One of the most controversial issues that has reached the Supreme Court over the past several decades is the issue of the separation between church and state in America. At the heart of this issue are the Founders’ views of religious liberty. In order to get a better understanding of their views, courts and commentators have frequently referred to the Virginia disestablishment battle of 1776-1786. In Everson v. Board of Education (1947), Justice Rutledge said, "The great instruments of the Virginia struggle…became warp and woof of our constitutional tradition." 1 To what extent the Virginia debate should be used to interpret the First Amendment is an issue of great controversy, 2 but it has certainly been used extensively to interpret both the Free Exercise Clause and the Establishment Clause. 3 From this decade-long controversy emerged the two most celebrated documents concerning religious liberty in America: Thomas Jefferson’s Statute for Religious Freedom and James Madison’s "Memorial and Remonstrance." Madison and Jefferson were the leaders of the battle for disestablishment of the Anglican Church in Virginia, and they are cited more than any other American Founders for their views on religious liberty. Along with the Statute and "Memorial," the Virginia Declaration of Rights, which espoused the idea of freedom of conscience, was also a greatly influential document:

[B]y the time the last cannonade of the Revolution sounded, every state either had fashioned a separate bill of rights or had passed statutes with similar provisions. In a good many cases the work was done with scissors, pastepot, and a copy of the Virginia Declaration. 4

The other colonies looked to the Virginia struggle to see the varying alternatives for church-state relationships. John Adams wrote to Patrick Henry on June 3, 1776, "We all look up to Virginia for examples." 5 This is partly because Virginia was the home of some of the most noteworthy intellectuals and politicians of the time, such as George Washington, Patrick Henry, Thomas Jefferson, and the young James Madison. There was also a diverse body of dissenting sects that held a variety of views concerning the degree to which the church should be intermingled with the state. With this combination of intellectuals and evangelicals, Virginia provided a source for every type of argument regarding church-state relations. There were the rationalists such as Jefferson and Madison who argued that religion is a matter of opinion only which is not under the state’s jurisdiction. There were the traditional religionists who favored the establishment on the grounds that religion was necessary for virtue in society. Lastly, there were the evangelicals, such as the Baptists, who argued that the government should not interfere with religion because religious belief is a matter of the Holy Spirit, not compulsion. Clearly, the Virginia struggle has been the prime example, in its own time and even today, of the most important arguments regarding religious liberty and church-state relations.

Though Madison and Jefferson gave political arguments against establishments, particular attention should be given to their theological and religious arguments. They spoke of natural rights and freedom of conscience under social compact theory, but they also spoke of God as the "Governour of the Universe" who gave human beings such rights and created the mind to be free. Since God is the source of our natural rights, including the right to a free conscience, the theological arguments serve as a foundation for the political arguments regarding religious liberty. It was vitally important that Jefferson be able to convince his fellow legislatures of the truth of these arguments; for religious establishments were the norm at the time of the Founding, 6 and the concept of religious liberty was relatively new. 7 So, Jefferson had to persuade the legislators and the people, the majority of whom were Christians, that God actually authored religious liberty. "Although the majority of our citizens were dissenters…a majority of the legislature were churchmen." 8 The churchmen to whom he refers were men who belonged to the established Anglican Church in particular; the dissenters were mostly Baptists, Presbyterians, Quakers, Lutherans, etc. The battle over the establishment in Virginia, therefore, was grounded in arguments concerning theology, human nature, and the Christian understanding of church and state.

Disestablishment of the Anglican Church in Virginia would come from two main sources: the Revolutionary spirit that brought forth principles of freedom and equality and the evangelical revivals of the dissenting sects. 9 The Anglican Church had been the established church of Virginia since its early colonial days. 10 The earliest group of dissenters from the establishment was the Quakers, who first entered Virginia in 1657. 11 During the second half of the seventeenth century, they suffered intermittent and occasionally severe persecution as they formed communities in the colony. The Presbyterians were the first group of dissenters to begin requesting toleration in Virginia. Up until 1699, the Anglican Church was the only Christian denomination in the Commonwealth that was recognized by law. In that year, a Presbyterian minister obtained a license to preach on his own property, and this marked the beginning of Virginia’s recognition of the British Toleration Act of 1689. 12 The Presbyterians would soon become one of the most influential religious groups in Virginia, second only to the Anglicans. 13 They were outstripped in numbers, though, by the Baptists, who were the fastest growing group of dissenters in the colony on the eve of the Revolution. 14 The Baptists’ efforts on behalf of religious toleration were mostly felt in Tidewater and Piedmont Virginia, whereas the Presbyterians focused on the Shenandoah Valley. 15 The conservative Anglicans began to feel the threat of these two dissenting groups, so they decided the solution was a strict enforcement of the law against unlicensed preachers. Between 1768 and the outbreak of the Revolution, about thirty-four Baptist ministers were thrown in jail. 16 Even this would not stop them, however; many preached at the passersby through the bars of the jails. In 1772, some groups of Baptists began to petition for their rights as dissenters under the English Act of Toleration, but their efforts only resulted in the introduction of a new bill known as the Toleration Bill, which was even more burdensome than the English Act. 17 Both Baptists and Presbyterians petitioned the Assembly against this bill, but, due to the outbreak of the Revolution, the matter was postponed. It must be noted that none of these petitions prior to the Revolution ever made reference to the rights of conscience or even religious liberty. Though the Baptists would later become one of the leading sects to defend the concept of religious liberty, at this time, they were merely asking for toleration. The Toleration Bill failed after the Baptists finally made an organized attempt to secure religious liberty within the colony. They were the first to petition the Assembly to disestablish the Anglican Church, to let religion stand on its own, and to put all denominations on an equal legal footing. 18

Another petition from the Baptists was presented at the Virginia Convention in Williamsburg on May 6, 1776, which triggered the decade-long legislative battle for religious freedom in Virginia. The Convention was held to modify the political structure of Virginia in accordance with the Revolutionary situation. 19 Within a two month span, the convention issued a call to the Continental Congress for a declaration of independence, drafted their own Virginia Constitution and statement of liberties, and passed a number of bills addressing problems within the state, such as military defense. One pressing issue that was only vaguely dealt with, however, was the issue of church-state relations in Virginia. The Anglican Church was in a state of disarray by the eve of the Revolution. Its adherents numbered just barely a majority of the white population. 20 The Church was in an increasing state of lethargy, with clergy who were unfit for their positions and laity who from "loose principles and immoral practices, were often a scandal to their country and religion." 21 Part of the reason for this disarray was the Church’s opposition to the Great Awakening, a collection of religious revivals which had swept through the American colonies in the middle of the eighteenth century. 22 These revivalist groups preached Calvinist doctrines, along with stressing the role of feelings and imagination over reason, doctrine, and tradition. The Anglicans believed that these tenets were contrary to the order and use of reason that was essential to episcopal religious traditions, and they in fact tried to controvert the revivals. As the only principal denomination adamantly opposed to these revivals, the Anglican Church lost many of their members, who left to join the revivalist religious groups. Their opposition to these revivals was the chief cause of the condemnation of their clergy and "one of the leading causes of the overthrow of the establishment." 23

During the Virginia Convention of 1776, a committee was assembled which would draft a Virginia Declaration of Rights and plan of civil government. Members of the committee included George Mason and James Madison. Mason was the chief architect of the Declaration of Rights, drafts of which were copied and circulated all throughout the colonies in late May and June. The Declaration contained an article on religion, Article XVI, which was presented to the Convention on May 27th. This was one of the most controversial articles discussed at the Convention. The original draft read:

That religion, and the duty which we owe to our CREATOR, 24 and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under colour of religion, any man disturb the peace, the happiness, or safety of society. And that it is the mutual duty of all to practice Christian forbearance, love and charity, towards each other. 25

