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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notes:

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

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

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

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

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

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

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

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

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

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

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

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

13) Foote, Sketches of Virginia, 338.

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

15) Foote, Sketches of Virginia, 341.

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

17) Ibid.

18) Ibid.

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

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

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

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

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

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

 

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

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

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

James Madison

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

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

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

A Clash of Titans: James Madison vs. Patrick Henry

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

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

Point # 1:

Madison’s notes:

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

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

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

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

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

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

Point # 2:

 Madison’s notes:

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

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

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

  1. Case of primitive Christianity.

of Reformation
of Dissenters formerly.
 

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

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

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

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

Point # 3:

Madison’s notes (# 3):

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

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

Point # 4:

Madison’s notes (# 4):

IV. Policy.

  1. promote emigrations from State

  2. prevent [immigration] into it as asylum

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

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

Madison’s notes (his point # 5):

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

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

——
true remedies not Estabt. but being out war

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

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

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

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

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

Point # 5:

Madison’s notes (Outline A) (14):

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

  1. limited

  2. in particular

  3. What is Christianity? Courts of law to Judge

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

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

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

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

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

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

  10. Ends in what is orthodoxy, what heresy?

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

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

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

Conclusion

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

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

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

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

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

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

 

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

Notes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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