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Religious Culture & Natural Rights: Understanding the “Paradox” of Early America

Published online by Cambridge University Press:  24 April 2015


Analyses of religious liberty in eighteenth-century America often seek to uncover legal principles concerning the relationship between church and state. Many such analyses focus on the Revolutionary-era writings of famous American founders and include among recent works The Founders on God and Government, Jefferson and Madison on the Separation of Church and State, and Thomas Jefferson and the Wall of Separation between Church and State. Related work on religious liberty in early America examines that liberty in conceptual categories derived from the First Amendment's establishment clause which states “Congress shall make no law respecting an establishment of religion.” Scholarship in this field includes The Establishment Clause: Religion and the First Amendment and The First Freedoms: Church and State in America to the Passage of the First Amendment.

Although such scholarship has yielded important, though conflicting, results, the general search for legal principles concerning the relationship between church and state sometimes obscures important complexities in the historical sources. One such complexity is the combination of a political culture of natural rights and the religious culture of an evangelically rooted Protestantism in much of the public discourse on religious liberty in early America. Consider, for example, the two states at the American founding that scholars usually cite as representing two contrasting legal principles on the relationship between church and state, Massachusetts and Virginia. The new state of Massachusetts maintained a religious establishment supported by public taxes while the new state of Virginia did not.

Copyright © Center for the Study of Law and Religion at Emory University 2007

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1. The Founders on God and Government (Dreisbach, Daniel L., Hall, Mark D., Morrison, Jeffry H. eds., Rowman & Littlefield 2004)Google Scholar; Jefferson and Madison on the Separation of Church and State: Writings on Religion and Secularism (Brenner, Lenni ed., Barricade Books 2004)Google Scholar; Dreisbach, Daniel L., Thomas Jefferson and the Wall of Separation between Church and State (N.Y. U. Press 2002)Google Scholar.

2. Levy, Leonard W., The Establishment Clause: Religion and the First Amendment (rev. 2d ed., U. N.C. Press 1994)Google Scholar; Curry, Thomas J., The First Freedoms: Church and State in America to the Passage of the First Amendment (Oxford U. Press 1986)Google Scholar.

3. Smith, Steven D., Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (Oxford U. Press 1995)Google Scholar (argues the inevitability of conflicting results in the historical search for legal principles regarding church and state). Also see Smith, Steven D., Getting over Equality: A Critical Diagnosis of Religious Freedom in America (N.Y. U. Press 2001)Google Scholar. For a rejoinder to Smith's first work, see Davis, Derek H., Religion and the Continental Congress 1774-1789: Contributions to Original Intent 15, 22, 26, 33, 3536 (Oxford U. Press 2000)Google Scholar.

4. John Witte, Jr., One Public Religion, Many Private Religions: John Adams and the 1780 Massachusetts Constitution, in The Founders on God and Government, supra n. 1, at 23; Taylor, Robert Joseph, Construction of the Massachusetts Constitution (Am. Antiquarian Socy. 1980)Google Scholar; Taylor, Robert J., Massachusetts, Colony to Commonwealth: Documents on the Formation of Its Constitution, 1775-1780, at 113 (U. N.C. Press 1961)Google Scholar; Peters, Ronald M. Jr., The Massachusetts Constitution of 1780: A Social Compact 2123 (U. Mass. Press 1978)Google Scholar; The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 (Handlin, Oscar & Handlin, Mary eds., Harv. U. Press 1966)Google Scholar (especially 475 et seq.); Morrison, Samuel Eliot, The Struggle over the Adoption of the Constitution of Massachusetts, 1780, 50 Mass. Hist. Socy. Proceedings 353412 (1916)Google Scholar (cited in The Founders on God and Government, supra n. 1, at 50 n. 29).

5. Religion and Political Culture in Jefferson's Virginia (Sheldon, Garrett Ward & Dreisbach, Daniel L. eds., Rowman & Littlefield 2000)Google Scholar; The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History (Peterson, Merrill D. & Vaughan, Robert C. eds., Cambridge U. Press 1988)Google Scholar; Madison, James, James Madison on Religious Liberty (Alley, Robert S. ed., Prometheus Books 1985)Google Scholar; Buckley, Thomas E., Church and State in Revolutionary Virginia, 1776-1787 (U. Press Va. 1977)Google Scholar.

6. Backus, Isaac, Appendix Three: Isaac Backus' Draft for a Bill of Rights for the Massachusetts Constitution, 1779, in Isaac Backus on Church, State, and Calvinism: Pamphlets, 1754-1789, at 487, 487 (McLoughlin, William G. ed., Harv. U. Press 1968)CrossRefGoogle Scholar. McLoughlin views this declaration as a pietistic version of religious liberty because it emphasized obedience to the revealed will of God and he contrasts it with what he calls the “rationalistic assumptions of George Mason” who, in drafting the Virginia Declaration of Rights, promoted religious liberty from the secular perspective of “the social and political welfare of the individual personality.” McLoughlin, William G., Introduction, in Isaac Backus on Church State, and Calvinism: Pamphlets, 1754-1789, at 1, 47 (McLoughlin, William G. ed., Harv. U. Press 1968)Google Scholar. Mason's declaration, however, neither required nor resulted in the disestablishment of the established Church of England in Virginia. McLoughlin's contrast between Backus and Mason reflects his larger argument that religious liberty in early America was a “combination of rationalist and pietist” approaches, a point he discusses in McLoughlin, William G., New England Dissent, 1630-1833: The Baptists and the Separation of Church and State vol. 1, xv (Harv. U. Press 1971)Google Scholar.

7. Smylie, James H., Jefferson's Statute for Religious Freedom: The Hanover Presbytery Memorials, 1776-1786, 63 Am. Presbyterians 357, 362 (1985)Google Scholar (referring to The Memorial of the Presbytery of Hanover, Oct. 24, 1776 (italics in original). For discussion of such Revolutionary era petitions, as well as the general point made in the text above, see Grenda, Christopher S., Revealing Liberalism in Early America: Rethinking Religious Liberty and Liberal Values, 45 J. Church & St. 131 (2003)CrossRefGoogle Scholar.