Madison objected to the word "toleration" because it may imply that religious exercise is a government-granted privilege rather than a natural right. He believed that this understanding of religious liberty was inconsistent with the freedom of conscience that was implicit within the first line of the draft. He replaced Mason’s "all Men should enjoy the fullest toleration in the Exercise of Religion" with the statement "all men are equally entitled to the full and free exercise of [religion] according to the dictates of Conscience." 26 He also proposed a clause which stated that no men or class of men should be invested with "peculiar emoluments or privileges" on account of religion. 27 This clause was unacceptable to most of the delegates, as it would have dissolved legal and financial support of the Anglican Church. Madison also changed Mason’s statement "unless, under Colour of Religion, any man disturb the Peace, the Happiness, or Safety of Society, or of Individuals" to the statement "Unless the preservation of equal liberty and the existence of the State are manifestly endangered." By doing this, he narrowed Mason’s clause "on disturbance of the peace down to the Lockeian principle of no interference with religion except to preserve civil society." 28 Once again, the Convention refused his amendments, fearing that they might diminish the link between Virginia and the Anglican Church. 29 The final draft, however, did contain Madison’s "equal entitlement" clause. The final version of Article XVI read:

That Religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity, towards each other. 30

Virginia historian Hamilton James Eckenrode reported the effect that this article had in the Commonwealth of Virginia: "[P]rosecution for religious causes ceased. Disabilities on account of religion were removed… Anglicans, Roman Catholics, Evangelicals, Jews, and unbelievers were placed on the same civil footing." 31 Unbelievers were expected to practice "Christian forbearance, love, and charity," but they were not persecuted for not adhering to the doctrines of the Christian religion. Though the article was carefully worded so as to avoid disestablishment, religious dissenters began to petition for the full recognition of the rights articulated in the Article, which they believed entailed disestablishment and an end to the privileges that were being given to the Anglican Church. They focused on changing specific policies such as licensure of the clergy, regulation of meetinghouses and assemblies, and the right of dissenters to have their own ministers perform their marriage ceremonies. 32 Petitions concerning these matters filled the first Virginia republican legislature, which was held in Williamsburg in October 1776. 33 Most of these petitions made direct references to the free exercise language of Article XVI.

On October 11, 1776, Edmund Pendleton, the Speaker of the House, assigned members to a Committee on Religion, including Thomas Jefferson and Robert Carter Nicholas. 34 Pendleton and Nicholas were Jefferson’s rivals in the religion debates; he referred to them as "honest men, but zealot churchmen." 35 This committee would have the task of dealing with at least ten major petitions from dissenters. Jefferson later wrote that these petitions "brought on the severest contests in which I have ever engaged." 36 In addition to these petitions, dissenters voiced their views in both Williamsburg Virginia Gazettes. 37 This triggered a press war in these newspapers which would last throughout the session. After two weeks of vigorous discussion, they found themselves in a deadlock. Accordingly, the issue was transferred to the House sitting as a Committee of the Whole, who then proceeded to debate the demands of the dissenters. During these debates, Jefferson drafted a set of resolutions as a basis for legislation. 38 This was his first extensive treatment of religious liberty. His resolves urged that all laws passed either in Britain or Virginia during the colonial period which restricted freedom of religious worship or belief be repealed. Secondly, he argued that all laws which established the Church in Virginia, granted its members privileges, and supported it through taxation should be revoked. The debates of the Committee of the Whole concluded on November 19th with a series of resolutions to the House that were in some ways conformable to Jefferson’s resolutions. They repealed acts of the British Parliament that criminalized religious opinion and worship or failure to attend church. 39 Some resolves exempted dissenters from forced support of the Anglican Church and said that citizens only had to support their own ministers voluntarily. The established church was allowed to keep all the goods it had at the time: glebes, churches, chapels, and anything received from public or private sources, but all religious groups from then on were to be based on voluntary participation. The resolutions differed from Jefferson’s in that they allowed the established church to keep their goods permanently, whereas Jefferson only wanted the incumbent ministers to be allowed to keep their goods; once they died, their property would belong to the state. 40 These resolutions were the starting ground for Jefferson’s Bill for Establishing Religious Freedom.

A committee of seventeen members, including Mason, Madison, and Jefferson was formed to draft a bill in conformity with the resolutions. However, the committee, which also included supporters of the establishment such as Robert Carter Nicholas, did not conform to the liberal goals that Jefferson and Madison had in mind. The committee was instructed to:

limit itself to those measures which pertained to tax exemption for dissenters and the reservation of the church property to the use of the establishment and to add provisions for the parish poor, the collection of the lists of tithables, and clerical salaries.41

By avoiding the more pressing issue of disestablishment, this November 30th bill essentially reaffirmed the delegates’ position in support of the establishment. Jefferson, who had taken a leave of absence from the legislative session, returned on December 4th to find Mason attempting to salvage some of the language used in the original November 19th resolutions. 42 He successfully amended the bill to include Jefferson’s clauses invalidating the British Parliament’s statutes on religious matters. Mason’s revisions to the "Bill Exempting Dissenters from Contributing to the Established Church" preserved much of the content and phraseology of the November 19th resolutions, but it did not reach Jefferson’s goal of complete disestablishment. The bill passed both the House and the Senate with minor amendments on December 5th. Neither dissenters nor the laity of the established church were taxed to support the establishment or even their own religious groups. Religion in Virginia had been put on a voluntary basis, though the Assembly still maintained a measure of control over the operations of the churches. Meetinghouses and preachers of dissenting religions still needed licenses; however, "the revolutionary situation and popular sentiment for the rights of conscience precluded any consistent or widespread enforcement of these laws, and they effectually lapsed." 43 Though Jefferson and his liberal allies were not yet satisfied with the situation in Virginia, they had certainly made significant progress:

Jefferson’s draft resolutions and legislation of late 1776 exempting dissenters from contribution to the support of the established church, refined by Mason’s pen, were necessary precursors to, direct forerunners of, the subsequent Virginia ’Statute for Establishing Religious Freedom.’ 44

The 1776 exemption act left unresolved the issue of a general assessment for the support of all churches. In fact, the very language of the act showed that the issue was deliberately left out: "nothing in this act contained shall be construed to affect or influence the said question of a general assessment, or voluntary contribution, in any respect whatever." 45 A general assessment would mean a taxation for all citizens in support of religion, allowing each citizen to choose which church his taxes would support. Proponents of a general assessment argued that it would be consistent with free exercise of religion because it encouraged citizens to fulfill the "duty which we owe to our Creator" and promoted the beneficent role of religion in public life without forcing citizens to support a specific religion. 46 Opponents, however, argued that it was still a form of establishment. The Separate Baptists drew up a declaration in which they expressed their disapproval of an assessment. They cited the fourth article of the Virginia Declaration of Rights, which said that no man or group of men was entitled to "exclusive or separate Emoluments or Privileges from the Community but in consideration of public Services." 47 An assessment would transform the ministers into public servants responsible to the government rather than just the laity. They even declared that if an assessment should become law, they would return their portion of the tax money to the people. The Hanover Presbytery also drew up a memorial in opposition to the assessment. The first group of petitions to request an assessment directly was presented to the House in December 1777 from Caroline County. 48 In 1778, two more petitions were submitted to the Assembly requesting financial support of the clergy. This issue would rise again in heated legislative debates in 1779 and in the mid-1780s, but at this point there were signs that the legislature was moving in the direction toward disestablishment. 49 First, they rejected a Cumberland County petition to maintain the Church in all its legal rights and supervise its clergy. Second, without being influenced by a petition to do so, the House ordered the drafting of a bill which would remove the exclusive prerogative of performing marriages from the established clergy.

Though the 1776 legislation permanently exempted dissenters from being forced to support the Anglican Church, the suspension of salaries of the Anglican clergy was only temporary. This temporary suspension was inadvertently advantageous to Anglicans who did not want to support their own clergy. They merely had to declare themselves to be "dissenters" so that they would be exempt from supporting them. 50 However, this being only temporary, the question of tax support of clergy remained open. This created great turmoil for the clerical ranks of the Anglican Church. Vestries 51 were in a growing state of disorder and even facing the possibility of dissolution. Not only were the Anglican clergy in a state of confusion, but the dissenters were as well. Though Article XVI of the Declaration of Rights had been in place for three years, the nature of church-state relations within Virginia was still unclear. By 1779, disestablishmentarians in the legislature demanded a more precise settlement of the church-state question, which would include a permanent suspension of taxation for support of the clergy. Because of this, the spring legislative session in Virginia would prove to be vital for resolving the many church-state issues that had been in debate for the past few years.

