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The Constitutional Meaning of Religious Freedom: Part Two

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The Free Exercise of Religion in America

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Abstract

At the first Congress, James Madison submitted a proposed amendment to the Constitution that was intended to protect the rights of conscience. The record of the debate in Congress indicates that its members understood that the amendment was needed to satisfy those persons/states that had insisted that Congress not be able to legislate on religion. To ensure that the provision would have that effect, as finally worded, it said that the Congress could not prohibit the free exercise of religion or pass laws respecting religious establishments. The debate on another proposed amendment (defeated), which would have conditionally exempted pacifists from having to serve in the military, indicated that the representatives did not believe that persons have a right to such exemptions.

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Notes

  1. 1.

    See, e.g., Michael W. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review, 103 (May 1990): 1481; Vincent P. Munoz, “The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress,” Harvard Journal of Law & Public Policy, 31 (2008): 1085, 1109; Steven K. Green, “Federalism and the Establishment Clause: A Reassessment,” Creighton Law Review, 38 (2005): 795–96; and Thomas J. Curry, The First Freedoms (N.Y.: Oxford Univ. Press, 1986), 207–15.

  2. 2.

    Those notes were taken by a man with a drinking problem and were condemned at the time by Madison and other Congressmen, and more recently by scholars, as being incomplete and full of errors. See Marion Tinling, “Thomas Lloyd’s Reports of the First Federal Congress,” William and Mary Quarterly, 3rd ser., 18 (Oct. 1961): 519–45, and James H. Hutson, “The Creation of the Constitution: The Integrity of the Documentary Record,” in Interpreting the Constitution: The Debate over Original Intent, ed. Jack N. Rakove (Boston, MA: Northeastern Univ. Press, 1990), 168–69.

  3. 3.

    Leonard Levy, Emergence of a Free Press (N.Y.: Oxford Univ. Press, 1985), 266–68; Donald L. Drakeman, Church-State Constitutional Issues: Making Sense of the Establishment Clause (N.Y.: Greenwood Press, 1991), 67–68; Steven Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (N.Y.: Oxford Univ. Press, 1995), 26–29, 39; and Curry, First Freedoms, 193–94, 213–15.

  4. 4.

    Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788–1828 (Chapel Hill, NC: Univ. of North Carolina Press, 1999), 158–63; Kenneth R. Bowling, “‘A Tub to the Whale’: The Founding Fathers and Adoption of the Federal Bill of Rights,” Journal of the Early Republic, 8 (Autumn 1988): 236–46; and Charlene B. Bickford & Kenneth R. Bowling, Birth of the Nation: The First Federal Congress 1789–1791 (Madison, WI: Madison House Pub’s, 1989), 52–53.

  5. 5.

    Scholars who have concluded that a consensus existed on how the government should treat religion and that the religion clauses were intended to express it include Carl Esbeck, “Dissent and Disestablishment: The Church-State Settlement in the Early Republic,” Brigham Young University Law Review,(2004): 1385, 1393–98; Mark D. McGarvie, One Nation Under Law: America’s Early National Struggles to Separate Church and State (Dekalb, IL: Northern Illinois Univ. Press, 2003), 47–60; Barbara A. McGraw, Re-Discovering America’s Sacred Ground: Public Religion and the Pursuit of the Good in a Pluralistic Society (Albany, NY: SUNY Press, 2003), Part I, 23–106; Thomas J. Curry, Farewell to Christendom: The Future of Church and State in America (N. Y.: Oxford Univ. Press, 2001), 42; Gerard V. Bradley, Church-state Relationships in America (Westport, CT: Greenwood Press, 1987), 70–73; and Green, “Federalism,” 767, 775–777.

  6. 6.

    Curry, First Freedoms, 193–94.

  7. 7.

    For the wording of all nine amendments, see Documentary History of the First Federal Congress of the United States of America [hereafter cited as DH], Vol. 4, Legislative Histories, ed. Charlene B. Bickford & Helen E. Veit (Baltimore, MD: Johns Hopkins Univ. Press, 1986), 9–12. For an excellent summary of Madison’s importance, see Theodore Skye, “The Establishment Clause, the Congress and the Schools: An Historical Perspective,” Virginia Law Review, 52 (Dec. 1966): 1423, including fn. 135.

