Mischief at the Supreme Court: What the Masterpiece Cakeshop ruling tells us about the Court and the Future of Religious Liberty

Protestors Hold Rallies Outside Supreme Court Over Cakeshop Civil Rights Case- DC

Olivier Douliery/Abaca Press/Sipa via AP Images from Mother Jones “Did the Supreme Court fall for a Stunt?” June 7,2018

Can those engaged in “expressive” endeavors such as making cakes be exempted from anti-discrimination laws which run contrary to their sincerely held religious beliefs? The Supreme Court failed to address the fundamental constitutional issues raised by this question in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The baker in this case, Jack Phillips, claimed that to force him to bake a cake for a same-sex couple violated his right to free speech and the free exercise of his religion. These claims were never addressed by the Court. Justice Anthony Kennedy, as the swing vote was in a bind. If he voted in favor of Phillips, he would have endorsed religiously-motivated discrimination. But if he ruled against Phillips he would have dealt a blow to religion, as he saw it. So, instead he sidestepped the core issue and charged Colorado’s Civil Rights Commission with violating Phillips’ rights by failing to act in accordance “with the State’s obligation of religious neutrality.” (1) While not the ruling Phillips and his supporters were hoping for, they nevertheless celebrated the decision. This celebratory reaction was more than a simple display of confidence; there were actually good reasons to declare victory. Having failed to address Phillips’ constitutional claims, the Court left the door open to bring them up for review once again, possibly in more favorable conditions (i.e. a new Supreme Court justice more favorable to their case). In addition, Kennedy’s ruling gave the religious a weapon to further erode the barriers that divide religion and government. In other words, the seemingly tempered ruling actually established a precedent that could potentially have far reaching consequences. It also reveals more troubling trends in First Amendment jurisprudence that are posed to further erode the barriers which actually protect the equal religious liberty that we so cherish.

Relieved that the Court punted on the issue of religiously-motivated discrimination, many on the left failed to see the radical implications of this “kick the can down the road” decision. The implications were not lost on everyone, however. The constitutional scholars Douglas Laycock and Thomas Berg immediately recognized the significance of Kennedy’s reasoning:

The Supreme Court has announced a powerful ideal. Even when a law has no explicit exceptions, hostile enforcement is unconstitutional. Single-issue agencies that enforce state civil-rights laws must approach claims to religious exemptions with tolerance and respect. And this is apparently an absolute rule; the court does not consider whether hostility might be justified by some state interest, compelling or otherwise. (2)

The implications of this “ideal” are troubling. Any hint of “hostility” in the creation or enforcement of generally applicable laws could be used to invalidate laws and/or their enforcement. This is not the first time the charge of hostility has been used to discredit laws, and even constitutional principles such as separation, as breaches of constitutionally required neutrality. A review of the Masterpiece ruling reveals some of the problems with the application of the neutrality principle as well as other troubling trends in First Amendment jurisprudence. The barriers that were erected to protect religious liberty are being slowly being dismantled by a conservative court bent on tearing down those prudent barriers.

The 5-4 decision in Masterpiece rests on a breach of neutrality by Colorado’s Civil Rights Commission when first determining whether or not Jack Phillips violated the state’s anti-discrimination law. Kennedy relies on two lines of evidence to make his case. The most substantial piece of evidence comes from a series of other baker-related rulings made by the Commission. In contrast to Phillips, the Commission ruled in favor of the bakers in three other similar cases, which according to Kennedy prove that the Commission was biased against Phillips and his beliefs. Critics of the decision have pointed out the important distinctions between these cases that make them invalid as points of comparison. (3) Having focused on this more substantial line of evidence, few have examined the statements from the member(s) of the Commission which supposedly confirm that the Commission failed to treat Phillips with the neutrality required by the Free Exercise Clause. In terms of evidence these statements seem trivial, which is why the focus has been on the comparison between the bakers’ cases. Most critiques dismiss the statements as irrelevant since they were a few comments made by at most two individuals in a much broader enterprise that involved many other “independent decisionmak[ers].” (4) This in and of itself should have invalidated the use of the comments, but having used them as evidence of hostility towards religion in a Supreme Court decision, their content matters. They have become examples of impermissible “hostility” towards religion. They are also exemplary of broader trends in First Amendment jurisprudence that rest on the abuse of history and language, therefore a review of the substance of these statements is a worthwhile endeavor.