8. McWilliams, Wilson Carey, Protestant Prudence and the Natural Rights Republic, in Protestantism and the American Founding 143, 143144 (Engeman, Thomas S. & Zuckert, Michael P. eds., U. Notre Dame Press 2004) (footnotes omitted)Google Scholar. In describing Americans as a people of paradox, McWilliams cites Kammen, Michael G., People of Paradox: An Inquiry Concerning the Origins of American Civilization (Knopf 1972)Google Scholar. In describing the incoherent nature of American political culture, McWilliams attributes this view to Alexis de Tocqueville, an attribution which anachronistically historicizes present-day perceptions about religion and public life. Tocqueville certainly commented on the combination of the spirit of liberty and the spirit of religion in early America, but did not see it in the incoherent terms that McWilliams suggests. Also see Buckley, supra n. 5, at 134, 175-180 (equating the politics of natural rights with the “rationalist mind” even while acknowledging the role of natural rights in the petitions of evangelical Protestant groups).

9. In today's legal culture, equal access to public forums is considered a free-speech issue rather than technically an issue of religious liberty or the free exercise of religion. Yet most cases involving equal access concern the access to public forums of religious groups and thus are related to the exercise of religion. Examples of recent cases involving access to public forums include: Widmar v. Vincent, 454 U.S. 263 (1981) (when a state university allows its facilities to be used by voluntary student groups—creates a limited public forum—it cannot deny religious groups access to those facilities on establishmentarian grounds; Congressional Equal Access Act of 1984 applied Widmar's logic to public high schools, requiring such schools, when they allow their facilities to be used by voluntary student groups and thereby create a public forum, to provide equal access for religious groups); Bd. Educ. Westside Community Schools v. Mergens, 496 U.S. 226 (1990), (upholding the Equal Access Act as not violating the establishment clause); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (extending free-speech equal-access to public forums beyond student voluntary groups to include community voluntary groups). Thus, when schools allow their facilities to be used by community groups in a public forum, the school must provide equal access to religious as well as secular groups; see e.g. Rosenberger v. U. Va., 515 U.S. 819 (1995) in which the Supreme Court extended the equal access principle to funding. If a state university provides funds for voluntary student groups, it must provide equal access to those funds for voluntary religious student groups.

10. See infra at pp. 118-119, 133-137.

11. Gedicks, Frederick Mark, The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence 1 (Duke U. Press 1995)Google Scholar (quoting others on the “distorting,” “incoherent,” and “ad hoc” nature of religion-clause jurisprudence); Smith, supra n. 3, at 3-4 (quoting others on how religion-clause jurisprudence is “devoid of explanatory value” and “means everything and nothing” at once).

12. For the meaning of the terms “nonconformity” and “dissent” in seventeenth-century England, see Keeble, N.H., The Literary Culture of Nonconformity in Later Seventeenth-Century England 4144 (Leicester U. Press 1987)Google Scholar.

13. For examples of historians emphasizing the unique form of a popular and mass evangelical culture first emerging in full force in the eighteenth century, see Noll, Mark A., Bebbington, David W. & Rawlyk, George A., Evangelicalism: Comparative Studies of Popular Protestantism in North America, the British Isles, and Beyond, 1700-1990 (Oxford U. Press 1994)Google Scholar; Lambert, Frank, “Pedlar in Divinity”: George Whitefield and the Transatlantic Revivals, 1737-1770 (Princeton U. Press 1994)Google Scholar; Stout, Harry S., The Divine Dramatist: George Whitefield and the Rise of Modern Evangelicalism (Eerdmans 1991)Google Scholar; Bebbington, D.W., Evangelicalism in Modern Britain: A History from the 1730s to the 1980s (Unwin Hyman 1989)CrossRefGoogle Scholar. Worth noting in this context is that Noll, Bebbington, and Rawlyk acknowledge potential differences in the meaning of “evangelical”:

Many Christian bodies have legitimately used the term [evangelical] to describe themselves, not least the Lutherans, who existed long before the groups featured in this book came into being. The contributors here do not claim exclusive use of the term. Rather, they assume that, whatever its other legitimate uses, “evangelical” is also the best word available to describe a fairly discrete network of Protestant Christian movements arising during the eighteenth century in Great Britain and its colonies.

Noll et al., supra n. 13, at 6.

14. Foster, Stephen, The Long Argument: English Puritanism and the Shaping of New England Culture, 1570-1700 (U. N.C. Press 1991)Google Scholar; Hall, David D., The Faithful Shepherd: A History of the New England Ministry in the Seventeenth Century (U. N.C. Press 1972)Google Scholar; Collinson, Patrick, The Elizabethan Puritan Movement (Oxford U. Press 1967)Google Scholar.

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16. Anderson, Virginia DeJohn, New England's Generation: The Great Migration and the Formation of Society and Culture in the Seventeenth Century (Cambridge U. Press 1991)CrossRefGoogle Scholar.

17. Foxcroft, Thomas, Eusebius Inermatus. Just Remarks on a Late Book, Intitled, “Eleutherius Enervatus” 14 (D. Henchman 1733) (italics in original)Google Scholar.

18. Walter, Thomas, An Essay upon that Paradox, “Infallibility may sometimes Mistake” 30 (Henchman, D. 1724)Google Scholar.

19. Most eighteenth-century American colonies restricted (or, from the European perspective, broadened) access to public office to all Protestants. A few restricted/broadened access to all Christians. For some colonies such as Massachusetts, access for all Protestants represented an improvement over greater sectarian restrictions in the seventeenth century. See The Charter of Massachusetts Bay-1691, in The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State, Territories, and Colonies vol. 3, 1870 (Thorpe, Francis Newton ed., Govt. Printing Off. 1909)Google Scholar. For other colonies such as Rhode Island, access for all Protestants represented the narrowing of previous access for more religious groups. Compare for example Roger Williams's argument for a no-restriction access policy in Williams, Roger, The Bloody Tenent Yet More Bloody, in The Complete Writings of Roger Williams vol. 4, 365 (Russell & Russell 1963)Google Scholar, with an early eighteenth-century law against “Popish Recusants” in Rhode Island Laws, Statutes 7 (n.p. 1769) (cited in Curry, supra n. 2, at 245 n. 46). Finally, some colonies such as Pennsylvania possessed a relatively consistent policy of access, in this case for all Christians. See The Frame of Government of Pennsylvania: 1681-1682, in The Papers of William Penn: Volume Two, 1680-1684, at 135, 224, art. XXXIV (Dunn, Richard S. & Dunn, Mary Maples eds., U. Pa. Press 1982)CrossRefGoogle Scholar.