  8. 8.

    See “Letter to Richard Peters” (8/19/1789), in The Papers of James Madison [hereafter cited as PJM), ed. Robert A. Rutland et al. (Chicago: Univ. of Chicago Press, 1977 ff), 12:353; Donald L. Drakeman, “Religion and the Republic: James Madison and the First Amendment,” Journal of Church and State, 25 (Autumn 1983): 428–29; and Curry, First Freedoms, 198–99.

  9. 9.

    See Donald S. Lutz, “The U.S. Bill of Rights in Historical Perspective,” in Contexts of the Bill of Rights, ed. S. L. Schechter & R. B. Bernstein (Albany, NY: New York State Commission on the Bicentennial of the U. S. Constitution, 1990), 13; and Bickford & Bowling, Birth, 52. Scholars who contend or imply that Madison acted primarily, if not entirely, from expediency include Paul Finkelman, “James Madison and the Bill of Rights: A Reluctant Paternity,” 1990 Supreme Court Review (1990): 301–47; Ralph A. Rossum, “The Federalist’s Understanding of the Constitution as a Bill of Rights,” in Saving the Revolution: The Federalist Papers and the American Founding, ed. Charles R. Kesler (N.Y.: Free Press, 1987), 219–33; Jack Rakove, “The Madisonian Theory of Rights,” William and Mary Law Review, 31 (1990): 254; and Bowling, “Tub,” 223–51.

  10. 10.

    An excellent account of Madison’s change of mind is found in Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca, N.Y.: Cornell Univ. Press, 1995), 265–90. Other scholars who believe that Madison was motivated significantly, if not primarily, by a principled commitment to protecting essential rights include Ralph Ketcham, James Madison: A Biography (N.Y.: Macmillan, 1971), 290–92, 303; Robert Rutland, “The Trivialization of the Bill of Rights,” William and Mary Law Review, 31 (1990): 290–91; Stuart Leibiger, “James Madison and Amendments to the Constitution, 1787–1789: ‘Parchment Barriers’,” Journal of Southern History, 59 (1993): 441–68; and Douglas Laycock, “Individual Liberty and Constitutional Architecture: The Founders’ Prompt Correction of Their Own Mistake,” Harvard Journal of Law & Public Policy, 16 (Winter 1993): 75–82.

  11. 11.

    “Letter to George Eve” (1/2/1789), in PJM, 11:404–05. Madison had given as one of his reasons for opposing a bill of rights the likelihood that “the rights of Conscience in particular . . . would be narrowed.” “Letter to Thomas Jefferson” (10/17/1788), in PJM, 11:297. Also see John Ragosta, Religious Freedom: Jefferson’s Legacy, America’s Creed (Charlottesville, VA: Univ. of Virginia Press, 2013), 106–08.

  12. 12.

    DH, vol. 4, Legislative Histories, 10–11.

  13. 13.

    “A Pennsylvanian,” Federal Gazette, 6/12/1789, quoted in Chester J. Antieau et al., Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses (Milwaukee, WI: Bruce Pub., 1964), 125.

  14. 14.

    Madison, “Letter to Thomas Jefferson” (6/30/1789), in PJM, 12:272. See Steven D. Smith, “The Religion Clauses in Constitutional Scholarship,” Notre Dame Law Review, 74 (March 1999): 1039–40, and Leonard Levy, The Establishment Clause: Religion and the First Amendment (Chapel Hill, NC: Univ. of North Carolina Press, 1994, 2nd ed. rev.), 79.

  15. 15.

    “Letter to Edmund Randolph” (6/15/1789), in PJM, 12:219.

  16. 16.

    Robert Natelson, “The Original Meaning of the Establishment Clause,” William & Mary Bill of Rights Journal, 14 (Oct. 2005): 133 (“Madison’s . . . proposal . . . was a genuine effort to embody the ‘religion terms’ of the public bargain”).

  17. 17.

    DH, vol. 4, Legislative Histories, 28–29. Also see Curry First Freedoms, 199–200.

