The Constitutional Principle: Separation of Church and State
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Two Views: James Madison's and Joseph Story's

Although President James Madison appointed Joseph Story to the Supreme Court, it would seem that their views did not always mesh. Here we examine them.

Research and writing by Jim Allison


(Part 1)

Rev. Jasper Adams, Supreme Court Associate Justice Joseph Story and James Madison

Joseph Story was very much of like mind with the Rev. John Witherspoon (signer of the Declaration of Independence, member of the Continental Congress, and President of the College of New Jersey (Princeton)) with regards to unions between church and state, about whom James Hastings Nichols wrote:

"When we turn from religious liberty to the repudiation of special state aid, we enter a more complicated area. That section of Puritanism which championed religious liberty in the seventeenth century had divided into, a right and left wing as regards the relation. of the church to the state, a division which was important; in Witherspoon's day and also in ours.

"The left wing held for a rigid separation of church and state, based on a theological compartmentalization of the spheres of creation (or nature) and of redemption (or grace). The state belonged to the sphere of nature and was to be shaped solely by natural law with no regard for Scripture or church. There could be no such thing as a "Christian state." There should be no religious tests for the franchise and no ecclesiastical intervention in political matters. The state, on the other hand, must respect the sphere of the church and redemption as outside its jurisdiction. Such was the scheme of Roger Williams in Rhode Island, and of John Lilburne and John Goodwin in Old England. This became the main stream of Baptist thought in England and the colonies and has remained so ever since.

"A different but equally important pattern of thought had emerged at the Westminister Assembly, especially the manifesto of the Congregational minority there. It was actually put into effect in the 1650's by Cromwell, but was then of course rejected at the Restoration of the Stuarts and the old episcopal establishment. Like the separationists, this scheme fervently supported religious liberty. Cromwell's regime gave greater scope to religious liberty than any other major European state previously had done. But this tradition refused to give up the notion of the bearing of Christian revelation on political life. Cromwell conceived his government to be generically Christian, but without giving state aid to any ecclesiastic constitution preferentially. As he administered the pariah system, benefices were held by ministers of Congregational, Presbyterian, Baptist and Episcopal persuasions indifferently. To this extent it was multiple establishments, based on the novel conception of a number of equal and independent denominations cooperating to shape Christian nation. The state represented all collectively and equally on the basis of what was called "the common light of Christianity.

"The state constitutions of Massachusetts, Connecticut, New Hampshire sad Maryland represented substantially this position in the 1780's. Public provision could be made for school teachers and religious ministrations or whatever denomination the several towns might wish and in some eases at least, dissenting minorities were exempt from taxation. Nearly half of the states of the new republic maintained multiple establishments of this general type and the Congress provided something of the sane sort for the Northwest Territory of of which Five mid-Western states have since been erected

"In Virginia, on the other hand where the Anglican establishment bad been less generous to dissenters than the Congregationalists of New England, it was rather the radical separationist view which triumphed under the leadership of Madison and Jefferson. And this Virginia struggle was the immediate background of the drafting of the First Amendment.

"Where do the American Presbyterians fit into this picture? Although they rejected state support or church ministrations their general outlook seems still to have been that of the Cromwellian "common light of Christianity." If we are to take Witherspoon's lectures on moral philosophy as a commentary on his preface to the Form of Government, the repudiation of special state aid does not imply a strict separationism of the Roger Williams or Baptist type. Whereas it is one of the most important duties of the civil magistrate to protect the rights of conscience, he is also, in Witherspoon's view duty bound to punish profanity and impiety. He should encourage piety by his own example, attending to public and private worship, avoiding swearing and blasphemy.(5) In Witherspoon's mind, the state was still called to give aid to Christianity in general in these ways. It was not expected to be neutral as between the religious and the irreligious. And, in. his discussions of the system of state aid for public worship suiting the great body of citizens with full liberty for dissenters, Witherspoon observes mildly, "there is much reason for this" Clearly Witherspoon's devotion to the mechanism of separation is vastly less intense than air commitment to religious liberty. The main point is to secure freedom and non-preferential treatment for all religious bodies and views. Separation was valued, not as an end in itself, but, as a means to the end of religions liberty."

Footnote:

(5) Lectures on Moral Philosophy (ed. Collins), pp. 111-13.


Source of Information: "John Witherspoon on Church and State," by James Hastings Nichols. Journal of Presbyterian History, 42, (1964) pp 171-73


Joseph Story came from Massachusetts. New Englanders had a different mind set regarding religion than that of people in other parts of the country. Unions between church and state, established religions, and other interactions between church and government, were not alien in the thinking of most of the leadership of that area, from the founding of the various colonies in the 1600's to at least the mid 1800's.