20. Walter, supra n. 18, at 27 (emphasis in original).

21. Reid, John Philip, Constitutional History of the American Revolution: The Authority of Rights 67 (U. Wise. Press 1986)Google Scholar.

22. Id.

23. Walter, supra n. 18, at 30.

24. Lutz, Donald S., From Covenant to Constitution in American Political Thought, 10 Publius 112113 (1980)Google Scholar, defining the meaning of the word “charter” in early America:

[I]t was a legal document or deed written upon a single piece of paper by which grants, sessions, contracts, and other transactions were confirmed or ratified. It was also used to refer to a written document delivered by the sovereign or legislature to grant privileges to, or recognize the rights of, an entire people, a certain class, or specific individuals.

25. Walter, supra n. 18, at 30.

26. Graham, John, Some Remarks Upon a Second Letter 2 (D. Henchman 1736) (italics in original)Google Scholar.

27. Id.

28. For primary documentation concerning Connecticut's eighteenth-century religious establishment, see The Creeds and Platforms of Congregationalism 495523 (Walker, Williston ed., Pilgrim Press 1960)Google Scholar. Also consider Cohen, Charles, Puritanism, in Encyclopedia of the North American Colonies vol. 3, 591 (3 vols., Cooke, Jacob E. ed., Charles Scribner's Sons 1993)Google Scholar (explaining that “Early Georgian New England's ecclesiastical situation had come to resemble Elizabethan England's: an established church, theologically (and more so liturgically) reformed, incorporating the majority of the population”).

29. Foxcroft, supra n. 17, at 20.

30. In the 1720s and '30s, the legislatures in Massachusetts and Connecticut granted Baptists, Anglicans, and Quakers exemption from paying religious taxes to support the local establishment. The law required members of mese groups to acquire and present dissenting certificates to tax collectors authenticating their membership in their respective churches. See Levy, supra n. 2, at 22; Curry, supra n. 2, at 89 & 111; McLoughlin, supra n. 6, at 482.

31. Graham, supra n. 26, at 2 (italics in original).

32. Foxcroft, supra n. 17, at 6, 16 (italics in original).

33. Walter, supra n. 18, at 30.

34. For the biographical information on Williams, see Sandoz, Ellis, Introduction, in Political Sermons of the American Founding Era: 1730-1805, at 52 (Sandoz, Ellis ed., Liberty Press 1991)Google Scholar.

35. Williams, Elisha, The Essential Rights and Liberties of Protestants, in Political Sermons of the American Founding Era: 1730-1805, at 96 (Sandoz, Ellis ed., Liberty Press 1991)Google Scholar (italics in original). All citations of this pamphlet refer to the pagination in Sandoz's edited volume.

36. Sandoz, supra n. 34. For the biographical details of Williams's life, see Weaver, Glenn, Elisha miiiams: The Versatile Puritan, 53 Conn. Historical Socy. Bull. 119233 (1988)Google Scholar.

37. Noll, Mark A., America's God: From Jonathan Edwards to Abraham Lincoln 78 (Oxford U. Press 2002)CrossRefGoogle Scholar.

38. Tennent, Gilbert & Thomas, George, The Necessity of Praising God for Mercies Receiv'd: A Sermon Occasion'd by the Success of the Late Expedition (William Bradford 1745)Google Scholar; Chauncy, Charles, Marvellous Things Done by the Right Hand and Holy Arm of God in Getting Him the Victory (T. Fleet 1745)Google Scholar. Noll, supra n. 37, at 79, refers to the “ideological transformation of colonial religious discourse in 1745 and 1746.”

39. Williams, supra n. 35, at 57.

40. Id. at 58 (italics in original).

41. Id. at 59.

42. Bushman, Richard L., From Puritan to Yankee: Character and the Social Order in Connecticut, 1690-1765, at 277 (Harv. U. Press 1967)Google Scholar. For a similar commercially centered interpretation of Williams and Essential Rights, see Miller, Perry, Jonathan Edwards 250 (W. Sloan Assoc. 1949)Google Scholar.

43. Grasso, Christopher, A Speaking Aristocracy: Transforming Public Discourse in Eighteenth-Century Connecticut 28 (U. N.C. Press 1999)Google Scholar.

44. Id. at 30.

45. Id. at 42. Grasso notes that Williams's “Publick Covenant” envisioned God's covenant to be not with the provinces of New England in particular, but with Protestant Great Britain more generally. Id. at 37.

46. Id. at 24-66.

47. Id. at 48.

48. For the text of the Act, see The Great Awakening: Documents on the Revival of Religion, 1740-1745, at 58 (Bushman, Richard L. ed., U. N.C. Press 1989)Google Scholar.

49. Grasso, supra n. 43, at 50.

50. Id. at 51.

51. Id.

52. Id. at 53.

53. Id. at 54.

54. Id. at 60.

55. Id.

56. In terms of connotations, Grasso characterizes Williams as dividing private and public spheres in the context of seeking to separate the realms of church and state. This association seems to suggest that Williams's argument associated church or religion with the private sphere and the state with the public realm. It seems unlikely, that is, that Grasso is suggesting the opposite, that Williams associated the church with the public sphere and the state with the private realm. It also seems unlikely that, having put the four concepts together, Grasso is suggesting no relationship between them.

57. Hamburger, Philip, Separation of Church and State (Harv. U. Press 2002)Google Scholar.

58. Great Awakening, supra n. 48, at 58.

59. Id.

60. Bonomi, Patricia U., Under the Cope of Heaven: Religion, Society, and Politics in Colonial America 149 (rev. ed., Oxford U. Press 2003)Google Scholar.

61. Lambert, supra n. 13; Stout, supra n. 13.

62. Bonomi, supra n. 60, at 149; Grasso, supra n. 43, at 91; Stout, Harry S., The New England Soul: Preaching and Religious Culture in Colonial New England 198199 (Oxford U. Press 1986)Google Scholar.

