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The Free Exercise of Religion in America pp 195–232Cite as

Palgrave Macmillan

Initial Conclusion

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Abstract

Given the evidence presented in previous chapters, it can be concluded that most early Americans committed to the free exercise of religion thought that it (1) prohibits the government from having jurisdiction over religious matters, that is, from passing laws that directly aid or harm religion, even if they do not involve the use of coercion; (2) does not prohibit laws that enforce morality even if they are thought to be sanctioned by God or supported by churches, because such laws were understood as affecting primarily the earthly interests of persons, not their eternal destiny; (3) does not entail a right to religion-based exemptions from valid civil laws; and (4) can be limited, at least under certain conditions.

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Notes

  1. 1.

    For a detailed classification and comparison of the various state constitutional provisions protecting the free exercise of religion, see Vincent P. Munoz, “Church and State in the Founding-Era State Constitutions,” American Political Thought, 4 (Winter 2015): 1–38.

  2. 2.

    North Carolina, Pennsylvania, Delaware, New Jersey, and Vermont.

  3. 3.

    Pennsylvania and Delaware, however, did not add a provision against a religious establishment until they revised their constitutions in 1790 and 1792 respectively.

  4. 4.

    Those constitutions “employed egalitarian language but did not preclude unequal privileges.” Philip A. Hamburger, “Equality and Diversity: The Eighteenth-Century Debate about Equal Protection and Equal Civil Rights,” in Supreme Court Review 1992 (Chicago: Univ. of Chicago Press, 1993): 335.

  5. 5.

    Philip A. Hamburger, “Separation and Interpretation,” Journal of Law & Politics, 18 (Winter 2002): 53–54 and 52, 55–56.

  6. 6.

    This point about the equivalence of religious liberty and religious equality has been made exceptionally well by Vincent P. Munoz, “James Madison’s Principle of Religious Liberty,” American Political Science Review, 97 (Feb. 2003): 23–24 (“A corollary to the doctrine of ‘noncognizance’ . . . is equality. Members of different religions may not be treated differently on account of their religion, because any legal exemption or exception based on religious affiliation by definition takes religion into the state’s cognizance . . . [and] violate[s] the principle of religious liberty.”). Also see Philip A. Hamburger, “A Constitutional Right of Religious Exemption: An Historical Perspective,” George Washington Law Review, 60 (April 1992): 936–39.

  7. 7.

    Thomas S. Kidd, God of Liberty: A Religious History of the American Revolution (N.Y.: Basic Books, 2010), 185. Although Noah Feldman provides extensive evidence showing that early Americans condemned religious establishments as a threat to the free exercise of religion, “The Intellectual Origins of the Establishment Clause,” New York University Law Review, 77 (May 2002): 346–428, he incorrectly assumes that the reason religious establishments were thought to be a threat to religious liberty was that they inevitably led to governments’ using coercion to uphold them. In other words, he fails to realize that most early American advocates of religious freedom believed that even non-coercive government support of one religion or religious belief/practice over others violates the free exercise of religion because it undermines the integrity of religion and violates the principle of equality.

  8. 8.

    See John P. Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: Univ. of Chicago Press, 1988), 3, 64, 80–82, 85–90, 94–97, 109–11; Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard Univ. Press, 2002), 9–12, 89–107; and Hamburger, “Equality,” 309–10, including fn. 11.

  9. 9.

    “To Congregation of Trinity Church, Philadelphia” (1797), in The John Carroll Papers, ed. Thomas O. Hanley (Notre Dame, IN: Univ. of Notre Dame Press, 1976, 3 vols), 2:202.

  10. 10.

    The constitutions of Virginia, Pennsylvania, Vermont, Massachusetts, and New Hampshire stated that “all men are by nature equally free and independent.” Sources of Our Liberties, ed. Richard L. Perry (Chicago, IL: American Bar Foundation, 1959), 311, 329, 364, 374, and 382. See Vincent P. Munoz, “If Religious Liberty Does Not Mean Exemptions, What Might It Mean? The Founders’ Constitutionalism of the Inalienable Rights of Religious Liberty,” Notre Dame Law Review, 91 (2016): 1399–1402; Philip A. Hamburger, “Natural Rights, Natural Law, and American Constitutions,” Yale Law Journal, 102 (1993): 918–19, fn 37; and Hamburger, “Equality,” 302–03.

  11. 11.