On June 4, 1779 the House appointed a committee, which was composed of George Mason, Jerman Baker, and John Harvie, to prepare two bills: one for religious freedom and another to preserve the property which was already acquired by the established church. The committee submitted two bills from Virginia’s revised code, 52one being Jefferson’s Bill for Establishing Religious Freedom. 53 The House voted to defer the matter, and this gave the legislatures an opportunity to attain public support for their legislative aims. Thomas Jefferson, who was the strongest proponent for disestablishment, was not present at the committee because he was elected to succeed Patrick Henry as governor in early June. "The removal of his forceful voice from legislative deliberation frustrated the liberal campaign for church-state separation." 54 The Committee for Religion was also ordered to prepare a bill for "farther [sic] suspending the payment of salaries heretofore given to the clergy of the Church of England." 55 It was passed by the House on June 17th. The spring session ended, and Jefferson’s bill survived two readings before the House voted to postpone further consideration of it to August 1st, without further clarifying the issue of the relation between church and state. 56

The November 1779 legislative session was flooded with petitions for and against Jefferson’s bill, in addition to the petitions which had already accumulated since the Revolution. Jefferson’s bill had been printed and copied, probably at private expense, and was circulated to various counties and interested people. 57 Opposition to the bill dominated the pages of the Virginia Gazette. "[T]he reaction in the press and the religious petitions clearly showed that the weight of public opinion favored some form of governmental intervention in religious matters, and this sentiment found support in the House of Delegates." 58 For example, a long petition from Lancaster County argued that passage of the bill would lead to a "Licentious Freedom subversive of true piety and civil Society." 59 Because of this, Jefferson’s bill was not even considered. On October 25th, the conservatives in the legislature introduced a general assessment bill for the "encouragement of Religion and virtue" and for the "Support of Religious Teachers and places of Worship." 60 The bill declared that the Christian religion would be the established religion of the commonwealth; all denominations of Christianity would enjoy equal civil and religious privileges. It offered toleration to all people and religious societies who acknowledged that there is one God who ought to be publicly worshipped and who acknowledged a future state of rewards and punishments. The bill provided civic privileges, such as the fruits of the general assessment, to those religious societies which ascribed to five articles of faith, which included the belief that the Christian religion is the true religion. 61 The second half of the bill was concerned with assessment. Each person was to choose a religious society within the establishment to support through taxes in the form of money or tobacco. 62 "This initiative was welcomed by petitioners seeking robust legislative action to encourage Christianity and restore public virtue, which were said to be in decline since the state had begun dissolving its legal and financial bonds with the church." 63 The bill passed its first reading on the day it was introduced to the House. Again, the press printed several articles defending the measure, including another one attacking Jefferson’s bill. It was vigorously debated in the legislature and amongst the public because it was hard to reconcile with Article XVI. The delegates were well aware of this. On November 15, 1779, the bill was set aside for future consideration, but it would never be considered again. One small section of the bill was reclaimed though. 64 On November 18th, Mason presented a bill which would repeal the portion of the December 1776 exemption that had been temporality suspended, the portions which provided salaries for clergy and authorized the collection and payment of parish levies. The bill was passed on December 13th, and it finally ended all direct support of the former established church.

The pressures of war began to distract the legislature, and the church-state debates were not revived until the autumn legislative session of 1784, which was flooded with petitions requesting an assessment for the support of teachers of the Christian religion. Many of these petitions made reference to nations which had fallen because of a decline in religion, along with reporting that the morality in the Commonwealth was decreasing at an alarming rate since the end of the Revolutionary War in 1781. They argued that financial support would encourage good candidates for the ministry, and some even argued that, since religion was a benefit to the entire society, every citizen should be required to contribute to it. 65 Once again, there were also Virginia Gazette articles emphasizing the need for public virtue aided by religion. 66 Consequently, on November 11th, the House went into a Committee of the Whole to debate the assessment issue. Patrick Henry 67 was the main proponent for an assessment, 68 while Madison was the leader of the assessment opponents. "[I]t is clear that most Protestants in Virginia at the time favored the encouragement of religion by the state through financial aid to the Christian churches." 69 Apart from Madison, there is little evidence that there was much opposition to a general assessment in the Assembly, especially since Jefferson was in Europe as an ambassador to France. As the battle over assessment began, Henry was clearly taking a winning lead. 70 He persuaded his colleagues to adopt a resolution by a vote of 47 to 32 that stated that the people of the Commonwealth ought to pay an annual tax or contribution for the support of the Christian religion or some Christian church, group, denomination, or form of worship. 71 Henry was appointed to chair a committee which would draft a bill for a general assessment. The anti-assessment side of the legislature received another blow the following day when their supposed allies, the Presbyterians, submitted a remonstrance in which they requested an assessment. 72 Their remonstrance argued that although religion does not need the support of government, government needs the support of religion in order to preserve the social fabric and maintain justice. 73 The Presbyterians would eventually return to the side of Jefferson and Madison, but this was not until all hopes of a general assessment were dashed. The Presbyterians as a body did not endorse Jefferson’s bill until August of 1785, five years after the bill was proposed. 74

It was clear that the liberal cause of Jefferson and Madison was being defeated. However, Henry’s political career got in the way of his legislative aims when he was elected governor on November 17, 1784. 75 Chances are, after seeing the open governor seat as an opportunity to get Henry out of the legislature, Madison took part in gaining support for Henry’s unopposed election. 76 With Henry out of the picture, Madison took the opportunity to rally citizens around his cause. By late November and into December, petitions opposing the assessment began to surface because of Madison’s efforts. 77 Henry’s efforts were not finished, however. His "Bill Establishing a Provision for Teachers of the Christian Religion" 78 was presented before the House on December 2nd. It provided for a moderate tax with an unfixed rate upon all taxable property for the support of ministers or teachers of the Christian religion. Each taxpayer would designate a denomination of his preference, and the taxes of those who did not specify a denomination would go to support some other pious use. 79 This bill was different from the 1779 general assessment bill in two ways: it did not contain five creeds to which participating religions must subscribe, and it did not declare Christianity to be the established religion. 80

After three readings in the House, the bill was postponed at the request of opponents of an assessment. 81 They further requested that the bill be copied and distributed throughout the Commonwealth so that citizens could signify their opinion on the matter. Twelve copies of the handbill were to be given to each member of the Assembly for distribution in his own county, and it was requested that the members of the county signify their opinion regarding the adoption of such a bill. 82 At first Madison wanted to wait quietly for opposition to the bill to accumulate, but he was advised that his side may not be represented well in petition if he did not write something to the Assembly. George Nicholas wrote to Madison in April 1785 that a "majority of the counties are in favor of the measure but…a great majority of the people are against it; but if this majority should not appear by petition the fact will be denied." 83 Consequently, Madison was persuaded to write his "Memorial and Remonstrance Against Religious Assessments" 84 and distribute it anonymously. Brothers Nicholas and George Mason paid to have the "Memorial" printed and circulated throughout the Commonwealth. 85 The effort proved to be successful; Madison said that it was "so extensively signed by the people of every Religious denomination, that at the ensuing session, the projected [assessment] measure was entirely frustrated." 86 In fact, the "Memorial" was only one of a flood of petitions opposed to Henry’s proposed legislation. Out of more than 100 memorials regarding the assessment, only eleven of them supported it. 87 For every one man who signed a petition in favor of the bill, twelve men signed one against it. 88 Though Madison’s "Memorial" has certainly gained more attention today than any of the other petitions that were signed, it was not the most popular at the time. The petitions from the evangelicals who argued that establishments are contrary to the Christian gospel were the most extensively signed. In fact, the petition which gained the most signatures was written by an unnamed Christian from Westmoreland County. While Madison’s "Memorial" had gained two thousand signatures, this petition gained five thousand—nearly half of the total signatures opposed to the assessment. 89

After only brief consideration in the fall of 1784, Henry’s bill died quietly in committee without even being brought before the House. 90 The people had spoken. The sentiment had clearly shifted to the liberal side of Jefferson and Madison. The public enthusiasm for the "Memorial" encouraged Madison to pull Jefferson’s 1779 bill off the shelf on December 14, 1785 and push for its passage. After minor amendments, the House voted in favor of the bill with a sweeping majority of 74 to 20. 91 The Senate proceeded to debate the House regarding amendments to the bill, but after reaching a compromise, the bill was signed by the Speaker on January 19, 1786. Jefferson’s bill finally became law after waiting since June 1779. Madison wrote that Jefferson’s bill "extinguished forever the ambitious hope of making laws for the human mind." 92 Jefferson’s vision of establishing religious freedom in Virginia was finally realized. 93 Subsequently, there arose a religious revival in Virginia amongst the sects which had gained their equal standing in the state. 94 Thousands of Virginians were converted and baptized. Though the Baptists certainly took the lead in the revivals, every denomination other than the former established church prospered as well. The Baptists, who played a great role in the fight for religious freedom, now had the most numerous congregations of any denomination in the state.

