On New Year’s Day, 1802, President Thomas Jefferson was presented with a half-ton block of cheese, an offering made by the Baptist farmers of Cheshire, Massachusetts. One of their ministers, John Leland, who happened to be an unstinting proponent of religious liberty and a stalwart Jefferson ally, had escorted this “Mammoth Cheese” all the way from that Berkshire valley town to the White House. A charmed President Jefferson thanked them for the labor invested in the unusual gift and echoed their praise for the federal Constitution’s prohibition on religious tests and the amending process.
The cheese has been immortalized, but not Jefferson’s remarks about it. Instead, we remember another reply that the President dispatched that same day to a group of Connecticut dissenters, the Danbury Baptist Association. Jefferson chose his words in that letter carefully, consulting advisors and meticulously revising the original composition. He knew that his response would shape perceptions of what the First Amendment meant and where the federal government stood on the matter of religious establishments and church–state interaction. Displaying his flair for bracing imagery, Jefferson posited that the amendment erected “a wall of separation between Church & State.”
One of the most important findings in church-state scholarship over the last three decades is that the First Amendment cannot be reduced to Jefferson’s terse metaphor. The relationship between church and state, we have discovered, was neither entirely separate nor entirely straightforward. The resulting confusion has opened the door for other fictions: that the country was established on an exclusively Christian foundation or, at the opposite extreme, that the founders were devout secularists. In the courts and among legal scholars, the center has held. Jurists and constitutional scholars now recognize that the founders were both (1) opposed to the federal government’s promoting one particular faith at the expense of others and (2) dedicated to protecting religious worship and expression for a widening variety of groups. Though unsatisfactory to partisans, this sums up the messy, historical reality.
When it came to the details, contemporaries were as divided as we are today. They disagreed about whether state governments should mandate public support for churches and ministers, and whether conscientious objectors should be exempted from military service. In Massachusetts, where the Congregational church establishment survived the Revolutionary era, citizens disagreed about whether unincorporated churches could collect tax levies from their members. In Pennsylvania, which never had an establishment, they disagreed about whether antireligious speech should be protected.
No one was more cognizant of those disagreements, nor keener to reconcile them, than James Madison. If Jefferson gave us the most forthright – albeit misleading – recapitulation of what the First Amendment was intended to accomplish, his friend and political ally, Madison, probably had the most to do with the fact that it existed at all. Religious liberty had many champions in the new nation, but none as formidable or effective as this quiet, diminutive scion of a Virginia plantation family. Madison graduated from the College of New Jersey (now Princeton University) in 1771, after completing his coursework in a lightning-fast two years. The studious Madison returned to his Montpelier home without well-defined career ambitions. What he did possess was a marked disposition for politics. Madison soon joined the Revolutionary Committee on Safety and became a vigorous defender of the Baptist ministers who were being harassed by mobs and imprisoned by Anglican authorities.
That early foray into religious advocacy proved a harbinger of what lay ahead for the precocious Madison. In the late spring of 1776, at the age of twenty-five, he put his first indelible stamp on American life. Serving as a representative at the Virginia constitutional convention in Richmond, Madison drafted a revision of George Mason’s proposed language on religion. Most notable about his modifications was the substitution of a more encompassing and unqualified endorsement of religious liberty (“all men are equally entitled to the full and free exercise” of religion) for Mason’s more restrained language (“that all Men shou’d enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience”).
Madison’s support for religious liberty over toleration may have had something to do with his reservations about conventional religion and his immersion in eighteenth-century Enlightenment thought at Princeton. It may have owed still more to his revulsion at the harsh treatment meted out to local dissenters. After the Revolutionary War, Madison enlisted the support of evangelical leaders to help pass Jefferson’s Statute for Establishing Religious Freedom. That measure declared religious freedom to be an inalienable “natural right” and specified that governments could neither force a man to attend or support a church, nor could they impose civil penalties as a result of “religious opinions or belief.”
Given these commitments, it was not unreasonable to expect that Madison would support calls to introduce religious liberty protections at the federal level. But he did not – at least not at first. Madison’s initial opposition to amendments disappointed his evangelical allies and has puzzled many students of the era since. While Madison would come to cherish the protections that these amendments established, at the time he was just not confident that an enumeration of rights would be the barrier to tyranny that its proponents supposed. The institutions of government, he believed, were not themselves the primary threat. Instead, as Madison put it in a letter to Jefferson, “the real power lies in the majority of the Community.”
Like the ratification process itself, Madison’s progress toward support for amendments was slow and halting. He gradually found his way there during the winter and spring of 1789. The most straightforward of political calculations figured into his decision. Unless Madison supported an amendment protecting religious liberty, the evangelical voters, who represented a growing constituency, voted as a block and insisted on protections for rights of conscience would cast their ballots for his opponent. Even with such intense political pressure on him, he demurred until the very end.
Whatever reservations Madison had about revising the Constitution when the First Congress convened in May 1789, he set them aside and made the case for amendments. It began as an uphill battle. Members of the Federalist-dominated Congress, several of whom had sweated through the 1787 Philadelphia convention, were unenthusiastic about the prospect of revising a mechanism that had been so delicately fashioned. Through compromise and careful deliberation, its framers had crafted a governing instrument that was meant to withstand the wages of time. They were not eager to see it mangled by a hundred hastily conceived alterations.
Madison’s speech introducing amendments cast a wide net that included military exemptions for pacifist sects, restrictions on state interference with religious liberty, and a prohibition against a federal establishment. The various proposals wound their way through committee in July and early August, and then on to the open floor of the House and Senate in August. Congress voted to do some, but not all, of the things Madison had initially proposed. The idea of protecting citizens from state infringements on rights of conscience was a bold proposition that probably never stood a chance of passage. Meanwhile, the clause exempting conscientious objectors from military service was unceremoniously dropped from the amendment protecting the right to bear arms.