63. Grasso, supra n. 43, at 90-91, 98; Landsman, Ned C., From Colonials to Provincials: American Thought and Culture, 1680-1760, at 98 (Twayne Publishers 1997)Google Scholar; Stout, Harry S. & Onuf, Peter, James Davenport and the Great Awakening in New London, 70 J. Am. Hist. 556 (1983)CrossRefGoogle Scholar.

64. See the letter by “Anti-Enthusiasticus” which appeared in the Boston Weekly News-Letter, July 1, 1742. Great Awakening, supra n. 48, at 46.

65. Bonomi, supra n. 60, at 150.

66. Stout, supra n. 62, at 200.

67. Grasso, supra n. 43, at 90-91, 93.

68. Id. at 49-50. Stout, supra n. 62, at 201.

69. Great Awakening, supra n. 48, at 58.

70. Id. at 59.

71. Id. at 58. Williams quoted from the text of the Act which prevented “persons…that have no ecclesiastical character, or license … to preach, teach or publickly to exhort in any town or society within this colony, without the desire and license of the settled minister and the major part of the church of such town or society.…” Williams, supra n. 35, at 112.

72. Williams, Solomon, Christ, the King and Witness of Truth, and the Nature, Excellency, and Extent of His Kingdom, as founded in Truth, and only promoted by it (D. Henchman 1744)Google Scholar.

73. Id. at 65, 78, 101.

74. Id.

75. Id. at 67 (italics in original). See also 65 et seq. & 78 et seq. For the deep roots of this argument in the broad tradition of evangelical Protestantism, see Busher, Leonard, Religions Peace: or A Plea for Liberty of Conscience: 1614, in Tracts on Liberty of Conscience and Persecution, 1614-1661, at 1, 16, 23 (Underhill, Edward Bean ed., Burt Franklin 1966)Google Scholar; Murton, John, Persecution for Religion Judged and Condemned: 1615, in Tracts on Liberty of Conscience and Persecution, 1614-1661, at 83, 107108Google Scholar. For sixteenth-century versions of the argument, see Zagorin, Perez, How the Idea of Religious Toleration Came to the West 107122 (Princeton U. Press 2003)Google Scholar.

76. Williams, supra n. 35, at 81 & 86.

77. Id. at 79.

78. Id. at 95.

79. Id. at 93-94 (“unalienable rights”), 103 (“Christian liberty”). Significantly, Williams excluded Roman Catholics from this right. See id. at 93:

Have we not known persons of different sentiments and practices in religious matters, as Presbyterians, Congregationalists, Church-Men (as commonly called) [i.e., Anglicans] Baptists and Quakers, all living in the same community in quiet and peace with one another? I mention not papists; because tho' the principles of a consistent Protestant, naturally tend to make him a good subject in any civil state, even in a popish one, and therefore ought to be allowed in every state; yet that is not the case with the papist: for by his very principles he is an enemy or traytor to a Protestant state ….

For commentary, see Landsman, supra n. 63, at 121: “Williams was referring, of course, to the argument that the principal allegiance of Catholics was to the pope rather than to the nation and that as such they were sworn to undermine Protestant states.” Such a view of Catholicism fit with the contemporary fight of Protestant Great Britain against Catholic France in King George's War, among other such wars. For the accommodation of Catholics into this Protestant liberty a few decades later, during the alliance with Catholic France in the American Revolution, see Hanson, Charles P., Necessary Virtue: The Pragmatic Origins of Religious Liberty in New England (U. Press Va. 1998)Google Scholar.

80. Williams, supra n. 35, at 95 (italics in original).

81. Id. at 95, 92 (italics in original).

82. Id. at 77 (italics in original).

83. Williams, Elisha, Divine Grace Illustrious in the Salvation of Sinners 14 (T. Green 1728)Google Scholar.

84. Id.

85. Id. at 5, 3, 39.

86. Williams, supra n. 35, at 92; Williams, supra n. 83, at 14. Similarly, consider Williams, supra n. 19, at 89 (using the gospel “to batter down the high thoughts and imaginations of the sons of men”) (italics in original). In both cases, the imagery of battering down human constructions in thought and imagination is drawn from 2 Corinthians 10:4.

87. LeBeau, Bryan F., Jonathan Dickinson and the Formative Years of American Presbyteriansim 13 (U. Press Ky. 1997)Google Scholar.

88. Id. at 16.

89. Id.

90. Some leaders in early colonial New Jersey tried to combine liberty of conscience with state provision for public worship. This combination characterized Berkley, John & Carteret, G., The Concession and Agreement of the Lords Proprietors of the Province of New Caesarea, or New Jersey, in Learning, Aaron & Spicer, Jacob, The Grants, Concessions, and Original Constitutions of the Province of New Jersey 12 (W. Bradford 1758)Google Scholar and John Berkely & G. Carteret, A Declaration of the True Intent and Meaning of Us the Lords Proprietors, and Explanation of there Concessions Made to the Adventurers and Planters of New Caesarea or New Jersey in Learning & Spicer, id. However, state provisions for public worship were never effectively implemented. See Jacobsen, Douglas G., An Unprov'd Experiment: Religious Pluralism in Colonial New Jersey 2829 (Carlson Publg. 1991)Google Scholar:

The colonial assembly never created the machinery of a religious establishment. This type of independent behavior is paradigmatic of what later became a general pattern. The proprietors, and later the Crown, discovered that the practice of religion in New Jersey followed its own path … [and] grew in an ad hoc manner….

Regarding other provinces in the middle colonies, see Frost, J. William, A Perfect Freedom: Religious Liberty in Pennsylvania 18 (Pa. St. U. Press 1993)Google Scholar: “In Pennsylvania, there would be no legal church establishment, no tithes or forced maintenance of any minister.” The only semblance of a religious establishment in the middle colonies was in New York where the colonial legislature passed the Ministry Act of 1693, which mandated the collection of taxes for the salaries of “good sufficient Protestant” ministers. The Act and other similar legislation, however, only applied to the “four lower counties” of New York, Richmond, Queens, and Westchester, not to the province at large. See Ecclesiastical Records: State of New York vol. 2, 10731079 (Hastings, Hugh ed., Lyon, James B. 1901)Google Scholar; Documents Relative to the Colonial History of the State of New York vol. 1, 328331 (O'Callaghan, E.B. ed., Weed, Parsons & Co. 1856)Google Scholar.

