Monday, December 30, 2013

The Connecticut Model

As I have noted before, a number of scholars make a good case that whereas the Free Exercise Clause neatly incorporates via the Privileges or Immunities Clause of the 14th Amendment, the Establishment Clause does not. During the time of the American Founding, religion (as well as the rest of the Bill of Rights) was left to the states.

Perhaps the following observation is incorrect, but the states seemed arguably more unified in their commitment to Free Exercise principles than on Establishment policy. To emphasis the differences America's states had on Establishment policy during the Founding era, V. Phillip Munoz invoked "Virginia" and "Massachusetts" as book ends. Virginia, after T. Jefferson, J. Madison and their evangelical Baptist allies, was more secular (or disestablishmentarian). Massachusetts, after J. Adams, not only had a state establishment system, but was the last state to disestablish (it did so in 1833).

But I discovered some interesting things about Massachusetts' establishment. From the very beginning, unitarians were in positions of power in that state. Indeed, the defender of Massachusetts' establishment, President Adams, was himself a fervent unitarian when he termed it "[A] Most Mild and Equitable Establishment of Religion."

Further illustrating the religious liberalism of Massachusetts during this time was the trial of Universalist John Murray in 1783 where Judge Dana construed the State's religion clauses in a most liberal way to cover not just unitarians and universalists, but also non-Christians. It was ultimately the inclusion of unitarians that acted as a "poison pill" for Massachusetts' establishment that led to its end in 1833.

What I'm leading up to is, perhaps, we need to rethink the model of Virginia as a Secular Left and Massachusetts as a Religious Right state on Establishment policy during the time of the Founding. Perhaps Massachusetts had, for their day, a Religious Left establishment policy model.

A better candidate for a Religious Right model during America's Founding is Connecticut. See here. Perhaps Timothy Dwight, that great foe of "infidelity," exercised his political power to influence his state's religion policy towards illiberality. John Adams, himself, would have been prosecuted under Connecticut's laws for his anti-Trinitarian sentiments.

It's no wonder then in 1817, the year of Dwight's death, when Connecticut elected as Governor, Republican, Oliver Wolcott who would help his state finally disestablish the next year, Jefferson and Adams rejoiced.


86 comments:

Mark David Hall said...

Here is a brief except from a forthcoming article that may be of interest to followers of AC. It will be published this spring in the journal American Political Thought.

Even if there is no direct evidence that the Memorial or Virginia Statute influenced the men who wrote and ratified the First Amendment, perhaps it is still reasonable to say that these founders followed Virginia’s example. But what example? Congress did not disestablish the Anglican Church, as Virginia can be reasonably said to have done in the 1780s. But assuming this action somehow inspired members of the Congress, why not give the credit to New York? The state had disestablished the Anglican Church in the counties in which it was established in 1777 (and again for good measure in 1784), and the Congress that crafted the First Amendment was, after all, meeting in the state. If anything, Congress might be said to have followed the example of Rhode Island, Pennsylvania, Delaware, and New Jersey, states that never had an established church.
In Beyond Toleration: The Religious Origins of American Pluralism, Chris Beneke asserts that the “liberal principles” of the Virginia Statute “made their way into the U.S. Constitution.” As evidence, he points out that only Virginia and Rhode Island did not have “religious qualifications for government officers.” But this is not accurate. Connecticut did not have religious tests for civic officers other than requiring elected and appointed officials to take oaths “in the Name of the Everliving GOD” and ending with “So help you God.” Yet if this oath counts as a religious test, Virginia had religious tests as well because most state offices required officials to take an oath ending with the phrase “So help me God.” This was the case both before and well after the Virginia Statute became law.
Even if we stipulate that Virginia did not have a religious test for civic offices, which seems reasonable, then why assume it was Virginia’s example that influenced the drafters of the Constitution rather than the example of Connecticut or Rhode Island? Indeed, although Rhode Island required many office holders to “swear (or affirm)” oaths ending with “So help me God”; in some cases it gave officials the option of saying “this affirmation I make and give upon the peril of the penalty of perjury.” Presumably this was to accommodate atheists and others who did not want to say “So help me God.” Thus, if we want to say that the authors of the Constitution followed any state on this matter, Rhode Island would be the best choice (even though the state did not send delegates to the Federal Convention).
Pennsylvania did have religious tests for office, but intriguingly it was the only one of the original thirteen colonies that did not prescribe oaths ending with some variation of “So help me God.” Hence, Article II’s presidential oath of office is more likes oaths required by Pennsylvania than other states. (Many presidents routinely add the phrase when they take the oath. Much ink has been spilled debating whether George Washington did so. There is no hard evidence that he did, but it would have been odd if he did not as virtually every oath for a military or civic office he took prior to being elected president ended with “So help me God.” By the same token, those present at Washington’s inauguration (except those from Pennsylvania) would have been used to hearing oaths ending with “so help me God,” so one suspects that if Washington had neglected to add the phrase this action (or, rather, lack of action) would have been newsworthy/comment worthy.)

