On the morning of April 6, 1789, Daniel Carroll opened the front door of his apartment and stepped onto Maiden Lane in New York City. A gentleman of considerable landholdings, he had recently traveled over 200 miles from Maryland to New York in order to join the other newly elected members of the first Federal Congress. Walking in the rain against a “violent Wind” that had greeted pedestrians that morning, he turned left onto Nassau Street, named after the royal dynasty that included King William III and a reminder of the anti-Catholic Revolution of 1688 that the Dutch monarch had helped to secure. Yet four blocks later Daniel Carroll entered a new institution, the US House of Representatives, where he would challenge this anti-Catholic legacy. Within the history of Anglo-American politics, Daniel Carroll’s presence in the newly remodeled Federal Hall for the first session of Congress was a quiet but momentous occasion. He was Catholic, yet he held a political office whose equivalent position in Britain had been denied to Catholics since the English Reformation. Carroll’s presence in Congress signaled a remarkable double transformation: an American political culture more accessible to Catholics and a Catholic political theology now supportive of church–state separation and religious liberty.
A few months later, when Madison proposed his first draft of what would become the First Amendment, Daniel Carroll was the only Congressman to support the measure explicitly. In his speech in Congress on August 15, Carroll maintained that the amendment merely articulated what was the general sentiment concerning the right to religious liberty. In the Congressional Register, journalist Thomas Lloyd reported Carroll as stating:
As the rights of conscience are in their nature of peculiar delicacy, and will little bear the gentlest touch of the governmental hand; and as many sects have concurred in opinion that they are not well secured under the present constitution, he said he was much in favor of adopting the words; he thought it would tend more toward conciliating the minds of the people to the government than almost any other amendment he had heard proposed. He would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community.
In Lloyd’s hands, Carroll’s remarks were elevated to oratory compared with the statements by other congressmen. Whereas Lloyd introduced other comments with “Mr. Gerry said” or “Mr. Madison thought,” Lloyd began Carroll’s speech: “Mr. Carroll. As the rights of conscience… .” In fact, Lloyd was the only reporter to record Carroll’s comments at all. The Gazette of the United States noted that Carroll and other congressmen “made some observations” on the amendment; The Daily Advertiser did not mention him at all.
Almost all of what we know about these congressional debates, including on the First Amendment, comes from a Catholic. The London-born Lloyd learned shorthand while studying at St. Omer, the same European Jesuit college that Daniel Carroll, his brother Bishop John Carroll, and their cousin Charles Carroll of Carrollton had attended. John Carroll taught the young Lloyd there just before the pupil immigrated to Maryland. They all had attended St. Omer because religious liberty had been denied to them at home. Now in Congress, two St. Omer Catholics helped to pass the First Amendment while another wrote its first history. Lloyd gave Catholics a “literal advantage.”
Did Lloyd give his fellow college alumnus’s speech pride of place in the Congressional Register? Like all English students at St. Omer, Lloyd had experienced religious persecution; he might have seen a Catholic with the ability to shape the First Amendment as momentous. Perhaps Carroll supplied Lloyd a written copy of his remarks to ensure a standout rendition of his speech. James Madison later acknowledged that congressmen sometimes revised their speeches before they were printed. Certainly, the Carrolls and Lloyd knew one another, and Daniel Carroll and Lloyd would have seen each other the day of Carroll’s speech at St. Peter’s Church in New York City for the feast day of the Assumption of the Blessed Virgin Mary, for which all Catholics were obligated to attend Mass. And since it took Lloyd weeks to convert his shorthand into printed text, there would have been time for Carroll to review and amend Lloyd’s record.
Or perhaps Lloyd himself embellished Carroll’s speech. After all, when Carroll apparently said that “[h]e would not contend with gentlemen about the phraseology, his object was to secure the substance,” the same could be said about Lloyd’s approach to his own work. From his skeletal stenography, Lloyd’s account of the congressional debates was written with the license of Thucydides – memory, interpretation, interpolation. Lloyd was not as concerned with the exact words of the speech but rather its essence, and the rhetorical flourishes in Carroll’s remarks would not have been recorded exactly anyway. Lloyd had been accused previously of favoring his fellow Federalists in recording the Pennsylvania and Maryland ratifying conventions; perhaps his Congressional Register had favored his fellow Federalist Catholic as well.