At the time Joseph Story was writing his Commentaries on the Constitution (1829-33) only Massachusetts (out of 24 states) still had an established religion. They finally disestablished on November 11, 1833.

Some time after retiring from public office (1817), James Madison commented regarding the three New England States [Connecticut - finally disestablished in 1818; New Hampshire - finally disestablished in 1819; Massachusetts - finally disestablished in 1833] that still had established religions into the 1800's :

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 & purify your systems, and make the example of your Country as pure & compleat, 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 & civil institutions. [Excerpted from Madison's Detached Memoranda.]

Background:

Rev. Jasper Adams [originally from Mass, and a distant cousin of the John Adams family] was president of the College of Charleston. He had sent Madison a copy of his pamphlet, The Relation of Christianity to Civil Government in the United States, and requested Madison's comments. Adams contested the view "that Christianity had no connection with our civil government." Rather, he argued, "the people of the United States have retained the Christian religion as the foundation of their civil, legal, and political institutions." Adams sent the pamphlet to numerous other statesmen, including John Marshall and justice Joseph Story. Marshall replied, "The American population is entirely Christian, and with us, Christianity and religion are identified." Story went further, writing, "I have read it with uncommon satisfaction. I think its tone and spirit excellent. My own private judgment has long been (and every day's experience more and more confirms me in it) that government can not long exist without an alliance with religion; and that Christianity is indispensable to the true interests and sold foundations of free government."

Madison, of course, disagreed. In his reply, Madison argues that history demonstrates that religion flourishes most freely when it is not supported by the state, and that the state should not impose religion on its citizens.


Source of Information: James Madison on Religious Liberty, by Robert Alley, Prometheus Books, N Y, 1985, pp 86-88)


Eager to confirm his views, Jasper Adams sent copies of the printed sermon to numerous influential Americans, requesting that they respond to his arguments and offer their own opinions on the subject of his sermon. "If it suits the much respected patriot & statesman to whom this is sent, to write the author a few lines expressive of his opinion of the validity of the argument herein contained, it will be received as a distinguished favour." Rev Jasper Adams.

February 13, 1833

THE RELATION OF CHRISTIANITY TO CIVIL

GOVERNMENT IN THE UNITED STATES:

SERMON,

Preached in St. Michael's Church, Charleston,

FEBRUARY 13TH , 1833

BEFORE

THE CONVENTION

of the

PROTESTANT EPISCOPAL CHURCH

of the

DIOCESE OF SOUTH-CAROLINA:

By REV. J. ADAMS,

PRESIDENT OF THE COLLEGE OF CHARLESTON OF CAROLINA;

AND (EX-OFFICIO) HORRY PROFESSOR OF MORAL AND POLITICAL PHILOSOPHY

Published at the request of the Bishop and Clergy of the Protestant

Episcopal Church of the Diocese of South-Carolina.

CHARLESTON:

PRINTED BY A. E. MILLER,

No.4 Broad-street

1833.

__________________________

The following letters are [some of those returned to him] reprinted from copies of the original letters sent to Adams, which he personally transcribed and attached to his own copy of the first printed edition of the sermon.

MAY 9, 1833

FROM JOHN MARSHALL

Richmond May 9th 1833.

Reverend Sir,

I am much indebted to you for the copy of your valuable sermon on the relation of Christianity to civil government preached before the convention of the Protestant Episcopal Church in Charleston, on the 13th of Feb. last. I have read it with great attention & advantage.

The documents annexed to the sermon certainly go far in sustaining the proposition which it Is your purpose to establish. One great object of the colonial charters was avowedly the propagation of the Christian faith. Means have been employed to accomplish this object, & those means have been used by government.

No person, I believe, questions the importance of religion to the happiness of man even during his existence in this world. It has at all times employed his most serious meditation, & had a decided influence on his conduct. The American population is entirely Christian, & with us, Christianity & Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, & did not often refer to it, & exhibit relations with it. Legislation on the subject is admitted to require great delicacy, because freedom [sic] of conscience & respect for our religion both claim our most serious regard. You have allowed their full influence to both.

With very great respect,

I am Sir, your Obedt.,

J. Marshall.

MAY 14, 1833

FROM JOSEPH STORY

Cambridge May 14, 1833.