It has been shown that several factors contributed to the eventual disestablishment of the Anglican Church. The clergy was in a state of corruption and confusion, the laity diminished as they converted to the revivalist denominations in great numbers, and the dissenters rose up and began to demand toleration after being persecuted for decades. The social, economic, and religious situation in the Commonwealth created an urgent need for a solution that could only come from a dramatic change in the relationship between the Church and the state. Yet, even while the dissenters demanded specific changes, the solution to the problem was still not clear. It would not be made clear until the theological and political arguments for religious liberty were articulated. The public sentiment towards establishment began to change as the reasons for disestablishment were laid forth. The public wanted the Anglican Church disestablished because they witnessed its negative effects, but they did not begin to oppose a general assessment until they understood that any form of establishment was an infringement of their natural rights. This understanding would come only when petitions and memorials were circulated throughout the counties. The public was presented with the arguments from both sides until they were finally persuaded that any form of establishment would harm their rights, the churches, and the society itself. Once they understood this, they embraced the truth of the arguments laid forth in Jefferson’s bill, which allowed for its quick passage.

Though the citizens of eighteenth century Virginia heard the arguments from both sides of the debate, only one side is commonly heard today. When courts and commentators reflect on the establishment situation in Virginia, they usually only make reference to the documents of Jefferson and Madison. It is as if there was a sudden transformation of the situation once the citizens and legislators were enlightened to the reasoning of Jefferson and Madison. However, the history clearly shows that it was not that simple; Jefferson and Madison were faced with opposition that was also founded on solid arguments and reasoning. Chapter Two will examine the theological and epistemic foundations of Jefferson’s religious liberty arguments, along with his understanding of human nature, which shaped his Bill for Establishing Religious Freedom. Chapter Three will explain the political arguments regarding religious liberty that were articulated in Madison’s "Memorial and Remonstrance." Finally, in Chapter Four, the arguments of their opponents will be examined in order to determine if Jefferson and Madison’s victory in the battle for religious liberty was not merely political, but a result of true and unassailable principles.

It has been shown that Thomas Jefferson played a pivotal role in the disestablishment struggle, though it took years for his Bill for Establishing Religious Freedom to finally reach passage. In order to gain victory in the battle over the establishment, Jefferson had to convince those in favor of it that it was actually inconsistent with the principles of the Christian religion. Himself proclaiming to be a Christian of a sort, he argued that God has actually showed us that religious establishments are against His will when He created the human mind free. If God Himself does not coerce the mind, then certainly He would be displeased if human institutions attempted to do so. However, those in favor of the establishment embraced the view that established churches were in fact pleasing to God because they served to spread the truth of the Christian religion. Thus, Jefferson needed to be able to convince the Virginians of a theology that was in favor of religious liberty.

Theology and Freedom of the Mind

Jefferson’s Bill for Establishing Religious Freedom is the document which eventually secured religious liberty for the Virginians, and it is also his most extensive treatment of the subject. This chapter will discuss each of Jefferson’s arguments in the order that they appear in the Bill. He begins with an epistemic view of how men come to their religious conclusions:

Well aware that the opinions and beliefs of men depend not on their own will, but follow involuntarily from the evidence proposed to their minds; 95

Men’s opinions are formed not by their own choice, but by evidence proposed to their minds—by things they witness and understand. The evidence alone determines what the opinion will be. Thus, a man does not actually decide whether or not to believe something. The will plays no role in forming religious opinions. 96

In the next section of the Bill, Jefferson uses God’s relationship with man to establish what powers the magistrate can or cannot have.

That Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;

Jefferson is arguing that religious liberty is founded on none other than God’s own will. He interprets God’s will by first examining how God restrains His own power over creation. As God is Almighty, He has the power to coerce men both in their bodies and in their minds. God could have chosen to make men such that they must acknowledge His presence and even worship Him, since He has the power to coerce the mind and body of men. If anyone could exercise power over the mind and body, certainly it would be the Creator of both. Yet, in all His power, He still chose not to coerce either. In fact, He made the mind "altogether insusceptible of restraint," thus proving that He wills that no one attempt to hinder the freedom that He placed on it. There is an inference here that any power which God does not exercise in His own will—even though He does have that power in full—should likewise not be exercised by any created authority.

Jefferson believes that there are three necessary conditions for the mind to be free, or to come to a conclusion on its own. First, it must be enlightened to evidence. Since thoughts only arise as a result of evidence, then certainly evidence must be presented before the mind. Second, the mind must have the ability to contemplate such evidence. In a letter to his nephew Peter Carr, Jefferson instructs him to contemplate religion because, at his age, Carr’s reason was "mature enough to examine this object." 97 Jefferson believes that only fully developed reason has the ability to contemplate such things. Third, a man must be able to do this without fear of being harmed. In order for a man to truly believe something, his belief in it must not be a result of some fear of what will happen to him if he believes otherwise. He should not be punished for beliefs over which he has no control, according to Jefferson.

Yet what exactly does Jefferson believe to be a "harm"? Most of his writings suggest that he believes only physical harm is real harm. Thus, he would reject the modern idea of "psychological coercion." 98 This is because true belief requires the ability to withstand pressure to conform to a different belief. If the majority of the people in a society happen to agree that one religion is true, a dissenter cannot claim that their public practice of that religion harms his conscience; his religious beliefs, guided by reason alone, should not be so weak as to crumble at the slightest fear of social stigma. When Jefferson spoke of atheists in the Notes on the State of Virginia, he said, "If it be said, his testimony in a court of justice cannot be relied on, reject it then, and be the stigma on him." 99 Jefferson allows this because he believes that opinions based on reason will be strong enough to withstand prejudice. He tells Peter Carr to "shake off the fears & servile prejudices under which weak minds are serviley crouched." 100 A man with a strong, courageous mind will not fear social pressure, and indeed Jefferson shows here that men ought to have strong minds. Yet, in a later letter, he gives a completely contrary opinion. Three years after he was elected president for his first term, he wrote to Benjamin Rush to give his opinion on the morals of Jesus. He explained to Rush why he does not reveal such opinions to the general public:

I am moreover averse to the communication of my religious tenets to the public; because it would countenance the presumption of those who have endeavored to draw them before that tribunal, and to seduce public opinion to erect itself into that inquisition over the rights of conscience, which the laws have so justly proscribed. It behoves every man who values liberty of conscience for himself, to resist invasions of it in the case of others; or their case may, by change of circumstances, become his own (emphasis added). 101

This reveals a change in Jefferson’s opinion over time. This letter was written in 1803, when Jefferson was running for re-election, whereas the Notes were written in 1781, and the letter to Carr was written in 1787. In the letter to Rush, Jefferson speaks of the "malignant perversions" of people who make every word from him a "text for new misinterpretations & calamities." 102 Perhaps the stigma that he faced during his presidential campaigns because of his unorthodox religious views changed his opinion on social stigma. 103 However, this does not mean that his previous writings should be altogether dismissed. Clearly he believes that for the public to harass a man about his opinions is a violation of his free conscience, but this does not mean he would claim that members of a society publicly practicing a religion embraced by the majority would harm the conscience of a dissenter. He makes no such claim in the letter to Rush. Rather, his solution to the problem of stigma is merely that individuals do not have to answer questions about their religious beliefs: "It behoves him… to give no example of concession, betraying the common right of independent opinion, by answering questions of faith, which the laws have left between God & himself." 104 Thus, enough courage is necessary to withstand the social pressure of witnessing the public practice of a religion that one does not embrace, but it does not require one to publicly defend his opinions or withstand physical harm for his beliefs. Certainly some people are able to withstand physical harm for the sake of their beliefs, but this is not something that can be required of all men. For most people, the threat of physical harm will only make them reluctant to contemplate religion. Thus, a man must be able to express his belief without being harmed physically and prevented from expressing it; on the other hand, he must not be forced to express it either.