    Thus, Jefferson famously wrote, “[O]ur rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit.” Notes on the State of Virginia, in The Works of Thomas Jefferson, ed. Paul L. Ford (N.Y.: G. P. Putnam’s Sons, 1904–05), 4:77–78. Another person making this kind of argument was William V. Murray, in “Religion,” first published in America in July, 1787, and reprinted in the Maryland Historical Magazine, 50 (Dec. 1955): 286–90. For numerous similar statements, see Hamburger, “Equality,” 310–13, including fn’s. 33, 39; Hamburger, “Natural Rights,” 919, fn. 38, 931–34; and Munoz, “If Religious Liberty,” 1402–08. Also see Barry Shain, “Religious Conscience and Original Sin: An Exploration of America’s Protestant Foundations,” in Liberty and American Experience in the Eighteenth Century, ed. David Womersley (Indianapolis, IN: Liberty Fund, 2006), 171–73.

  12. 12.

    For examples, see Hamburger, “Equality,” 357–58.

  13. 13.

    David Little, “Conscience, Theology, and the First Amendment,” Soundings: An Interdisciplinary Journal, 72 (Summer/Fall 1989): 357–78, and Steven D. Smith, “The Rise and Fall of Religious Freedom in Constitutional Discourse,” University of Pennsylvania Law Review, 140 (Nov. 1991): 156–66. As Little shows, it is simply not true, as John C. Murray argued some years ago, that the religion clauses were primarily “articles of peace,” We Hold These Truths: Catholic Reflections on the American Proposition (Kansas City, MO: Sheed & Ward, 1960), Chap. 2, or that they “merely comprised part of the Framers’ pragmatic effort to create a functional national government,” as claimed by Scott C. Idleman, “Liberty in the Balance: Religion, Politics, and American Constitutionalism,” Notre Dame Law Review, 71 (1995–1996): 997.

  14. 14.

    Chester J. Antieau, Rights of Our Fathers (Vienna, VA: Coiner Pub’s, 1968), 62, and William R. Estep, Revolution within the Revolution: The First Amendment in Historical Context, 1612–1789 (Grand Rapids, MI: W. B. Eerdmans, 1990), 171–74.

  15. 15.

    The Writings of John Leland, ed. L. F. Greene (N.Y.: Arno Press, 1969), 278. For similar statements, see Isaac Backus, “An Appeal to the Public for Religious Liberty,” in Political Sermons of the American Founding Era, 1730–1805, ed. Ellis Sandoz (Indianapolis, IN: Liberty Press, 1991), 337, 345, 357–58; Joel Barlow, Advice to the Privileged Orders (11791), in The Political Writings of Joel Barlow (N.Y.: Mott & Lyon, 1796), 40; and William Linn, Discourses on the Signs of the Times (N.Y.: Thomas Greenleaf, 1794), 22–23, 69. Also see Thomas Curry, Farewell to Christendom: The Future of Church and State in America (N.Y.: Oxford Univ. Press, 2001), 5, 14.

  16. 16.

    Samuel Shuttlesworth, A Discourse Delivered in the Presence of His Excellency (Windsor, VT: Hutchins, 1792), 5–6. The same point was emphasized by William Linn, an influential educator and minister in the Reformed Dutch Church, in Discourses, 21–22, 35, 43.

  17. 17.

    A. James Reichley, “Religion and the Constitution,” in Religion in American Politics, ed. Charles W. Dunn (Washington, DC: CQ Press, 1989), 10.

  18. 18.

    See Joseph J. Casino, “Religious Freedom and the Early Catholic Experience,” in All Imaginable Liberty: The Religious Liberty Clauses of the First Amendment, ed. Francis G. Lee (Lanham, MD: Univ. Press of America, 1995), 89–90; Richard W. Pointer, “Freedom, Truth, and American Thought, 1760–1810,” in Liberty and Law: Reflections on the Constitution in American Life and Thought, ed. Ronald A. Wells & Thomas A. Askew (Grand Rapids, MI: Eerdmans Pub., 1987), 25–41; and Michael McConnell, “Religion and Its Relation to Limited Government,” Harvard Journal of Law & Public Policy, 33 (Summer 2010): 943–52. For the limitations of the “free market of religion” metaphor as a way of explaining the original meaning of religious freedom, see Chris Beneke, “The Free Market and the Founders’ Approach to Church-State Relations,” Journal of Church and State, 52 (March 2010): 323–52.

  19. 19.

    Linn , Discourses, 22–24. Also see Gideon Mailer, John Witherspoon’s American Revolution: Enlightenment and Religion from the Creation of Britain to the Founding of the United States (Chapel Hill, NC: Univ. of North Carolina Press, 2017), 306–13; Joseph M. McShane, “John Carroll and the Appeal to Evidence: A Pragmatic Defense of Principle,” Church History, 57 (Sept. 1988): 298–309; and Reichley, “Religion,” 9–10.

  20. 20.

    Agreeing is Vincent P. Munoz in “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” American Political Science Review, 110 (May 2016): 369–81, and “If Religious Liberty,” 1387–1408, 1416.

  21. 21.