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94. Keeble, supra n. 12; Watts, supra n. 15.

95. For the broad context of such debates, see Champion, J.A.I., The Pillars of Priestcraft Shaken: the Church of England and its Enemies, 1660-1730 (Cambridge U. Press 1992)Google Scholar; The Politics of Religion in Restoration England (Harris, Timothy, Seawood, Paul & Goldie, Mark eds., Basil Blackwell 1990)Google Scholar; Watts, supra n. 15.

96. The colonial dispute included Checkley, John, A Modest Proof of the Order and Government Settled by Christ and His Apostles in the Church (Fleet 1723)Google Scholar; Dickinson, Jonathan, A Defense of Presbyterian Ordination, In Answer to a Pamphlet, Entituled, A Modest Proof of the Order and Government Settled by Christ in the Church (Daniel Henchman 1724)Google Scholar; Checkley, John, A Defense of a Book Lately Re-Printed at Boston, Entituled, A Modest Proof of the Order and Government Settled by Christ and His Apostles in the Church (Fleet 1724)Google Scholar; Dickinson, Jonathan, Remarks upon the Postscript to the Defence of a Book Lately Reprinted at Boston, Entituled, A Modest Proof of the Order (Henchman 1724)Google Scholar; Checkley, John, A Letter to Jonathan Dickinson (Thomas Fleet 1725)Google Scholar.

97. Dickinson, supra n. 93, at i (italics in original).

98. Dickinson, supra n. 93, at 3-4 (italics in original). Dickinson's reference to two thousand ministers silenced in one day was accurate and referred to Aug. 24, 1662, known as Bartholomew Day. See Isabel Rivers, Reason, Grace, and Sentiment: A Study of the Language of Religion and Ethics in England, 1660-1780. Volume I: Whichcote to Wesley 91 (Cambridge U. Press 1991)Google Scholar; Watts, supra n. 15, at 221 et seq.

99. Dickinson, supra n. 93, at 2. For the pursuit of pleasure or delight in the conversations of eighteenth-century private societies, see Shields, David S., Civil Tongues & Polite Letters in British America (U. N.C. Press 1997)Google Scholar.

100. Dickinson, supra n. 93, at i-ii.

101. Dickinson, supra n. 93, at ii. For a secondary treatment of the eighteenth-century public sphere, see Warner, Michael, The Letters of the Republic: Publication and the Public Sphere in Eighteenth-Century America (Harv. U. Press 1990)Google Scholar.

102. Dickinison, supra n. 93, at 1-2 (italics in original).

103. Jacobsen, supra n. 90.

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106. Newcomb, Benjamin H., Political Partisanship in the American Middle Colonies, 1700-1776, at 56, 98, 102 (La. St. U. Press 1995)Google Scholar.

107. See supra n. 98 & infra nn. 113, 115. See also LeBeau, supra n. 87; Jacobsen, supra n. 90.

108. Hume, David, An Enquiry Concerning Human Understanding: A Letter from a Gentleman to his Friend in Edinburgh 4, 1 (Steinberg, Eric ed., Hackett Publg. 1977)Google Scholar.

109. Dickinson, supra n. 93, at 9-10.

110. See Part I above.

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112. Id. at 13.

113. Beach, John, A Vindication of the Worship of God According to the Church of England, from the Aspersions cast upon it By Mr. Jonathan Dickinson 10 (William Bradford 1736)Google Scholar. For a discussion of colonial Anglicanism, see Woolverton, supra n. 104.

114. Trenchard, John & Gordon, Thomas, Cato's Letters or Essays on Liberty, Civil and Religious, and Other Important Subjects 405442Google Scholar (natural rights and limited government), 110-117 (free speech), 471-483, 626-631, 643-648 (free trade) (Ronald Hamowy ed., Liberty Fund 1995).

115. Particularly see John Peter Zenger, N.Y. Wkly. J. (Dec. 10, 1733). For the publication of Cato's Letters in other British-American newspapers, see Milton M. Klein's Introduction to Livingston, William, Smith, William Jr., Scott, William Morin, The Independent Reflector or Weekly Essays on Sundry Important Subjects More particularly adapted to the Province of New-York 22 (Klein, Milton M. ed., Belknap Press 1963)CrossRefGoogle Scholar. For statistics on the appearance of Cato's Letters in British-American libraries, see Lundberg, David & May, Henry F., The Enlightened Reader in America, 28 Am. Q. 262, 263 (1976)CrossRefGoogle Scholar.

116. Trenchard & Gordon, supra n. 114, at 414.

117. Id. at 591.

118. Price, Richard, A Discourse on the Love of our Country (1789)Google Scholar, in Price, Richard, Political Writings 176, 191 (Thomas, D.O. ed., Cambridge U. Press 1991)Google Scholar. It is a mistake, however, to present Price as a “staunch defender of the separation of Church and State” or an advocate for “the complete separation of church and state,” as the following works do: Laboucheix, Henri, Richard Price as Moral Philosopher and Political Theorist 119 (Sylvia, & Raphael, David trans., Voltaire Found. 1982)Google Scholar; Kramnick, Isaac, Republicanism and Bourgeois Radicalism: Political Ideology in Late Eighteenth-Century England and America 44 (Cornell U. Press 1990)Google Scholar. As evidence to the contrary, consider Price, Richard, The General Introduction and Supplement to the Two Tracts on Civil Liberty, the War with America, and the Finances of the Kingdom, in Richard Price and the Ethical Foundations of the American Revolution 45, 53 (Peach, Bernard ed., Duke U. Press 1979)Google Scholar: “[I]n the province of Massachusetts Bay, in particular, civil authority interposes no farther in religion than by imposing a tax for supporting public worship, leaving to all the power of applying the tax to the support of that mode of public worship which they like best.”

