Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776-1833
464
Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776-1833
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Product Details
| ISBN-13: | 9780826221933 |
|---|---|
| Publisher: | University of Missouri Press |
| Publication date: | 11/15/2019 |
| Series: | Studies in Constitutional Democracy |
| Edition description: | First Edition |
| Pages: | 464 |
| Product dimensions: | 6.10(w) x 9.00(h) x 1.60(d) |
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CHAPTER 1
INTRODUCTION
The Task, Methodology, and Findings Carl H. Esbeck and Jonathan J. Den Hartog
ON MAY 10, 1776, the Second Continental Congress sitting in Philadelphia agreed to a resolution urging each of the British colonies in North America "to adopt such government as shall ... best conduce" in response to the impending crisis with Great Britain. A preamble was added on May 15 that was further suggestive of a break with the mother country, and Congress then directed that the document be released to the public. The resolution of May 15 set in motion a round of constitution making in the Atlantic Seaboard colonies, several of which proceeded to declare themselves sovereign states and sever ties with the British Crown. In the remaining months of 1776, Virginia, New Jersey, Delaware, Pennsylvania, Maryland, and North Carolina adopted their first constitutions. Georgia, New York, and Vermont followed in 1777. South Carolina adopted its second constitution in 1778, Massachusetts followed with its first in 1780, and New Hampshire ratified a second constitution in 1784. Only Connecticut and Rhode Island failed to take this first republican step.
These North American colonies, soon-to-be republics, meeting in representative conventions to debate and adopt state constitutions to govern themselves, were a novelty in government practice rooted in the consent of the governed. In laboring to agree on the terms of a written constitution, the delegates to the state conventions were forced to address collectively the issue of church-state relations and to do so far sooner than such questions would have otherwise come to a head. Each colony had unique and differing traditions of church-state relations rooted in the colony's peoples, their countries of origin, church affiliations, and theological principles. The state constitutional framers had to confront the issue of religion that some would have preferred to put off, at least until after the conclusion of military hostilities. Out of this unprecedented course of events, the newly emerging republics took up the concerns of those who sought to disestablish religion where there was a state-established church or to lock in the current stage of what, over time, had evolved in the direction of no established church.
There was never a national disestablishment. Neither the federal government, instituted in 1789 in New York City, nor the Articles of Confederation, approved 1781 near the end of the revolutionary fighting, ever had anything resembling an established church. So there was nothing to dismantle. Rather, disestablishment was entirely a state-by-state affair. Establishment had been a matter reflecting colonial history, the European nations from which colonial subjects had emigrated, as well as each colony's unique religion, politics, and economy. Hence, the process of deregulating each of those establishments must be treated as discrete state-level stories. To regard disestablishment as a continental-wide movement, or as a development somehow channeled through the First Amendment, drafted in 1789 and added to the U.S. Constitution in 1791, is not merely to mislead. It is to falsify the historical experience. This volume is that state-by-state account of disestablishment in the original thirteen states, along with similar events in the soon-to-be-admitted states of Vermont, Kentucky, and Tennessee. Contributors to our chapters also discuss Ohio, the first state admitted from the Northwest Territory; the Catholic disestablishments in territorial Louisiana and Missouri, the first states admitted from the Louisiana Purchase; the unusual case of Maine, a state carved out of existing Massachusetts with its standing Congregational establishment; and Florida, which was wrestled from Catholic Spain under U.S. pressure. Each chapter begins with the colony's juridical ties to religion in its original charter and then walks forward through the events and people bearing on law, religion, and church relations, dwelling on revolutionary America, and then proceeding into the early American republic with the restructured church-state relations in that state.
What follows is a fascinating story in political and jurisprudential innovation that has no European parallel. Disestablishment in the several states is America's preeminent contribution to governmental theory. Yet this early state history has been far less explored in favor of a focus on the newly instituted federal government. The few attempts that have sought to give an account of this state-by-state development have come up short. One approach has been to segment disestablishment into three phases: the mid-Atlantic colonies, the South, and finally Puritan New England, with Pennsylvania and Rhode Island cast as outliers to this three-pronged pattern. A second methodology has been to make a list of salient laws — say, a religious test for public office or the repeal of glebe lands (the rents from which supported the church) — and then tabulate those states that share in common the adopting or repealing of each such type of law. The first approach obscures and misleads by overgeneralization, as well as unnecessarily spends time explaining why this state or that state is an aberration to the three-prong typology. The second approach rips the adoption and repeal of laws out of their time frame, political context, and a law's actual application as opposed to the letter of a law perhaps rarely enforced. Both approaches try to anticipate what the contemporary reader wants to know and then supply it stripped of important local detail.
We present a more promising method, with chapters devoted to each colony-come-state. Our contributors — scholars of history, politics, and law — supply each state's story, unfolding it chronologically in its political and cultural milieu, accounting for all its complexity. Because the experience of lawmaking during the revolution and early republic was primarily at the state level — and this was decidedly so with regard to religion — the state-by-state perspective will prove to be most fruitful in providing historical detail.