Either way, Daniel Carroll’s unusually prominent and polished speech was a calculated response to Anti-Federalist demands that he and Madison had faced during the ratification debates. Carroll’s mollifying words matched the ameliorative ends of the religion clauses, intended for “conciliating the minds of the people to the Government than almost any other amendment he had heard proposed.” From the beginning of the movement to revise the Articles of Confederation, he had sought to reconcile Anti-Federalists to the Constitution. He had informed Madison of popular sentiment regarding the proposed Constitution and strategized how best to achieve its passage. After ratification, several Anti-Federalists still did not think that the Constitution sufficiently secured religious liberty and nonestablishment. For instance, during the Maryland ratifying convention, William Paca led Anti-Federalists in drafting a list of constitutional amendments, including “[t]hat there be no National Religion established by Law; but that all Persons be equally entitled to Protection in their religious Liberty.” Daniel Carroll enclosed a copy of those amendments for Madison and wrote that although they “will be of little consequence” in Maryland – the Federalists had rejected them – they might “be of some [consequence] with you to hear both sides” as the Virginia ratifying convention met. Lloyd’s record of the House debates makes it clear that the introduction of the First Amendment was a coordinated effort between James Madison and Daniel Carroll – not the singular effort of Madison – to answer Anti-Federalist objections. If Madison was the “Father of the Constitution,” Carroll was the First Amendment’s godfather.
Daniel Carroll had spoken in favor of the amendment on Saturday, the first day of the debate in the House, and the discussion resumed on Monday. In refraining from meeting on Sunday, Congress implicitly recognized the Christian Sabbath even as they debated the establishment clause. Several weeks passed before the House and the Senate agreed on the final text. The sparse record by Lloyd and others did not note Congress’s reasons for adopting the final language of the religion clauses, or why other proposals – Congress shall make no law establishing “religious doctrine,” “infring[ing] the rights of conscience,” “establishing any particular denomination of religion in preference to another,” and “establishing articles of faith or a mode of worship” – fell out of favor. The conference committee formed to finalize the text included Senate members Charles Carroll of Carrollton of Maryland, William Paterson of New Jersey, and Oliver Ellsworth of Connecticut, and House members James Madison, Roger Sherman of Connecticut, and John Vining of Delaware. Within a week that committee settled on the final language: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
A breathtaking volume of scholarship has sought to explain what the constitutional framers and ratifiers meant by the religion clauses of the First Amendment. Interpreting the establishment clause has been particularly fraught. The most minimal reading of its original meaning, based on the available evidence of the framers’ collective intention, is that Congress should not establish a “Church of the United States” akin to the Church of England. Even if that reading is correct, however, the problem remains that there was disagreement about what was essential about the Church of England (and, a fortiori, a hypothetical “Church of the United States”). Anglicans, especially in the American colonies, disputed whether bishops were a necessary feature of the Church of England, and whether paying ministerial salaries, religious tests for public office, state ownership of church land, and so on were necessary for establishing the Church of England. If the nonestablishment clause meant no “Church of the United States,” there was no unanimous agreement recorded on what that meant.
To understand what the establishment clause prohibited, we need to turn to Congress’s actual policy decisions before the First Amendment was passed. The most significant choice that Congress made on matters of church establishment, one that indicated Congress’s collective will on church–state matters, came in 1783. The Holy See had requested that Congress permit the establishment of a native Catholic vicar apostolic bishop in the United States. In its reply, Congress laid down its first principle of church–state relations: that Congress had no jurisdiction, power, or authority in “purely spiritual” matters such as electing a Catholic ecclesiastical leader. The committee members responsible for the statement to the Holy See – Thomas Jefferson of Virginia, Elbridge Gerry of Massachusetts, and Hugh Williamson of North Carolina – held divergent religious commitments but could agree on the same distinction between temporal and “purely spiritual” matters that Anglo-American Catholics had offered. Congress concluded that these powers in “purely spiritual” matters were, in a nod to the principle of federalism, “reserved to the several States, individually.”
