Fall/Winter 2005: Belief

The Sacred Rights of Conscience

America's founders on church and state

By Mark David Hall

The First Amendment was written and ratified by elite white men for a population that overwhelmingly identified as Christian. Do these founders have lessons regarding religious liberty and church-state relations to teach citizens of today's far more pluralistic, democratic, and egalitarian America?

When interpreting the First Amendment's religion clauses, the Supreme Court has answered this question with a resounding "yes." For instance, in Everson v. Board of Education (1947), the first modern establishment clause case, justices made seventy-four separate references to the views and actions of America's founders. Justice Wiley Rutledge explained the court's reliance on history by noting that "no provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history." And just last summer, in a pair of cases concerning public displays of the Ten Commandments, Supreme Court justices made thirty separate references to the founders, in addition to making arguments about the actions of the first Congress, the founding generation, and jurists in the early republic.

Appeals to history and the intent of the founders are often associated with conservatives, but one striking aspect of modern establishment clause jurisprudence is that virtually every justice has appealed regularly to America's founders to support his or her views. In fact, jurists usually considered to be liberal have been just as likely as conservatives to appeal to the founders.

Even though there is broad agreement that the founders' intent is important--if not controlling--for interpreting the establishment clause, most students of the Supreme Court agree that the court's establishment clause jurisprudence has been muddled, inconsistent, and unpredictable. A similar claim can be made about the court's free exercise of religion cases. How can this be?

In part, contemporary debates about the founders' views of religious liberty and church-state relations are confused by the large body of misleading literature on the subject. One problem is the significant amount of mainstream academic scholarship that has neglected to consider the impact of religion on the founders. Moreover, when religion or church-state issues are considered, mainstream scholars such as Isaac Kramnick and R. Laurence Moore (authors of The Godless Constitution: The Case Against Religious Correctness), Richard Hughes (Myths America Lives By), and Frank Lambert (The Founding Fathers and the Place of Religion in America) have tended to focus on the few founders who leaned toward Deism and a relatively strict view of the separation of church and state. The justices reflect this focus in their Everson opinions, where sixty-five of the seventy-four references to the founders were to two particular founders: Thomas Jefferson and James Madison.

No one denies that Jefferson and Madison were important in the founding era, but arguing that their views were shared by their entire generation is simply bad history. Among other problems, Jefferson was not even in America when the Constitution or Bill of Rights were written or ratified. Even if we concede that Madison is the father of both documents, careful consideration of the relevant records shows that he often did not get his way, that dozens of other men were significantly involved in writing these texts, and that hundreds of delegates to state ratifying conventions debated and approved them. Simply put, many justices and scholars focus on Jefferson and Madison because these founders appear to support a conception of church-state separation that they find appealing.

In reaction to scholarship and court opinions that deemphasize the importance of religion or overemphasize the founders' support for the separation of church and state, Christian authors such as James Adams (Yankee Doodle Went to Church), Tim LaHaye (Faith of Our Founding Fathers), and Gary DeMar (America's Christian History: The Untold Story) have argued that the American founders were overwhelmingly orthodox Christians who consciously attempted to create a Christian commonwealth. The approach and quality of these works vary, but a common theme is to provide a multitude of isolated quotations, often taken out of context, that purport to show that America had a Christian founding. Although there is nothing inherently wrong in the use of quotations, when taken out of context, they can seriously distort the religious commitments of the founders or their views of the proper relationship between church and state.

Historical arguments--at least ones worth having--are rarely settled with finality. However, careful consideration of a broad range of founding era documents, written by citizens interested in politics and law, constitutions, and practices passed or adopted by elected officials, reveals a strong and clear consensus among America's founders on major issues involving religious liberty and church-state relations. Better understanding these areas of agreement could have implications for the court's jurisprudence and might even bring insights worthy of consideration by citizens involved in discussions of these issues.

The Importance of Religious Liberty

In March of 1776, the Continental Congress sent a commission to Canada to encourage colonists there to join the War for American Independence. Congress charged the commission to make it clear that

we hold sacred the rights of conscience, and may promise to the whole people, solemnly in our name, the free and undisturbed exercise of their religion; and, to the clergy, the full, perfect, and peaceable possession and enjoyment of all their estates; that the government of every thing relating to their religion and clergy, shall be left entirely in the hands of the good people of that province, and such legislature as they shall constitute; Provided, however, that all other denominations of Christians be equally entitled to offices, and enjoy civil privileges, and the free exercise of their religion, and be totally exempt from the payment of any tythes or taxes for the support of any religion.

