A Primer on State Constitutions

I just finished Allan Guelzo’s piece at Desiring God from today. A bit of a mess. Where to begin?

First of all, I have no idea why this was (clearly) commissioned by Desiring God. Well, I have some idea, but we will not allow that to detain us. (As my friend, Ben Crenshaw, commented today, if this is the best the anti-Christian nationalist cadre, or whatever they want to label themselves, can do, we’re in pretty good shape. And I’m not even married to the label, mind you; I speak of political disposition, theological persuasion, and historical consciousness.)

Second, and more importantly, it boggles my mind that people get away with writing these kinds of sweeping histories without citing the most essential public documents of the time under review, viz., state constitutions. These are far more valuable than the 200 some odd word private musings of presidents or even—gasp! —the Federalist Papers. (Sorry, originalists.) In the period, the states were the central moral and political loci of the republic. To ignore them is to reveal the inability of the “historian” to enter the world of the early Americans, to appreciate their socio-political frameworks and pathologies. Some do this quite well; others do not.

As an aside, the story of the introduction of Jeffersonian thought vis a vis the first amendment—his “wall”—is kind of funny. It first came in Reynolds v. U.S., 98 U.S. 145 (1878), the famous polygamy case. Multiple constitutional considerations were involved but most notably the Free Exercise Clause. (We will table whether the first amendment can be so easily bifurcated into “clauses” for jurisprudential purposes.) At issue was the Morrill Anti-Bigamy Act under which the Mormon appellants had been charged and convicted. A challenge to the law was brought on Free Exercise grounds, i.e., religious “duty” v. morals legislation. Long story short, the Mormon appeal lost.

More to the point, in the majority opinion, Chief Justice Morrison Waite cited the distinction between belief and act, and further noted that polygamy had been illegal under common law since at least the time of James I and was generally “odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, almost exclusively a feature of the life of Asiatic and of African people.” Waite noted that the statute of James I was “reenacted” in all the colonies and that Virginia included the death penalty even as it championed the Jeffersonian understanding of religious freedom. At no time, from 1788 to 1878, had polygamy been tolerated in the Union.

Even under the Jeffersonian persuasion of Waite, “Congress was deprived” by the First Amendment, “of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” (People are usually surprised to learn that the first invocation of Jefferson’s “wall of separation” by the Supreme Court was in Reynolds in which the Free Exercise claimants lost).

The supposed wall of separation did not prevent morals legislation extending to what later courts would designation sacred and mysterious questions of life. The Danbury letter is hardly legally binding, and nor should it be taken to be representative of Jefferson’s whole generation—nor was it, itself, a lengthy philosophical diatribe. (The history of the court’s “discovery” of the great wall is also more than a little suspect.)

These caveats notwithstanding, Chief Justice Waite still interpreted Jefferson’s plea to permit intrusion into the bedroom, so to speak, insofar as the government has a vested and justified interest in the types of sexual unions it sanctions.

Also, slippery slope argument from Waite: would this lead to bride burning or human sacrifice on free exercise grounds? Every man would be a law unto himself. “Government could exist only in name under such circumstances.” Congress could certainly legislate against action, though not opinion (i.e., private belief). “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”

“Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it, society may be said to be built, and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal… it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.” [emphasis added]

And so, even as Jefferson’s “wall” was inaugurated into the American consciousness, the Supreme Court asserted the right of Congress to determine the confines of the “sweet mysteries of life.” Hardly a “blessings of liberty” case, if you will.

The money quote from Reynolds, which the late Justice Scalia later quoted in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), to which I am increasingly partial: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Religious free exercise does not and cannot yield licentiousness and lawlessness. Simple as.

In any case, here’s a short compilation of quotes from state constitutions in the eighteenth-century that cut against what Philip Hamburger rightly castigated as the “standard history.” I’ve been meaning to put this together for a while for my own immediate purposes and future reference.

For those following along at home, the thirteen original states were New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. (I will exclude Virginia for now in order to combat the Virginian supremacy mentioned earlier but will return to it as a special case in the future.)

