition unequivocally demonstrates the connection between rights and disestablishment, and nowhere do they indicate that their goal was to protect the church from the state.

A petition organized by the Baptists received 10,000 signatures, an impressive number for the time. The petition notified the House that their hopes had “been raised and confirmed by the Declaration of Rights” in regards “to equal Liberty. EQUAL LIBERTY!” which was the “Birthright of every good member of society.” The explicit reference to the equality of “every good member of society” leaves no doubt that it was the equality of individuals, not of religious societies, that they were seeking. They concluded with a request that the establishment “as well as every other yoke, may be broken, and the oppressed may go free.” In other words, these petitioners sought to end all privileges based on religious beliefs, and they insisted that the only proper role for government in religious matters was “to support them in their just Rights and equal privileges.” (8)

On October 25, two petitions from Berkeley County informed the House of Delegates that their hopes had “been raised & confirmed by the Declaration of your Honourable House in the last Article of rights [article 16].” Following the pattern of the other petitions, they pronounced that the “Ecclesiastical Establishment” was “a grievous Burden & inconsistent with the rights of humanity either Civil or religious.” They believed that “the rights of human Nature (& religious Liberty in its fullest extent is one of these) …should have every protection & Ground of Security which Laws & the Policy of free States can give them.” In consequence, they demanded “that No Laws which are indefensible & incompatible with the rights of Conscience should be Suffered to remain unrepealed.” (italics mine) This would include any laws that privileged a particular religion (including a particular religious belief or practice), or religious denomination. In line with this they also insisted that “the rights of human Nature (& religious Liberty in its fullest extent is one of these) …should have every protection & Ground of Security which Laws & the Policy of free States can give them.” (9)

Similarly, the petitioners from Augusta County wanted all “unequal Burthen[s]” based on religious beliefs to be abolished. They believed that these “Burthens[s]” were “Inconsistent with Justice, & with that Virtuous Civil as well as religious Liberty that every Christian would wish to enjoy for Himself and that ought to be the portion of Every Good member of Society.” (10) While these petitioners seemed to believe that all members of society were Christians, which was mostly true at that time, they also indicated that “Every Good member of Society” should receive the same treatment, which would presumably include non-Christians. Consistent with a more inclusive goal they claimed that they were “Struggling in Defence of the Common Rights of Mankind.” Like other dissenters, these petitioners believed that their equal rights as citizens were incompatible with any religious establishments because these unjustly privileged some above others.

These petitions are hard to square with Esbeck’s characterization of the dissenters’ views. The main focus in almost all of these petitions was on securing rights, which in their view meant that all religious establishments must be torn down. This is the link that Esbeck denies existed, but it is undeniable if we are to take the dissenters at their word. References to “the church” or organized religion were rare, and when they did appear they were not central to the main message. It was not that they were not concerned about their own churches, it was rather that they saw that the best way to protect religion, and their own church, was by securing their individual rights. This in turn meant that government must get out of the business of religion altogether, as they repeatedly insisted. “[I]f mankind were left in the quiet possession of their unalienable rights and privileges, Christianity, as in the days of the Apostles; would continue to prevail and flourish in the greatest purity, by its own native excellence, and under the all disposing providence of God [not the state].” By ignoring the consistent and frequent references to individual rights Esbeck has distorted the dissenting view of religious liberty, and has falsely championed them as disciples of an accommodationist view of church-state relations.

The Bill for Dissenters (1776)

In response to the petitions the legislature attempted to placate the dissenters. Jefferson, back from his stint at the Continental Congress, where he had written the Declaration of Independence, led the fight for religious liberty in Virginia as a representative in the House of Delegates. As a member of the Committee for Religion (COR), which had been given the task of dealing with the petitions, he sought to go all the way in fulfilling the dissenters’ plea to sever the ties between religion and government in Virginia. To his dismay, the conservative Episcopalians, who dominated the legislature, obstructed his efforts. He later described these events as “the severest contests in which I have ever been engaged.” (11) The fights over establishment of religion in 1776 are revealing. In the end, the established Church would remain intact, but the dissenters would get some relief from their burdens. In addition, the bill for dissenters, which passed during the fall session, shifted the central issue of the debate towards a fight over general assessments (taxes supporting all denominations).

by Mather Brown. London,1786.

Thomas Jefferson, by Mather Brown. London,1786.