Dear Sir,

I am greatly obliged to you for the copy of your convention sermon, which you have been pleased to send me. I have read it with uncommon satisfaction, & think its tone & spirit excellent. My own private judgement has long been, (& every day's experience more & more confirms me in it,) that government can not long exist without an alliance with religion to some extent; & that Christianity is indispensable to the true interests & solid foundations of all free governments. I distinguish, as you do, between the establishment of a particular sect, as the Religion of the State, & the Establishment of Christianity itself, without any preference of any particular form of it. I know not, indeed, how any deep sense of moral obligation or accountableness can be expected to prevail in the community without a firm persuasion of the great Christian Truths promulgated in your South Carolina constitution of 1778. I look with no small dismay upon the rashness & indifference with which the American People seem in our day to be disposed to cut adrift from old principles, & to trust themselves to the theories of every wild projector in to [?] religion & politics.

Upon the point, how far the constitution of 1790 has, on the subject of religion, superseded that of 1778, it is somewhat difficult for me to form a decisive opinion without some additional documents, showing the authority of the convention, which framed it, & the effect given to it. If (as I suppose was the case) the object of the constitution of 1790 was, to supersede that of 1778, & to stand as a substitute, (which has been the general construction in like cases of a general new[?] constitution) then, it seems to me, that the constitution of 1778 is by necessary implication repealed, except so far as any of its provisions are expressly retained. It does not strike me that the 2" section of the 8th article of 1790 retains any thing of the religious articles of that of 1778, but only provides that the existing rights &c. of religious societies & corporate bodies shall remain unaffected by the change of the constitution. The rights &c., here provided for, are the more private rights of those bodies, such as the rights of property, & corporate immunities; but not any rights as Christians or as Protestants to be entitled to the superior protection of the State. The first section of the 8th article seems to me intended to abolish all distinctions & preferences, as to the state, between all religious persuasions, whether Christian or other wise. But I doubt exceedingly, if it ought to be construed so as to abolish Christianity as a part of the antecedent Law of the Land, to the extent of withdrawing from it all recognition of it as a revealed religion. The 23d section of art. 1st seems to me manifestly to point to a different conclusion.

Mr. Jefferson has, with his accustomed boldness, denied that Christianity is a part of the common Law, & Dr. [Thomas] Cooper has with even more dogmatism, maintained the same opinion. I am persuaded, that a more egregious error never was uttered by able men. And I have long desired to find leisure to write a dissertation to establish this conclusion. Both of them rely on authorities & expositions which are wholly inadmissible. And I am surprised, that no one has as yet exposed the shallowness of their enquiries. Both of them have probably been easily drawn into the maintenance of such a doctrine by their own skepticism. It is due to truth, & to the purity of the Law, to unmask their fallacies.

I am gratified by your favourable opinion of my Commentaries on the constitution. If I shall be thought to have done anything to aid in perpetuating the true exposition of its rights & powers, & duties, I shall reap all the reward I desire. The Abridgment for colleges & schools will be published next week. I hope it may be found a useful manual.

I cannot conclude this letter without thanking you again for your sermon. These are times in which the friends of Christianity are required to sound the alarm, & to inculcate sound principles. I fear that infidelity is make [sic] rapid progress under the delusive guise of the freedom of religious opinion & liberty of conscience.

Believe me with great respect,

Your obliged servant,

Joseph Story.

SEPTEMBER, 1833

FROM JAMES MADISON

Montpelier September 1833. private

Dear Sir,

I received in due time, the printed copy of your Convention sermon on the relation of Xnity to Civil Gov' with a manuscript request of my opinion on the subject.

There appears to be in the nature of man what insures his belief in an invisible cause of his present existence, and anticipation of his future existence. Hence the propensities & susceptibilities in that case of religion which with a few doubtful or individual exceptions have prevailed throughout the world.

Waiving the rights of Conscience, not included in the surrender implied by the social State, and more or less invaded by all religious Establishments, the simple question to be decided is whether a support of the best & purest religion, the Xn religion itself ought, not so far at least as pecuniary means are involved, to be provided for by the Govt rather than be left to the voluntary provisions of those who profess it. And on this question experience will be an admitted Umpire, the more adequate as the connection between Govts & Religion have [has] (1) existed in such various degrees & forms, and now can be compared with examples where connection has been entirely dissolved.

In the Papal System, Government and Religion are in a manner consolidated, & that is found to be the worst of Govts.

In most of the Govt of the old world, the legal establishment of a particular religion and without [any] (2) or with very little toleration of others makes a part [pact?] (3) of the Political and Civil organization and there are few of the most enlightened judges who will maintain that the system has been favorable either to Religion or to Govt.

Until Holland ventured on the experiment of combining [liberal] (4) toleration with the establishment of a particular creed, it was taken for granted, that an exclusive [& intolerant](5) establishment was essential, and notwithstanding the light thrown on the subject by that experiment, the prevailing opinion in Europe, England not excepted, has been that Religion could not be preserved without the support of Govt nor Govt be supported with an established religion, that there must be a least an alliance of some sort between them.

