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.

 

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

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

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

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

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

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

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

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

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

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

Religious Freedom Belongs to Everyone Equally

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

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

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

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

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

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

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

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

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

Separating Religion and Government is Necessary for Religious Freedom

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Free Exercise of Religion is Not an Absolute Right

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

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

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

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

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

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

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

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

Separation Protects Religious Freedom and Religion

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

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

Conclusion

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

Notes:

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

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

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

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

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

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

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

Here are some examples of similar statements:

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

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

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

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

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

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

10. Hanover Presbytery (October 24, 1776).

11. Berkeley County (October 25, 1776).

Here are additional examples of this thinking:

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

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

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

12. Baptist Association (November 8, 1780).

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

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

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

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

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

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

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

16. Baptist Association (November 17, 1785).

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

18. Hanover Presbytery (November 2, 1785).

19. Chesterfield County (November 14, 1785).

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

Here are additional examples:

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

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

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

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

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

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

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

23. Rockbridge County (November 2, 1785).

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

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

Here are some additional examples:

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

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

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

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

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

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

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

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

27. Northumberland County (November 28, 1785)

Here is an additional example:

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

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

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

29. Foote, Sketches of Virginia, 341.

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

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

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

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

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

35. Baptist Association (November 3, 1785).

36. Chesterfield County (November 14, 1785).

37. Amherst County (December 10, 1785).

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

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

40. Jefferson, “Autobiography.”

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

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

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

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

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

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

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

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

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

47. Baptist Association (November 8, 1780).

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

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

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

51.

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

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

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

52. Here are some additional examples:

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

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

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

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

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

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

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

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

53. Baptist Association (November 8, 1780)

54. Surry County (October 26, 1785).

Here are several other similar statements:

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

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

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

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

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

56. Here are some additional examples:

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

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

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

57. Mecklenburg County (1785).

Here are some additional examples:

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

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

 

 

 

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

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

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

James Madison

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

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

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

A Clash of Titans: James Madison vs. Patrick Henry

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

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

Point # 1:

Madison’s notes:

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

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

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

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

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

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

Point # 2:

 Madison’s notes:

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

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

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

  1. Case of primitive Christianity.

of Reformation
of Dissenters formerly.
 

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

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

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

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

Point # 3:

Madison’s notes (# 3):

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

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

Point # 4:

Madison’s notes (# 4):

IV. Policy.

  1. promote emigrations from State

  2. prevent [immigration] into it as asylum

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

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

Madison’s notes (his point # 5):

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

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

——
true remedies not Estabt. but being out war

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

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

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

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

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

Point # 5:

Madison’s notes (Outline A) (14):

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

  1. limited

  2. in particular

  3. What is Christianity? Courts of law to Judge

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

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

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

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

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

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

  10. Ends in what is orthodoxy, what heresy?

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

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

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

Conclusion

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

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

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

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

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

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

 

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

Notes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is the third posting in a six part series evaluating Carl H. Esbeck’s “Protestant Dissent and the Virginia Disestablishment 1776-1786.” For the first two posts in the series click on the following links: Intro and Part I.

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

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

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

Dissenting Petitions (1776): Exemplars of Voluntaryism?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Bill for Dissenters (1776)

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

by Mather Brown. London,1786.

Thomas Jefferson, by Mather Brown. London,1786.

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

Notes:

  1. Thos. Cary Johnson, Virginia Presbyterianism and Religious Liberty in Colonial and Revolutionary Times (Richmond, 1907), 57-74.
  2. Hanover Presbytery Petition (October 24, 1776), Library of Virginia: Digital Collection (hereafter LOVD). (accessed 12/14/16).
  3. The Virginia Declaration of Rights (1776), The Founders’ Constitution (Volume 1, Chapter 1, Document 3) The University of Chicago Press (accessed 12/14/16).
  4. Petition of the German Congregation of Culpepper County (October 22, 1776) LOVD.  (accessed 12/14/16)
  5. Petition from Albemarle and Amherst counties (November 1, 1776) LOVD.  (accessed 12/14/16)
  6. Petitions from Albemarle, Amherst and Buckingham counties (two on October 22 and one on November 1) LOVD. (accessed 12/14/16)
  7. Prince Edward County Petition (October 11, 1776) LOVD.  (accessed 12/14/16). And in the Journal of the House of Delegates of Virginia (Richmond: Samuel shepherd & Co., 1828), 7. Hereafter cited as JHD. All dates for these petitions are from the dates they were submitted to the Assembly.
  8. “Ten-thousand name” petition by Dissenters (October 16, 1776) LOVD.  (accessed 12/14/16).
  9. Berkeley County petition, Dissenters of Tuscarora Congregation (October 25, 1776) LOVD. (accessed 12/14/16) The Journal of the House of Delegates states that two petitions were presented on October 25 but only one petition appears in the LOVD collection. (26)
  10. Augusta County petition (November 9, 1776) LOVD.  (accessed 12/14/16).
  11. Thomas Jefferson, Autobiography, Founders Online.
  12. In a letter to William Bradford (January 24, 1774), Madison wrote in response to the persecution of some Baptist preachers: “That diabolical Hell conceived principle of persecution rages among some and to their eternal Infamy the Clergy can furnish their Quota of Imps for such business. This vexes me the most of any thing whatever. There are at this [time] in the adjacent County not less than 5 or 6 well meaning men in close Goal for publishing their religious Sentiments which in the main are very orthodox. I have neither patience to hear talk or think of any thing relative to this matter, for I have squabbled and scolded abused and ridiculed so long about it, to so little purpose that I am without common patience. So I leave you to pity me and pray for Liberty of Conscience to revive among us.” Founders Online.
  13. Thomas Jefferson, “Rough Draft of Jefferson’s Resolutions for Disestablishing the Church of England and for Repealing Laws Interfering with Freedom of Worship,” (written between October 11 and November 19, 1776) Founders Online.
  14. Journal of the House of Delegates of Virginia, 1776 (Richmond: Samuel Shepherd & Co., 1828), 63.
  15. William Waller Hening, ed. The Statutes at Large; being a Collection of all the Laws of Virginia, from the First Session of the Legislature in the Year 1619. vol. IX. (Virginia: 1808), 165.
  16. Thomas Jefferson, Autobiography, Founders Online.
  17. Petition of the Hanover Presbytery (June 3, 1777) LOVD.
  18. For example, many European states took steps to eradicate heresy, in part, because the Third Lateran Council (1179) threatened excommunication for those rulers who did not “extirpate” heresy. John Marshall, John Locke, Toleration and Early Enlightenment Culture (New York: Cambridge University Press, 2006), 216.
  19. John Locke, A Letter Concerning Toleration, translated by William Popple (1689). See Google Books (p. 33)
  20. “The SENTIMENTS of THE BAPTISTS with regard to a GENERAL ASSESMENT,” Virginia Gazette (Dixon & Hunter), 28 March 1777, pp. 6-7. See the Colonial Williamsburg Foundation: Digital Library.

 

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

Click here for the Introduction.

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

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

James Madison

James Madison

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

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

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

How well do these claims hold up against the evidence?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion:

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

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

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

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

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

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

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

 

Why did a Pious Baptist Preacher Give Thomas Jefferson a Mammoth Cheese?

On January 1, 1802 an unusual gift arrived for the new president, Thomas Jefferson. It was a 1,235 pound hunk of cheese from the Elder John Leland and the Cheshire Baptists. Why would this devout Baptist preacher bestow such a conspicuous gift on the deistic Jefferson? The answer is simple: Leland saw Jefferson as one his ablest allies in the struggle for democracy and religious liberty. Delivering the cheese personally, Leland recited a message from a committee of five influential citizens from Cheshire, declaring that they were presenting him with the enormous cheese:

“as a token of the esteem we bear to our chief Magistrate and of the sense we entertain of the singular blessings that have been derived from the numerous services you have rendered to mankind in general and more especially to this favored nation, over which you preside. It is not the last stone of the Bastille, nor is it an article of great pecuniary worth, but as a freewill offering we hope it will be favorably received.”

From all accounts the cheese was “favorably received.” One account recalls that the cheese was carved “in the presence of the president and cabinet, foreign diplomats and many distinguished men and women of ancient note…and that it was the object of great curiosity.” Leland received special thanks and was “introduced person, by person by the president, to the entire gathering.” The celebration for Leland did not end with the ceremony; he celebrated all the way home in what “resembled a triumphant march.” (1) This little known event is a reminder of the great alliance between rationalists such as Jefferson, and the pious dissenters who helped establish religious liberty in the new nation.

thomasjefferson

John Leland grew up in New England, but he spent his early career in Virginia, where he came to admire Jefferson and Madison. In a popular sermon given soon after Jefferson’s inauguration in 1801, he declared, in reference to Jefferson:

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