Since it is in God’s plan that no created authority ought to harm the mind by coercing it in matters of religion, He created consequences for when such actions do occur: "…that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness." 105 When the freedom that God placed on the mind becomes hindered by temporal restraints, either the person acts contrary to what he actually believes, or he rebels against the restraint in a way that may be harmful to society. This further reveals God’s intention that the mind is to be kept free and solidifies Jefferson’s claim that God Himself is the source of religious freedom. He did not create our nature such that we must submit to Him in this life, nor did He give this power to any earthly authority. Jefferson believes that God did not coerce the mind or body of man because God is good, and this would be contrary to such goodness. In fact, he believes that one of the only things we can know about God is His goodness.

(Jesus) the benevolent and sublime reformer of that religion has told us only that God is good and perfect, but has not defined him. I am, therefore of the theology, believing that we have neither words nor ideas adequate to that definition. And if we could all, after this example, leave the subject as undefinable, we should all be of one sect, 106 doers of good, and eschewers of evil.107

Jesus has taught us that God is good and perfect, but we can know no more than that. Jefferson believes that theology ought to be limited because we cannot "define" God. Yet, when he speaks of "definition," he only means that we cannot attempt to designate very specific attributes to the Being. Certainly he believes that we can know very general characteristics of God’s nature; in this previous quote and in other writings, he says that we can know His goodness, intelligence, and perfection. However, we cannot know of such characteristics as His substance and form.

These theological views are best articulated in a letter to John Adams in which Jefferson refutes the doctrines of Calvinism. In this letter he wrote, "Of the nature of this Being we know nothing," yet, in the same letter, he wrote of God as "the Creator and benevolent governor of the world." 108 In order to see how these contradictory claims can be resolved, one must understand the purpose of the letter. He was writing to refute the claim that everything we know about God has been revealed through special revelation. "Indeed I think that every Christian sect gives a great handle to Atheism by their general dogma that, without a revelation, there would not be sufficient proof of the being of a god." 109 He then goes on to give a cosmological explanation of how one knows of God’s existence. He explains that God is "a being whom we see not, and know not, of whose form substance and mode or place of existence, or of action no sense informs us, no power of the mind enables us to delineate or comprehend." These are some things about God which we cannot know. Yet, after contemplating the order of the Universe, Jefferson says it is "impossible" for us not to "perceive and feel a conviction of design, consummate skill, and indefinite power in every atom of it’s [sic] composition." 110 One comes to an understanding of God as a result of cause and effect reasoning. When one perceives the order of the Universe, it is only reasonable to conclude that there is an intelligent Being who is the creator and also the "preserver and regulator" 111 who holds things together in their current form. It is not until he articulates this understanding of God as the First Cause that he claims we can know nothing of His "nature;" he begins to refute specific Christian ideas of God, such as that "God is spirit" and that there is more than one person in God’s being. Jesus tells us that God is spirit, "but without defining what a spirit is." 112 The Bible itself does not even reveal anything about the spirit of God or the distinction of "persons" in God. In speaking of the Trinity, Jefferson refers to the first chapter of the Gospel of John, which says, "In the beginning, God existed, and the Word was with God." He argues that the Greek word for "Word," which has been interpreted to mean the Son, or second Person of the Godhead, has been mistranslated, and that it really means "reason (or mind)." This text plainly declares the "doctrine of Jesus that the world was created by the supreme, intelligent, being." 113 Therefore, Jesus offers us no more knowledge of God than we already have through natural revelation—the simply cosmological view of God as intelligent, benevolent Creator. The "nature" of God which we cannot know includes those attributes, such as substance and form, which Christians and philosophers have erroneously attempted to delineate.

Jefferson’s strong belief in our ability to know God’s goodness in particular will be essential for his understanding of religious liberty. He was blatantly critical of any doctrine which he believed undermined God’s goodness. In the same letter to Adams, Jefferson explicitly states his aversion to the doctrines of Calvinism.

I can never join Calvin in addressing his god… If ever man worshipped a false god, he did. The being described in his 5 points is not the God whom you and I acknowledge and adore; the Creator and benevolent governor of the world; but a demon of malignant spirit. It would be more pardonable to believe in no god at all, than to blaspheme him by the atrocious attributes of Calvin. 114

The five points of Calvin to which Jefferson refers are: total depravity, unconditional election, limited atonement, irresistible grace, and perseverance of the saints (TULIP). 115 Total Depravity means that since the Fall of Adam sin has extended to every part of man’s personality: his thinking, his emotions, and his will. Because of this depravity, an unsaved man is in fact blind and deaf to the message of the gospel. Such a man does not know God, and he can only receive this knowledge of God through God’s Son Jesus Christ. Prior to knowing Christ, however, men are enslaved by their sin. Unconditional Election is the doctrine that God chose certain people to whom He would reveal knowledge of Himself, based on no merit of their own. He has elected some for glory and others for damnation. This doctrine, however, does not rule out man’s responsibility to believe in Christ, but He is needed to lead them to belief. Limited Atonement is the doctrine that Christ died for many people, not all. "Specifically, Christ died for the invisible Church—the sum total of all those who would ever rightly bear the name ’Christian.’" 116 The fourth point of Calvinism is Irresistible Grace, which means that those who are elected by God will certainly respond to the Holy Spirit when He brings the knowledge of God to them. God’s very Spirit is what leads those He loves to repentance rather than some act of their own. The last point is Perseverance of the Saints. It states that the saints—God’s elect—will remain with Him, continually being sanctified, until they are finally with him in eternal life. In other words, if one has truly been saved, he will not lose that salvation. Thus, it is clear that the Calvinists do not believe that men are free by nature, since they are enslaved in their sin until God chooses to redeem them. Jefferson believes that such a view is erroneous because it denies natural revelation of God’s goodness—the revelation which allows us to know that God has indeed created us to be free.

The emphasis which Calvin puts on sin is clearly absent from Jefferson’s writings. Calvin’s view of human nature is that it is soaked in sin; therefore, certain ideas which we have may be a result of sin rather than God, including the idea of liberty. We need the grace of God before we can determine which ideas are a result of sin and which ones are not. This understanding of sin was present in the arguments of many of Jefferson’s opponents. In fact, many of his opponents were critical of his idea of the "state of nature" in which all men have an innate right to liberty. In the Declaration of Independence, Jefferson speaks of this idea as "self-evident," but the Calvinist would argue that something which seems to be self-evident may be a result of sin. Jefferson, however, believes that liberty is a gift of God: "The God who gave us life, gave us liberty at the same time." 117 Therefore, the idea of liberty could not possibly be a result of sin.

In the next section of the Bill for Establishing Religious Freedom, Jefferson begins to articulate the flaws that he sees in human nature. Though he thinks the mind has the ability to come to conclusions on its own, he realizes that some men, acting out of vicious motives, try to take this ability away from others.

…that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time;

Neither priests nor laymen are to coerce others into their own religion, though they believe that religion to be true, because they too are fallible. However, when he describes them as "fallible and uninspired," he is not speaking only of their reason, but also of their will. Certainly they are fallible because they may come to false conclusions in their religious beliefs. If men were not fallible, then they would all come to the same beliefs. However, in this context, he is also talking about the folly of their actions. Though the establishment of false religions is the effect of what they did, their error is that they established any religions at all. Even if they established a religion that was completely reasonable, they still erred in assuming "dominion over the faith of others." One may ask why, according to Jefferson, a man would want to establish a religion in the first place. Jefferson says that such men have "impious presumptions" and that they want to have "dominion over the faith of others." The spread of truth is not what they are aiming at, but instead they are aiming at the spread of their own power.

This raises an important question about Jefferson’s view of human nature. Does he believe that this desire for power is an innate part of human nature, or does he think that just a few corrupt men have it? His opponents will argue that men have a depraved nature which makes government intervention in religious matters necessary. So, it is important to discuss Jefferson’s views on the moral sense and how much corruption men do have in their nature, if any. In a letter to Thomas Law, he argues that God gave humans an innate moral sense. "It shows how necessary was the care of the Creator in making the moral principle so much a part of our constitution as that no errors of reasoning or of speculation might lead us astray from its observance in practice." 118 Yet, if man has an innate moral sense, why are some men led by corrupt desires, such as the desire to gain power over the rights of other men? Jefferson argues that these desires arise as a result of self-love. In this letter, he says:

Self-love, therefore, is no part of morality. Indeed it is exactly its counterpart. It is the sole antagonist of virtue, leading us constantly by our propensities to self-gratification in violation of our moral duties to others… Take from man his selfish propensities, and he can have nothing to seduce him from the practice of virtue. 119

Self-love is no part of morality because there are no duties to the self, and morality involves duty. "I consider our relations with others as constituting the boundaries of morality…To ourselves…we can owe no duties, obligation requiring also two parties. Self-love, therefore, is no part of morality." 120 Jefferson refutes the argument put forth by the philosopher Helvetius that men only act morally out of selfish motives, or for pleasure. He says that this pleasure is a result of moral action, but it is not the source. Rather, the source of moral action is an innate love for others that God has put in us.