This declaration is remarkable for a number of reasons, especially because a relatively high percentage of Canadians were Roman Catholics--a denomination traditionally feared by America's Protestant majority. By the War for Independence, however, Americans had reached widespread agreement that religious liberty was a "sacred right" that should be widely respected.

One might dismiss the above quotation as war-time propaganda, yet as Americans revised their state constitutions during and following the revolutionary era, they added or strengthened provisions protecting religious liberty. For instance, two months after the above declaration, George Mason proposed a draft of what became Article XVI of Virginia's Declaration of Rights. It read:

That as Religion, or the Duty which we owe to our divine and omnipotent Creator, and the Manner of discharging it, can be governed only by Reason and Conviction, not by Force or Violence; and therefore that all Men shou'd enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience, unpunished and unrestrained by the Magistrate, unless, under Colour of Religion, any Man disturb the Peace, the Happiness, or Safety of Society, or of Individuals. And that it is the mutual Duty of all, to practice Christian forbearance, Love and Charity towards Each other.

James Madison, in his first significant public act, objected to the use of "toleration" in the article, believing that it implied that religious liberty was a grant from the civil state that could be revoked at will. The Virginia Convention agreed, and Article XVI, which had profound influence on subsequent state and national constitutions, was amended to read:

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.

His amendment passed.

By the end of the revolutionary era, every state constitution offered significant protection of religious liberty. The federal constitution of 1787 did not, but only because most of its supporters believed the national government did not have the delegated power to pass laws interfering with religious belief or practice. In the face of popular outcry, the first Congress proposed and the states ratified a constitutional amendment prohibiting Congress from restricting the free exercise of religion. The exact scope of religious liberty protected by this provision is subject to debate, but at a minimum it prohibits Congress from, in the words of James Madison, compelling "men to worship God in any manner contrary to their conscience."

Constitutional provisions such as these were supported by virtually all Americans, from Anglicans such as George Mason, James Madison, and George Washington to Congregationalists such as John Adams and Roger Sherman, from Baptists such as John Leland and Isaac Backus to the tolerant Quakers of Pennsylvania and the embattled Roman Catholics in Maryland. Of course reasons for supporting religious liberty varied, but virtually every defense of religious liberty was grounded on the premise that humans must be free to serve God as their consciences dictate. In the words of John Leland, the Baptist minister and opponent of religious establishments,

Every man must give an account of himself to God, and therefore every man ought to be at liberty to serve God in that way that he can best reconcile it to his conscience. If government can answer for individuals at the day of judgment, let men be controlled by it in religious matters; otherwise let men be free.

It is, of course, possible that some advocates of religious liberty argued from religious premises for rhetorical effect and not because they believed the premises to be true. Yet doing so suggests that they recognized the importance of religion to their fellow Americans. These citizens favored religious liberty not because they did not care about religion or rejected the idea of religious truth, but because they viewed it as a sacred right granted by God to all people.

The Danger of Established Churches

Church-state contests in the revolutionary era are sometimes described as a struggle between intolerant Christians, represented by John Adams and Patrick Henry, and Enlightenment Deists, represented by Thomas Jefferson and James Madison. However, telling the tale in this way suggests that advocates of state support for religion were far more intolerant than they were and that opponents of establishment were against religion, in general, or any state support of religion, more specifically.

Americans were thoroughly familiar with what it meant to have an established church. England had (and still has) an established church, and at least nine of the original thirteen colonies did as well. Although establishments took a variety of forms, they generally entailed the state providing favorable treatment, which almost always included financial support, for one denomination.

During the revolutionary era most states either disestablished their official church (particularly states where the Church of England was previously established) or moved to a system of "plural" or "multiple" establishments. An example of the latter is in Article III of the Massachusetts Constitution of 1780, which reads:

As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and as these cannot be generally diffused through a community but by the institution of the public worship of God, and of the public instructions in piety, religion, and morality: Therefore ... the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily.