What We Asked of Our Chapter Authors
The chapter authors were instructed to look for the cultural, political, biblical, and economic concerns bearing on their state's disestablishment. Why was disestablishment achieved in their state, and by what process was it accomplished? What people, groups, or immigrants populated the state, and how did that matter? How did the ideas of disestablishment play out "on the ground"? Did the practice of people's religion tell us how disestablishment was actually understood and new laws actually applied? What happened to those factions who unsuccessfully defended the establishment? Was there any consideration about how disestablishment would affect education? Relief to the poor and widows? Laws on public decorum, morals, blasphemy, or Sunday closing to retail commerce? Disestablishment was not just about changes in written law. Yet the written law did change. And those laws were unfailingly preserved, unlike other primary materials. Such laws provide, in brief and concrete form, what the leaders, or at least the majority thereof, were thinking about church-state relations in their state.
The editors found that what was most lacking in previous studies was the uncovering and organizing of primary materials (newspapers, pamphlets, sermons, private journals and letters, and judicial proceedings) that give evidence and color to the process of disestablishment in each state. We urged contributors to avoid conclusory statements. We requested that, to the extent possible, their declarative sentences be backed by reference to primary materials. Where such materials were not preserved, that also was to be noted. We hope that readers who are unable to devote their time to unearthing primary materials will rely on each chapter's reported evidence and then draw their own conclusions concerning what transpired in each state leading to disestablishment. The editors firmly instructed authors not to express their thoughts, if any, on history's application to issues that concern church-state relations in the twentieth and twenty-first centuries.
The reconsideration and repeal of state establishmentarian laws were almost always intertwined with the sponsorship of laws that bear on the protection of individual religious belief (often termed "the right of private judgment"). For example, a law barring clergy from holding public office imposed a cruel choice, implicating a cleric's personal religious liberty, but it also tells us something about how church-state relations were conceptualized. There is no neat way of differentiating between these two types of laws: those securing religious liberty of the individual and those deregulating the preferred institutional church. So the chapters on each state discuss developments in individual religious liberty as well, but with an eye to what those developments might tell us about the movement toward church disestablishment.
Although the path to disestablishment in each colony-come-state had features that were distinct to each state in both timing and substance, obviously there were some commonalities. For the guidance of our authors we provided a list of five recurring legal features that constituted a British-like establishment and thus likely targets of the push to disestablish. It was also a matter of interest if some of these features did not occur in a given state. A commonality of all establishmentarian laws is they linked the state church or preferred religion to the regulating state. The list was not intended to be exhaustive, of course, and our authors were to report whatever they found.
1. Government financial support of the state church: assessments to pay ministers and rents from glebe lands.
2. Government control over the creeds, order of worship, polity, and clerical appointments of the state church. Licensure of state-tolerated dissenting (termed "nonconformist") clerics; licenses tethered to a single meetinghouse, thereby preventing itinerant preaching by nonconformists.
3. Mandatory attendance at worship services in the state church, prohibitions on church services by others, and required licensure to open a meetinghouse for nonconformists.
4. Use of the state church to record births, marriages, and deaths; to perform all marriages and funerals; and to administer tax revenues for care of the poor and widowed. Today we regard these tasks as civil functions, but in the British-like establishments of the eighteenth century, these matters were within the jurisdiction of the church.
5. Religious tests. Public office and voting rights confined to members of the state church or a broader religious test to include nonconformists. Religious preferences for securing military commissions, government contracts, as well as admission to university and faculty appointments.
While not part of the foregoing working definition of an "establishment," there were three additional things for which our authors were to be on alert:
1. Although the editors regard the adoption of religious exemptions from public duties borne by others as a means of accommodating the religious exercise of dissenters or other minorities — as opposed to steps toward disestablishment — the chapter authors were told to look for religious exemptions from general laws, such as excusals from oath taking, hat removal in court, jury service, and the military draft.
2. Following disestablishment, some states imposed new disabilities on religious societies. This legislation was not part of the disestablishment process but a new phase. Examples are restrictions on the church polity permitted in order to incorporate a church under state law, with a bias toward lay governance, as well as statutory caps on church landholdings of more than a set acreage or on acquiring assets over a given value. If these features appeared in a given state, authors were to report them and urged to uncover their purpose.
3. Following the Constitutional Convention of 1787 in Philadelphia, the several states were engaged in the ratification debate from September 1787 through all of 1788. Additionally, following the First Federal Congress in New York City and its reporting out a Bill of Rights, state legislatures were engaged in the debate over ratification of these proposed amendments during the period October 1789 through all of 1790. Chapter authors were asked to report if either of these state-level contests had any bearing on their state's disestablishment.
Findings in the Face of Conventional Wisdom
The book's chapters make significant scholarly contributions by recounting in detail the process of disestablishment in each of the former colonies, as well as religion's legal place in the states of the new federal republic. Although we emphasize that each state disestablishment was unique, now that the editors have a full accounting from our chapter authors we are able to draw some commonality of principles at work across the states. In that spirit, we offer corrections to the past telling of the story.