These good acts give us pleasure, but how happens that they give us pleasure? Because nature hath implanted in our breasts a love of others, a sense of duty to them, a moral instinct, in short, which prompts us irresistibly to feel and to succor their distresses…The Creator would indeed have been a bungling artist, had he intended man for a social animal, without planting in him social dispositions. 121

Though our moral actions arise from our love for others, this does not necessarily include a love for God. The source of our moral sense is clearly the Creator. However, Jefferson does not think that a belief in God is necessary for a man to exercise his moral sense. He argues that atheists can be moral too. "If we did a good act merely for the love of God…Whence arises the morality of the atheist?… idle to say… that no such being exists… Their virtue then must have had some other foundation than the love of God." 122 However, the morality of the believer is different from the morality of the atheist in that he has an additional reason for being virtuous. In the letter to Peter Carr, Jefferson advised him to question his religious beliefs. "If it ends in a belief that there is no god, you will find incitements to virtue in the comfort and pleasantness you will feel in its exercise, and the host of others which it will procure you." 123 Yet, if the questioning ends in a belief in God, this will provide "an additional incitement" 124 to moral virtue.

In the letter to Law, Jefferson also said that we are prompted by the moral sense "irresistably." 125 Just as a man comes to his conclusions involuntarily, so too a man feels pity involuntarily at seeing the distresses of others. While it is his choice whether or not to act on this pity, he cannot prevent himself from feeling the love for others that God has placed within him. In fact, Jefferson believes that we know of our moral duties only because we have an impulsive feeling which tells us of them. Fifty years after reading Kames, Jefferson quoted him, saying that "a man owes no duty to which he is not urged by some impulsive feeling." 126 However, a man’s individual feeling may not be enough to justify a certain moral belief. The feeling is only correct "if referred to the general standard of feeling in the given case, and not to the feeling of a single individual." 127 Society must place a check on the moral instinct of individuals because the moral senses of some are flawed, and some men do not even have them at all:

It is true they (moral senses) are not planted in every man, because there is no rule without exceptions; but it is false reasoning which converts exceptions into the general rule… The want or imperfection of the moral sense in some men, like the want or imperfection of the sense of sight and hearing in others, is no proof that it is a general characteristic of the species. 128

Thus, the "impious" men who act out of their love for self and power merely lack the innate love for others that leads the rest of mankind to do good. Some men are born completely without the moral sense, as some men are born completely blind. However, Jefferson’s letter to Peter Carr gives a somewhat different view. Rather than saying that some men lack it entirely, he says that all men have it, but some have it in a lesser degree than most men: 129 "The moral sense, or conscience, is as part of man as his leg or arm. It is given to all human beings in a stronger or weaker degree, as force of members is given them in a greater or less degree. It may be strengthened by exercise, as any particular limb in the body" (emphasis added). 130 Here, he is saying that while some men have a deficiency in the moral sense, they are not excused because there are ways by which a man can strengthen his moral sense. If a man lacks it completely, as a man may completely lack eye sight, he can be taught to "see" using other faculties, and he must strengthen these faculties with exercise.

Some of this exercise must be enforced by society, since, according to Jefferson, God formed the principles of morality such that society is their proper end. "Man was destined for society. His morality therefore was to be formed to this object. He was endowed with a sense of right & wrong merely relative to this." 131 Jefferson believed that God "has formed us moral agents…that we may promote the happiness of those with whom He has placed us within society." 132 God did make some men with a moral sense that is weaker than other men’s. However, in His goodness, He made all men for society, and He gave society certain measures by which it can correct the weaker men. 133 For Jefferson, society is the end of morality, not the source of it. 134 Society does not prescribe moral principles, but it does have God-given tools to strengthen those moral principles in men that have a weaker knowledge of them. Jefferson describes how society can give these people different motives for acting moral, though they lack natural love for others. We can use reason, calculation, and education to sway how they act:

…by presenting to the being so unhappily conformed, other motives to do good and to eschew evil, such as the love, or the hatred, or rejection of those among who he lives…demonstrations by sound calculation that honesty promotes interest in the long run; the rewards and penalties established by the laws; and ultimately the prospects of a future state of retribution for the evil as well as the good done while here. 135

He suggests that we appeal to their self-love by encouraging them to have selfish motives for choosing goodness, since they entirely lack or are deficient in the moral sense which is motivated by natural love for others. The last sentence even suggests that we make an appeal to their eternal fate in heaven or hell, or at least to the justice of God. In this way, he is saying that self-love is not necessarily evil. Though it causes some men to be immoral, it can still beused for good by inspiring these men to do good. Jefferson also says that society can use education to encourage the morality of others: "When it is wanting, we endeavor to supply the defect by education, by appeals to reason and calculation…" 136 Society can educate the immoral men about reasons for why it is important to be moral to their fellow citizens. They teach them to see themselves as united with the other members of society. This is made evident by the emphasis which Jefferson places on unity and citizenship. As was mentioned earlier, he desired for everyone in a society to view themselves as members of "one sect," and later in the Bill Jefferson refers to the rights which a man has in common with his "fellow citizens."

Thus, Jefferson believes that immoral people will not necessarily always act viciously out of self-love. Since their moral conscience can be strengthened, their good acts which were motivated by self-love may eventually turn into acts which are motivated by the pleasure of doing good for their fellow citizens. Jefferson never says that society and education will cultivate a moral sense into a man that never had one, but society and education can eventually change a man’s motives. A man who begins to strengthen his moral conscience will begin to feel pleasure when he looks back on the noble action that he has performed. Though the motive is still pleasure for oneself, the pleasure arises out of doing what is good for his fellow citizens instead of just himself. Therefore, a man who was born with a moral deficiency is not necessarily doomed to live in such a state for his whole life. God has given him the goodness of society to show him the way, along with his own free will to choose to do better.

While Jefferson believes that society can correct erroneous moral practices of deficient men, he does not think that society can use its power to correct erroneous beliefs of men. He gives the Lockean argument that one cannot attempt to allow other men to decide his own religious beliefs for him 137—he can only look to other men as means of persuading him that a certain religion is true. This persuasion is not done by force, but rather by example:

…that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind;

The morals and righteousness of a certain pastor may persuade a man to consider the truth of the pastor’s religion. From then, the man’s own reason will determine whether or not he accepts that religion, but force is not necessary anywhere in this process. Since God does not approve of force being used as an attempt to make a man accept a particular belief, certainly he would not approve of the use of force to make him support that which he does not believe. Jefferson says that it is in fact sinful to force a man to support any church through taxation because this is a violation of his liberty. This reiterates his belief that liberty is a gift from God. Therefore, when the rulers of a government require taxes for a certain religion, they are actually sinning against God, though they may claim they are showing Him favor by requiring support for the true religion.

Like John Locke, Jefferson argues that our civil rights are not affected by our religious opinions. 138

…that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right;

Since a man’s opinions which are formed in his own mind do not affect the protection of his rights, it follows that one who wants to pursue a government position (in which he has the duty of furthering the protection of the rights of citizens) cannot be prevented from doing so on account of his religious beliefs. Our natural rights provide us with certain "privileges and advantages," including running for public office, and these cannot be taken away for any reason that pertains to religious belief. 139

Jefferson argues that, along with infringing on individual rights, establishments harm religion itself:

…that it tends only to corrupt the principles of that religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way;

By saying that establishment corrupts the "principles" of that religion which it is meant to encourage, Jefferson is saying that establishment undermines the very teachings of the church, not just the institutional church itself. Religion denotes certain principles of righteousness, and, when people witness seemingly righteous people acting as hypocrites, their belief in the principle of righteousness itself may be harmed. It harms the people who become members of the church by leading them to such temptations of hypocrisy through bribery. Though they may not believe all the tenets of that particular religion, they will conform to it just because they want those worldly honors that they could not have unless they conform.