    Chris Beneke, “The ‘Catholic Spirit Prevailing in Our Country’: America’s Moderate Religious Revolution,” in The First Prejudice: Religious Tolerance and Intolerance in Early America, ed. Chris Beneke and Christopher S. Grenda (Philadelphia, PA: Univ. or Pennsylvania Press, 2011), 269 & 266–70. Also see Carl H. Esbeck, “Governance and the Religion Question: Voluntaryism, Disestablishment, and America’s Church-State Proposition,” Journal of Church and State, 48 (Spring 2006): 319.

  22. 22.

    New Jersey Constitution of 1776, sec. XVIII, quoted in Munoz, “Church,” 22. The provisions in the other three states were similarly worded.

  23. 23.

    Munoz, “Church,” 21.

  24. 24.

    Delaware Constitution of 1776, sec. 2, quoted in Munoz, “Church,” 22. The provisions in three other states were similarly worded.

  25. 25.

    Maryland Constitution of 1776, sec. XXXIII, quoted in Munoz, “Church,” 23.

  26. 26.

    The Constitution of the Presbyterian Church in the United States of America (Philadelphia, PA: Thomas Bradford, 1789), cxxxiii–iv. Also see Nicholas P. Miller, The Religious Roots of the First Amendment: Dissenting Protestants and the Separation of Church and State (N.Y.: Oxford Univ. Press, 2012), 150–51.

  27. 27.

    Constitution of Presbyterian Church, 35. In 1801, the Episcopal Church followed the example of the Presbyterian Church by revising the “Thirty-Nine Articles of Religion” to state that government has no authority over religious affairs. Miller, Religious Roots, 152. For similar language in the preface to the constitution of the Reformed Dutch Church, see Linn, Discourses, 23–24.

  28. 28.

    James H. Smylie, “Protestant Clergy, the First Amendment and Beginnings of a Constitutional Debate, 1781–91,” in The Religion of the Republic, ed. Elwyn A. Smith (Philadelphia, PA: Fortress Press, 1971), 141–48; James H. Smylie, “Presbyterian Clergy and Problems of ‘Dominion’ in the Revolutionary Generation,” Journal of Presbyterian History, 48 (Fall 1970): 170–71; and Miller, Religious Roots, 151.

  29. 29.

    Robert E. Curran, Papist Devils: Catholics in British America, 1574–1783 (Washington, DC: Catholic Univ. of America Press, 2014), 276.

  30. 30.

    Chris Beneke, Beyond Toleration: The Religious Origins of American Pluralism (N.Y.: Oxford Univ. Press, 2006), 185–86; Joseph P. Chinnici, “American Catholics and Religious Pluralism, 1775–1820,” Journal of Ecumenical Studies, 16 (Fall 1979): 733–36; and Casino, “Religious Freedom,” 83–93.

  31. 31.

    Sketches of American Policy (Hartford, CT: Hudson & Goodwin, 1785), 27. By “badges of bigotry,” Webster was referring to restrictions on who could hold public office.

  32. 32.

    “Religion,” 287–90. Murray was an aspiring politician from Maryland, who went on to serve in Congress and as a diplomat under presidents Washington and Adams. See Alexander DeConde’s introduction to “Religion,” 282–85.

  33. 33.

    A Century Sermon on the Glorious Revolution, in Political Sermons, 988–89.

  34. 34.

    An Examination of the Constitution for the United States of America (Philadelphia, PA: Zachariah Poulson, 1788), 5.

  35. 35.

    “An Oration, July 4, 1794,” in Transactions of the American Philosophical Society, 55 (1965): 192. Others who agreed include Jonathan Maxcy {president of Rhode Island College), An Oration (Providence, RI: Carter & Wilkinson, 1795), 16–17, and Barlow, Advice, 34–49.

  36. 36.

    Hamburger, “Equality,” 311.

  37. 37.

    See, e.g., Elizur Goodrich, “The Principles of Civil Union and Happiness Considered and Recommended” (May 10, 1787) (Hartford, CT: Hudson & Goodwin, 1787), 8–11. Early Americans, however, did not believe that all moral obligations should be enforced by government. Hamburger, “Natural Rights,” 943, fn. 96. See, e.g., Goodrich, “Principles,” 13–14.

  38. 38.

    Notes on Virginia, in Works of Jefferson, 4:83.

  39. 39.

    Charles H. Lippy, “The 1780 Massachusetts Constitution: Religious Establishment or Civil Religion?” Journal of Church & State, 20 (Autumn 1978): 533–49; Andrew R. Murphy, Conscience and Community: Revisiting Toleration and Religious Dissent in Early Modern England and America (University Park, PA: Pennsylvania State Univ. Press, 2001), 11–12, 27–73, 209–19; Hamburger, Separation, 65–73; and Hamburger, “Constitutional Right,” 918–19, fn. 15, & 935, fn. 85.