119. Hume, David, A Treatise of Human Nature 4 (Norton, David Fate & Norton, Mary J. eds., repr. ed., Oxford U. Press 2003)Google Scholar (“'Tis no astonishing reflection to consider, that the application of experimental philosophy to moral subjects shou'd come after that to natural.…”) (written in 1739). Hume, supra n. 108, at 55: The purpose of enlightened enquiry is

to discover the constant and universal principles of human nature, by showing men in all varieties of circumstances and situations, and furnishing us with materials, from which we may form our observations, and become acquainted with the regular springs of human action and behaviour. These records … are so many collections of experiments, by which the politician or moral philosopher fixes the principles of his science; in the same manner as the physician or natural philosopher becomes acquainted with the nature of plants, minerals, and other external objects, by the experiments, which he forms concerning them.

120. Hume, supra n. 119, at 4: “There is no question of importance, whose decision is not compriz'd in the science of man. …” Hume, David, Essays: Moral, Political, and Literary 14 (Miller, Eugene F. ed., Liberty Classics 1985)Google Scholar Essay III, That Politics May Be Reduced to a Science).

121. Hume, supra n. 108, at 55.

122. Id. at 57.

123. Such empirical assumptions concerning the development of human character help explain why John Locke's Some Thoughts Concerning Education, originally published in 1693, was reprinted more than twenty times by 1760.

124. Hume, supra n. 120, at 519-520 (Essay XVI, Idea of a Perfect Commonwealth).

125. Gordon, Thomas & Trenchard, John J., The Independent Whig 3940 (n.p. 1724) (italics in original)Google Scholar.

126. Hume, supra n. 120, at 525 (Essay XVI, Idea of a Perfect Commonwealth, emphasizing “the dependence of the clergy on the civil magistrates.”).

127. Dickinson, Jonadian, The Nature and Necessity of Regeneration 14 (James Parker 1743) (italics in original)Google Scholar.

128. Id. at 6 (italics in original).

129. Hume, supra n. 108, at 55.

130. Hume, supra n. 120, at 74 (Essay X, Of Superstition and Enthusiasm).

131. Trenchard & Gordon, supra n. 125, at 40.

132. Trenchard & Gordon, supra n. 114, at 414.

133. Dickinson, Jonathan, The Scripture-Bishop Vindicated 29 (Kneeland, S. & Green, T. for Henchman 1733) (italics in original)Google Scholar.

134. Dickinson, Jonathan, The Vanity of Human Institutions in the Worship of God 29 (J. Peter Zenger 1736)Google Scholar.

135. Id. Although not referring to Dickinson, but to later generations of evangelicals, Noll, supra n. 37, at 173, suggests that “resistance to establishment was an essential aspect of Christian faith” in some American evangelical forms wherein “salvation was in principle unmediated except by the written Word of God.” Dickinson captured the unmediated nature of salvation in his title, Vanity of Human Institutions.

136. Dickinson, Jonathan, A Defence of a Sermon Preached at Newark (J. Peter Zenger 1737)Google Scholar.

137. Id. at 96.

138. Id. at 95-96 (italics in original).

139. Dickinson, Jonathan, The Reasonableness of Nonconformity to the Church of England, in Point of Worship (Kneeland, S. & Green, T. 1738)Google Scholar.

140. Id. at 22.

141. Dickinson, supra n. 134, at 11.

142. Dickinson, supra n. 139, at 66.

143. Id. at 65-66.

144. Humfrey, John, An Answer to Dr. Stillingfleet's Sermon, By Some Nonconformifts, Being the Peaceable Design Renewed 29 (J. Janeway 1680)Google Scholar. Although more abstractly, the anonymous author of the following work made a similar point. He emphasized the legal precedent of “Statute Books” over what he called the “speaking law” of late-seventeenth-century decrees because he viewed legal precedent more favorably than late-century law. Anonymous, A Modest Examination of the Resolution of this Case of Conscience 56 (Thomas Parkhurst 1683)Google Scholar (italics in original):

[I]n England we have a silent, and a speaking Law. … The Statute Books, and Books of Cases, will tell us what the silent Law of England is, but up starts a young Lawyer, or brisk Gentleman at the Cushion, and tells us he is Lex loquens, and we must let him speak, and never tell him of Book Cases, or Statutes either: If we will not believe what he saith to be Law, we must yet suffer what he Decrees for Law.

145. Lobb, Stephen, The True Dissenter, or, the Cause of those that are for Gathered Churches 2324 (n.p. 1685)Google Scholar.

146. Tyacke, Nicholas, The ‘Rise of Puritanism’ and the Legalizing of Dissent, 1571-1719, in From Persecution to Toleration: The Glorious Revolution and Religion in England 17, 20 (Grell, Ole Peter, Israel, Jonathan I. & Tyacke, Nicholas eds., Oxford U. Press 1991)Google Scholar. Also see Lake, Peter, Moderate Puritans and the Elizabethan Church (Cambridge U. Press 1982)CrossRefGoogle Scholar.

147. Dickinson, supra n. 139, at 65-66.

148. Dickinson, supra n. 134, at 23, 29; Dickinson, supra n. 139, at 22.

149. Most state constitutions in the American founding continued these colonial practices. Barry Alan Shain, Revolutionary-Era Americans: Were They Enlightened or Protestant? Does It Matter?, in The Founders on God and Government, supra n. 1, at 273, 277:

[O]nly one of the thirteen states, Virginia, failed to require a religious test for those wishing to hold public office. All other states required that state officeholders, including federal senatorial electors, be Protestant (in Connecticut, Rhode Island, Georgia, Massachusetts, New Hampshire, New Jersey, North and South Carolina, and Vermont), be Trinitarian Christian (in Delaware), accept the truthfulness of scripture (in Pennsylvania and Vermont), be Christian (in Maryland), or be non-Catholic (in New York);

Kramnick, Isaac & Moore, R. Laurence, The Godless Constitution, in Protestantism and the American Founding 129, 131 (Engeman, Thomas S. & Zuckert, Michael P. eds., U. Notre Dame Press 2004)Google Scholar (noting that “eleven of the thirteen states had religious tests for public office in their constitutions in 1787”); Witte, John Jr., Religion and the American Constitutional Experiment: Essential Rights and Liberties 38, 4647 (Westview Press 2000)Google Scholar. Article VI of the Federal Constitution prohibited such tests for federal office. See Dreisbach, Daniel L., The Constitution's Forgotten Religion Clause: Reflections on the Article VI Religious Test Ban, 38 J. Church & St. 261 (1996)CrossRefGoogle Scholar; Bradley, Gerard V., The No Religious Test Clause and the Constitution of Religious Liberty: A Machine that has Gone of Itself, 37 Case W. Res. L. Rev. 674 (1987)Google Scholar.