  18. 18.

    Carl H. Esbeck, “Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation,” Utah Law Review, 2011 (2011): 539.

  19. 19.

    DH, Vol. 11, Debates in the House of Representatives, ed. Charlene B. Bickford et al. (Baltimore, MD: Johns Hopkins Univ. Press, 1992), 1260–61.

  20. 20.

    Id.

  21. 21.

    Id. For more on the puzzling nature of Madison’s comment, see Douglas Laycock, “‘Nonpreferential’ Aid to Religion: A False Claim about Original Intent,” William & Mary Law Review, 27 (1986): 892–94.

  22. 22.

    Philip Hamburger speculates that between 1785, when he wrote the Memorial and Remonstrance, and 1789 Madison changed his mind about the meaning of the free exercise of religion. Separation of Church and State (Cambridge, MA: Harvard Univ. Press, 2002), 106. There is no evidence, however, supporting such speculation.

  23. 23.

    DH, vol. 11, Debates, 1261–62. See Laycock, “‘Non-preferential’ Aid,” 890–91, and Curry, First Freedoms, 203.

  24. 24.

    DH, vol. 11, Debates, 1261–62. In Connecticut inhabitants of towns were taxed to support a minister of their choice (in theory, if not always in practice). See Noah Feldman, “The Intellectual Origins of the Establishment Clause.” New York University Law Review, 77 (May 2002): 409–10; Bradley, Church-State Relationship, 25; Antieau et al., Freedom, 140; and Laycock, “‘Non-preferential’ Aid,” 890–91. Huntington also failed to notice that Art. III does not give federal courts jurisdiction over suits to collect state church taxes/pledges. Laycock, “‘Non-preferential’ Aid,” 908. Some scholars have incorrectly stated that what Huntington feared was that Congress, not the federal courts, would interfere with the remnants of religious establishments that still existed in some of the states. See Joseph M. Snee, “Religious Disestablishment and the Fourteenth Amendment,” Washington University Law Quarterly, 1954 (Dec. 1954): 371, 385; Levy, Establishment Clause, 100–01; and Curry, First Freedoms, 203.

  25. 25.

    Although they probably understood the amendment as protecting atheists, that did not concern the other members of the House either because they did not favor discriminating against atheists or because they assumed that state laws either did or could authorize such discrimination.

  26. 26.

    DH, vol. 11, Debates, 1254, 1262 (emphasis added). See Mark DeWolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: Univ. of Chicago Press, 1965), 20–23.

  27. 27.

    DH, vol. 4, Legislative Histories, 28, fn. 9, and DH, vol. 3, House of Representatives Journal, ed. Linda G. De Pauw et al. (Baltimore, MD: Johns Hopkins Univ. Press, 1977), 159.

  28. 28.

    Madison, “Letter to Alexander White” (8/24/1789), in PJM, 12:352–53. Also see Ronald J. Krotoszynski, Jr., “If Judges Were Angels: Religious Equality, Free Exercise, and the (Underappreciated) Merits of Smith,” Northwestern University Law Review, 102 (2008): 1255.

  29. 29.

    Phillip Hamburger, “Separation and Interpretation,” Journal of Law & Politics, 18 (Winter 2002): 15, 57–59, and Separation, 101–07. Also see Esbeck, “Uses,” 547, 552.

  30. 30.

    For quotes from several sources stating that government should protect persons in the free exercise of their religion, see Philip A. Hamburger, “Equality and Diversity: The Eighteenth-Century Debate about Equal Protection and Equal Civil Rights,” in The Supreme Court Review, 1992, ed. Dennis J. Hutchinson et al. (Chicago: Univ. of Chicago Press, 1993), 343–45.

  31. 31.

    As noted above at pp. 107–08, at least one person in Maryland had expressed concern that if interpreted as prohibiting laws dealing with religion, the free exercise of religion might be used to prohibit legitimate kinds of laws.

  32. 32.

    See “Separation,” 57–59.

  33. 33.

    “Census” (2/2/1790), PJM, 13:16 (emphasis added).

  34. 34.

    “Militia” (12/22/1790), PJM, 328, 333–34.

  35. 35.