  40. 40.

    See, e.g., Goodrich, “Principles,” 8–11, and Murray, “Religion,” 289–90. Also see Hamburger, Separation, 99–107, and “Constitutional Right,” 918–19, fn. 15.

  41. 41.

    Barry A. Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought (Princeton, NJ: Princeton Univ. Press, 1994), 205 (“. . . [M]ost 18th-century Americans more or less accepted that individual behavior had no effect on one’s chances for eternal salvation.”), 215.

  42. 42.

    Frank Lambert, The Founding Fathers and the Place of Religion in America, (Princeton, NJ: Princeton Univ. Press, 2003), 172–78; Keith Pacholl, “‘Between God and our own Souls’: The Discussion over Toleration in Eighteenth-Century America,” in The Lively Experiment: Religious Toleration in America from Roger Williams to the Present, ed. Chris Beneke & Christopher S. Grenda (Lanham, MD: Rowman & Littlefield, 2015), 117–29; J. William Frost, A Perfect Freedom: Religious Liberty in Pennsylvania (N.Y.: Cambridge Univ. Press, 1990), 78–84; Esbeck, “Governance,” 318; Mailer, Witherspoon’s Revolution, 306–13; Little, “Conscience,” 374; and above, pp. 93, 161–62, 166.

  43. 43.

    For examples, see William G. McLoughlin, “The Role of Religion in the Revolution,” in Essays on the American Revolution, ed. Stephen G. Kurtz & James H. Hutson (Chapel Hill, NC: Univ. of North Carolina Press, 1973), 211–12; and David Sehat, The Myth of American Religious Freedom (N.Y.: Oxford Univ. Press, 2011), 36–37, 52–55.

  44. 44.

    G. Alan Tarr, “Church and State in the States,” Washington Law Review, 64 (1989): 88. Agreeing are Reichley, “Religion,” 10; Kidd, God of Liberty, 168–69; and Hamburger, Separation, 13–14, 73, 94.

  45. 45.

    Quoted in Paul F. Boller, “George Washington and Religious Liberty,” William and Mary Quarterly, 17 (Oct. 1960): 499. Also see Kathleen A. Brady, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence (N.Y.: Cambridge Univ. Press, 2015), 237.

  46. 46.

    For examples, see Linn, Discourses, 52, and the amended constitution of the national Presbyterian Church, quoted in Miller, Religious Roots, 150. Also see Bernadette Meyler, “The Equal Protection of Free Exercise: Two Approaches and Their History,” Boston College Law Review, 47 (2006): 308–10, and Hamburger, Separation, 101–03.

  47. 47.

    This was Madison’s position. Paul J. Weber, “James Madison and Religious Equality: The Perfect Separation,” Review of Politics, 44 (Apr. 1982): 185. For other examples, see above, pp. 63, 138, 144, 156, 161, and below, p. 219, and Hamburger, Separation, 178, fn. 60.

  48. 48.

    For examples of educational institutions receiving tax exemptions, see The First Laws of the State of Georgia, comp. John D. Cushing (Wilmington, DE: Michael Glazier, 1981), 301, and Chester J. Antieau et al., Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses (Milwaukee, WI: Bruce Pub. Co., 1964), 175–76. The incorporation of churches was opposed by some dissenters not in principle but because of certain uses to which it had been or was being put. For example, incorporation of churches was not allowed in Virginia because an earlier incorporation law (1784–1786) had applied only to the Episcopal Church and had created too intimate a tie between that denomination and the legislature, and in New England, Baptists were divided over incorporation of churches because it was associated with a general-assessment system and also enabled churches to use the courts to force their members to pay their “subscriptions” and pew rents, and some Baptists were opposed to such a use of force. For a review of the various kinds of incorporation laws and issues associated with them, see McLoughlin, “Role,” 232–44.

  49. 49.

    McLoughlin, “Role,” 211–12. Examples of such laws are found throughout Wm. G. Miller, Faith, Reason, and Consent Legislating Morality in Early American States (N.Y.: LFB Scholarly Pub., 2009).

  50. 50.

    E.g., John Leland, The Virginia Chronicle (Fredericksburg, VA: T. Green, 1790), 40.

  51. 51.

    Michael W. McConnell, et al., Religion and the Constitution (N.Y.: Aspen Pub’s, 2006, 2nd ed.), 588; Note, “State Sunday Laws and the Religious Guarantees of the Federal Constitution,” Harvard Law Review, 73 (1959–60): 729–30; and McLoughlin, “Role,” 211.

  52. 52.