Also on the COR was the budding statesman James Madison, whose famous friendship with Jefferson had yet to develop. Even though Madison’s victory at the Convention set the stage for the dissenters’ campaign against religious establishments, his role in the House was overshadowed by his already distinguished colleague. As members of the Anglican Church these rationalists and their supporters led the dissenters cause from within the seat of power. As unlikely as this alliance between pious dissenters and rationalists may seem they shared similar goals, even if their motives were different, when it came to religious liberty. How closely these two groups worked together is unknown, but the frequent lobbying at the legislature by the dissenters would have brought them into frequent contact. This alliance was also aided by Madison’s outspoken objections to the persecution of dissenters, as well as his acquaintanceship with some members of the Hanover Presbytery, whom he knew from his time at the College of New Jersey. (12) After a protracted battle these allies eventually succeeded in bringing down establishments of religion in Virginia, but unbeknownst to them the battle in 1776 was just the beginning of a very long and taxing war between two competing visions of religious liberty.

As a member of the COR Jefferson drafted a far-reaching bill (“Resolutions for Disestablishing the Church of England and for Repealing Laws Interfering with Freedom of Worship”) to satisfy the requests from the dissenters. This bill would not only have dismantled the established Church and banned religious assessments, it also would have eliminated all laws on the subject of religion, including the total banishment of laws constraining free inquiry on the subject of religion. The extent of his separationist intent can be seen in this fragment of his draft calling for “<totally and eternally restraining the civil magistrate from all pretentions of interposing his authority or exercise in matters of religion>.” (13) Jefferson’s core views on religious liberty are already visible in this early work on the subject, which are best summarized by his famous metaphor (“a wall of separation between church and state”).

Thanks to conservative intransigence, the final version of the bill reflected more modest concessions for dissenters, as indicated by the new title: For exempting the different societies of dissenters from contributing to the support and maintenance of the church as by law established. This legislative act gave dissenters relief from paying taxes in support of religion but other burdens remained, including the existence of the established Church. It also called for the repeal of all acts or statutes “of England or of Great Britain” that “renders criminal the maintaining any opinions in matters of religion,” attendance at church, or the exercise of religion. (14) Virginia laws that had similar effects, which Jefferson also desired to either eliminate or severely weaken, were left intact.

The conservatives also managed to sneak in a suggestion for “a general assessment” to support “ministers and teachers of the gospel who are of different persuasions and denominations.” The implementation of any such assessment, according to the act, had been postponed until after “the opinions of the country in general may be better known.” (15) Understanding that the privileged status of the Anglican Church would eventually crumble under the weight of the republican principles of equality and freedom, the conservatives sought to establish a broader Christian establishment as a way to preserve some kind of establishment. They probably believed that this broader establishment would placate the dissenters since it would benefit them just as much as the Episcopal Church. If this was the case, they were mistaken, which shows that they fundamentally misunderstood the dissenters’ position.

The origins of the proposal are unknown but there is no doubt that Jefferson was adamantly opposed. In his Autobiography, Jefferson claimed that his camp was able only to hold off the creation of an actual assessment bill until 1779, which will be the subject of the next post. (16)

In the meantime, the bill “for dissenters” passed on December 9. While happy to be freed from the burden of taxes in support of religion, the dissenters were incensed by the suggestion of a religious assessment, and in response the Baptists and Presbyterians submitted another round of petitions. The focus of these petitions was slightly different from their earlier ones since they took aim at the general assessment, but the same basic principles of religious liberty can be seen in their opposition to the proposed general assessment.

The Hanover Presbyterians opened their petition declaring their hope that “their fellow subjects” would join them “to repel the assaults of tyranny and to maintain their common rights.” (17) They gave a “hearty approbation” to the DOR as the document that protected these rights. They also applauded the act “for dissenters,” which they saw as “declaring that equal liberty, as well religious as civil, shall be universally extended to the good people of this country.” (italics mine) Once again rights are front and center in their petition.

Angered by the suggestion for a general assessment, they felt compelled to repeat their previous request: “That dissenters of every denomination may be exempted from all taxes for the support of any church whatsoever, further than what may be agreeable to the private choice or voluntary obligation of every individual; while the civil magistrates no other wise interfere, than to protect them all in the full and free exercise of their several modes of worship.” (italics mine) Here we can clearly see their reasoning against this establishment of religion. The DOR promised them equal rights as individuals, including their religious rights that left them free to make their own choices concerning religion, which were threatened by the assessment scheme. To rectify this situation and to secure their rights they demanded that the government have no jurisdiction in matters of religion except to protect them in their “full and free exercise of their several modes of worship.” This is obviously a much broader prohibition against government involvement in religious affairs than simply the limit concerning “organized religion” proposed by Esbeck.