    One motion was to delete the entire amendment. The first change in wording that was considered would have replaced “religion or prohibiting the free exercise thereof” with “One Religious Sect or Society in preference to others.” The next proposed change would have replaced the House’s wording with “Congress shall not make any law, infringing the rights of conscience, or establishing any Religious Sect or Society,” and the third change would have replaced the first part of the House’s proposal—“Congress shall make no law establishing religion”--with “Congress shall make no law establishing any particular denomination of religion in preference to another.” DH, vol. 1, Senate Legislative Journal, ed. Linda G. DePauw et al. (Baltimore, MD: Johns Hopkins Univ. Press, 1972), 151.

  36. 36.

    DH, vol. 1, Senate Journal, 166, 168, and vol. 4, Legislative Histories, 36, fns 6, 8. Also see William R. Casto, “Oliver Ellsworth’s Calvinist Vision of Church and State in the Early Republic,” in The Forgotten Founders on Religion and Public Live, ed. Daniel L. Dreisbach et al. (Notre Dame, IN: Univ. of Notre Dame Press, 2009), 48–49, and Curry, First Freedoms, 213.

  37. 37.

    DH, vol. 1, Senate Journal, 181–82, 189, 192; vol. 3, House Journal, 199, 217–18, 228; and vol. 4, Legislative Histories, 47.

  38. 38.

    First Freedoms, 213–15, and Farewell, 13.

  39. 39.

    See Edmund Cahn, “The ‘Establishment of Religion’ Puzzle, 36 New York University Law Review, 36 (1961): 1280; Munoz, “Original Meaning,” 629; Sky, “Establishment Clause,” 1417; Laycock, “‘Nonpreferential’ Aid,” 879–83; Bradley, Church-State Relationships, 89–90, 93–94; and Green, “Federalism,” 793–94.

  40. 40.

    Sky, “Establishment Clause,” 1415–17, and Green, “Federalism,” 793.

  41. 41.

    For this reason, Edwin S. Gausted says that “pragmatism” dictated the New Englanders’ support of the religion clauses. “A Disestablished Society: Origins of the First Amendment,” Journal of Church and State, 11 (Autumn 1969): 419. Also see Kent Greenawalt, “Common Sense about Original and Subsequent Understandings of the Religion Clauses,” University of Pennsylvania Journal of Constitutional Law, 8 (2006): 493.

  42. 42.

    DH, vol. 1, Senate Journal, 182, and vol. 4, Legislative Histories, 43–45. Also, see Casto, “Oliver Ellsworth’s Vision,” 90–93.

  43. 43.

    David D. Bowlby, The Garden and the Wilderness: Church and State in America to 1789 (Lanham, MD: Lexington Books, 2012), 139, and Feldman, “Intellectual Origins,” 402–05.

  44. 44.

    For a list of those scholars, see Munoz, “Original Meaning,” 602, fn. 106.

  45. 45.

    See Ellis M. West, The Religion Clauses of the First Amendment: Guarantees of States’ Rights (Lanham, MD: Lexington Books, 2011), 95–112; Green, “Federalism,” 774–94; and Casto, “Oliver Ellsworth’s Vision,” 90.

  46. 46.

    Green, “Federalism,” 774, 784–85.

  47. 47.

    See Antieau et al., Freedom, 136.

  48. 48.

    “Letter to Charles Plowden” (2/27/1785), in The John Carroll Papers, ed. Thomas O. Hanley (Notre Dame, IN: Univ. of Notre Dame Press, 1976), 1:168 (emphasis added), and DH, vol. 11, Debates, 1261. For other examples, see above, pp. 75, 82, 100 fn. 19, 101, 103.

  49. 49.

    Hamburger, “Equality,” 345, fn. 122, and also see 310–11, 339–44.

  50. 50.

    “Memorial of the Presbytery of Hanover to the General Assembly of Virginia Presented to the House June 3, 1777,” in American State Papers and Related Documents on Freedom in Religion, ed. William A. Blakely (Washington, DC: Religious Liberty Association, 1949, 4th ed.), 106 (emphasis added).

  51. 51.