    As commander of the Revolutionary Army, George Washington gave another reason for chaplains and their worship services: they made better soldiers. Thus, he often ordered his soldiers to attend worship services. Vincent P. Munoz, “George Washington on Religious Liberty,” Review of Politics, 65 (Winter 2003): 14–15. This was an obvious exception to his widely proclaimed view that government should not force persons to accept any particular religion. Id., 24, 26–27.

  53. 53.

    See, e.g., unsigned article in Virginia Herald and Fredericksburg Advertiser (12/24/1789), quoted in Antieau, Freedom, 181, and Leland, Virginia Chronicle, 41.

  54. 54.

    Eric R. Schlereth, An Age of Infidels: The Politics of Religious Controversy in the Early United States (Philadelphia, PA: Univ. of Pennsylvania Press, 2013), 235. Also see Gerard V. Bradley, “Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism,” Hofstra Law Review, 20 (Winter 1991): 273–76.

  55. 55.

    Robert C. Post, “Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment,” California Law Review, 76 (March 1988): 314–16; Antieau, Freedom, 184–85; and Schlereth, Age, 234–35. In 1897, the Supreme Court explicitly labeled laws against the publication of blasphemy as “exceptions” to the freedoms of speech and press. Robertson v. Baldwin, 165 U.S. 275, 281 (1897).

  56. 56.

    The exceptions were the Maryland Constitution, which granted it only to Christians, and the South Carolina Constitution of 1778, which granted it only to theists (the latter’s restriction was removed in 1790). See above, pp. 96–97,122, 124–25.

  57. 57.

    Vermont’s restrictions were removed in 1787, South Carolina and Pennsylvania’s in 1790, and Delaware’s in 1792.

  58. 58.

    E.g., Jefferson, citizens of Chesterfield, Virginia, Madison, and Leland, quoted in John Ragosta, Religious Freedom: Jefferson’s Legacy, America’s Creed (Charlottesville, VA: Univ. of Virginia Press, 2013), 36, 89, 107, 134.

  59. 59.

    Weber, “Madison,” 184.

  60. 60.

    Civis, “Mr. Goddard,” Maryland Journal, 12 (1/21/1785), 3.

  61. 61.

    See above, pp. 98–99, 111, 113.

  62. 62.

    In 1788, however, New York passed a statute that had the effect of prohibiting Catholics from holding public office. See above, p. 155.

  63. 63.

    See, e.g., Maxcy, Oration, 16–17, and Webster, Sketches, 27. Also, see Daniel L. Dreisbach, “The Constitution’s Forgotten Religion Clause: Reflections on the Article VI Religious Test Ban,” Journal of Church and State, 38 (Spring 1996): 262.

  64. 64.

    Steven K. Green, “Federalism and the Establishment Clause: A Reassessment,” Creighton Law Review, 38 (2004–2005): 777–80; Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (N.Y.: Oxford University Press, 1986), 172–75, 191–92, 212–13; and Lippy, “1780 Massachusetts Constitution,” 533–49.

  65. 65.

    Michael W. McConnell, “Establishment and Disestablishment at the Founding, Part I: Establishment of Religion,” William & Mary Law Review, 44 (2002–2003): 2178, 2180; and Richard A. Primus, The American Language of Rights (N.Y.: Cambridge Univ. Press, 1999), 108.

  66. 66.

    Denise A. Spellberg, Thomas Jefferson’s Qur’an: Islam and the Founders (N.Y.: Alfred A. Knopf, 2013), 159–64, and Schlereth, Age, 28–29.

  67. 67.

    Brady, Distinctiveness, 141–42, and Schlereth, Age, 29.

  68. 68.

    Webster, Sketches, 27. For an account of the changing attitudes toward Catholics, see Beneke, Beyond Toleration, 180–86.

  69. 69.

    American Mercury (2/11/1788), in The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, ed. Bernard Bailyn (N.Y.: Library of America, 1993), 2:194.

  70. 70.

    “True Baptist,” The Age of Inquiry; or, Reason and Revelation in Harmony with Each Other (Hartford, CT: 1804), 76.

  71. 71.

    Although Virginia’s constitution did not contain such a provision, Thomas Jefferson’s widely circulated 1783 draft of a constitution for that state did contain one. See “Jefferson’s Draft of a Constitution for Virginia” (1783), in The Papers of Thomas Jefferson, ed. J. Boyd et al. (Princeton, NJ: Princeton Univ. Press, 1952), 6:297. This is probably why the Supreme Court and some scholars have said that Virginia’s constitution had a provision barring clergy from serving in the legislature. See McDaniel v. Paty, 435 U.S. 618, 622 (1978), and Anson P. Stokes & Leo Pfeffer, Church and State in the United States (N.Y.: Harper & Row, 1964), 159.

  72. 72.