Kennedy included three statements that supposedly expose the Commission’s hostility towards religion in general and Phillips’ religious beliefs in particular. The first two statements were made at a public hearing held on May 30, 2014, and, according to Kennedy, they show that the “commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” (5) This damning conclusion is hard to square with the modest statements made by a particular commissioner.

This is Kennedy’s rendering of the first comment: “One commissioner suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’” (5) Compare this to the full recorded statement:

I don’t think the act [Anti-Discrimination Act] necessarily prevents Mr. Phillips from believing what he wants to believe. And – but if he decides to do business in the state, he’s got to follow (inaudible). And I don’t think the Act is overreaching to the extent that it prevents him from exercising his free speech. (6)

The inaudible section is most certainly “the law” as is consistent with his earlier statements (e.g. “any person that chooses to do business in the state of Colorado has to recognize that they have to conduct business in an ethical and law-abiding way.”). (7) Notice how Kennedy’s addition of the phrase “but cannot act on his religious beliefs” takes the innocuous statement and turns it into something more menacing. It implies that this particular commissioner was broadly opposed to religion in the public square, rather than just opposition to actions that are against the law. To express support for the idea that businesses and their employees should follow the law, even when they disagree with it, is not controversial and it is certainly not an expression of hostility towards religion. If there is any hostility in the statement it is towards breaking the law.

The second statement made by the same commissioner is similarly mischaracterized by Kennedy. The full statement is longer and more nuanced than the first, but rather than quoting the statement in full, as would have been appropriate in this case, Kennedy pulls out a single sentence: “‘[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.’” (5) Maybe “compromise” was not the best word to describe the forbearance required in a religiously diverse society that supposedly respects the rights of everyone equally, but the idea he is conveying is not controversial, which is why, to Kennedy’s consternation, neither the other commissioners nor the “later state-court ruling” disavowed the statements. (5) Looking at the above quote in context we can see that this statement was an attempted paraphrase of Justice Chavez’s ruling in “the New Mexico case” (8) (i.e. Elane Photography v. Willock, 2013). This commissioner was saying nothing more than what the Justice from the New Mexico Supreme Court stated, even if he articulated the Justice’s ideas unartfully. In other words, whatever their personal religious beliefs, businesses serving the public must follow the law.

Recognizing that his interpretation of these statements is a bit of a stretch, Kennedy concedes that they “might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views.” (5) But he ultimately rejects this obvious and commonsense interpretation in favor of an interpretation that presents them as “inappropriate and dismissive comments showing lack of due consideration for Philips’ free exercise rights and the dilemma he faced.” (5) A comment made at a July 25 meeting convinced Kennedy that these statements were not innocent expressions of the logic behind anti-discrimination laws.

This is the statement that Kennedy portrays as “disparaging Phillips’ beliefs”:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others. (5)

Kennedy follows this with this assertion: “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.” (5) Notice how Kennedy reframed the statement as one “describe[ing] a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use.’” This commissioner, said no such thing. Instead, he was making the point that religion has all too frequently been used as an excuse to engage in horrible acts. History is littered with such examples. And it was this history that galvanized the movement toward toleration and eventually religious liberty. It was not faith in general but the use of religion to harm others that this commissioner found despicable. Whether or not the commissioner believed that Phillips’ religious claim was “merely rhetorical” is beside the point since he was speaking in general and he had no way of knowing whether or not the beliefs were sincerely held or not.

It is hard to see how the above statements demonstrate impermissible hostility towards religion in general, or Phillips’ religious beliefs in particular. The use of an ill-defined standard such as “hostility” is a formula for abuse. It is questionable whether or not hostility (as opposed to actual discrimination) is forbidden by the Constitution, but before turning to this question let’s review how this standard has been used, and abused, in First Amendment jurisprudence.