At the same time that Catholic and Anglican bishops were renouncing power over political affairs, Congress was forswearing power over ecclesiastical affairs. In so doing, Congress rejected what European governments had traditionally exercised: the rights of patronage over churches, or ius patronatus. Throughout the centuries in Christian Europe, ius patronatus constituted an established church. Since the Middle Ages, these patronage rights of the civil authority included placet, or veto power over ecclesiastical affairs within the civil ruler’s territory; exequatur, or enforcement power over directives accepted by the local bishop; ius praesentandi, or nomination power of local ecclesiastics; and ius exclusivae, or the power to veto papal candidates in a conclave. By the early modern period, some version of ius patronatus was the paradigm for both Catholic and Protestant established churches.
Congress’s 1783 declaration was the first in British North America to reject a national government’s right to nominate or approve a cleric for a bishopric. Congress’s refusal of ius patronatus was a knowing one. Governmental patronage of bishops was part of the legal lexicon of the American founders and was widely practiced in the Atlantic World. William Blackstone, to whom the American founders consistently turned for legal guidance, discussed the rights of patronage – or the rights of advowson, as it was called in the Church of England – as the proper prerogative of the civil government over ecclesiastical appointments. A similar discussion appeared in the Encyclopædia Britannica.
While this reading of the establishment clause might seem too narrow, it in fact adds and provides greater specificity to its meaning. Prohibiting the establishment of a “Church of the United States” did not necessarily forbid Congress from nominating or accepting bishops in the United States. After all, government control over bishops could be found not only in establishments but also in nonestablishments. (The Chinese government today claims to appoint bishops, but is officially atheistic.) Governments with established churches even intervened in the affairs of bishops from other churches, as was the case with Britain claiming ius patronatus in the eighteenth century not only over the Church of England but also over the Catholic Church in colonies such as Minorca, Majorca, and Gibraltar.
The United States charted a different path. From the very beginning, all the Anglican and Catholic bishops were consecrated and installed without any legal interference at the state or federal levels. The establishment clause of the First Amendment confirmed the policy that the Annapolis-based Congress had stated to the Holy See: The federal government does not have cognizance over any ecclesiastical affairs and thereby has no right to nominate or confirm a bishop, since authority in “purely spiritual” matters rested within the individual states. To be sure, there was no written discussion of bishops in the truncated record of the First Federal Congress’s deliberations, and since the Congress in 1783 was under the older Articles of Confederation, not the US Constitution, one Congress’s decisions did not necessarily bind another’s. Yet insofar as the First Federal Congress never collectively defined what a “Church of the United States” might look like, we are left with constructing the constitutional text. The most reasonable place to start is what the previous national legislative body had definitively denied: the power to appoint or approve bishops.
Viewing the First Amendment in light of American Catholic history reveals several new insights into its jurisprudence. Although anti-Catholic movements in the nineteenth century interpreted Catholicism as hostile to the First Amendment, early American Catholics actually supported the juridical separation of church and state. Locating the First Amendment within the context of the United States’ relationship with the Holy See indicates that the framers of the US Constitution denied Congress the rights of patronage that had traditionally defined an established church. Instead, Congress’s “patronage” took the form of protecting religious organizations in order for them to fulfill their religious missions and charitable functions, and funding activities with both religious and secular purposes, including those of Catholic and Protestant missionaries. So while the American founders insisted on bishops without temporal power and a national government without ecclesiastical power, no interpretation can accurately claim that the establishment clause amounted to a strict separation of church and state.
Michael D. Breidenbach is Associate Professor of History at Ave Maria University and Research Associate at the McNeil Center for Early American Studies. His book, Our Dear-Bought Liberty: Catholics and Religious Toleration in Early America, will be published with Harvard University Press in 2021. He is co-editor of The Cambridge Companion to the First Amendment and Religious Liberty (Cambridge University Press, 2020). He received his Ph.D. from King’s College, Cambridge University, and has held research positions at Princeton, Oxford, Cambridge, Villanova, and the University of Pennsylvania. This essay is an adaptation of “Religious Tests, Loyalty Oaths, and the Ecclesiastical Context 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.