    Webster , Sketches, 46, and Jefferson, “To Jeremiah Moore” (8/14/1800), in Papers of Jefferson, 32:103. In an earlier letter, Jefferson had written that the spirit of the clergy “has filled the history of ten or twelve centuries with too many atrocities not to merit a proscription from meddling with government.” “To Chastellux, with Enclosure” (9/2/1785), in Papers of Jefferson, 8:470. Also see Laura Underkuffler-Freund, “The Separation of the Religious and the Secular: A Foundational Challenge to First Amendment Theory,” William & Mary Law Review, 36 (1995): 939–42, and Hamburger, Separation, 86–88. Stokes and Pfeffer give yet a third reason for the ban: “It is also not improbable that the activity of some clergymen in slave states in behalf of emancipation had created a reaction.” Church and State, 159.

  73. 73.

    Anonymous, “On the Exclusion of Ministers of Religion from Civil Offices,” The Universal Asylum, and Columbian Magazine, (August 1792): 75.

  74. 74.

    Quoted in Papers of Jefferson, 6:311.

  75. 75.

    “To Jeremiah Moore,” 103. Also see Vincent P. Munoz, God and the Founders: Madison, Washington, and Jefferson (N.Y.: Cambridge Univ. Press, 2009), 112.

  76. 76.

    “On the Exclusion of Ministers,” 76.

  77. 77.

    Webster, Sketches, 46–47; Leland, “Virginia Chronicle,” 44–45; for Witherspoon, see Stokes & Pfeffer, Church and State, 41; for Furman, see James A. Rogers, Richard Furman: Life and Legacy (np: Mercer Univ. Press, 1985), 70. Also see McLoughlin, “Role,” 211, fn.14.

  78. 78.

    North Carolina’s constitution contained a condition, but it was quite narrow; “[N]othing herein contained shall be construed to exempt Preachers of treasonable and seditious Discourses, from legal trial and Punishment.” See above, p. 112.

  79. 79.

    Massachusetts, New Hampshire, Maryland, New York, Delaware (1776 but removed in 1792), and South Carolina (1790).

  80. 80.

    Massachusetts, New Hampshire, South Carolina (1778).

  81. 81.

    Massachusetts, New Jersey, South Carolina (1778).

  82. 82.

    New York, Georgia (1777 but removed in 1789), South Carolina (1790).

  83. 83.

    South Carolina (1778), North Carolina.

  84. 84.

    Maryland.

  85. 85.

    Brady, Distinctiveness, 114.

  86. 86.

    “A Bill for Establishing Religious Freedom,” in Papers of Jefferson, 2:545. Much later, he wrote that “man . . . has no natural right in opposition to his social duties.” “To the Danbury Baptist Association” (1/1/1802), in Papers of Jefferson, 36:258. Also see Hamburger, “Constitutional Right,” 917–26, and Munoz, “If Religious Liberty,” 1409–17.

  87. 87.

    Marci Hamilton, “The Licentiousness in Religious Organizations and Why It Is Not Protected under Religious Liberty Constitutional Provisions,” William & Mary Bill of Rights Journal, 18 (2010): 969, and 968–75. Also see Hamburger, “Constitutional Right,” 917, fn. 8.

  88. 88.

    Hamburger writes that “eighteenth-century lawyers made clear that ‘every breach of law is against the peace.’” “Constitutional Right,” 918, quoting Queen v. Lane, 6 Mod. 128, 87 Eng. Rep. 884 (Q.B. 1704). Thus, justices of the peace in England and America were responsible for enforcing a broad range of laws. See William Hawkins & John Curwood, A Treatise of the Pleas of the Crown, 8th edition (London: 1824), 2:42–43.

  89. 89.

    For example, in a 1638 document creating their government, the first settlers of New Hampshire agreed “to submit ourselves” to laws that it might enact so “that we may live quietly & peaceabely together, in all godliness and honesty.” “Agreement of the Settlers at Exeter in New Hampshire” (7/5/1639), in Documents of Political Foundation Written by Colonial Americans: From Covenant to Constitution, ed. Donald S. Lutz (Philadelphia, PA: Institute for the Study of Human Issues, 1986), 160.

  90. 90.

    Maxcy, Oration, 6.

  91. 91.

    Marci A. Hamilton, “Religion, the Rule of Law, and the Good of the Whole: A View from the Clergy,” Journal of Law & Politics, 18 (2002): 393, 398. Leland, e.g., wrote that “the Baptists hold it their duty to obey magistrates, to be subject to the law of the land, to pay their taxes, and pray for all in authority.” Virginia Chronicle, 120–21.

  92. 92.