The conventional wisdom in America is that disestablishment was a bold national experiment in religious freedom, one embodied in the First Amendment. While it is understood that the First Amendment (indeed, the entire Bill of Rights) bound only the new federal government, the popular claim is that the two Religion Clauses of the First Amendment soon set the model that eventually swept all of the states. The conventional telling, as well, is that Americans wanted religious freedom for their own sect but selfishly not for others. Yet pragmatism won out. All sects were a minority, it was observed, and thus people reluctantly came to understand that religious freedom had to be conceded to others if they wanted it for themselves. In this narrative, religious freedom is achieved not out of principle but out of practicality. These two claims are repeated as axioms in grade school social studies classrooms right on through textbooks for university undergraduates. The historical record is far more nuanced and complex. More important, the conventional axioms are false.
In the face of this standard narrative and based on the twenty chapters that follow, we report the following findings. Some findings are in the negative. That is, the nature of a given finding is what did not contribute, as opposed to what did contribute, to disestablishment in America's states. However, in a topic written on as much as church and state in the United States, the correcting of widely held misconceptions is just as salient as the identification of wholly new historical patterns and causes.
Finding 1. Neither the U.S. Constitution of 1787–88 nor the First Amendment of 1789–91 contributed to the disestablishment process in the original thirteen states. The same is true in the three admitted states that were never federal territories: Vermont, Kentucky, and Maine. We see this in multiple ways:
1. No state modeled its constitution after the First Amendment, or even considered the amendment when making state religion law. 2. Article VI (Clause 3) of the U.S. Constitution prohibits a religious test for federal office. The new states did not follow the federal lead. Indeed, most every state had a religious-test clause until well into the nineteenth century.
3. The oaths of office set forth in the U.S. Constitution permit an officer to either "swear or affirm" (see, for example, U.S. Constitution, Article I, Section 3 [Clause 6]), the latter being an option to accommodate Quakers and Anabaptists. Again, we found no evidence that this federal example influenced the law of any state. Some states did permit affirmations in lieu of oaths, but in doing so they were not influenced by the federal model.
4. No state's disestablishment was influenced by the state-level debate over ratification of the U.S. Constitution or, two years later, the state-level debate over the federal Bill of Rights.
The First Amendment did apply in U.S. territories, of course, and so it could have had a bearing on shaping the religion law in lands that were for a while federal territory, such as Tennessee, Ohio, Louisiana, Missouri, and Florida. But it never happened. Our chapter authors found no reports of violations of the religious freedom protections in the First Amendment during the years when these states were federal territories. Moreover, there is no record of the First Amendment being raised when these later-admitted states were being considered by the U.S. Congress for admission to the Union.
It was not until 1845 that the Religion Clauses of the First Amendment received even passing mention by the U.S. Supreme Court, and only then it was to acknowledge the truism that the First Amendment did not bind the states. Indeed, from the outset the First Amendment had little impact even on religious freedom within the federal government. For example, there were nine U.S. Supreme Court cases involving church or religion issues in the case. There were ten more such cases before the first application by a member of the Court that assumed the Establishment and Free Exercise Clauses had something to say about federal law on matters of religion.
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Table of Contents
ACKNOWLEDGMENTS,
LIST OF CONTRIBUTORS,
CHAPTER ONE Introduction: The Task, Methodology, and Findings Carl H. Esbeck and Jonathan J. Den Hartog,
CHAPTER TWO Disestablishment in New Jersey John Fea,
CHAPTER THREE Delaware: Religious Borderland Evan Haefeli,
CHAPTER FOUR Church and State in Rhode Island James S. Kabala,
CHAPTER FIVE The Pennsylvania Experiment with Freedom of Conscience and Church-State Relations David Little,
CHAPTER SIX North Carolina: Early Toleration and Disestablishment Nicholas P. Miller,
CHAPTER SEVEN Religious Disestablishment in the State of New York Kyle T. Bulthuis,
CHAPTER EIGHT Disestablishment in Virginia, 1776–1802 Carl H. Esbeck,
CHAPTER NINE South Carolina Miles Smith IV,
CHAPTER TEN Disestablishment in Kentucky Keith Harper,
CHAPTER ELEVEN Disestablishment in Tennessee Edward R. Crowther,
CHAPTER TWELVE Georgia: The Thirteenth Colony Joel A. Nichols,
CHAPTER THIRTEEN Church and State in Ohio, 1785– 1833 Michael S. Ariens,
CHAPTER FOURTEEN Disestablishment in the Louisiana and Missouri Territories Kevin Pybas,
CHAPTER FIFTEEN In the Interests of True Religion: Disestablishment in Vermont Shelby M. Balik,
CHAPTER SIXTEEN Church and State in Maryland: Religious Liberty, Religious Tests, and Church Disestablishment Michael D. Breidenbach,
CHAPTER SEVENTEEN Connecticut: A Land of Steady Habits Robert J. Imholt,
CHAPTER EIGHTEEN Towns and Toleration: Disestablishment in New Hampshire Brian Franklin,
CHAPTER NINETEEN Maine Marc M. Arkin,
CHAPTER TWENTY Florida Nathan A. Adams IV,
CHAPTER TWENTY-ONE The Last American Establishment: Massachusetts, 1780–1833 John Witte Jr. and Justin Latterell,
SELECT BIBLIOGRAPHY,
INDEX,