It remained for North America to bring the great & interesting subject to a fair, and finally to a decisive test.

In the Colonial State of the Country, there were four examples, R. I, N. J., Penna, and Delaware, & the greater part of N. Y. where there were no religious Establishments; the support of Religion being left to the voluntary associations & contributions of individuals; and certainly the religious condition of those Colonies, will well bear a comparison with that where establishments existed.

As it may be suggested that experiments made in Colonies more or less under the Control of a foreign Government, had not the full scope necessary to display their tendency, it is fortunate that the appeal can now be made to their effects under a complete exemption from any such Control.

It is true that the New England States have not discontinued establishments of Religion formed under very peculiar circumstances; but they have by successive relaxations advanced towards the prevailing example; and without any evidence of disadvantage either to Religion or good Government.

And if we turn to the Southern States where there was, previous to the Declaration of Independence, a legal provision for the support of Religion; and since that event a surrender of it to a spontaneous support by the people, it may be said that the difference amounts nearly to a contrast in the greater purity & industry of the Pastors and in the greater devotion of their flocks, in the latter period than in the former. In Virginia the contrast is particularly striking, to those whose memories can make the comparison.

It will not be denied that causes other than the abolition of the legal establishment of Religion are to be taken into view in account for the change in the Religious character of the community. But the existing character, distinguished as it is by its religious features, and the lapse of time now more than 50 years since the legal support of Religion was withdrawn sufficiently prove that it does not need the support of Govt and it will scarcely be contended that Government has suffered by the exemption of Religion from its cognizance, or its pecuniary aid.

The apprehension of some seems to be that Religion left entirely to itself may into extravagances injurious both to Religion and to social order; but besides the question whether the interference of Govt in any form wd not be more likely to increase than Control the tendency, it is a safe calculation that in this as in other cases of excessive excitement, Reason will gradually regain its ascendancy. Great excitements are less apt to be permanent than to vibrate to the opposite extreme.

Under another aspect of the subject there may be less danger that Religion, if left to itself, will suffer from a failure of the pecuniary support applicable to it than that an omission of the public authorities to limit the duration of their Charters to Religious Corporations, and the amount of property acquirable by them, may lead to an injurious accumulation of wealth from the lavish donations and bequests prompted by a pious zeal or by an atoning remorse, Some monitory examples have already appeared.

Whilst I thus frankly express my view of the subject presented in your sermon, I must do you the justice to observe that you very ably maintained yours. I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions & doubts on unessential points. The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded agst by an entire abstinence of: the Govt from interference in any way whatever, beyond the necessity of preserving public order, & protecting each sect agst trespasses on its legal rights by others.

I owe you Sir an apology for the delay in complying with the request of my opinion on the subject discussed in you sermon; if not also for the brevity & it may be thought crudeness of the opinion itself, I must rest the apology on my great age now in its 83rd year, with more than the ordinary. infirmities, and especially on the effect of a chronic Rheumatism, combined with both, which makes my hand & fingers as averse to the pen as they are awkward in the use of it.

Be pleased to accept Sir a tender of my cordial & respectful salutations.

James Madison

Source of Information: Letter written by James Madison to Rev. Jasper Adams, September, 1833. Writings of James Madison, edited by Gaillard Hunt, microform Z1236.L53, pp 484-488.


Analysis

A comparative analysis of two of Joseph Story's exposes the complex nature of this influential man: From his Commentaries, we find:

Section 1841. The remaining part of the clause declares, that " no religious test shall ever be required, as a qualification to any office or public trust, under the United States." This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any religious test, or affirmation. It had a higher object; to cut off for ever every pretence of any alliance between church and state in the national government.

The framers of the constitution were fully sensible of the dangers from this source, marked out in the history of other ages and countries; and not wholly unknown to our own.

[Commentaries on The Constitution of The United States by Joseph Story VOL III, Page 705-707. De Capo Press Reprints in American Constitutional And Legal History series, Da Capo Press NY 1970. Joseph Story's Commentaries were originally published beginning in January 1833]

Now compare that to this excerpt from his letter [as above] to Rev Jasper Adams

I am greatly obliged to you for the copy of your convention sermon, which you have been pleased to send me. I have read it with uncommon satisfaction, & think its tone & spirit excellent. My own private judgement has long been, (& every day's experience more & more confirms me in it,) that government can not long exist without an alliance with religion to some extent; & that Christianity is indispensable to the true interests & solid foundations of all free governments. I distinguish, as you do, between the establishment of a particular sect, as the Religion of the State, & the Establishment of Christianity itself, without any preference of any particular form of it. I know not, indeed, how any deep sense of moral obligation or accountableness can be expected to prevail in the community without a firm persuasion of the great Christian Truths promulgated in your South Carolina constitution of 1778. . .