    For examples of persons making such a promise, see above, pp. 83–84, including fn. 131, 108–09, 203. Also see Walter Berns, The First Amendment and the Future of American Democracy (N.Y.: Basic Books, 1976), 35–55, and Hamburger, Separation, 73–78, “Constitutional Right,” 936, 941–42, 946, and “Equality,” 313–15.

  93. 93.

    “Dutch-U.S. Treaty of Amity and Commerce” (10/8/1782), Art. 4, and “Swedish-United States Treaty of Amity and Commerce” (4/3/1783), Art. 5, in The Emerging Nation: A Documentary History of the Foreign Relations of the United States under the Articles of Confederation, 1780–1789, ed. Mary A. Giunta et al. (Washington, DC: National Historical Publications and Records Commission, 1996), 2:973, 985.

  94. 94.

    Evans, “A Sermon Delivered at the Annual Election” (1791), in Political Sermons, 1070–71; Washington, quoted in Boller, “Washington,” 499, 504; Jefferson, “Letter to James Madison” (7/31/1788), in Papers of Jefferson, 13:442–43; Constitution of Presbyterian Church, 35; and Leland, “The Yankee Spy,” (Boston, MA: John Asplund, 1794), 18. Kathleen Brady argues that Thomas Jefferson and John Leland “understood the scope of legitimate state power narrowly” as “limited to preventing acts injurious to others” and, therefore, that they might have favored a right to religion-based exemptions from today’s laws that have other objectives. Distinctiveness, 116–17, 163, 168–69. She, however, eventually concedes, at 242–43, fn. 68, that many early Americans held more expansive ideas about the purposes of government, including the promoting of education as well as “the public welfare by advancing the economic interests of the community as a whole.” She also concedes that Jefferson took many positions inconsistent with his statement about the narrow scope of state power, including especially his advocacy of public education. On this and other inconsistencies on Jefferson’s part, see Munoz, God, 70–116.

  95. 95.

    Hamburger, “Constitutional Right,” 939. Even advocates of a right to religion-based exemptions appear to concede this point. See Michael W. McConnell, “Religious Freedom at a Crossroads,” University of Chicago Law Review, 59 (1992): 115, 172, and Douglas Laycock, “Free Exercise and the Religious Freedom Restoration Act,” Fordham Law Review, 62 (1993–94): 883–85.

  96. 96.

    Hamburger, “Constitutional Right,” 917.

  97. 97.

    Leland wrote that “an exemption from bearing arms, is, but a legal indulgence . . . [that] may be altered by the caprice of the legislature . . . .” Virginia Chronicle, 45. Also see Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, DC: American Enterprise Institute, 1978), 39, and Hamburger, “Constitutional Rights,” 916–17, 939–46. Although she believes that the Supreme Court today should grant religion-based exemptions as rights, Brady concedes that few early Americans viewed the exemptions given to conscientious objectors as rights required by the principle of religious freedom. Distinctiveness, 118, 161, 165. Although McConnell writes that it “seems to be the case” that “the exemptions were granted because legislatures believed the free exercise principle requires them,” “Origins,” 1473, he presents no evidence to support his claim.

  98. 98.

    One scholar who makes such a claim is Antieau, Rights, 52–53.

  99. 99.

    Isaac Backus, e.g., wrote that where ecclesiastical and civil governments “are well distinguished, and improved according to the true nature and end of their institution, the effects are happy, and they do not at all interfere with each other . . . .” “An Appeal to the Public for Religious Liberty,” in Political Sermons, 337. Also see above, pp. 76, 182, 200.

  100. 100.

    See Munoz, “If Religious Liberty,” 1403–05, 1408–09. For the importance of the phrase, “on account of,” see Hamburger, “Constitutional Right,” 922–24.

  101. 101.

    “Remarks on the Amendments to the Federal Constitution” (No. 9), in Philadelphia Federal Gazette, (11/18/1788): 2.

  102. 102.

    “Origins,” 1447 (emphasis added).

  103. 103.

    Quoted in id., 1446.

  104. 104.

    Id., 1465–66.

  105. 105.

    Quoted in Boller, “Washington,” 499–500. For Washington’s position on this issue, see Munoz, God and Founders, 59–68, 179–80. Brady claims that the founding generation favored religion-based exemptions, at least as indulgences, for a second reason—because forcing persons to betray their consciences, even when it was “the unintended effect of neutral and generally applicable laws,” “undermines the capacity for faith altogether, whereas permitting individuals to follow their conscience where it leads nurtures it.” Distinctiveness, 170, and 119. She, however, not only provides little evidence to support her claim, but overlooks many statements made by early Americans and cited throughout this book that threats of punishment on the part of the government, even when intentional, do not necessarily undermine persons’ religious faith but may actually serve to strengthen it. It was government aid to religion as much as compulsion that the advocates of religious freedom thought threatened the integrity of religion.

  106. 106.