Vermont would come along in 1791, followed by Kentucky (1792) and Tennessee (1796) to close out the eighteenth century. For our purposes, we will conclude the “founding era” here albeit all periodization is arbitrary, and many historians extend it further into the nineteenth century. We will take each state constitution in turn. (I will not provide too much commentary at this stage.)

New Hampshire’s 1784 constitution preserved the natural right of conscience. A protection that did not extend to action flowing from the conscience, per se.

But this did mean that

“Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments or persuasion; provided he doth not disturb the public peace, or disturb others, in their religious worship.”

And yet, this did not negate public, governmental support for religion:

“As morality and piety, rightly grounded on evangelical principles, will give the best and greatest security to government, and will lay in the hearts of men the strongest obligations to due subjection; and as the knowledge of these, is most likely to be propagated through a society by the institution of the public worship of the DEITY, and of public instruction in morality and religion; therefore, to promote those important purposes, the people of this state have a right to impower, and do hereby fully impower the legislature to authorize from time to time, the several towns, parishes, bodies-corporate, or religious societies within this state, to make adequate provision at their own expence, for the support and maintenance of public protestant teachers of piety, religion and morality”

A caveat included pertained to township, parish, and congregational sovereignty such that they retained “the exclusive right of electing their own public teachers, and of contracting with them for their support and maintenance.”

Further, no one would be forced to pay for a minister outside of their own denominational persuasion.

What “religion” are we talking about here? New Hampshire made clear that “every denomination of christians [sic]” that acted “as good subjects of the state” would receive equal protection under the law and that no particular Christian denomination would be “established by law” to the exclusion of other Christian denominations. Non-Christians are not mentioned at all.

Note well too New Hampshire’s religious test for public office:

“Every member of the house of representatives shall be of the Protestant religion. . . . That no person shall be capable of being elected a senator who is not of the Protestant religion. . . . The President shall be chosen annually; and no person shall be eligible to this office, unless at the time of his election, he . . . shall be of the protestant religion.”

Next door, Massachusetts produced its constitution in 1780. The first part included a “Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.”

Like New Hampshire, it protected the right of conscience and conscientious worship of “the Supreme Being, the great Creator and Preserver of the universe.” This kind of language is often cast as Deist, but the same rhetoric was not foreign to over a century of Puritan sermons in the Bay colony. There is nothing inherently problematic about it. In any case, the intent of the alternate labels for God is made clear in the clause that protects the right of worship “of God” according to conscience.

This becomes clearer in the immediately subsequent article which impresses upon the reader the necessity of government promotion of religion—and not just any religion. It is worth quoting in full:

“the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of the public instructions in piety, religion, and morality: Therefore, To promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.”

The same localist caveat in the New Hampshire constitution is found next. (Obviously, it is New Hampshire that borrowed from Massachusetts, not the other way around.) So too is this paragraph:

“And every denomination of Christians, demeaning themselves peaceably and as good subjects of the commonwealth, shall be equally under the protection of the law; and no subordination of any sect or denomination to another shall ever be established by law.”

Massachusetts also featured a religious test for office:

“Any person chosen governor, lieutenant-governor, councillor, senator, or representative, and accepting the trust, shall, before he proceed to execute the duties of his place or office, make and subscribe the following declaration: “I . . . do declare that I believe the Christian religion, and have a firm persuasion of its truth; and that I am seized and possessed, in my own right, of the property required by the constitution, as one qualification for the office or place to which I am elected.””

We can treat Rhode Island and Connecticut as a unit since neither adopted a new constitution at the juncture in focus—Rhode Island not until 1843 and Connecticut not until 1818—but rather opted for retention of their colonial charters. (I treated Connecticut’s scenario briefly in this piece last year.) A few brief quotes.