I don't really care whether GW said "so help me God," but I think the last argument, which I have not seen before, makes a good deal of sense. Sort of a "dog that did not bark" observation.

MH

Tom Van Dyke said...

Chris Beneke asserts that the “liberal principles” of the Virginia Statute “made their way into the U.S. Constitution.” As evidence, he points out that only Virginia and Rhode Island did not have “religious qualifications for government officers.” But this is not accurate. Connecticut did not have religious tests for civic officers other than requiring elected and appointed officials to take oaths “in the Name of the Everliving GOD” and ending with “So help you God.” Yet if this oath counts as a religious test, Virginia had religious tests as well because most state offices required officials to take an oath ending with the phrase “So help me God.”


Mark David Hall's observation above suggests that acknowledging the existence of God was not synonymous with an establishment of "religion"--as the argument from the Freedom From Religion types goes today.

God was seen as a reality, not a proposition.

_________

Massachusetts, after J. Adams, not only had a state establishment system, but was the last state to disestablish (it did so in 1833).

But I discovered some interesting things about Massachusetts' establishment. From the very beginning, unitarians were in positions of power in that state. Indeed, the defender of Massachusetts' establishment, President Adams, was himself a fervent unitarian when he termed it "[A] Most Mild and Equitable Establishment of Religion."


Working from memory, iirc, Massachusetts disestablished Congregationalism as the state church because the unitarians had just engineered a takeover.

The Congregationalists simply left--which is why the Founding era churches in New England are today in the possession of the Unitarian Universalist Church, which doesn't officially even believe in Jesus [or even God!].

Hence the Congregationalist joke was "We kept the faith; the unitarians got the furniture."

Jonathan Rowe said...

Many thanks for this Mark. We always appreciate you stopping by.

I look forward to your article.

JMS said...

Jon – Connecticut retained a medieval religious framework of government based on the types of discriminatory religious laws found in England/Europe because it continued to operate under its Colonial Charter of 1662 until 1818.

I also agree with Professor Hall that with its 1777 constitution New York provided the first and most liberal/republican state constitution in regards to ending sectarian discrimination, religious tests and state support for Christian churches (http://avalon.law.yale.edu/18th_century/ny01.asp) (although clergymen were barred from holding public office).

New York was a decade ahead of Virginia and Jefferson/Madison. According to Wikipedia New York’s constitution was drafted by John Jay, Robert Livingston, and Gouverneur Morris.

Whereas the 1683 colonial New York charter required "faith in God by Jesus Christ," in 1777 the state constitution declared "that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind".

As for an official state supported church, the New York constitution was clear, declaring "all such of the said statutes and acts aforesaid, or parts thereof, as may be construed to establish or maintain any particular denomination of Christians or their ministers ... hereby are, abrogated and rejected" (emphasis on rejected).

And finally a guarantee of the “free exercise” of religion: “And whereas we are required, by the benevolent principles of rational liberty, not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance wherewith the bigotry and ambition of weak and wicked priests and princes have scourged mankind, this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare, that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State.”

Tom Van Dyke said...



bigotry and ambition of weak and wicked priests and princes have scourged mankind

Actually, JMS, you just added weight to Mr. Fortenberry's contention on another thread, that "religion" meant [Christian] sectarian strife.

Not that that makes you happy, but there was next to zero conflict between Protestants and Hindoos, Mohametans or even atheists or Catholics, because there were so few of 'em.

jimmiraybob said...

TVD - "Actually, JMS, you just added weight to Mr. Fortenberry's contention on another thread, that "religion" meant [Christian] sectarian strife."

What TVD refers to is a thread (1) with a discussion centered on the thesis that the first amendment is meant only to apply to Christians which was prompted by Bryan Fischer’s statement:

"…it means today exactly what it meant in 1789, which means that by the word ‘religion’ in the First Amendment, the founders meant Christianity."

Mr. Fortenberry defended this thesis and TVD felt that Mr. Fortenberry's vision prevailed (I’m sure to the surprise of no one).