    Brady, Distinctiveness, 117–18, 164–65.

  107. 107.

    Douglas Laycock, “Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause,” Notre Dame Law Review, 81 (2006): 1832–33, and Antieau, Freedom, 175.

  108. 108.

    “Rights of Conscience Inalienable,” 1094. A year earlier, Leland wrote, “Things should be so fixed in government, that there should be neither degrading checks, nor alluring baits to the ministry.” “Virginia Chronicle,” 122. Similarly, Noah Webster wrote, “Should I be asked what privileges clergymen ought to enjoy? I would answer, the same as other citizens.” Sketches, 47. Also, see “Exclusion of Ministers,” 76.

  109. 109.

    Hamburger , “Constitutional Right,” 947, fn. 119. Their silence, however, may be explained partially by the fact that only a few states exempted the clergy from paying taxes and serving in the military. Laycock, e.g., cites only Connecticut and Pennsylvania as states that exempted the clergy from military service and no state that exempted them from taxes in general. “Regulatory Exemptions,” 1833, fn. 226. Leland wrote that Virginia exempted “preachers” from bearing arms and that “some of the states” exempted them from taxes. “Virginia Chronicle,” 122.

  110. 110.

    See, e.g., “An Act for the Encouragement of Education” (12/10/1778), in First Laws of New Jersey, comp. John D. Cushing (Wilmington, DE: M. Glazier, 1981), 65.

  111. 111.

    This is the way the provisos are interpreted by Munoz, “Church,” 15–16; Brady, Distinctiveness, 167; and Hamburger, “Constitutional Right,” 918–26.

  112. 112.

    For evidence of early Americans’ fear of Catholicism, see Primus, American Language, 108–09, 111–15, and Kidd, God of Liberty, 16–20. For Jefferson’s views, see “Notes on Locke and Shaftesbury,” in Papers of Jefferson, 1:544–48, 551, fn. 2. Jefferson also thought that seditious preaching and the assertion that a foreign prince [pope] has power within this commonwealth could be criminalized. Sanford Kessler, “Locke’s Influence on Jefferson’s ‘Bill for Establishing Religious Freedom’,” Journal of Church and State, 25 (Spring 1983): 243.

  113. 113.

    Munoz, “George Washington,” 29.

  114. 114.

    In People v. Ruggles (N.Y. 1811), Chancellor Kent reconciled a law against blasphemy with New York’s guarantee of freedom of religion on the basis of the proviso attached to that guarantee. Christopher T. Anglim, “Blasphemy,” Encyclopedia of Religion and the Law in America (Amenia, NY: Grey House Pub’s, 2009), 50.

  115. 115.

    For examples of such a claim, see Munoz, “If Religious Liberty,” 1398–1408, and Hamburger, “Equality,” 310–13, including fn’s 33 & 39.

  116. 116.

    “Constitution of New Hampshire” (6/2/1784), in SOL, 382.

  117. 117.

    This conundrum is addressed, but not resolved, in Philip Hamburger, “More Is Less,” Virginia Law Review, 90 (2004): 835–57.

  118. 118.

    “An Essay Concerning Toleration,” in A Letter Concerning Toleration and Other Writings, ed. Mark Goldie (Indianapolis, IN: Liberty Fund, 2010), 110–11, 124 (emphasis added).

  119. 119.

    Nathaniel Chipman, quoted in Hamburger, “Natural Rights,” 947. Something like this explanation is also put forward by Robert C. Palmer, “Liberties as Constitutional Provisions,” in Liberty and Community: Constitution and Rights in the early American Republic (N.Y.: Ocean Pub’s, 1987), 65–66, 82; Munoz, “If Religious Liberty,” 1409, & 1410–16; and Hamburger, “Natural Rights,” 944–60.

  120. 120.

    Hamburger, “Constitutional Right,” 918–23.

  121. 121.

    As does Hamburger, in “More Is Less,” at 839, 845, 848–49, & 855.

  122. 122.

    See above, pp. 60–61.

  123. 123.

    Quoted in Hamburger, “More Is Less,” 845 fn. 27 (emphasis added). In saying this, however, Madison could have been saying only that religious liberty should not be used to justify disobeying valid secular laws and not that government has the right to legislate explicitly and specifically against certain religious practices that “trespass on private rights or the public peace.”

  124. 124.

    As argued by Vincent Munoz in “Church,” 30, 31–32.

  125. 125.

    Thomas M. Cooley, Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union (Boston, MA: Little, Brown, & Co., 1868, 1st ed.), 467 (emphasis added).

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  1. Department of Political Science, University of Richmond, Richmond, VA, USA

    Ellis M. West

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West, E.M. (2019). Initial Conclusion. In: The Free Exercise of Religion in America. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-06052-7_8

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