The use of the rhetoric of “hostility” is a byproduct of what is known as the neutrality principle, which holds that government cannot favor one religion over another, religion over non-religion, or vice versa. There is a case to be made against the neutrality principle in general, or at least in the way it has been applied, but here I want to focus only on two aspects of its application. First, is the application of the “hostility” standard. Second, the conflation of religion in general with specific religions. This conflation is significant since it has allowed the Court to bypass the Establishment Clause’s mandate to treat religion differently.

The language of hostility arose in conjunction with the so-called neutrality principle, first deployed in a significant way in several cases in the 1960s. (9) The neutrality principle has been championed by those who see it as more accommodating to religion than the principle of separation. For example, in Allegheny v. ACLU (1989) Justice Kennedy dissented against the majority that found a holiday display at the county court house in Pittsburg unconstitutional, arguing that their “view of the Establishment Clause reflects an unjustified hostility toward religion, a hostility inconsistent with our history and our precedents, and I dissent from this holding.” (10) Several years later in Rosenberger v. University of Virginia, he ruled that the University of Virginia violated the free speech rights of a student publication when it denied them funds from the Student Activities Fund because of their Christian “viewpoint.” Notice how he reframed the issue by identifying the group not as religious but as just another viewpoint protected speech under the Free Exercise Clause. But he still had to get around the Establishment Clause’s ban on public funding of religion. Here’s where the neutrality principle came in handy. He argued that a denial of funds to those simply presenting a religious viewpoint “risk[ed] fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires. There is no Establishment Clause violation in the University’s honoring its duties under the Free Speech Clause.” (11) (italics mine) While clever, it is a betrayal of the founders’ rights-protecting scheme.

The religious dissenters who fought so hard to disestablish religion during and after the Revolution would be shocked to hear of such a claim. In the fight against a proposed religious assessment in support of teachers of the Christian religion, several dissenters’ petitions repeated Jefferson’s phrase: “That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” (12) The assessment was soundly defeated, and Jefferson’s Statute for Establishing Religious Freedom was passed in its stead. It was this spirit of disestablishment that lead to the creation and enactment of the Religious Clauses of the First Amendment. To single out religion for special treatment is what makes religious freedom possible. To call this special treatment “hostility” is a betrayal of the legacies of those who fought so hard to disestablish religion and the religious liberty that it was meant to protect.

In a scathing critique of the Courts decision, Winnifred Fallers Sullivan mockingly pointed out that “’[p]reaching the word’ is not speech. It is religion.” He continued, “To treat religion as speech was a clever lawyer’s ploy, and it carried the day in Rosenberger. But something was lost in the process. To efface the difference is to forget history. The dissenters in Rosenberger want to hold onto the difference that religion makes. For them, our public language and our historic commitment to the difference that religion makes is enshrined in the First Amendment.” (13)

This same specious reasoning has become pervasive in conservative constitutional law circles, usually aimed at the principle of separation. Carl H. Esbeck’s statement is typical: “A separation of government from all that is arguably religious (or arguably has a religious foundation) would result in a secular public square, one that is hostile rather than neutral to the influence of religion on society.” (14) A demand for neutrality and equal treatment for religion has already done great harm to the protections established in the First Amendment meant to protect religious freedom, but another devastating blow to the wall of separation is already in the works. After Zelman v. Simmons-Harris (2002) opened the doors to public funding of religious institutions at the federal level as long as money goes to the individual first, the only real obstacle blocking school vouchers has been what are called “Baby Blaines” (state constitutional provisions that ban public funding of religious institutions). Hence there has been a concerted effort to destroy them. (15)

This effort got a big boost last year in Trinity Lutheran v. Comer. In 2012 Missouri’s Department of Natural Resources denied Trinity Lutheran’s Child Learning Center funding as part of their grant program because the state’s constitution banned transfers of public funds to religious entities. Having lost in the lower courts, the church appealed to the Supreme Court, where those rulings were overturned. Chief Justice John Roberts writing for the majority charged the state of Missouri with “discrimination” because it denied the church public funds “solely because it is a church.” (16) To pull this off Roberts had to elide important distinctions of language. Roberts did not use the language of “hostility” to describe the treatment of the church, instead he called it “discrimination.”