The opening paragraph ends with the reference to religious conscience. Here the Presbyterians, following the reasoning in Art. 16, argued “that the duty which we owe our Creator, and the manner of discharging it, can only be directed by reason and conviction, and is no where cognizable but at the tribunal of the universal Judge.” From here it follows that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” In other words, religion is a matter between individuals and their God, and therefore not subject to government intervention. This reasoning is rooted in the historical legacy of Western Christendom in which states, with the prompting of the Church, had designated themselves as responsible for the salvation of their subjects. (18) Religious dissenters in post-Reformation Europe challenged this tradition by maintaining that they alone were responsible for their own salvation. Although not the originator of this argument, John Locke used this same line of thought in his well-known defense of toleration: “How great soever, in fine, may be the pretence of good-will and charity, and concern for the salvation of men’s souls, men cannot be forced to be saved whether they will or no. And therefore, when all is done, they must be left to their own consciences.” (19) We can see the same reasoning in the Hanover petition: “that to judge for ourselves, and to engage in the exercise of religion agreeable to the dictates of consciences is an unalienable right, which upon the principles that the gospel was first propagated…can never be transferred to another [i.e. the state].” This is the premise upon which the case against state intervention in religious affairs is built. Appeals to the rights of conscience cannot be dismissed as simply a matter of the free exercise of religion, and having nothing to do with demands to disestablish religion.

Unlike their previous petition, there is some indication that concern for “the church” motivated the Presbyterians to object to the proposed assessment. In laying out their objections, the Presbyterians claimed that the assessment would be “an injury to the society to which we belong.” On its own this seems to verify Esbeck’s claim, but examined in context this contention falls apart. This statement was part of an argument against the claim that assessments were needed to prop up religion. To counter their opponent’s argument, they denied that “the church of Christ” needed support from the state. Rather, they insisted that this support would “be an injury to the society to which we belong.” As a specific response to a specific argument, it does not support Esbeck’s contention that it was only organized religion which the dissenters were concerned about and wanted to put outside the bounds of government control. In fact, the Hanover Presbyterians followed the above argument with the conclusion that “the kingdom of Christ, and the concerns of religion, are beyond the limits of civil control.” (italics mine) And to be clear, they explained that for this reason they rejected “any emoluments [for themselves] from human establishments for the support of the gospel.”

There is an additional section that Esbeck has seized upon to support his claim that “organized religion” is the core concern of the dissenters. In this section, the Presbyterians pointed out that if the state had “any rightful authority over the ministers of the gospel in the exercise of their sacred office,” then they could decide “who shall preach, what they shall preach; or to impose any regulations and restrictions upon religious societies that they may judge expedient.” This particular argument was aimed at the proposed general assessment which would have given support directly to “ministers and teachers of the gospel who are of different persuasions and denominations.” While the dissenters expressed concern for the freedom of preachers of the gospel and religious societies, their goals were much broader than this specific complaint against the assessment. It does not change the fact that they also twice stated that “religion” should be completely outside the bounds of control by the civil government. In addition, they concluded their petition by twice stating that “any assessment for religious purposes” was “subversive of religious liberty.” (italics mine) On both points (they wanted the government limited only in matters of “organized religion” and that they were concerned only about harm to “the Presbyterian Church”) Esbeck is wrong.

What about the Baptists? The Baptists, like the Presbyterians, began their complaint with rights. They informed the legislature “that preachers should be supported only by voluntary contributions from the people, and that a general assessment (however harmless, yea useful some may conceive it to be) is pregnant with various Evils destructive to the Rights and Privileges of religious Society.” (20) Note that the rights they referred to were not the rights of religious societies but “religious Society” (i.e. society). The danger they saw was a danger not just to the church per se, but to their rights as individuals, as indicated by their reference to the “last article of the bill of rights” (Art. 16). Rather than being coerced by the state, they believed that contributions to religion should be given on the basis of “the freedom of their own will” (a freedom that belongs to individuals).

Echoing the Presbyterians, the Baptists asserted that the connection with the state set up by the assessment would have a corrupting effect on the clergy. It was obvious to them that “those whom the State employs in its Service, it has a Right to regulate and dictate to; it may judge and determine who shall preach; when and where they shall preach; and what they must preach.” They reminded the legislature that it had no business intervening in matters of religion. To them, the proposed assessment was an example of “civil Rulers go[ing] so far out of their Sphere as to take the Care and Management of religious Affairs upon them!” (italics in original) To the Baptists, it was “religious Affairs,” not organized religion, that was out of bounds for government intervention. This petition, like the others, grounded its claims against establishments on individual rights and individual choice.

 

It is already clear that Esbeck’s voluntaryism with its focus on protecting organized religion is not representative of the dissenters’ own views. Only by ignoring much of what the dissenters said can the principle of voluntaryism be claimed to represent their views on the relationship between church and state. In reality, the dissenters’ vision of religious freedom was much broader, and rights-based. And they consistently insisted that the government had no business interfering in matters of religion except to protect them in their religious rights. This vision will become even clearer as we go through the remaining history of disestablishment.

