Thursday, July 24, 2014

Virginia Statute for Religious Freedom, Part III: Precedents

Though Jefferson’s 1779 Statute represents a defining moment in the history of American civil rights, its passage was not the first occasion when Americans or their colonial forbearers attempted to make freedom of conscience a part of their laws. That being said, few of these other attempts went as far as Jefferson was willing to go to guarantee absolute freedom from religious persecution. Taken together, though, they might be said to demonstrate both that freedom of conscience was a topic very much on the minds of many of the American colonists for decades before and after the Revolution took place, and that Thomas Jefferson was perhaps the most radical among them, and the most willing to see their shared philosophical ideal out to its logical conclusion.  

Though the colonies of Pennsylvania and Rhode Island are most well-known for having promoted religious liberty from a period very early in their respective histories, in the context of 17th-and-18th-century North America they were far from the norm. It is also, I think, worth noting that while Rhode Island’s charter guaranteed unqualified liberty of conscience, Pennsylvania’s only allowed unrestricted worship and participation in government to believers in a monotheistic faith (that is, someone who believes in the existence of a single god or deity). Granted, outside of whatever Native Americans may have resided within the borders of the colony (who would not have been afforded full civil rights anyway) there was virtually no one to whom this restriction would have applied. Nevertheless it is a restriction, of a kind, and one that was reinforced and strengthened by the subsequent Pennsylvania constitution of 1776. This document stated that each member of the legislature, before they took their seat, must acknowledge the existence of the one, true God, and that the Old and New Testaments were the products of his divine inspiration.

Similar qualifications were all too typical of the colonial and later state governments. New York, for example, had been granted a degree of religious liberty by its proprietor, the Duke of York (later King James II). A fervent Catholic, the Duke was no friend of the Church of England and permitted the inhabitants of his colony to belong to whichever church they preferred (though it was clear they had to belong to some kind of church). This state of affairs was later undone when the Duke ascended the throne in 1685 and New York became a crown colony, placing it within the orbit of the British government and its Anglican allies. Certain of the later state governments made similar efforts to ease existing restrictions on religious liberty, but almost always with reservations.

The first constitutions of both Massachusetts and New Jersey attempted to guarantee the people’s freedom of conscience, but did so without completely abandoning an explicit religious preference. While the 1780 Massachusetts constitution stated that every person had the right to worship, “in the manner and season most agreeable to the dictates of his own conscience,” it also made provisions for the levying of taxes intended to pay for “the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality.” New Jersey’s constitution was even more direct, mandating that in accordance with the prohibition of any kind of religious establishment, “no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles.” Though these sorts of provisions were no doubt drafted with the best of intentions, they effectively disenfranchised, or made financially responsible for faiths not their own, however many Jewish or Catholic residents of Massachusetts or New Jersey there were in that era. While there may have been, in the 1770s or 1780s, few of either group residing in these states, it was the principle of religious liberty that Jefferson believed was important, and in need of protection and promotion, lest the United States fall into the well-worn habits of its former mother country.

And Britain’s would, indeed, prove to be an example to avoid. In spite of the brief reign of James II (during which a Catholic was officially the head of the Church of England), Britain’s prohibitions against political participation by non-Anglicans held fast for 150 years. It was not until 1828 that anyone was permitted to hold public office without taking Anglican communion, and not until 1829 were Catholics afforded the same privilege. The United States, in the same era, had enjoyed over 50 years of relatively peaceful coexistence between a variety of faiths, as Catholics, Anglicans, Methodists, Baptists and Puritans served alongside each other in Congress and in state assemblies. I would not go so far as to say that this was because of the influence of Jefferson’s Statute, but his was certainly among the first, and most philosophically grounded, attempts to enshrine the principle of unrestricted freedom of conscience in the laws of the United States. That freedom of religion was among the rights guaranteed by the First Amendment, held in as high esteem as free speech and freedom of the press, is telling of the Statute’s influence and of similar attempts made at the end of the 18th century to break away from the religious establishments that so dominated Americans’ shared British past.

Now, before I finish I’d like to touch on one last thing. The last section of the Statute is a sort of caveat, or a warning to future generations. It says, essentially, that though no group of elected officials (in this case the Virginia General Assembly) has the right to bind their successors to the decisions they chose to make, or prevent them from repealing whatever law they feel no longer serves their purpose, whoever chooses to repeal the Statute for Religious Freedom will be committing a crime against the laws of nature, and no doubt by extension “nature’s God.” This is such a fundamentally Jeffersonian thing to add, I find I couldn’t resist commenting on it.

Jefferson was, after all, a man who said or wrote at numerous points over the course of his lengthy career some variation on the phrase, “The earth belongs to the living.” It was a radical notion and he quoted it at length, maintaining that the dead should no more have the ability to decide what their successors can and can’t do, than a minister in Austria should be able to set the laws in Spain. And yet in the matter of freedom of conscience, among the most sacred of the natural rights he often championed, he was willing to violate one of his most dearly held principles, claim that his all-important Statute should never be repealed, and lay a moral injunction against those that would attempt to do so (in keeping with the rights he admits they possess). It’s among one of the most direct examples of Jeffersonian doublespeak, of his ability to claim a principle, violate it, and then assert that the violation actually reinforces the principle in question. Time and again he did this, on a variety of scales and with a variety of results, and for those who have studied the third president it’s one of his defining characteristics, and part of what makes him such a fascinating and at times elusive figure.

  But please, do see for yourself:

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