I find Mr. Fortenberry’s argument(s) very imaginative but unsupported by un-tortured evidence. As I asked,

”Show in indisputable and clear language, the explicit and authoritative claims made by the framers and ratifiers (not someone else putting words in their mouths, and no pulpit claims) that they forgot to make explicit in this the most important document to guide a new nation, that the 1st Amendment is meant for Christians and Christian sects only – only – and, in perpetuity. And show that this was the prevailing contemporary constitutional vision. At that point you’ll begin to make a creditable argument.”

So far, nothing, although, I’m sure he’s searching the archives.

My contention is that the founders/framers, who were well versed in colonial and world history, in writing the fundamental governing document of a new nation, were not instituting an ad hoc response, designed only to serve their immediate concerns regarding Christian on Christian persecution and violence I contend that they were speaking to a fundamental principle of the individual’s freedom of conscience and expression and that they were fully aware that the perniciousness of institutionalized persecution, inherent in “the sectarian spirit,” would remain a threat well beyond their own exigencies

It is absurd to think that the founders/framers would, simultaneously, both abhor and then embrace sectarian division based, in the first instance, solely on Christian on Christian bigotry and in the latter instance of Christian sectarian bigotry against other religions.

In other words, the problem to be extirpated, or rooted out of the national government, was religiously-inspired division – the cause of intra-Christianity sectarian intolerance (the result).

1)
http://americancreation.blogspot.com/2013/12/thockmorton-politifact-debunks-bryan.html

- lots of Joseph Story passages presented from his commentaries.

Tom Van Dyke said...

I contend that they were speaking to a fundamental principle of the individual’s freedom of conscience and expression and that they were fully aware that the perniciousness of institutionalized persecution, inherent in “the sectarian spirit,” would remain a threat well beyond their own exigencies

This secularist argument once again ignores federalism, i.e., that religion was left to the states. The 1A reads "CONGRESS shall make no law..."

The states were not going to ratify anything that gave the federal [central, general] government power to tell the states anything about religion one way or the other.

That's why every state except Virginia was able to keep their religious tests for statewide office.

http://americancreation.blogspot.com/2010/01/ray-soller-on-new-yorks-religious-test.html

jimmiraybob said...

"This secularist argument once again ignores...." he says as he ignores the thesis under discussion.

The topic of discussion was the 1st Amendment and the national government and not the states. You hit the wrong macro.

But hey, culture wars!


jimmiraybob said...

To quote Joseph Story – noted not-secularist (§1841 (VIII p. 705-706)) “It [no religious test clause] had a higher object; to cut off for ever every pretence of any alliance between church and state in the national government.”

As to the 1st Amendment, the purpose was so that “…the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship” ((§1873 cont. (p. 730)). Whooop, there it is.

And, as to my “secularist” argument, in the previous discussion that you reference I included the first part of the sentence above from Story’s commentary in §1873: “Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions;…” So yes, the states were left to decide whether to coerce or not and how to deal with Christian – religious – bigotry and persecution. I even wrote,

“As I’ve said, the founders-framers of the nation-constitution were responding to the exigencies that they were faced with, which, in this case, was religious bigotry and persecution in the immediate post-colonial American experience. And, given the prevalence of Christian religious belief and practice and the associated bigotries and intolerance among the various Christian sects at the time, it’s not unreasonable to see these immediate concerns referenced in Christian (sectarian) terms. But that Christian on Christian persecution at the time was the result of the cause; namely, religious bigotry and prejudice.”

I then went on to frame the intent of the founders-framers in terms of working in fundamental principles rather than exigencies.

Cheerios

Tom Van Dyke said...

I then went on to frame the intent of the founders-framers in terms of working in fundamental principles rather than exigencies.


In the real world, "any alliance between church and state" would refer to an actual church, Congregationalism or Anglican or whatever. "Christianity" is not a church.

Joseph Story [and Bill Forten] are discussing apples and how they differ from oranges. "Church and state" are not synonymous with "religion and state" and they delineated that distinction.

After Washington was inaugurated, the attending members of Congress walked en masse over to St. Paul's Chapel for a benediction. This is what they're talking about.

http://usgovinfo.about.com/od/thepresidentandcabinet/a/firstinaug.htm

The proceedings of the first inauguration of President George Washington on April 30, 1789, as narrated in the Senate Journal:


"The House of Representatives, preceded by their Speaker, came into the Senate Chamber, and took the seats assigned them;
"and the joint Committee, preceded by their Chairman, agreeably to order, introduced the President of the United States to the Senate Chamber, where he was received by the Vice President, who conducted him to the Chair;

"when the Vice President informed him, that 'The Senate and House of Representatives were ready to attend him to take the oath required by the Constitution, and that it would be administered by the Chancellor of the State of New-York' -- To which the President replied, he was ready to proceed: -- and being attended to the gallery in front of the Senate Chamber, by the Vice President and Senators, the Speaker and Representatives, and the other public characters present, the oath was administered.