Establishments are also a corruption of the proper ends of government.

…that the opinions of men are not the object of civil government, nor under its jurisdiction; that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own

From this, two conclusions can be drawn. First, Jefferson believes that the civil magistrate’s powers do not extend at all into the field of opinion. This is because the end of government has nothing to do with the shaping of men’s opinions. In his letter to the Danbury Baptists, he says that "the legislative powers of government reach actions only, and not opinions." 140 Since the nature of legislative power is the use of force, it is impossible for it to have power over opinions, which cannot be changed by force; only actions are susceptible to force. 141 While Jefferson says that the legislature has power over actions, he does limit the actions over which it has power. According to Jefferson, the only acts which the government can control are those that harm others. "The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god…" 142 Jefferson is arguing that a man cannot claim that he is injured merely because another man professes a belief which offends him. This is further evidence that Jefferson believes courage is necessary for true conviction of religious beliefs. A man’s conscience is not harmed merely because he witnesses the majority of the public expressing a different religion than his own.

The second conclusion that can be drawn is that the magistrate does not have the power to determine which principles have ill tendency and which ones do not, 143 and this necessarily follows from the first conclusion. If the magistrate’s powers do not extend into the field of opinion, then certainly he does not have the power to declare that certain religious principles are wrong. For him to do so would be a violation of the liberty of conscience. This is because the magistrate would undoubtedly say that his principles and beliefs are the ones which are true, and thus others are not. Men would not be free to express any opinions which are contrary to the magistrate’s because he would "approve or condemn" their sentiments. Even if the magistrate did not punish people for having different opinions, they would still be afraid to express their opinions because no one would want to have his opinions openly condemned by the Magistrate. 144

…that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order.

Since such a government would be harmful to the security of natural rights, the officers of that government who recognize this must immediately take action against it in order to maintain the security of those rights.

Not only do establishments harm the citizens’ rights and corrupt religious principles, but they are also harmful to Truth itself.

…and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:

Truth does not need the assistance of government to prevail. 145 It only needs conversation between individuals since "free argument and debate" are its weapons. Jefferson is arguing against the claim that the government has the duty to correct erroneous arguments, or at least prevent certain erroneous religious beliefs from spreading. Government, in an attempt to prevent such errors, would actually be causing them to spread even more; for the government to attempt to curtail them would be to disrupt the only process which can disprove them—debate. Thus, people must be free to debate in order for Truth to prevail. They cannot be free to debate if the magistrate is claiming that only his religion is the true religion and others should be silenced. Erroneous beliefs become dangerous only when Truth is disarmed in such a way. Jefferson is well aware that, even if Truth is given free reign, this does not mean that every person in society will automatically be able to recognize Truth versus error. There will certainly be many people who will believe false things, but they will become fewer as enlightenment spreads through free debate. Even though this will take some time, the diversity of opinions until then will actually be beneficial to society. "Difference of opinion is advantageous in religion. The several sects perform the office of a Censor morum of each other." 146 Uniformity of opinion is not desirable, nor is it attainable even through establishments. He points out that no two states have the same established Church, which clearly shows the fallibility of establishments. 147

The previous paragraph shows the great faith that Jefferson had in reason. He argues that the only thing necessary for Truth to prevail is free reason. However, this view was not orthodox among Christians of his time. Many Christians then and now believe that men discover the truth of Christianity not because their own reasoning abilities led them to discover God, but because God revealed Himself to them through the inspiration of the Holy Scriptures. Therefore, according to this view, Christians should be cautious about overemphasizing the reasoning capacity of man. Jefferson, however, disagrees with this view of religion as some divine mystery that God reveals to us. He, in fact, considers religion to be a branch of philosophy, 148 which is clearly a science of reasoning. The "Jefferson Bible" offers insight which reveals this belief: "’Jefferson’s Bible’ reflects the same emphasis on morality, reason, and intellect over faith, dogma, and emotion that is found in many of his other writings." 149 The Biblical passages that Jefferson chose to include in his Bible referred to the moral lessons of Jesus, but ignored the theological and miraculous sections. Even the way Jefferson categorized the Bible emphasizes his view that religion is a philosophy; he used titles such as "Philosophy of Jesus" and "Life and Morals of Jesus." He did not think of Jesus as a miracle-worker; he was simply the "best preacher." 150 He did not believe that miracles were necessary to spread the faith because he believed that true Christianity was reasonable—something that did not need miracles to prove its truth. The religious truth which Jesus taught "contains no mystery [and] needs no explanation." 151 His Bible also omitted all references to Jesus’ resurrection, subsequent appearances, and ascension. 152 The way in which Jefferson organized his own extensive personal library in 1815 reiterates his belief that religion is a subset of philosophy; he catalogued religious books under the title "moral philosophy." 153

Jefferson often wrote that reason was the guide for his own religious thought, and his personal letters show that he truly did believe that Truth could stand on its own when tested by reason. He did in fact believe that this was true for the Christian religion. When Peter Carr left for college, Jefferson instructed him to use reason both in his studies and in religion. He encouraged him to test the doctrines of Christianity before the "tribunal of reason" and not to be frightened by any "fear of it’s [sic] consequences." 154 Jefferson believed that one’s religious beliefs can only be born from reason rather than revelation and faith, or belief that is founded on revelation which is contrary to reason. 155 In fact, according to Jefferson, God prefers reasoned belief over a blind leap of faith. "Your own reason is the only oracle given you by Heaven; and you are answerable, not for the rightness, but uprightness, of the decision." 156 God does not consider whether or not a man came to the right conclusion; He only considers intent. 157 It is better to be an atheist after employing one’s reason rather than a theist only out of blind faith and fear. According to Jefferson, God does not approve of the latter at all. Since he claims reason is the only oracle God gave us, Jefferson is arguing that He did not give us super-rational revelation at all. A man must test every one of his convictions by his own reason, which Jefferson considers to be every man’s "own rightful umpire." 158 To stop thinking for oneself is the "last degradation of a free and moral agent." 159 Thus, he tells Peter Carr to "question with boldness even the existence of a god." 160 This questioning is necessary, according to Jefferson, because human beings do not have an innate knowledge of God as we have an innate moral sense. If we did, we would not have to question the idea of Him so boldly. He says that the moral sense is "submitted indeed in some degree to the guidance of reason; but it is a small stock which is required for this: even a less one than what we call common sense." 161 Morality only requires a limited use of reason; a man’s moral sense tells him what is right and wrong, but he must use his reason in order to apply that sense to particular situations. Morality requires even less than "common sense" because the moral sense is innate to each man. Therefore, since knowledge of God’s existence requires a full exercise of reason rather than simply "common sense," it can be concluded that Jefferson believes God did not give men an innate knowledge of Him. He did, however, give them innate reason in order to discover Him. This raises one of the chief questions in the debate over religious liberty—what is the basis of authority in religion? "The medieval church and evangelical groups stressed faith and revelation. Jefferson’s new world of Newton, Bacon, and Locke stressed reason." 162 Both of these views were at war with one another in the religious debates of Virginia.

Thus, following the claims made regarding the harm that religious establishments do to the freedom of the mind, religious principles, individual rights, and Truth itself, Jefferson proposes that the following statute will prevent such harms:

That no man shall be compelled to frequent or support any religious worship place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.

Though the bill took seven years to finally reach passage, it has become the most noteworthy document on the subject of religious liberty in American history, along with being one of Jefferson’s most prized accomplishments. As we have seen, the arguments put forth in the Bill give considerable insight into his views of human nature, theology, and the purpose of government. His understanding of religious liberty is dependent on his belief in a God who endowed human beings with free reason so that they may discover Him without fear of restraint or punishment. However, while Jefferson’s arguments focus on reconciling the concept of religious liberty with the idea of God’s goodness, he gives little attention to the relationship between government and the rights of conscience. As James Madison assisted Jefferson in the political battle for the passage of the Bill for Establishing Religious Freedom, he also assisted him in the philosophical battle over religious liberty in Virginia by fully addressing the idea that the rights of conscience are not submitted under the social compact when a man enters society.

James Madison, who is known as the "Father of the Constitution," played a vital role in the fight for religious liberty in both Virginia and the entire nation. In Virginia, he began in 1776 with his proposed amendments to the Declaration of Rights. His role in the disestablishment struggle grew with his writing and promotion of the "Memorial and Remonstrance" in 1785 until finally he was able to dust off Jefferson’s Bill for Religious Freedom and witness its passage in the Assembly in 1786, which completed the transformation from mere tolerance in Virginia to religious liberty. Following his work in Virginia, he brought his efforts on behalf of religious liberty to a national level with his role in the drafting of the First Amendment in 1789.

