Bill of Rights Institute: The Role of Religious Liberty in America’s History

The Role of Religious Liberty in America’s History

Where can you find informed and opinionated citizens passionately engaging with top constitutional scholars regarding key constitutional issues? Where are the most engaging debates about the current challenges facing America taking place? Where can you join the fray?

In the Bill of Rights Institute’s Founders Forum.

Every month, the Institute’s top donors participate in a conference call led by key figures in constitutional scholarship and current events. October’s Founders Forum was hosted by Dr. Daniel Dreisbach of American University, and he discussed the role of religious liberty in America’s history and its relation to recent events in the news. He also talked about the impact the Institute’s new curriculum,Religious Liberty: the American Experiment, would have on students.

Among Dr. Dreisbach’s main points:

- The Founders’ support of disestablishment introduced a new approach to nurturing religious culture; each religion was now free to compete in the marketplace of ideas.

- The First Amendment was the culmination of this disestablishment approach.

Dr. Daniel Dreisbach

- The First Amendment was designed to prohibit a national church, but the Founders did not intend to silence the voice of religion in public life.

-While the First Amendment prohibited the federal government from interfering with religion, America’s federalist system left states the right to determine the line between church and state. In fact, when the Constitution was ratified, several states had established churches.

Dr. Dreisbach then posed a challenging question to participants, one we’ll leave for you to weigh in on as well: How do we provide the social discipline necessary for self-government?

This is just one of the many difficult issues wrestled with during our Forums. Check in next month when we report on the Founders Forum taking place on Bill of Rights Day!

Posted in A More Perfect Blog, Uncategorized

2 Responses to “The Role of Religious Liberty in America’s History”

Ed Darrell says:

November 20, 2010 at 6:00 am

Hudson in Religion in America (mine was a fourth edition) made the point that the colonies each modified their charters to get through a conflict with England, without assistance from Parliament, as suggested by the Continental Congress. Perhaps coincidentally, each of the 13 colonies included some sort of bill of rights by 1778, and in each of those, religious freedom was assured. By Hudson’s count, that was disestablishment.

By 1787 the only vestiges of establishment left were four colonies who would collect as taxes voluntary contributions to one or more churches.

I think the claim that several colonies had established churches at the time of the First Amendment is in error. At most it would have been four, and each of those four had guarantees of religious freedom. Jefferson especially was nervous about maintaining that position, but Madison countered that only Virginia had tried to backtrack on expanding religious liberty, in 1785 when Patrick Henry proposed to pay clergy so they could teach — and that turned out well for religious liberty, with the passage of the Virginia Statute for Religious Freedom instead.

Does your count of established churches in 1787 differ?

Reply
- Lisa Lewis says:
  
  November 30, 2010 at 2:38 pm
  
  Hi Ed,
  
  Thanks for your comment! Greg reached out to Dr. Dreisbach for his answer to your question. His response follows:
  
  Scholars have long debated the number of states with established churches at the time of independence, at the time of the Constitutional Convention of 1787, and at the time the First Amendment was ratified in 1791. This is a difficult matter because there was no consensus as to the precise definition of an “establishment of religion,” and there was considerable disagreement as to what policies and practices constituted an “establishment of religion.” The definition of “establishment” varied from region to region and from denomination to denomination. Most Americans agreed that official, exclusive state preference by law for one church or sect over all others constituted an establishment. Not all agreed, however, that general assessments, which taxed all residents for the support of religion and, in some jurisdictions, allowed taxpayers to designate the church or minister to receive the tax, was a religious establishment. Most of the newly independent states retained laws, institutions, policies, or practices, such as religious test oaths and general assessments, that would be deemed religious establishments by twenty-first-century legal standards. Using a loose definition of “establishment” that would include a preference by law for a particular church or religion or state financial support for a specific church, I am fairly comfortable in making a claim that, at the time of independence, eight or nine states retained either an established church or something approximating a religious establishment. (But I would be quick to acknowledge that reputable scholars could define “establishment” differently and offer a different number.) Both Leonard W. Levy and Thomas J. Curry claim that eight or nine states had religious establishments at the time of independence. That number decreases by the time the First Amendment was ratified. Levy contends that in 1791 seven of fourteen states (noting the addition of Vermont to the Union) authorized establishments of religion.
  For useful analyses of the meaning of “an establishment of religion” in the late colonial and early national periods, see Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986); Donald L. Drakeman, Church, State and Original Intent (New York: Cambridge University Press, 2010); Leonard W. Levy, The Establishment Clause: Religion and the First Amendment, 2d ed. (Chapel Hill: University of North Carolina Press, 1994).
  
  I am hesitant to use the terms “religious freedom” and “nonestablishment” (or “disestablishment”) as synonyms. Although these terms are often used interchangeably today, I do not think they were thought of as synonymous in the lexicon of the late eighteenth century. Furthermore, it is worth noting that religious freedom and nonestablishment provisions coexisted in many early state constitutions with provisions — like religious test oaths — that later generations would clearly regard as instruments of religious establishments. This suggests that the founding generation did not always or necessarily consider these concepts incompatible. A number of state constitutions and declarations of rights drafted between the time of independence in 1776 and the framing of the U.S. Constitution in 1787 required religious oaths (or otherwise imposed religious tests) of civic officers while affirming the rights of conscience and religious liberty and prohibiting religious establishments. See, for example, the North Carolina Constitution of 1776: Declaration of Rights, Article XIX (“That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences.”); Constitution, Article XXXIV (“That there shall be no establishment of any one religious church or denomination in this State, in preference to any other; neither shall any person, on any pretence whatsoever, be compelled to attend any place of worship contrary to his own faith or judgment, nor be obliged to pay, for the purchase of any glebe, or the building of any house of worship, or for the maintenance of any minister or ministry, contrary to what he believes right, or has voluntarily and personally engaged to perform; but all persons shall be at liberty to exercise their own mode of worship.”); and Article XXXII (“That no person who shall deny the being of God, or the truth of the Protestant religion, or the divine authority of either the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office, or place of trust or profit, in the civil department, within this State.”). See also similar provisions in the New Jersey Constitution of 1776; Delaware Constitution of 1776; Massachusetts Constitution of 1780; and New Hampshire Constitution of 1784. These provisions underscore the difficulty of stating definitively the precise number of states with religious establishments in the late
  eighteenth century.
  
  Hope that helps! Thanks for your thoughtful comment!!
  
  Reply