"After which the Chancellor proclaimed, 'Long live George Washington, President of the United States.' The President having returned to his seat, after a short pause, arose and addressed the Senate and House of Representatives . . .

"The President, the Vice President, the Senate and House of Representatives, then proceeded to St. Paul's Chapel, where divine service was performed by the Chaplain of Congress, after which the President was conducted to his house, by the Committee appointed for that purpose."


Bold face mine. Quite "Christian," quite constitutional.



jimmiraybob said...

"In the real world, "any alliance between church and state" would refer to an actual church, Congregationalism or Anglican or whatever. "

Then he would have used "churches and state".

" "Christianity" is not a church."

Christianity is not the church built on a rock? For instance, from the Catholic Encyclopedia:

"The term church (Anglo-Saxon, cirice, circe; Modern German, Kirche; Swedish, Kyrka) is the name employed in the Teutonic languages to render the Greek ekklesia (ecclesia), the term by which the New Testament writers denote the society founded by Our Lord Jesus Christ. "

Tom Van Dyke said...

Christianity is not the church built on a rock? For instance, from the Catholic Encyclopedia:

"The term church (Anglo-Saxon, cirice, circe; Modern German, Kirche; Swedish, Kyrka) is the name employed in the Teutonic languages to render the Greek ekklesia (ecclesia), the term by which the New Testament writers denote the society founded by Our Lord Jesus Christ. "


Sophistic, nothing to do with the discussion. Thx for wasting our time.

jimmiraybob said...

And, while we're focused on "ecclesia" let's revisit,

§1873 (p. 730-731). "It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject."

Face it, JS was talking about extirpating from the national government the intolerance and bigotry and persecution attendant with ecclesiastical... religious... sectarian jealousies and ambitions.

I'd recommend reading some Story.

As to you examples, individual actions and religious participation outside the councils of national government is different than using government to administer legislative favor.

jimmiraybob said...

"Sophistic, nothing to do with the discussion. Thx for wasting our time."

Said the sophist.

Tom Van Dyke said...

Face it, JS was talking about extirpating from the national government the intolerance and bigotry and persecution attendant with ecclesiastical... religious... sectarian jealousies and ambitions.

blahblah

Only sects--churches--had power to do anything. The Constitution cannot abolish the rest of the blahblah.

jimmiraybob said...

"When I tell you how a word was used,' Bishop van Dyke said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less."

Tom Van Dyke said...

Not atall. You just don't listen, and argue for the sake of arguing.

In this case you're conflating the establishment clause with the free exercise clause that follows.

And blowing by religion being left to the individual states, as if the First Amendment [or any constitutional provision] could abolish theological strife.

jimmiraybob said...

Again Tom, and not that I expect you to be able to comprehend, the discussion was about the 1st Amendment and the national government. And even then, in the previous thread, I did not gloss over the prevalence of Christianity in post-colonial America. And even then I did not gloss over the issue that the states were left to decide religious issues on their own.

But, I'm sure you read nothing of what I wrote but just saw the fact that something was written by a non-TVD approved commenter as an excuse to shoot your mouth off.

JMS said...

jimmyraybob - thanks for the clarification.

TVD – misappropriating someone else’s comments for another forum or comment stream does not enhance your credibility.

Since AC has deliberated on whether the First Amendment religion clauses applied solely to Christians or not, I can only quote the often cited and highly regard James Hutson (someone as well versed in the primary documents of the founding era as anyone), who concluded: “The Founders of this nation explicitly included Islam in their vision of the future of the republic. Freedom of religion, as they conceived it, encompassed it.”

http://www.loc.gov/loc/lcib/0205/tolerance.html

Tom Van Dyke said...

“The Founders of this nation explicitly included Islam in their vision of the future of the republic. Freedom of religion, as they conceived it, encompassed it.”

In the abstract. Not that many of them had ever met a Muslim or had the first idea of what Islam is.

But they never thought that Islam would be the established church a state, as Congregationalism was in Massachusetts. Unles you have evidence to the contrary.

Again, the establishment clause is about political power, the free exercise clause is about individual belief. As the OP states

Perhaps the following observation is incorrect, but the states seemed arguably more unified in their commitment to Free Exercise principles than on Establishment policy.

Please do your best to stick to the subject. They are two different things.

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