No other part of Madison’s proposal proved more controversial or subject to revision than the stipulation that no “national religion be established.” In response to the concerns that state establishments might be curtailed, and religion thereby neglected, he proposed the insertion of “national” before “religion.” Because “national” suggested a consolidation of power that few besides Alexander Hamilton desired, the House settled on language that forbade Congress from making a law “establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.” That mid-August pruning of the establishment clause brought it very close to the language ultimately ratified.
In the meantime, the Senate took up the proposed amendments. And there, something unexpected occurred. A matter that had seemed settled in the House – the relationship between the federal government and religion – became a point of contention. It is not entirely clear what happened in the Senate, because only the language that came to a formal vote survives. Like the fossilized impression of some ancient creature, we can discern its general shape, but nothing of its substance. The blood and sinews of the floor debate are lost to us. What we do know is that on September 5, 1789, the Senate considered a few different iterations of the amendment. The first would have prohibited Congress from “establishing any religious sect or society.” It was voted down. And so was the next, which would have prevented Congress from making laws “establishing any particular denomination of religion in preference to another.” A similar proposal to forbid Congress from making laws “establishing one religious society in preference to others” failed too.
Four days later, the Senate settled on the following: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.” The language put up for a vote suggests that the senators were torn between a general prohibition on congressional legislation regarding religion and a more circumscribed ban on the establishment of a single church or creed. Whatever the case, when the amendments moved to conference committee, the language reverted to something similar to what the House had agreed to on August 20. It forbade Congress from making a “law respecting an establishment of religion, or prohibiting the free exercise thereof.”
That final language was beguilingly vague. Its sweep and imprecision imparted an enduring mystery to American constitutional life. What did “respecting” mean? Was Congress prohibited from funding religious organizations in a non-preferential way? Did the protection of free exercise also protect irreligious speech? There were no straightforward answers at the time—nor have there been since.
Though its precise meaning was hardly self-evident, the First Amendment communicated an unambiguous signal that the new national government would be a partisan of religious liberty. Religious minorities showed their appreciation almost immediately. Members of Newport Rhode Island’s Touro Synagogue wrote to George Washington in August 1790, lauding the new federal government, which gave “bigotry … no sanction” and “persecution no assistance.” Roman Catholics leaders did the same, expressing their confidence that the new regime would protect religious liberties. By the 1820s, the nation’s first Catholic newspaper featured the religious clauses on its masthead.
The impact would have been greater had it not been for the fact that federal government’s regulatory power was extremely limited, and that the earliest state constitutions often took a narrower approach. Framers of the 1780 Massachusetts constitution declared that no would be “hurt, molested, or restrained… for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience.” Over the ensuing paragraphs, they authorized the legislature to mandate church support and attendance. Then, in the final paragraph devoted to religious rights, they made it clear that the “religion” protected by the new charter belonged to Christians alone. (One wry commentator compared the constitution to a “cow that gives a full pail of milk and then kicks it over.”)
A few constitutions were even stingier in their guarantees. South Carolina’s 1778 constitution stipulated that “all persons and religious societies who acknowledge that there is one God, and a future state of rewards and punishments, and that God is publicly to be worshipped, shall be freely tolerated.” They also established the “Christian Protestant religion,” limited office-holding to Protestants, and spelled out in very specific terms what its framers considered a legitimate church. The general assessment bill proposed in Virginia in 1779 gave a similarly concrete and constricted scope to the “Christian Religion.” Under the provisions of that bill only Protestant churches would have received funding. Catholic churches would have been ineligible.
Some state establishments of religion survived into the nineteenth century. Yet the tides were clearly shifting. Religious protections adopted in the 1780s and 1790s were more generous, both in terms of the liberty they protected and the varieties of faith they acknowledged. By 1790, South Carolina promised “free exercise and enjoyment of religious profession and worship, without discrimination or preference.” That was it. The new constitution had excised the once elaborate conditions required for recognition. The Virginia Statute for Religious Freedom did away with all such restrictions as well. Drafted by Jefferson and ushered to passage by Madison, it put an end to the Anglican establishment and the religious discrimination it fostered.
In sum, America’s constitutional framers signaled their respect for religious liberty and white social equality through subtraction rather than addition, paring back civil distinctions between believers. The free black and indigenous people who worshiped in Christian churches derived modest benefits from unqualified pronouncements about conscience. But protections for religious liberty did little to ameliorate the conditions of the enslaved in Madison’s Virginia, nor the violence visited upon traditional native worshipers on its frontiers. Some kinds of freedom mattered more than others—and would for decades to come.
The religious clauses winding route to legal relevance in the mid-twentieth century resembled the process by which they were originally framed, representing both an accommodation to the needs of vocal religious minorities and the reluctant codification of widely held principles. Jehovah’s Witnesses forced the Supreme Court’s hand in the 1930s and 1940s, much as Baptists had forced Madison’s during the republic’s early years. In both instances, beleaguered religious groups capitalized on shared intuitions regarding the sanctity of conscience and the value of tolerance, giving them explicit and material form. If their petitions were not as pungent as a certain giant cheese shipped from Cheshire, Massachusetts to Washington, DC, in the waning days of 1801, they were nonetheless employed to great effect.
Chris Beneke is Professor of History at Bentley University. He is the author of Beyond Toleration: The Religious Origins of American Pluralism and co-editor of The Lively Experiment: Religious Toleration in America from Roger Williams to the Present, among other books. This essay is an adaptation of “The Historical Context of the Religion Clauses of the First Amendment,” first published in The Cambridge Companion to the First Amendment and Religious Liberty, edited by Michael D. Breidenbach and Owen Anderson, Copyright © 2020 Cambridge University Press.