150. Dickinson, supra n. 133, at 48 (italics in original).

151. See Trustee Minutes of the College of New Jersey, ser. 1, vol. 1. These materials are part of a special collection of primary source material located in the Mudd Manuscript Library Archives at Princeton University; LeBeau, supra n. 87, at 172-186.

152. Minutes of the Presbyterian Church in America, 1706-1788, at 172337 (Klett, Guy S. ed., Presbyterian Historical Socy. 1976)Google Scholar.

153. Dickinson, Jonathan, The Witness of the Spirit. A Sermon Preach'd at Newark in New-Jersey, May 7th 1740. Wherein is distinctly shewn, in what Way and Manner the Spirit himself beareth Witness to the Adoption of the Children of GOD (Kneeland, S. & Green, T. 1743)Google Scholar; Dickinson, supra n. 127.

154. Noll, supra n. 37, at 25 (“Tennent, Dickinson, and Finley in 1746 became founding trustees of the College of New Jersey, while Dickinson, Davies, and Finley later served as presidents of that mostly Presbyterian enterprise.”); LeBeau, supra n. 87, at 165 (referring to middle-colony evangelical Presbyterians, “Jonathan Dickinson was the acknowledged leader of that group. He and others of the Presbytery of New York founded the College of New Jersey, later to be known as Princeton, and Dickinson briefly served as the college's first president.”).

155. LeBeau, supra n. 87, at 187.

156. See the Charter of Incorporation in Trustee Minutes of the College of New Jersey, ser. 1, vol. 1. This charter is part of a special collection of primary source material located in the Mudd Manuscript Library Archives at Princeton University.

157. Id.

158. Rivers, supra n. 98, at 172 (noting how English “universities required all their students to subscribe in full” to the Thirty-Nine Articles of the Church of England).

159. Noll, supra n. 37, at 5 (referring to the “evangelical hodge-podge” of early America and explaining that “evangelicals always appeared in countless variations”).

160. Wilson, Robert J., The Benevolent Deity: Ebenezer Gay and the Rise of Rational Religion in New England, 1696-1787 (U. Pa. Press 1984)CrossRefGoogle Scholar; Wright, Conrad, The Beginnings of Unitarianism in America (Starr King 1955)Google Scholar.

161. Witherspoon, John, The Dominion of Providence over the Passions of Men, in Political Sermons of the American Founding Era: 1730-1805, at 529, 545, 549 (Sandoz, Ellis ed., Liberty Press 1991)Google Scholar. For a recent biography of Witherspoon, see Morrison, Jeffry H., John Witherspoon and the Founding of the American Republic (U. Notre Dame Press 2005)Google Scholar.

162. Anonymous, The Freeman's Remonstrance Against an Ecclesiastical Establishment: Being Some Remarks on a Late Pamphlet, entitled, The Necessity of an Established Church 6 (Dixon & Hunter 1777)Google Scholar. Also see 9.

163. West, Samuel, On the Right to Rebel Against Governors (Election Day Sermon): Boston, 1776, in American Political Writings during the Founding Era 1760-1805, vol. 1, 410 (Hyneman, Charles S. & Lutz, Donald S. eds., Liberty Press 1983)Google Scholar; McClintock, Samuel, A Sermon on Occasion of the Commencement of the New-Hampshire Constitution, in Political Sermons of the American Founding Era: 1730-1805, at 789 (Sandoz, Ellis ed., Liberty Press 1991)Google Scholar.

164. West, supra n. 163, at vol. 1, 415. West specifically linked this culture of moral restraint to religion: “And as nothing tends like religion and the fear of God to make men good members of the commonwealth, it is the duty of magistrates to become the patrons and promoters of religion and piety.” Id. at 432.

165. McClintock, supra n. 163, at 812:

Government is necessary, and must be supported; and it ought to be a humiliating consideration that the necessity and expences of this divine institution, is founded in the corruption and vices of human nature; for if mankind were in a state of rectitude there would be no need of the sanctions of human laws to restrain them from vice or to oblige them to do what is right. They would be deterred from the former by a sense of its deformity, and led to practice the latter by a view of its intrinsic beauty. But in the present disordered state of our nature there would be no safety of life or property without the protection of law.

166. Shain, Barry Alan, The Myth of American Individualism: The Protestant Origins of American Political Thought (Princeton U. Press 1994)Google Scholar; Tushnet, Mark, Book Review: The Origins of the Establishment Clause, 75 Georgetown L.J. 1509, 1515 (19861987)Google Scholar (suggesting that “it was not ‘religion in general’ that the framers saw as the basis of secular order. Rather, it was Christianity and, more specifically, Protestant Christianity.”) Although with different aims, Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction (Yale U. Press 1998)Google Scholar, argues that the first ten amendments, as originally drafted and ratified, reflected a communal more than an individualistic view of society.

167. One issue of interpretation which the present endeavor does not seek to address, and is not closely related to, concerns the religious revivals of the 1740s. The works of Williams and Dickinson were not dependent upon or intimately linked to the revivals. Debates about the revivals certainly precipitated Connecticut's 1742 law, which provided the context of Williams's Essential Rights. Yet that work was not the product of the culture of revival practices such as mass evangelism or popular outdoor preaching. Similarly, much of Dickinson's work predated the prominent phase of the revivals altogether. Scholars in past decades characterized these revivals as yielding democratic attitudes and practices, and even suggested a link between the revivals and the American Revolution. See Bonomi, supra n. 60; Heimert, Alan, Religion and the American Mind: From the Great Awakening to the Revolution (Harv. U. Press 1966)Google Scholar. However, recent scholarship significantly and convincingly qualifies such assessments. Butler, Jon, Becoming America: The Revolution Before 1776, at 200 (Harv. U. Press 2000)Google Scholar: “Most colonial revivals of the tumultuous 1740s embraced relatively conservative rather than egalitarian or radical theologies.”; Grasso, supra n. 43, at 87:

It is inaccurate, however, to describe the New Light-Old Light division as a stable, coherent ideological polarity that remained in place through the Revolution and beyond. Polarized argument over the revivals created a rhetorical framework through which other local and regional political and religious disagreements could be expressed. Although the New Light and Old Light labels remained in Connecticut politics through the 1760s, the connection to the revival movement became increasingly obscure.

