18th Century Politics and the Religion Clauses

[Stephen M. Feldman]

I would like to clarify a couple of points.  First, in my opinion,
governmental disestablishment should not be viewed as if it were captured
in a single event, the adoption of the first amendment.  Instead, it is
best viewed as, at a minimum, occurring over many decades, going back to
the colonial time of the Great Awakening.  It was the emergence of new
Protestant sects during the Great Awakening that led to, what Thomas Curry
has called, multiple establishments, a departure from the unified
establishment of the Church of England.  And of course, the process leading
to full governmental disestablishment in all the states continued into the
early nineteenth century.

Second, I do not use the term, "a special interest power grab."  When I
note that freedom of conscience was protected as a fundamental tenet of
Protestantism, I do not mean to suggest that American Protestants were a
special interest group that illegitimately used their power for their own
benefit.  The explicit protection of freedom of conscience can be traced
back to the proposed constitutional documents of the English Civil War
period.  In the North American colonies and the early years of nationhood,
the overwhelming Protestant nature of the population rendered the
protection of freedom of conscience a given.  That is, for the early states
not to protect freedom of conscience (or free exercise) would have been
rather remarkable.

Stephen M. Feldman
Professor of Law and Political Science
University of Tulsa

At 01:11 PM 10/2/97 -0500, you wrote:
>        Stephen Feldman notes that there were many in the revolutionary and
>early national period who defended free exercise and establishment.  This is
>true.  They were almost uniformly adherents of the established churches, the
>Anglicans in the South and the Congregationalists in the North.  They lost.
>
>        Support for disestablishment came from the dissenting sects and from
>a handful of intellectuals like Madison and Jefferson.  It is also clear
>that Madison acquired these views at Princeton, then a New Light
>Presbyterian College and a center of evangelicalism.  The political muscle
>came from the dissenting sects, mostly Baptists and Presbyterians.  The
>Baptists pulled Madison back into position in the elections to the First
>Congress, backing him off the position of the Federalist Papers that no Bill
>of Rights was necessary.  This basic story has been told by lawyers and
>scholars with impeccable separationist credentials, including Leo Pfeffer
>and Leonard Levy.
>
>        I do not think it follows from this that the Establishment Clause
>and the Free Exercise Clause mean the same thing, and I did not mean to
>suggest that.  I do think it means that they are both designed to protect
>religious minorities against state-supported views on religion, but they are
>aimed at different threats.  I also think it is implausible to view the
>Establishment Clause as designed to silence or privatize religious speech on
>public issues; that gets the political forces backwards.
>
>        On a related point, it was suggested in an earlier discussion that
>the Free Exercise Clause might have been a special interest power grab.
>This too is implausible in my view, although it is true that the emerging
>political power of the dissenting sects is an important part of why the
>Religion Clauses happened when they did.  But this was the emerging power of
>a growing minority that had been oppressed, not an entrenchment by a
>dominant special interest.  And as Professor Feldman notes, the Free
>Exercise Clause had near universal support; it was the Establishment Clause
>that was pushed through by a determined faction.  I don't think either
>clause was special interest legislation, but the one more vulnerable to the
>charge would be the Establishment Clause.   I don't know that anything
>follows from that, because the faction that pushed it through is not the
>faction that emphasizes it today.
>
>
>
>
>Douglas Laycock
>University of Texas Law School
>727 E. Dean Keeton St.
>Austin, TX  78705
>        512-471-3275 (voice)
>        512-471-6988 (fax)
>        dlaycock at mail.law.utexas.edu
>