The first deceptive maneuver was to use one form of unconstitutional “discrimination” (treating a particular group differently out of prejudice) to declare a constitutional type of “discrimination” (discerning things that belong in the category religion) unconstitutional. Roberts’ argument also rests on another casual use of language. The Missouri Constitution bans public funding “directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such.” In other words, it bans public monies to religious entities (i.e. all religion). But the precedent he turned to (Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993) involves the discriminatory treatment against members of a particular religion (Santeria). Conveniently, Kennedy in Lukumi made this conflation possible. He worded the ruling in such a way that it failed to distinguish between religion in general and a particular religion:

The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights its secures. …Legislators may not devise mechanism, overt or disguised, designed to persecute or oppress a religion or its practices. (17) (italics mine)

In this scheme, there is no difference between singling out religion as a category from the religious groups that belong to that category. Once this distinction disappears it is easy to declare Missouri’s constitutional mandate to treat all things religious differently as unconstitutional discrimination. A ban meant to bar discriminatory treatment of particular religions or religious denominations, has now become a weapon to get around the barriers in the federal and state constitutions that separate religion from government. (for more detail on this ruling see The Battle for the Wall of Separation) This ruling is supposedly limited to this single situation, however, not all justices in the majority signed on to this limitation.

The stage has now been set to invalidate all state “Baby Blaines,” which is further attached as product of anti-Catholic animus and as such are in violation Establishment Clause’s neutrality principle. (18) Never mind that the principle of no-aid existed long before these little Blaines were enacted, or the fact that not all state bans on public funding of religion were born of anti-Catholic sentiment. (19) The purpose of this attack on these amendments is clear, as Marc D. Stern explains, it “is to invert the traditional church-state debate over aid to religious institutions. In this country, that debate always had been whether a particular form of aid was permissible or forbidden. Under the new approach, the question is whether aid is forbidden as an establishment of religion or mandatory to avoid discrimination against religion.” (20) Both the anti-Catholic and the “discrimination” against religion are likely to be deployed in the next challenge to these state prohibitions, and given the existing precedents and the conservative makeup of the Court, they are likely to succeed in achieving their aims. The Establishment Clause will be reduced to insignificance, a process that began over a decade ago, on the basis of a dubious constitutional principle.

What about the neutrality principle’s companion “hostility”? Does it have any validity as a constitutional principle? Discrimination against particular religious groups such as the Santeria religion are most certainly unconstitutional. This kind of discrimination was one of the primary reasons for the disestablishment of religion. Reflecting on his time in Virginia fighting for religious liberty, the popular Baptist preacher John Leland insisted that “government should protect every man in thinking and speaking freely, and see that one does not abuse another. The liberty I contend for is more than toleration. The very idea of toleration is despicable; it supposes that some have a pre-eminence above the rest to grant indulgence, whereas all should be equally free, Jews, Turks, Pagans and Christians.” (21) To make laws that privilege some over others because of their religious opinions is contrary to the principles of religious liberty, but not toleration. Hence this kind of discrimination should not be tolerated.

But to make hostility, in and of itself, a standard of constitutionality seems absurd. It abridges no one’s ability to practice their religion, and it asks government officials to be robots. In the Lukumi case, if city officials had simply expressed disgust and disapproval of the Santeria religion, but did nothing, or enacted truly generally applicable laws for the purposes of public health, rather than specifically targeting their Church then there would be no breach of the Constitution. Or, conversely, had they said nothing demeaning about that religion but passed ordinances meant to punish the members of that religion it would have been unconstitutional. Statements can be useful, as they were in the Lukumi case, to determine whether or not the ordinances were truly neutral, but the hostile statements themselves should not be unconstitutional. To ask everyone associated with the government to refrain from expressing opinions about certain religions or religious practices is unreasonable and such comments, as horrible as some of them are, are not incompatible with religious liberty. Can you imagine declaring Thomas Jefferson’s Statute for Establishing Religious Freedom null and void because it was born of animosity towards religion? One of the main reasons Jefferson fought so hard to “establish religious freedom” was so that he could say whatever he wanted about religion, most of which was hostile towards it.