Rhode Island’s 1663 charter dedicates the venture to “the holie Christian ffaith and worshipp.” Part of the point of the new polity’s incorporation was so that its members “may bee in the better capacity to defend themselves, in theire just rights and libertyes against all the enemies of the Christian ffaith.” Dissent from the public forms of worship of the Church of England were, obviously, permitted, and etc. But the orientation of the colony, and later state, was clear. And this from the home of Roger Williams, the erroneous opinions of which have, almost as much as Jefferson, come to define first amendment jurisprudence in this country. (But I said I was not going to deliver extended commentary…)

On to Connecticut. Its 1662 charter endured until the second decade of the nineteenth century. We need not recount now the Puritan heritage of that place that flourished under said charter, and which should thoroughly condition any assessment of its eighteenth-century development. Briefly, note the purpose of the colony, in part, was

“for the directing, ruleing and disposeing of all other matters and things whereby our said people, Inhabitants there, may bee soe religiously, peaceably and civilly Governed as their good life and orderly Conversacon may wynn and invite the Natives of the Country to the knowledge and obedience of the onely true God and Saviour of mankind and the Christian faith, which in our Royall intencons and the Adventurers free profession is the onely and principall end of this Plantacon.”

How about New York (1777) and New Jersey (1776)?

The former protected “free exercise and enjoyment of religious profession and worship, without discrimination or preference” with the now predictable expectation that liberty of conscience would not be abused unto “licentiousness” or civil insecurity. Query what operative definition of “licentiousness” was in play. No matter.

The document continues in the next article exhorted “the ministers of the gospel… dedicated to the service of God and the care of souls” to not be “diverted from the great duties of their function.” Hence, they were precluded from holding civil office simultaneously (something Massachusetts had been doing for over a century at that point).

Whilst New York embraced the common law tradition explicitly, and some English laws in particular, it shunned such laws within said tradition that established one “Christian denomination” over another. (Again, our entire scope here is confined by Christianity.) At the same time, this was a state where the blasphemy case, People v. Ruggles (1811), could happen under its constitution without issue.

As to New York’s neighbor, it was more forceful (and explicitly Protestant).

No one in Jersey was to be “deprived of the inestimable privilege of worshipping Almighty God in a manner, agreeable to the dictates of his own conscience.” (Again, is “Almighty God” referring to a general monotheism? Doubtful.) Neither could anyone be religiously taxed.

But the very next article will shock some:

“there shall be no establishment of any one religious sect in this Province, in preference to another; and that no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles; but that all persons, professing a belief in the faith of any Protestant sect. who shall demean themselves peaceably under the government, as hereby established, shall be capable of being elected into any office of profit or trust, or being a member of either branch of the Legislature, and shall fully and freely enjoy every privilege and immunity, enjoyed by others their fellow subjects. [emphasis added.]”

So, Protestants were guaranteed full civil rights, but others aren’t mentioned, even as they (i.e., other Christians) would be afforded freedom of conscience (thought/belief). Apart from the taxation question, someone explain to me how this is that different from the traditional mode of toleration. I argue it is not. The message of New Jersey was clear in 1776: all Christians would be tolerated (i.e., not persecuted), but Protestants would be running the place.

Moving west, the Quakers.

The key passage (for our purposes) from Pennsylvania’s constitution of 1776:

“all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding: And that no man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent: Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship: And that no authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship.”

None of us would expect more from Pennsylvania, but we should recognize that even in the Quaker stronghold, Christianity is prioritized. For only someone who acknoeldeges the Christian God is promised civil rights.

Now, Delaware, 1776. It decried the establishment of particluar denominational sect of Christianity, but nevertheless featured an orhtodox test for office:

“Every person who shall be chosen a member of either house, or appointed to any office or place of trust, before taking his seat, or entering upon the execution of his office, shall take the following oath, or affirmation, if conscientiously scrupulous of taking an oath, to wit:  “I, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.””

The same went for Maryland, (with an ostensibly Catholic aristorcracy):

“That no other test or qualification ought to be required, on admission to any office of trust or profit, than such oath of support and fidelity to this State, and such oath of office, as shall be directed by this Convention or the Legislature of this State, and a declaration of a belief in the Christian religion.”