Note that the article allows for the support of ministers from different denominations and does not require state involvement if ministers are supported voluntarily. However, it does limit support to Protestants and provides no protection for non-believers who do not want to support a local church.

Attempts to abolish or amend religious establishments provoked significant public debate. Proponents of establishments often made arguments similar to those presented to the Virginia legislature by citizens of Westmoreland County, Virginia, in support of Patrick Henry's general assessment bill, which would have provided support to ministers from different denominations. The petitioners contended that

Religion is absolutely requisite for the well ordering of Society and the aid of Government: and that its Pastors should be comfortably provided for: It being highly unreasonable to suppose that any set of men could devote their time of Fortune to the Attainment of Education unless they should Expect to be enabled to preserve a decent and respectable rank in life.

Much as public school teachers today argue that competitive salaries are necessary to attract the best candidates into the profession, these citizens believed that state funds were necessary to attract the best young men into the ministry--and both groups thought that such state support would pay great dividends. However, not all citizens agreed.

On the same day that the Virginia legislature received the above petition, a second one arrived from Westmoreland Country opposing Henry's assessment bill. These citizens did not question the benefits of religion, but they objected to the bill because they believed that state support harmed religion. Indeed, they argued that such assessments were against "the spirit of the Gospel," that "the Holy Author of our Religion" did not require state support, and that Christianity was far purer before "Constantine first established Christianity by human laws." Rejecting their fellow petitioners' arguments that government support was necessary to attract good candidates to the ministry, they argued that clergy should

manifest to the world "that they are inwardly moved by the Holy Ghost to take upon them that Office," that they seek the good of Mankind and not worldly Interest. Let their doctrines be scriptural and their Lives upright. Then shall Religion (if departed) speedily return, and Deism be put to open shame, and its dreaded Consequences removed.

Most Americans who opposed state establishments did so for religious reasons. Even opponents most influenced by Enlightenment ideas framed their arguments in terms of the beneficial effects disestablishment would have on religion. For instance, Madison's famous "Memorial and Remonstrance" contended that Henry's assessment bill erred by interfering with the unalienable right to religious liberty--a right that is unalienable "because what is here a right towards men, is a duty towards the Creator." As well, he argued that "ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation" and "the bill is adverse to the diffusion of the light of Christianity."

Few Americans in the founding era disagreed with George Washington's assessment in his Farewell Address that of "all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports." Historically, this conviction translated into support for state establishments. As more and more Americans concluded that establishments hurt rather than helped religion, they rejected religious establishments. The First Amendment to the U.S. Constitution prohibited the creation of an established church at the national level, and by 1833 Massachusetts ended the last formal state establishment. Yet, in the founders' minds, the rejection of establishments did not require a commitment to an absolute separation between church and state.

Christianity in the Public Square

In 1802, Thomas Jefferson penned a letter to the Danbury Baptist Association where he famously suggested that the First Amendment created a "wall of separation between Church & State." This metaphor lay dormant with respect to the Supreme Court's establishment clause jurisprudence until 1947, when Justice Hugo Black seized upon it as the definitive statement of the founders' views on church-state relations.

As appealing as the wall metaphor is to contemporary advocates of the strict separation of church and state, it obscures far more than it illuminates. Leaving aside the facts that Jefferson was in Europe when the Constitution and Bill of Rights were written and ratified, that the letter was a profoundly political document, and that Jefferson used the metaphor only once in his life, it is not even clear that it sheds useful light upon Jefferson's views, much less those of his far more traditional colleagues.

As governor of Virginia, Jefferson issued calls for prayer and fasting, and in his revision of Virginia's statutes, he drafted bills stipulating when the governor could appoint "days of public fasting and humiliation, or thanksgiving" and to punish "Disturbers of Religious Worship and Sabbath Breakers." As a member of the Continental Congress, he proposed that the nation adopt a seal containing the image of Moses "extending his hand over the sea, caus[ing] it to overwhelm Pharaoh" and the motto "Rebellion to tyrants is obedience to God." He closed his second Inaugural Address by encouraging all Americans to join him in seeking "the favor of that Being in whose hands we are, who led our forefathers, as Israel of old," and two days after completing his letter to the Danbury Baptists he attended church services in the U.S. Capitol, where he heard John Leland preach. The point is not that Jefferson was an orthodox Christian who wanted a union between church and state. His private letters make it clear that he was a Deist, and his public arguments and actions demonstrate that he favored a stricter separation between church and state than virtually any other founder. Yet even Jefferson, at least in his actions, did not attempt to remove religion from the public square completely. And what Jefferson did not exclude completely, most founders embraced.