Linda Greenhouse’s fear “that the Supreme Court has imposed a regime of constitutional political correctness on how we talk about religion” seem well founded. (22) While insignificant in many ways, the Masterpiece ruling reveals a Court gone astray from the principles and purposes of the First Amendment. The dissenters who fought tirelessly to disestablish religion knew all too well the dangers of mixing politics and religion. Their goal of separating religion and government was not a project born of hostility towards religion, but out of a desire to protect religion, as well as the state. After learning of Madison’s veto of a bill providing a land grant to a Baptist Church in the territory of Mississippi on grounds that the support violated the Establishment Clause, two North Carolina Baptist Churches wrote in support of Madison’s decision:

Considering the said affair as proceeding from Some of our Religious Connections and that the Same is not Consistent with the Spiritual Interest of Religion and that the tendency of Such a procedure if perpetuated would inevitably give to Religious Societies an undue weight and Corrupt influence in public affairs at large and diminish Religious enlargement impairing our Civil and Religious liberties and in fine Contaminate our national morals we therefore desire to assure you that we entertain a high Sense of and Confidence in Your Illustrious objection against the Bill wherein we humbly conceive as eminent an Instance of patriotism have displayed as in any occurrence of the kind. (23)

Madison responded in appreciation: “Having always regarded the practical distinction between Religion and Civil Government as essential to the purity of both and as guaranteed by the Constitution of the United States, I could not have otherwise discharged my duty on the occasion which presented itself.” (24) It is to this alliance between pious religious dissenters and rationalists like Madison that we owe our legacy of religious freedom to. Knowing all too well the history of religious tyranny, they tirelessly fought to separate religion and government. Their hard work is slowly being undone by those who would ignore the lessons of history. We ignore this history at our peril.

1) Masterpiece Cakeshop v. Colorado Civil Rights Commission, Opinion of the Court, 2.

2) Douglas Laycock and Thomas C. Berg, “Symposium: Masterpiece Cakeshop – not as narrow as may first appear” SCOTUS blog.

3) Masterpiece, Justice Ginsburg’s dissenting opinion (see link above). See also John Corvino, “Drawing a Line in the ‘Gay Wedding Cake’ Case,” The New York Times, (November 27, 2017)

4) Masterpiece, Ginsburg, 7.

5) Masterpiece, Opinion of the Court, 12-14.

6) Joint appendix filed (August 31, 2017), 205.

7) Ibid., 202.

8) Ibid., 207.

9) Arnold H. Loewy, “The Positive Reality and Normative Virtues of a ‘Neutral’ Establishment Clause,” Brandeis Law Journal 41 (2003), 536.

10) Allegheny County v. Greater Pittsburgh ACLU (1989)

11) Rosenberger v University of Virginia (1995)

12) Nansemond County (October 27, 1785) and Northunberland County (November 28, 1785). Library of Virginia: Digital Collection

13) Winnifred Fallers Sullivan, “The difference religion makes: Reflections on Rosenberger,” The Christian Century (March 13, 1996), 294 and 295.

14) Carl H. Esbeck, “Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause,” Notre Dame Journal of Law, Ethics & Public Policy 13 (1999), 309-10.

15) See Steven K. Green, “’Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle,” 2 First Amendment Law Review (2004).

16) Trinity Lutheran v. Comer, Opinion of the Court, 11.

17) Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993.

18) For example see Philip Hamburger, “Prejudice and the Blaine Amendments,” First Things.

19) For a review of this history see Steven K. Green, “’Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle,” 2 First Amendment Law Review (2004).

20) Marc D. Stern, “Blaine Amendments, Anti-Catholicism, and Catholic Dogma,” First Amendment Law Review 2 (2004), 153.

