The First Freedoms: Church and State in America to the Passage of the First Amendment

289 Pages·1987·15.57 MB·English

by  Thomas J. Curry

THE FIRST FREEDOMS
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THE FIRST
FREEDOMS
Church and State in America
to the Passage
of the First Amendment
THOMAS J. CURRY
OXFORD UNIVERSITY PRESS
New York Oxford
Oxford University Press
Oxford New York Toronto
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Beirut Berlin Ibadan Nicosia
Copyright © 1986 by Thomas J. Curry
First published in 1986 by Oxford University Press, Inc.,
198 Madison Avenue, New York, New York 10016
First issued as an Oxford University Press paperback, 1987
Oxford is a registered trademark of Oxford University Press
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording, or otherwise,
without prior permission of Oxford University Press.
Library of Congress Cataloging in Publication Data
Curry, Thomas J.
The first freedoms.
Bibliography: p. Includes index.
1. Church and state—United States—History—i8th century.
8. Church and state—United States—History—19th century.
3. United States—Church history—Colonial period, ca. 1600-1775.
4. United States—Church history—19th century. I. Title.
BR5i6.C94 1986 3aa'.i'og7s 85-13693
ISBN 0-19-503661-1
ISBN 0-19-505181-5 ppbk.
468 10 9753
Printed in the United States of America
To the memory of my father and mother,
Thomas and Mary Curry
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Preface
The continuing dispute over the meaning of the statement "Congress
shall pass no law respecting the establishment of religion or prohibiting
the free exercise thereof" began with the Supreme Court's Everson v.
Board of Education decision in 1947. There the Court construed the
"establishment clause" to mean that government might not aid one
religion exclusively or all religions equally. Critics from then until now
have argued that the religion clauses were intended to ban exclusive aid
to one religion, i.e. the creation of a state religion, but not to forbid
evenhanded government aid to all religions.
The opposing sides have tangled in heated engagements, but have
now settled into a kind of trench warfare. The Court's defenders rely on
Madison's and Jefferson's clearly enunciated predilections for Church
and State. They especially cite the evidence surrounding the con-
troversy over a general assessment in Virginia in the 178os, wherein
that state, after a widespread public debate, refused to approve a plan
to grant non-exclusive state assistance to religion. On the other hand,
the Court's critics cite the terminology used by those connected with
the passage of the Amendment. This repeatedly called for a ban on
"articles of faith" or for the prohibition of an establishment of a
"national" religion or "any one" sect or religion in "preference" to
others. They also point to the fact that both before and after the
Amendment's enactment, state and federal governments maintained
numerous contacts with religion and assisted it in multifarious ways.
A study of the modern literature on the meaning of the religious
clauses of the First Amendment might well lead one to the conclusion
that opposing scholars had checkmated each other, and that history
had nothing more to offer by way of clarification. One scholar con-
cluded: "The search for original meaning and historical purpose
underlying the language [of the First Amendment religion clauses] has
yielded inconclusive results, and it would not be profitable to explore
viii Preface
the matter in detail. In the end the Supreme Court is free to give this
language the meaning it chooses."* Judgment as to the wisdom of my
disregarding that advice will have to rest with the reader.
Most of the studies on both sides of the argument have relied princi-
pally on the events immediately surrounding the passage of the Bill of
Rights. The present work attempts to elucidate the intentions under-
lying the First Amendment's religion clauses by framing the concepts
embodied in them within the overall picture of colonial and revolution-
ary America, and it has proceeded primarily as an exercise in tracing
ideas on Church and State.
In contrast to many other Church-State commentators, I have
avoided using the term "separation of Church and State." That phrase
provides a handy summation of the First Amendment religion clauses
and will doubtlessly perdure in common usage. For purposes of analy-
sis, however, it obscures rather than clarifies the issue. Treating the
First Amendment in terms of "a wall of separation" only moves the
subject from the sphere of the legal and concrete to the realm of
metaphor and symbol.
This study has emerged from an examination of public colonial and
state documents, but principally from a systematic combing of Evans's
Early American Imprints and relevant newspapers. As the references will
show, I have also been guided by the work of many preceding scholars.
Even a brief perusal of the notes will indicate my indebtedness to the
work of William G. McLoughlin, especially his splendid New England
Dissent.
Over the several years this work has been in preparation, I have run
up a considerable debt of gratitude. I am grateful to the Haynes and
MacNeel Pierce Foundations for providing financial support while I
was researching the original dissertation. To Cardinal Timothy
Manning, who provided the opportunity for me to do this study, I am
deeply beholden. I consider myself singularly fortunate to have studied
with Professor Leonard W. Levy at the Claremont Graduate School. He
suggested the topic and guided me at every stage. In the giving of his
time, knowledge, and resources, he has been to me the model teacher
and enviable mentor. For the unfailing assistance of Lois B. Marquez at
each phase of the work's progress, I can only offer an inadequate but
most sincere thanks.
Los Angeles T.J.C.
April 1985
*Paul Kauper, Religion and the Constitution, Baton Rouge, 1964.
Contents
1. The New England Way in Church and State to 1691, 1
2. Church and State in Seventeenth-Century
Virginia and Maryland, 29
3. Church and State in the Restoration Colonies, 54
4. Liberty of Conscience in Eighteenth-Century
Colonial America, 78
5. Establishment of Religion in Colonial America, 105
6. Religion and Government in Revolutionary America
Part I: The Southern States, 134
7. Religion and Government in Revolutionary America
Part II: The Middle States and New England, 159
8. "Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof . . .," 193
Notes, 223
Index, 269