    Quoted in John W. Pratt, Religion, Politics, and Diversity: The Church-State Theme in New York History (Ithaca, NY: Cornell Univ. Press, 1967), 90–92 (emphasis added).

  52. 52.

    “Detached Memoranda,” ca 1817, in The Founders’ Constitution, ed. Philip B. Kurland & Ralph Lerner (Chicago: Univ. of Chicago Press, 1987, 5:104 (emphasis added).

  53. 53.

    DH, vol.4, Legislative Histories, 28, fn. 9, and DH, vol. 3, House Journal, 159.

  54. 54.

    For example, Pennsylvania’s Declaration of Rights (1776) had four different provisions arguably intended to protect the free exercise of religion. SOL, 329. Redundant clauses were also in the constitutions of Delaware, SOL, 338, and Vermont, SOL, 365.

  55. 55.

    See Christopher L. Eisgruber and Lawrence G. Sager, Religious Freedom and the Constitution (Cambridge, MA: Harvard Univ. Press, 2007), 71, for an explanation of why guarantees of individual rights were often redundant.

  56. 56.

    David P. Currie, “The Constitution in Congress: Substantive Issues in the First Congress, 1789–1791,” University of Chicago Law Review, 61 (Summer 1994): 854 (“Congress was not reluctant to say the same thing twice in the interest of avoiding misunderstanding”).

  57. 57.

    For an eloquent summary of this change, see Chris Beneke, Beyond Toleration: The Religious Origins of American Pluralism (N.Y.: Oxford Univ. Press, 2006), chap. 5 (“Equality or Nothing!”).

  58. 58.

    Hamburger, “Separation,” 49, fn. 60 (“Madison . . . hoped that his apparently modest restriction on the states would prove a Trojan horse.”).

  59. 59.

    DH, vol. 11, Debates, 1292, and Krotoszynski, Jr., “If Judges,” 1253. When Madison introduced his list of rights to be added to the Constitution, he defended the provision prohibiting the states from violating certain rights, including the equal right of conscience, on the grounds that “the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against.” “Amendments to the Constitution” (6/8/1789), PJM, 12:208 (emphasis added).

  60. 60.

    DH, vol. 11, Debates, 1292, and DH, vol. 1, Senate Legislative Journal, 158. Also see Casto, “Oliver Ellsworth’s Vision,” 84–86.

  61. 61.

    Kathleen A. Brady, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence (N.Y.: Cambridge Univ. Press, 2015), 161, 172.

  62. 62.

    Hamburger, “Separation,” 55–56.

  63. 63.

    “Madison’s Proposed Amendments,” in Helen E. Veit et al., Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore, MD: Johns Hopkins Univ. Press, 1991), 12, 30, 183.

  64. 64.

    Id., 184.

  65. 65.

    Id., 38, 46, 198–99. McConnell incorrectly states that the more radical version was approved by the House, “Origins,” 1500.

  66. 66.

    Brady, Distinctiveness, 161, 164–65. Chester J. Antieau writes that Benson’s views were “[p]robably more representative of his age.” Rights of Our Fathers (Vienna, VA: Coiner Pub’s, 1968), 53–54. McConnell is simply incorrect in asserting that “a majority of the House, considered exemption from a generally applicable legal duty to be ‘necessary’ to protect religious freedom,” “Origins,” 1501.

  67. 67.

    Mark D. Hall, Roger Sherman and the New National Government (N.Y.: Oxford Univ. Press, 2012), 143. Agreeing are Currie, “Constitution,” 854; Brady, Distinctiveness, 118; Munoz, “Original Meaning,” 1117–18; and Krotoszynski, “If Judges,” 1255–58.

  68. 68.

    Antieau et al., Freedom, 143–58.

  69. 69.

    Leonard W. Levy shows that the Virginia senators who complained that the religion clauses would still allow Congress to pass laws favoring one religion over others were being disingenuous because they had favored such laws in Virginia. “No Establishment of Religion: The Original Understanding,” in Judgments: Essays on American Constitutional History, ed. Leonard W. Levy (Chicago: Quadrangle Books, 1972), 188–90, and Establishment Clause, 108–11. Also see Curry, First Freedoms, 215–16. Cf. Antieau et al., Freedom, 144–46.