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

22) Linda Greenhouse, “How the Supreme Court Avoided the Cake Case’s Tough Issues,” The New York Times (June 7, 2018)

23) To James Madison from Jesse Jones and Others, 27 April 1811: From Jesse Jones and Others (April 27—1811). Founders Online

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

 

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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): In Defense of Religious Liberty: James Madison’s Memorial & Remonstrance Against Religious Assessments

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

James Madison

James Madison’s Memorial & Remonstrance Against Religious Assessments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion:

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

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

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

Notes:

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

First-Amendment-Religious-Freedom

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

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

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

Why Esbeck’s “Protestant Dissent”?

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

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

Why does it matter?

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

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

Driving Esbeck’s quest for an accommodationist interpretation of the First Amendment is the belief that separating government “from all that is arguably religious (or arguably has a religious foundation) … is hostile rather than neutral to the influence of religion on society.” (11) This oft repeated mantra rings true only for those who are in the majority; few others would agree that a check on the power of the majority to impose itself on others is hostile. It is also contrary to the conception of religious liberty of those very religious dissenters that Esbeck claims he is representing. As members of the minority, the religious dissenters knew all too well the tyranny of the majority. Petitioning against laws privileging the Episcopal Church, Baptists in Virginia protested, “As Religious Oppression, or the interfering with the Rights’ of Conscience, which God has made accountable to none but himself, is of all Oppression the most inhuman and insupportable, and as Partiality to any Religious Denomination is its genuine Offspring, your Memorialists have with Grief observed that Religious Liberty has not made a single Advance, in this Commonwealth, without some opposition.” (12) It is not hostility to religion that necessitates separating all that is religious from government, it is hostility to religious tyranny that mandates such an arrangement.

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

 

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

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

 

Some Historical Perspective on the “Right to Bear Arms”

Great post from John Fea’s blog “The Way of Improvement Leaves Home”!

the way of improvement leads home

battle_of_lexington_detail

The blog “Age of Revolutions” has published a very informative forum on the eighteenth-century meaning of the Second Amendment.  Check out essays by Bryan Banks, Robert Churchill, Andrew Fagal, and Eliga Gould.

Here is a taste of Gould’s wrap-up piece: “Bordering on the Frivolous?: The Right to Bear Arms Yesterday and Today.”

As I read the stimulating essays in this forum by Robert Churchill, Andrew Fagal, and Noah Shusterman, my thoughts kept turning to the late Antonin Scalia’s opinion in District of Columbia v. Heller (2008), the landmark case in which five of the Supreme Court’s nine justices affirmed an individual right to bear arms.  In particular, one phrase stood out: “bordering on the frivolous.”  For anyone who hasn’t read the opinion, this is how the famously combative justice dealt with the proposition “that only those arms in existence…

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The Great Plague of 1665: Case Closed? — TIME

History TodayThis post is in partnership with History Today. The article below was originally published at History Today. In August 1665, from his two-room lodgings in Southwark, the chemist John Allin wrote to a friend in Rye, Sussex that: I am through mercy yet well, in middest of death & that too approaching neerer &…

via The Great Plague of 1665: Case Closed? — TIME

“The Myth of the Olympics by Jasper Griffin” | The New York Review of Books

“There are those, said Plato, who go to the Olympics to compete; there are those who go to watch; and there are those who go to buy and sell things. Of the three, he characteristically adds, the noblest are those who go to watch, for their activity is closest to pure contemplation, the highest activity of the human mind.”

olymics

Source: The Myth of the Olympics by Jasper Griffin | The New York Review of Books

Taking a Stand: A Reflection on Elie Wiesel and Hedy Epstein

Mark Chmiel points out an important distinction between two distinguished Holocaust survivors (Elie Wiesel and Hedy Epstein) in this essay. The distinction is significant and telling.

Hold It All

These days I am thinking of two Holocaust survivors.

I met with one today: 86 year-old Hedy Epstein and I had lunch at Blackberry Cafe in Clayton.  The other is receiving an honorary doctorate tomorrow at Washington University: 82 year-old Elie Wiesel, who will also give the commencement address.

Mr. Wiesel and Ms. Epstein have in common the central experience of their lives: their families destroyed by the Nazi genocide.  He survived the Auschwitz death camp, and she left Germany in 1939 on a Kindertransport to Great Britain.

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