In Maryland, “all persons, professing the Christian religion, are equally entitled to protection in their religious liberty… yet the Legislature may, in their discretion, lay a general and equal tax for the support of the Christian religion.” The individual citizen was permitted to determine which Christian sect his tax would go to. What is clear is that throughout the document, “religion” means Christianity, and that Christians were civilly privileged.

Next, the Carolinas.

North Carolina’s (1776) religious test is striking:

“That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.”

Of course, religious liberty, generally, was preserved (for Christians) even whilst Protestantism was favored:

“there shall be no establishment of any one religious church or denomination in this State, in preference to any other; neither shall any person, on any presence whatsoever, be compelled to attend any place of worship contrary to his own faith or judgment.”

South Carolina (1776): First, the religious test,

“no person shall be eligible to a seat in the said senate unless he be of the Protestant religion…” Likewise, “No person shall be eligible to sit in the house of representatives unless he be of the Protestant religion.”

Next, the establishment clause, if you will, which is worth quoting at length:

“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. The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State. That all denominations of Christian Protestants in this State, demeaning themselves peaceably and faithfully, shall enjoy equal religious and civil privileges. To accomplish this desirable purpose without injury to the religious property of those societies of Christians which are by law already incorporated for the purpose of religious worship, and to put it fully into the power of every other society of Christian Protestants, either already formed or hereafter to be formed, to obtain the like incorporation, it is hereby constituted, appointed, and declared that the respective societies of the Church of England that are already formed in this State for the purpose of religious worship shall still continue incorporate and hold the religious property now in their possession. And that whenever fifteen or more male persons, not under twenty-one years of age, professing the Christian Protestant religion, and agreeing to unite themselves In a society for the purposes of religious worship, they shall, (on complying with the terms hereinafter mentioned,) be, and be constituted a church, and be esteemed and regarded in law as of the established religion of the State.”

Georgia’s (1777) religious test was simple and familiar: “The representatives shall be . . . of the Protestent religion. . . .” That said, “All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State.” Georgia’s constitution may be the most loose on this front, but it nevertheless remains clear what range of religious sects were elevated, at least civilly or politically.

Last in line is Vermont (1777) and its religious test for office:

“And each member, before he takes his seat, shall make and subscribe the following declaration, ” I ____ do believe in one God, the Creator and Governor of the Diverse, the rewarder of the good and punisher of the wicked. And I do acknowledge the scriptures of the old and new testament to be given by divine inspiration, and own and profess the protestant religion.””

Generally,

“all men have a natural and unalienable right to worship ALMIGHTY GOD, according to the dictates of their own consciences and understanding, regulated by the word of GOD; and that no man ought, or of right can be compelled to attend any religious worship, or erect, or support any place of worship, or maintain any minister, contrary to the dictates of his conscience; nor can any man who professes the protestant religion, be justly deprived or abridged of any civil right, as a citizen, on account of his religious sentiment, or peculiar mode of religious worship.”

This is what “free exercise” meant. And Vermont is clearly borrowing from its friends.

No reasonable reader could survey any of these clauses and stipulations and arrive at a milquetoast position as to the religious nature and conviction of the states at the time of the founding. It was decidedly Protestant or, at bare minimum, Protestant-centric and generally Christian. Factor in the (comparatively) outsized role of the state at the time and we start inching toward a more appropriate and historical view of the religious character and orientation of the American nation at the start.

“Historians” will miss this, however, if they ignore the granular in favor of grandiose, sweeping, and Jeffersonian narratives. The latter is more manageable and an easier sell, but it is more or less bunk. And this from pure, public (official) documentation alone. We have not yet challenged prevailing approaches with the mountain of source material that, for various reasons, has been ostracized by mainstream historical narratives. There were more than two attendees to the Constitutional Convention, you know… and Jefferson wasn’t even one of them.