  70. 70.

    Quoted in Antieau et al., Freedom, 153.

  71. 71.

    Three states—South Carolina, Pennsylvania, Delaware—added a constitutional provision that prohibited “preference” and/or “discrimination” in their government’s treatment of different religions. See above, pp. 124, 137, 145. Also see Antieau et al., Freedom, 146–49, 152.

  72. 72.

    “Letter to George Washington” (11/20/1789), in PJM, 12:453.

  73. 73.

    The Rights of Conscience Inalienable, and Therefore Religious Opinions Not Cognizable by Law (New London, CT: T. Green & Son, 1791), 8–9. At 28, he repeats the same point. In another essay, albeit undated, Leland gave a similar explanation of the constitutional guarantees of religious liberty: “. . . [T]he Constitution has left religion infallibly where it should be left in all government, viz: in the hands of its author, as a matter between God and individuals: leaving an open door for Pagans, Turks, Jews or Christians, to fill any office in the government, . . .: securing to every man his right of argument and free debate: not considering religious opinions objects of civil government, or any ways under its control . . . .” Number Eleven: Nimrod, Moses, Christ, and the United States, quoted in Esbeck, “Dissent,” 1523.

  74. 74.

    Quoted in Hamburger, Separation, 171. The equating here of “befriend” with “harm” is striking.

  75. 75.

    “The Blessings of America” (N.Y.: Thomas Greenleaf, 1791), 19–20. Also see 17–21.

  76. 76.

    Enos Hitchcock, “An Oration in Commemoration of the Independence of the United States of America” (7/4/1793), in Political Sermons of the American Founding Era, ed. Ellis Sandoz (Indianapolis, IN: Liberty Press, 1991), 1181–83, and The Constitution of the Reformed Dutch Church, in the United States, vii-viii, quoted in Hamburger, “Equality,” 355, fn. 149. Also see John M’Knight, “The Divine Goodness to the United States of America” (2/19/1795) (N.Y.: Thomas Greenleaf, 1795), 16.

  77. 77.

    “The Divine Goodness to the United States of America,” (Philadelphia, PA: William Young, 1795, 2nd ed.), 32.

  78. 78.

    “Discourses on the Signs of the Times” (N.Y.: Thomas Greenleaf, 1794), 22–23, and “Blessings,” 19.

  79. 79.

    Levy, Origins, 86.

  80. 80.

    2 Annals of Congress, 5th Congress, 2d Session 2153 (7/10/1798).

  81. 81.

    An Essay on the Liberty of the Press (N.Y.: Arno Press, 1970 reprint of 1799 ed.), 41.

  82. 82.

    Timoleon, “A Solemn Address to Christians and Patriots,” in Political Sermons, 1518.

  83. 83.

    A Vindication of the Religion of Mr. Jefferson, and a Statement of His Services in the Cause of Religious Liberty (Baltimore, MD: W. Pechin, 1800), 8.

  84. 84.

    Saul Cornell writes that because of his “comprehensive legal treatise on American constitutionalism, Tucker enjoyed a virtual monopoly until Federalist James Kent published his Commentaries on American Law in 1826.” Other Founders, 263–64.

  85. 85.

    View of the Constitution of the United States (Indianapolis, IN: Liberty Fund, 1999 rep. of 1803 ed.), 372–76.

  86. 86.

    “An Essay on the Best System of Liberal Education,” in Essays on Education in the Early Republic, ed. Frederick Rudolph (Cambridge, MA: Harvard Univ. Press, 1965), 315–16. For the constitutional significance of this push for a secular national university, see George Thomas, The Founders and the Idea of a National University: Constituting the American Mind (N.Y.: Cambridge Univ. Press, 2015), 140 and generally.

  87. 87.

    Jack Rakove, “Once More into the Breach: Reflections on Jefferson, Madison, and the Religious Problem,” in Making Good Citizens: Education and Civil Society, ed. Diane Ravitch & Joseph P. Viteritti (New Haven, CT: Yale Univ. Press, 2001), 236.

  88. 88.