Next we will turn to the events of 1779, when the battle for religious liberty ended in a stalemate after both sides failed in their attempt to implement new legislation. On one side, the conservatives attempted to pass an actual bill establishing a general assessment while, while at the other end of the spectrum, Jefferson attempted to pass his celebrated Bill for Establishing Religious Freedom. This legislative clash of world views is revealing and will help us understand the dissenter/rationalist perspective.

Notes:

  1. Thos. Cary Johnson, Virginia Presbyterianism and Religious Liberty in Colonial and Revolutionary Times (Richmond, 1907), 57-74.
  2. Hanover Presbytery Petition (October 24, 1776), Library of Virginia: Digital Collection (hereafter LOVD). (accessed 12/14/16).
  3. The Virginia Declaration of Rights (1776), The Founders’ Constitution (Volume 1, Chapter 1, Document 3) The University of Chicago Press (accessed 12/14/16).
  4. Petition of the German Congregation of Culpepper County (October 22, 1776) LOVD.  (accessed 12/14/16)
  5. Petition from Albemarle and Amherst counties (November 1, 1776) LOVD.  (accessed 12/14/16)
  6. Petitions from Albemarle, Amherst and Buckingham counties (two on October 22 and one on November 1) LOVD. (accessed 12/14/16)
  7. Prince Edward County Petition (October 11, 1776) LOVD.  (accessed 12/14/16). And in the Journal of the House of Delegates of Virginia (Richmond: Samuel shepherd & Co., 1828), 7. Hereafter cited as JHD. All dates for these petitions are from the dates they were submitted to the Assembly.
  8. “Ten-thousand name” petition by Dissenters (October 16, 1776) LOVD.  (accessed 12/14/16).
  9. Berkeley County petition, Dissenters of Tuscarora Congregation (October 25, 1776) LOVD. (accessed 12/14/16) The Journal of the House of Delegates states that two petitions were presented on October 25 but only one petition appears in the LOVD collection. (26)
  10. Augusta County petition (November 9, 1776) LOVD.  (accessed 12/14/16).
  11. Thomas Jefferson, Autobiography, Founders Online.
  12. In a letter to William Bradford (January 24, 1774), Madison wrote in response to the persecution of some Baptist preachers: “That diabolical Hell conceived principle of persecution rages among some and to their eternal Infamy the Clergy can furnish their Quota of Imps for such business. This vexes me the most of any thing whatever. There are at this [time] in the adjacent County not less than 5 or 6 well meaning men in close Goal for publishing their religious Sentiments which in the main are very orthodox. I have neither patience to hear talk or think of any thing relative to this matter, for I have squabbled and scolded abused and ridiculed so long about it, to so little purpose that I am without common patience. So I leave you to pity me and pray for Liberty of Conscience to revive among us.” Founders Online.
  13. Thomas Jefferson, “Rough Draft of Jefferson’s Resolutions for Disestablishing the Church of England and for Repealing Laws Interfering with Freedom of Worship,” (written between October 11 and November 19, 1776) Founders Online.
  14. Journal of the House of Delegates of Virginia, 1776 (Richmond: Samuel Shepherd & Co., 1828), 63.
  15. William Waller Hening, ed. 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. (Virginia: 1808), 165.
  16. Thomas Jefferson, Autobiography, Founders Online.
  17. Petition of the Hanover Presbytery (June 3, 1777) LOVD.
  18. For example, many European states took steps to eradicate heresy, in part, because the Third Lateran Council (1179) threatened excommunication for those rulers who did not “extirpate” heresy. John Marshall, John Locke, Toleration and Early Enlightenment Culture (New York: Cambridge University Press, 2006), 216.
  19. John Locke, A Letter Concerning Toleration, translated by William Popple (1689). See Google Books (p. 33)
  20. “The SENTIMENTS of THE BAPTISTS with regard to a GENERAL ASSESMENT,” Virginia Gazette (Dixon & Hunter), 28 March 1777, pp. 6-7. See the Colonial Williamsburg Foundation: Digital Library.

 

“The First Amnesty” – The New York Times

“America’s first illegal-alien amnesty wasn’t the biggest in our history, but it was the most influential.”

“Thanksgiving is a lovely story we tell ourselves, about kindness and tolerance and white people fitting in. The American story got richer and deeper over time, with many grave sins and slaughters, not least for indigenous peoples, but generally hewing to a spirit of growing inclusion and welcome for newcomers. How alien that all feels today, in the dawn of Donald Trump’s America.”

This may not be the most uplifting Thanksgiving message, but it is, nevertheless, fitting.

Happy Thanksgiving!

Source: The First Amnesty – The New York Times