Religious Freedom: Jefferson's Legacy, America's Creed

5. FROM THE FIRST AMENDMENT TO REYNOLDS

5 FROM THE FIRST AMENDMENT TO REYNOLDS Jefferson Ascendant           the Virginia Statute for Establishing Religious Freedom and the First Amendment did not end the battle for religious liberty in America. Since the First Amendment applied only to federal action, it had limited direct application in the nineteenth century, an era of relatively narrow federal regulation and a relatively small federal government. While all of the states claimed to protect freedom of conscience in their own way, how they applied that right often fell far short of the Jeffersonian vision,especially in the area of separation of church and state. Jeffersonians expressed a hope that “the sentiments of our beloved President [Jefferson], which have had such genial effect already, . . . will shine & prevail through all these States and all the world till Hierarchy and tyranny be destroyed from the Earth.”Yet,some states,notably Massachusetts and Connecticut, retained establishments for many years; others eliminated religious tax assessments but maintained laws promoting religion or conditioning civil rights on religious oaths.A disappointed Madison in retirement implored: Ye States of America which retain in your Constitutions or Codes, any aberration from the sacred principle of religious liberty by giving to Caesar what belongs to God, or joining together what God has put asunder, hasten to revise your systems, and make the example of your Country as pure and complete, in what relates to the freedom of the mind and its allegiance to its maker, as in what belongs to the legitimate objects of political and civil institutions.¹ The diversity of views among the states and the inability of many of them to satisfy a strict disestablishment requirement in  leaves important his-        toric questions: Did Jefferson and Madison, and Jefferson’s Statute and the  Letter to Danbury Baptists and Madison’s Memorial & Remonstrance, play some additional, significant role in the development of religious freedom in the states by , when a unanimous Supreme Court, in Reynolds v. United States, declared them seminal to American notions of religious freedom? Or did the state establishments and test oaths evidence a broad rejection of Jeffersonian principles in the period before the Court acted? After all, if the other states did not intend to be bound by the principles of the Virginia Statute or strict provisions of the First Amendment in , is there reason to believe that they moved in that direction over time, perhaps justifying the Supreme Court’s decision to find Jefferson’s view of religious freedom essential to American principles of freedom? “It would be valuable to learn,” Philip Hamburger writes,“whether his [Jefferson’s] words were as influential before  [and the Everson decision] as commonly supposed.”² In the nineteenth century, the states faced repeated controversies over how broadly religious freedom should be protected. A rich mix of actions by state governments and in the polity generally developed, but even before the Court acted in Reynolds, several patterns were evident. First, state constitutions were modified throughout the period, and generally the changes moved the states in the direction of the robust anti-establishment and free exercise approach of the federal Constitution and the Virginia Statute. Second, throughout the debates, Jefferson, Madison, and the Statute increasingly took on iconic proportions; increasingly Americans defined religious freedom against a Jeffersonian norm. Critics of the Court’s reliance on Jefferson are fond of pointing out that Madison and he were but two of a plethora of Founders concerned about the meaning of religious liberty and should be seen as“outliers” given their separationist views; Daniel Dreisbach, for example, insists that Jefferson’s vision of separation of church and state was “more expansive . . . than virtually all previous interpretations and that held by his contemporaries.” Yet, the historic record provides no equivalent focus on any other Founders’ views on religious liberty or the views of any other public figure. Over time, far from being outliers, Jefferson and Madison became foundational.³ On the other hand, propelled in part by the Second Great Awakening, nineteenth-century evangelicals increasingly defined America as a “Christian nation” (benefiting from a providential manifest destiny) and expected a broad presence of religion in the public sphere. As a result, beyond the very substan-    tial changes the Awakening encouraged in American culture, godly language was often incorporated into state constitutions at the same time or shortly after state establishments or...