168. Ahlstrom, Sydney E., A Religious History of the American People 1079 (Yale U. Press 1972)Google Scholar (describing “the ideology of the Protestant establishment” as lasting until the late 1960s); Hunter, James Davison, Culture Wars: The Struggle to Define America 200201 (Basic Books 1991)Google Scholar (describing how throughout much of American history, “the educational establishment rejected public funds for sectarian education yet that establishment itself was thoroughly sectarian, albeit of the dominant Protestant variety.”).

169. Ahlstrom, supra n. 168, at 965-1096 (discussing the post-WWII movement “Toward Post-Puritan America”); McConnell, Michael W., Equal Treatment and Religious Discrimination, in Equal Treatment of Religion in a Pluralistic Society 30, 3132 (Monsma, Stephen V. & Soper, J. Christopher eds., Eerdmans 1998)Google Scholar (discussing the transition to the post-WWII period in which various groups challenged “the structures by which Protestant Christians had [previously] dominated the public culture.”).

170. Davis, supra n. 3, at 12 (“While the two opposing paradigms of separationism and accommodationism govern current interpretation of how the Constitution regulates the relationship of religion to the federal regime … [both] positions have been worked out only in the last half of the twentieth century.”).

171. Some of most influential participants in the discussion concerning religion and public life in the middle decades of the twentieth century were from these immigrant groups. Catholic contributions to these discussions included Maritain, Jacques, Man and the State (U. Chi. Press 1951)Google Scholar; Murray, John Courtney, We Hold These Truths: Catholic Reflections on the American Proposition (Sheed & Ward 1960)Google Scholar; Murray, John Courtney, The Problem of Religious Freedom (Newman Press 1965)Google Scholar. Jewish contributions included Pfeffer, Leo, Church, State, and Freedom (Beacon Press 1953)Google Scholar; Strauss, Leo, Natural Right and History (U. Chi. Press 1953)Google Scholar which presents a secular, liberal, and almost completely de-Protestantized John Locke as a modern political philosopher; Herberg, Will, Protestant, Catholic, Jew: An Essay in American Religious Sociology (Doubleday 1955)Google Scholar. For a secondary discussion, see Ivers, Gregg, To Build a Wall: American Jews and the Separation of Church and State (U. Press Va. 1995)Google Scholar. The added diversity of subsequent immigration from Asia and Latin America, and the subsequent movements for the integration of these and other groups into American public life, further contributed to the legal and cultural questions concerning church and state.

172. Even continued scholarly focus on founding fathers is yielding interesting results. See Vincent Phillip Muñoz, Religion and the Common Good: George Washington on Church and State, in The Founders on God and Government, supra n. 1, at 1, 18-19:

An investigation of Washington's thought, however, reveals that significant differences existed among the leading founding fathers on the meaning and limitations of the right to religious liberty. Washington would not “strictly separate” religion from politics or recognize a right to religious exemptions from neutral, but burdensome laws. Judicial scholars and judges, accordingly, cannot claim that tJiese interpretations represent “the founding fathers' understanding” of such matters. Washington, moreover, offers a theory of religious liberty capable of unifying the two religion clauses of the First Amendment. He teaches that both the ends and the means of government support and limitations of religious exercise must be defended in terms of public goods. His writings and actions offer a model of how a religiously diverse people can think and act in ways that safeguard both the individual's religious freedom and the community's legitimate concern for the common good.

Also see Muñoz, Vincent Phillip, James Madison's Principle of Religious Liberty, 97 Am. Political Sci. Rev. 17 (02 2003)CrossRefGoogle Scholar; Dreisbach, Daniel L., A New Perspective on Jefferson's Views on Church-State Relations: The Virginia Statute for Establishing Religious Freedom in Its Legislative Context, 35 Am. J. Leg. Hist. 172 (1991)CrossRefGoogle Scholar; Dreisbach, Daniel L., Thomas Jefferson and Bills Number 82-86 of the Revision of the Laws of Virginia, 1776-1786: New Light on the Jeffersonian Model of Church-State Relations, 69 N.C. L. Rev. 159 (1990)Google Scholar.

173. Zuckert, Michael P., Natural Rights and Protestant Politics, in Protestantism and the American Founding 21, 61, 56 (Engeman, Thomas S. & eds, Michael P. Zuckert., U. Notre Dame Press 2004)Google Scholar (referring to Williams's “strongly separationist conclusion” in Essential Rights and describing West as “thoroughly Lockean” because he did not view Romans 13 as requiring unlimited obedience to every government, no matter how tyrannical). Similarly, see Zuckert, Michael P., The Natural Rights Republic: Studies in the Foundation of the American Political Tradition 148201 (U. Notre Dame Press 1996)Google Scholar. West's work undoubtedly reflected Locke's influence and West specifically referred to Locke. The quoted passage from West in the text above, moreover, refers to the transition from the state of nature to civil government. Yet West's work also reflected the strong influence of Protestant religious culture evident in the fact that West continued to emphasize the Protestant culture of moral restraint when analyzing the institutions of civil society after the establishment of civil government. Zuckert, following Leo Strauss, downplays or ignores such Protestant elements in favor of a more secularized, individualist, and de-Protestantized politics. Zuckert's interpretation of West's use of Romans 13 is also limited. Many non-Lockean authors interpreted Romans 13 as not requiring unlimited obedience. See Bayle, Pierre, A Philosophical Commentary on These Words of the Gospel, Luke 14:23: “Compel Them to Come In, That My House May Be Full” 365370 (Kilcullen, John & Kukathas, Chandran eds., Liberty Fund 2005)Google Scholar; Wallis, Ralph, More News from Rome or Magna Charta Discoursed of Between a Poor Man & His Wife 1011 (Ralph Wallis 1666)Google Scholar.