Do you note the differences between the two items presented above?

In the first excerpt, Story is stating what he believes was the actual intent of the framers when they added that particular clause to the wording of the Constitution. In the excerpt from the letter to Jasper Adams, Story is giving his personal opinion and belief.

Which of those shows up time and time again in his Commentaries regarding his interpretation of the 1st Amendment religious clauses? The first or second of the two above?

In those discourses on the religious clauses of the 1st Amendment, Joseph Story does not once mention the framers of the Constitution or framers of the amendments. He does not once mention the founding fathers. Instead Joseph Story looks for authority to European History, the Philosophers of the past, English Common Law, etc to give authority to his own personal opinions. He mentions: "The history of the Parent country (England)", "laws of England," "Mr. Justice Blackstone," "Montesquieu," "Mr. Justice Blackstone," "Montesquieu," "Mr. John Locke," "the parent country," "Massachusetts Constitution," "history of the parent country," "New England" (incorrectly stating the Church of England was the main church) "Mr. Justice Blackstone."

In his comments on the *No religious tests* clause, he cites the framers of the Consitution as his authority for its meaning.

Why wouldn't he cite the Americans who wrote it? Why wouldn't he cite any of the following as any kind of authority or at least clues as to intent or meaning, for example? All of the following were events that had taken place before he wrote his comments on the Religious Clauses in his Commentaries.

For additional information, please see:

  • the section "Establishment and Free Exercise Clauses only Reinforced Separation of Church and State" in the Table of Contents
  • the article No Power to Congress over Religion: The "Elastic Clause" and the 1st Amendment
  • Original Intent: Introduction What intent, whose intent?

All the above shows that separation of church and state was a concept which was embodied in the unamended constitution in 1787 and which was known and understood in those times.

In short, why wouldn't Story have understood, especially since he accurately defined the separation clause of the unamended constitution, that the religious amendments only reinforced the separation between religion and government, only closed what some had thought to be potential loophole in language? In short, the religious amendments made it doubly clear that church and state were separated, or in his own words " It had a higher object; to cut off for ever every pretence of any alliance between church and state in the national government." The religious clauses of the amendments only restated the concept.

How does Story come up with this:

" I distinguish, as you do, between the establishment of a particular sect, as the Religion of the State, & the Establishment of Christianity itself, without any preference of any particular form of it."

from this:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,. . . "

Story was calling for an establishment of religion, a [to use a modern word] generic form of Protestant Christianity.

Somehow he has taken this:

" no religious test shall ever be required, as a qualification to any office or public trust, under the United States."

Which he already defined as meaning -- "to cut off for ever every pretence of any alliance between church and state in the national government." Added

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,. . . "
and come up with the idea that establishment [accommodation] of Protestant Christianity was just fine.

Of course, he did forget to quote the clause in the Constitution that gave Congress authority to do that. Instead he talks about Blackstone, English Common Law, other European philosophers, Massachusetts laws, and traditions, European history, etc none of which is relevant to giving Congress authority that is withheld by the Constitution.


Of the eleven states that ratified the 1st Amendment, nine (counting Maryland) adhered to the viewpoint that support of religion and churches should be voluntary, that any government financial assistance to religion constituted an establishment of religion

Source of Information: The First Freedoms, Church And State in America to The Passage of The First Amendment, by Thomas Curry, page 220)

The First Amendment bans laws respecting an establishment of religion. Most of the framers of that amendment very probably meant that government should not promote, sponsor, or subsidize religion because it is best left to private voluntary support for the sake of religion itself as well as for government, and above all for the sake of the individual. Some of the framers undoubtedly believed that government should maintain a close relationship with religion, that is, with Protestantism, and that people should support taxes for the benefit of their own churches and ministers. The framers who came from Massachusetts and Connecticut certainly believed this, as did the representatives of New Hampshire, but New Hampshire was the only one of these New England states that ratified the First Amendment. Of the eleven states that ratified the First Amendment, New Hampshire and Vermont were probably the only ones in which a majority of the people believed that the government should support religion. In all the other ratifying states, a majority very probably opposed such support. But whether those who framed and ratified the First Amendment believed in government aid to religion or in its private voluntary support, the fact is that no framer believed that the United States had or should have power to legislate on the subject of religion, and no state supported that power either.

Source of Information: The Establishment Clause, Religion and the First Amendment, By Leonard W Levy, page 146-147)

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