State Constitution Primer Continued

New States, Same Story

I mentioned in the last post that Kentucky and Tennessee (after Vermont) closed out the eighteenth-century of America via their admission to the Union but had never been party to the Articles of Confederation (1781) (itself dedicated to “the Great Governor of the World”). I want to briefly turn to them now in the context of issues raised earlier.

Kentucky’s 1792 constitution featured no religious test and included broad religious liberty (even as the language presumes Christianity): “all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences…” And “no preference shall ever be given by law to any religious societies or modes of worship.” Further, “That the civil rights, privileges, or capacities of any citizen shall in nowise be diminished or enlarged on account of his religion.”

Compared to the states previously surveyed, this is pretty bland.

Tennessee also disallowed establishment and provided religious exemptions to militia service. But where Kentucky shunned religious tests, Tennessee (1796)—its first constitution lasted until 1835—specifically outlawed religious tests: “That no religious test shall ever be required as a qualification to any office or public trust under this State.”

But not so fast! Tennessee also maintained that “No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of the State.”

As the kids say, what means? It suggests that “religious tests” were conceived in the eighteenth-century as denominational tests, so to speak. In other words, atheism still wasn’t an option for political leaders. This seems obvious. Even by the late nineteenth-century, Tennessee was vigilantly defending the Sabbath (as many states did, mind you). My favorite Sabbath law case of all time is Gunter v. State, 69 Tenn. 129 (1878), which upheld a conviction of men “hunting and shooting through the woods and fields with guns and pistols, for squirrels and other game, to the manifest corruption of the public morals, to the evil example and common nuisance of all good citizens.” This was an “indictable” offense since it “disturb[ed] the worship of others” via “secular labor on a Sunday” which was itself “prejudicial” to the “morals and health of the community.” That was a post-civil war case, by the way. It wasn’t a Jewish or Muslim Sabbath in view, but a Christian one. However soft the volunteer state’s constitution might seem in comparison to its Yankee brethren it was still a presumptively Christian state.

Moving on.

To pull in the post-eighteenth-century states, we should remember the Northwest Ordinance (1787) and other federal territorial acquisitions that made them possible.

Briefly, on the NWO, inter alia, it extends “the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected.” It makes clear that these same principles should be furthered to the future states in the territory. Note first that “republics” is in the plural. This tells us something about the conception of the nation at the time as not a unitary monolith, but rather a collection of republics, of nations, united under a federal model. As my friend, Clifford Humphrey, will tell you, several figures proximate to the founding period (e.g., John Taylor of Caroline) conceived of the American states as distinct nations. Here the NWO is nodding to the same. (See generally my recent post, “Magisterial Federalism,” for more.) This perspective is historically correct, in my opinion, and has contemporary implications. It also reaffirms Max Edling’s presentation of the federal constitution as not different in kind from its predecessor, the Articles of Confederation.

More to the religious liberty point within the NWO, article 1 of section 14 further protects inhabitants of the territory from molestation on account of “his mode of worship or religious sentiments.” (Remember that we have already established the meaning of “religion” in the period based on the most important available data, viz., state constitutions. As I’ve said many times elsewhere, even Justice John Paul Stevens recognized this in Van Orden v. Perry (2005). That is, that “religion” in the founding was synonymous with Christianity.) There is no reason, no documentation, to suggest otherwise regarding the NWO. Indeed, section 14, Article 3 reads, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

While NWO and the Southwest Territory Ordinance (1790) do not contain explicit religious clauses mirroring the state constitutions—their purpose was evidently distinct—their effect in practice was to preserve the state constitutional clauses in the newly constructed territories. For example, when in 1790, the North Carolina legislature voted to cede part of its territory (which would become Tennessee), it required that “the laws in force and use in the State of North Carolina, at the time of passing this act, shall be, and continue in full force within the territory hereby ceded, until the same shall be repealed.” This, of course, included North Carolina’s constitutional test for office, i.e., that no candidate could deny God, the authority of scripture, or the “truth of the Protestant religion.”

None of this was revoked by the federal ordinance, and when Tennessee was organized in 1796, we find their own religious clause as quoted above. (Special thanks to Ben Crenshaw for bring this illustrative case of the STO to my attention!)

Two observations: First, the federal government was not uncomfortable with North Carolina’s constitution, including the religious test, continuing to govern the territory while under federal control. Second, Tennessee had the chance to strike any religious test from their constitution upon acquiring statehood but opted to perpetuate it (if in less militantly Protestant form.)

I’m going to return to other such underappreciated early republic documents in the future, but that will suffice for now to sufficiently compliment the prior compilation of early state constitutions contra Allen Guelzo. If the full documentary history of America is ignored, as it has been for some time, then we can expect to do no better than typical, tired narratives like those offered by people like Guelzo. This is not meant to pick on him. Many such cases. I think, with a little grunt work, we can do better.