    Stephen Botein, “Religious Dimensions of the Early American State,” in Beyond Confederation: Origins of the Constitution and American National Identity, ed. Richard Beeman et al. (Chapel Hill, NC: Univ. of North Carolina Press, 1987), 323. Paul J. Weber writes that having paid military chaplains was “so taken for granted that it was never an issue.” “The First Amendment and the Military Chaplaincy: The Process of Reform,” Journal of Church & State, 22 (1980): 460.

  89. 89.

    Andy G. Olree, “James Madison and Legislative Chaplains,” Northwestern University Law Review, 102 (2008): 207–14.

  90. 90.

    After all, Alexander Hamilton wrote that in contrast to the king of England the president has “no particle of spiritual jurisdiction.” The Federalist (No. 69), ed. Terence Ball (N.Y.: Cambridge Univ. Press, 2003), 340.

  91. 91.

    Quoted in Curry, First Freedoms, 217.

  92. 92.

    Hamburger, “Separation,” 52–54.

  93. 93.

    For Jefferson’s views, see Ragosta, Religious Freedom, 189–93. For the views of his Republican faithful, see James H. Hutson, “Thomas Jefferson’s Letter to the Danbury Baptists: A Controversy Rejoined,” William and Mary Quarterly, 3rd ser., 56 (Oct. 1999): 781, 783.

  94. 94.

    Thus, the nation’s Indian policy, including the work of missionaries, was under the supervision of the Secretary of War. R. Pierce Beaver, Church, State, and the American Indians (St. Louis, MO: Concordia Pub’s, 1966), 53–79, and Douglas Laycock, “Religious Liberty as Liberty,” Journal of Contemporary Legal Issues, 7 (1996): 341.

  95. 95.

    Beneke, Beyond Toleration, 180–86.

  96. 96.

    As explained in Chap. 4, Madison opposed the caveat in Mason’s proposed draft of Sect. 16 of the Virginia Declaration of Rights. He may have done so because he knew that it could be used to discriminate against Catholics, atheists, and even Baptist preachers, who had been imprisoned for allegedly “disturbing the peace.” Hamburger also argues, convincingly, that other states that failed to condition their guarantees of religious freedom did so because they feared that they would be used to discriminate against persons, such as Catholics, because of their religion. “A Constitutional Right of Religious Exemption: An Historical Perspective.” George Washington Law Review, 60 (April 1992): 923–26.

  97. 97.

    “Letter to James Madison” (7/31/1788), in PJM, 11:213.

  98. 98.

    “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): 1415. Also see Philip A. Hamburger, “Natural Rights, Natural Law, and American Constitutions,” Yale Law Journal, 102 (1993): 935–36, 948–55.

  99. 99.

    Nicholas Collin, “Remarks on the amendments proposed to the federal constitution,” American Museum (Sept. 1789): 235–36. (Collin was a leader in the Swedish Lutheran Church).

  100. 100.

    See above, at pp. 284, 286, for the remarks of Enos Hitchcock, Tunis Wortman, and St. George Tucker.

  101. 101.

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” Amend. X, U. S. Constitution.

  102. 102.

    “Jefferson’s Fair Copy [of the Kentucky Resolutions of 1798]” (written sometime before 10/4/1798), in The Papers of Thomas Jefferson, ed. Julian P. Boyd (Princeton, NJ: Princeton Univ. Press, 1950), 30:544.

  103. 103.

    For a thorough account of what happened, see West, Religion Clauses, 152–58.

  104. 104.

    Quoted in West, Religion Clauses, 156–57 (emphasis added).

  105. 105.

    Cornell, Other Founders, 240.

  106. 106.

    For example, Alexander Addison, a federal court judge in Pennsylvania, wrote, in regards to the First Amendment, “The right of conscience is a natural right of a superior order for the exercise of which we are answerable to God. The right of publication is more within the control of civil authority; and was thought a more proper subject of general law.” Analysis of the Report of the Committee of the Virginia Assembly (Raleigh, NC: Hodge & Boylan, 1800), 44.

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West, E.M. (2019). The Constitutional Meaning of Religious Freedom: Part Two. In: The Free Exercise of Religion in America. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-06052-7_10

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