That the founders did not want to eliminate religion from public debate is illustrated well by Donald Lutz's classic study of American political writings published between 1760 and 1805. Using quantitative methodology, Lutz shows that the founders were far more likely to cite the Bible than any other authority. In fact, they cited the Bible more than they cited the works of all Enlightenment authors combined. Similarly, most founders thought that it was appropriate for governments to encourage and support religion. This stance can be shown in a variety of ways, but it is perhaps best illustrated by the actions of the first Congress as this body passed what became the First Amendment to the U.S. Constitution.

One of Congress's first acts was to agree to appoint and pay congressional chaplains. A short time later, it reauthorized the Northwest Ordinance (originally passed by the Confederation Congress), which held that "Religion, Morality, and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall forever be encouraged." As well, this Congress requested that President Washington issue a thanksgiving proclamation, a request with which he complied. The text of his proclamation is worth quoting at some length:

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore His protection and favor.

I do recommend and assign Thursday, the 26th day of November [1789] to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be.

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions, to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our national government a blessing to all the People, by constantly being a government of wise, just and constitutional laws, discreetly and faithfully executed and obeyed.

Similar proclamations were routinely issued by the Continental and Confederation Congresses and Presidents Washington, Adams, and Madison. Jefferson refused to issue such proclamations, but most presidents, Democrats and Republicans alike, have not followed his example.

America's founders clearly did not want Congress to establish a national church, and many opposed establishments at the state level as well. However, there was widespread agreement that governments could promote and encourage religion and that it was appropriate for elected officials to make religious arguments in the public square. There was virtually no support for contemporary visions of a separation between church and state that would have political leaders avoiding religious language and requiring public spaces to be stripped of religious symbols.

Objections and Conclusions

Advocates of both secular and Christian foundings will likely disagree with my account of the founders' views of church-state relations and religious liberty. Each side could accuse me of focusing on unrepresentative texts or supporting my argument with selective quotations taken out of context. These objections make an important point.

A fundamental premise of my argument is that if we want to understand the founders' views on church-state relations, we must study the positions and actions of a wide range of founders in their appropriate contexts. It is simply bad history either to argue that the opinions of a few men represent all of the founders or to use isolated quotations critically to prove a point.

In recent years, scholars willing to take religion seriously have produced a number of important works that offer support for the preceding generalizations. These works range from broad studies of the founding that consider a range of founders to book-length studies on neglected but significant founders. Of course these scholars do not agree on every detail, but the picture they paint is clear and convincing. Yet as important as these works are, there is no substitute for reading widely in the primary sources.

Fair consideration of the evidence reveals that the founders solidly supported the sacred rights of conscience or, more specifically, the right of people to worship God as they see fit. Although less pervasive, there was also significant support in the founding era for abolishing religious establishments. Yet virtually no proponents of disestablishment wanted to remove God from the public square or to discriminate against religious citizens in the pursuit of some abstract conception of the separation of church and state.

If one accepts the position that the founders' views should be relevant to the Supreme Court's jurisprudence, the lessons outlined here could help bring a measure of stability to the court's jurisprudence. However, they will not resolve all ambiguities regarding religion clauses. Important questions still remain about the extent of religious liberty, the degree to which the governments should encourage religion, and the permissibility of funding some religious organizations. If such questions can be answered with any degree of finality, it will be only after much careful study.

Regardless of one's approach to constitutional interpretation, the founders' views suggest lessons that are relevant to current debates about the proper relationship between church and state. These discussions are often presented as arguments between proponents and opponents of religion. If nothing else, the founding generation shows one way that religious conviction can lead to significant support for religious liberty and equality. The founders' solutions may not appeal to advocates of either the religious right or the secular left--which might suggest that they were onto something after all.

Published in the Fall/Winter 2005 issue of Oregon Humanities.

© 2005 Oregon Council for the Humanities