As mentioned earlier, in 1784 Patrick Henry introduced a new bill in Virginia entitled "A Bill establishing a provision for the Teachers of the Christian Religion." Henry wanted to tax the citizens of Virginia to pay the salaries of all the Christian clergy. Each property owner in Virginia was to specify the Christian denomination which he wanted his tax dollars to support. If a taxpayer did not specify a denomination, his money would go to the public treasury "to be disposed of under the direction of the General Assembly, for the encouragement of seminaries of learning…" 163 Henry exempted the Quakers and the Mennonites, who had no clergy, expecting to gain their approval of the bill. 164 As an attempt to obtain public support, a preamble was later added by a drafting committee which claimed that the purpose of the bill was education: "Whereas the general diffusion of Christian knowledge hath a tendency to correct the morals of men, restrain their vices, and preserve the peace of society, which cannot be effected without a competent provision for learned teachers…" 165 Despite this amendment, the common view was that the purpose of the bill was to keep power in the hands of the Christian ministry, particularly the Anglican clergy. 166 "While the total number of voters in Virginia numbered only 40,000, similar petitions against the Henry bill were soon signed by 10,929 protestors (especially Baptists), and the bill failed utterly." 167

James Madison took particular notice of the bill, as he had become passionate for the cause of religious liberty. This passion was not due to one particular event, but it was a result of a combination of education, experience, and a great deal of personal reflection. Madison had taken notice of the harsh persecution of the Separate Baptists, but he also learned of the philosophical arguments regarding religious liberty from his education under John Witherspoon. 168 Witherspoon was a Scottish Presbyterian who was the sixth President of the College of New Jersey, which Madison attended. He had a profound influence on Madison’s thoughts on politics, theology, and the rights of conscience. When he returned to Virginia after college, he concluded that establishments only led to corruption and ignorance. 169 In a letter which he wrote in April, 1774, he commented on the legislature and the clergy: "That liberal catholic and equitable way of thinking as to the rights of Conscience, which is one of the Characteristics of a free people…is but little known among the Zealous adherents to our Hierarchy." 170 Madison became a part of the Virginia government in May 1776 as a delegate in the convention, where he would begin his work to put the political principles which he had studied into practice.

James Madison’s views on Henry’s bill were made clear in a letter to Thomas Jefferson, in which he said, "It is chiefly obnoxious on account of its dishonorable principle and dangerous tendency." 171 He was not simply afraid of the effects of this particular bill, but also of the general principle behind the bill. This inspired him to write the "Memorial and Remonstrance Against Religious Assessments" in order to rebut the erroneous principles behind the bill and to provide correct principles based on social compact theory. He wrote the "Memorial" anonymously and was so successful at concealing his authorship that many people attributed it to George Mason, who was famous for drafting Article XVI of the Declaration of Rights. This is probably because Madison quoted Article XVI in at least four sections of the "Memorial." 172 Nonetheless, it was Madison’s eloquent writing and carefully crafted arguments which clearly articulated the political arguments of Henry’s opponents. While many of Jefferson’s theological views are reiterated in this document, Madison focuses much more on the nature of rights and the relationship between religion and government. The "Memorial" is organized into 15 articles. Articles 1 through 4 articulate the principle behind the argument, articles 5 through 14 offer pragmatic reasons for defeating Henry’s bill, and article 15 returns to the principle of article 1. 173

In article 1, as he begins to explain his first reason for why he and his supporters dissent to the "dangerous abuse of power" that is Henry’s bill, Madison gives a brief definition of religion. He quotes Article XVI of the Virginia Declaration of Rights, which says, "Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." He says that this is a "fundamental and undeniable truth." He goes on to say that the religion of each man must be left to his conviction and conscience, and every man has a right to exercise his religion as conviction and conscience may dictate. 174 Like Jefferson, Madison has given an epistemic foundation for his doctrine of religious liberty—that religion is directed by reason and conviction. "[The ’Memorial’] does not attempt to demonstrate how or why religion can be directed only by reason and conviction; it takes this as given." 175 Though Madison and Jefferson both argue from epistemic foundations, Jefferson gives a theological argument to support his epistemic foundation, whereas Madison does not. Jefferson said that God actually has the power to coerce, but chooses not to exercise it; he states that "God hath created the mind free." From the emphasis on divine goodness that is found in Jefferson’s other writings, it can be concluded that he believes God chose not to coerce the mind because of His goodness. Clearly, his understanding of religious liberty rests on his understanding of God. Madison, however, does not give such an explicit theology in the "Memorial." He simply takes the epistemic foundation "as given."

There are several possible explanations for why Madison does not give theological arguments to support his epistemic claim, as Jefferson did. One possibility is that Jefferson had already sufficiently explained that religion can only be directed as such because God created the mind free. It is possible that Madison agreed with the theological arguments and chose not to elaborate on them even further because Jefferson’s precise argument needed no further explanation. Or, he may have wanted to avoid the theological arguments altogether after witnessing the rejection of Jefferson’s bill. He may have thought Jefferson’s attempt at reconciling religious liberty with theology was unpersuasive because it was apparently too radical for the times; therefore, arguments with a more political emphasis might be more successful. However, it is just as likely that Madison did not include Jefferson’s theology because he himself did not embrace such a theology. In the "Memorial," Madison makes no explicit claim that God is the author of religious liberty as Jefferson does. He speaks of the way in which men relate to their Creator ("the duty which we owe to our Creator"), but he does not speak of the way in which God relates to man as much as Jefferson did when he argued that God created the mind free and restrained His power to coerce. Madison does make a theological claim when he asserts that God has some sort of expectation from humans since He in fact gave us a duty, but this duty is understood to be something that each individual must determine on his own. It even seems to leave open the possibility for an individual to claim that he has no duty even to acknowledge God. In his other writings, Madison is silent on the subject of his theological views. Therefore, it is possible that he does not recognize theological foundations for religious liberty as Jefferson recognizes God’s goodness as the foundation. 176

After stating that religion should be left to conscience and conviction alone, Madison then goes on to explain why the right of conscience is unalienable.

This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator.

First, opinions of men are unalienable because they cannot follow the dictates of others. Since a man’s opinions are formed by evidence only, he cannot change his opinion to conform to another man’s if he is not truly persuaded by the evidence. It is important to note here that Madison considers opinions to be a form of property. He describes opinions as "unalienable" because he is distinguishing them from other types of property which are alienable. Under Lockean social compact theory, of which Madison’s writing is reflective, a man transforms his natural right to property into a civil right to property upon entering society when he gives it up to the protection of the government. Since a man can place his property under the protection of government, he forfeits the executive power that he once had over those rights, thus alienating them. 177 This is not possible for property in opinions, however. In his 1792 essay entitled "Property," Madison argues that a man’s opinions are in fact his most valuable form of property. He defines property as "that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual." 178 A man’s land, merchandise, and money are his property in this sense. The particular object which he has dominion over belongs to him alone. Just as a man has property in tangible things, he also has a property in things which are not tangible, such as his opinions and the free communication of them. Opinions fall under what Madison calls the "larger and juster" meaning of property. In this sense, property "embraces every thing to which a man may attach a value and have a right; and which leaves to everyone else the like advantage" 179 (emphasis original). This includes property in religious opinions and the profession and practice dictated by them, the safety and liberty of a man’s person, and the free use of his faculties along with the objects on which he employs them. 180

In order to understand the distinction between these types of property, it is necessary to examine Madison’s understanding of rights and labor. "In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights." 181 A man has a property in his rights as well as his physical possessions, yet there is a certain distinction between these two types of property. A man’s physical property is something which he claims dominion over, yet certainly more than the mere claim of dominion is necessary for him to possess it; a man cannot simply take an object as his property just because he possesses it. He must justly acquire it, and the original source of just acquisition is labor. Yet, certainly we do not labor for our rights as we labor for physical property. We do not construct our rights as we construct a house, nor do we purchase them as we purchase a house that someone else has already built. The rights do not depend on being created by men for their existence. According to Madison, these rights have been given to us by the "transcendent law of nature and of nature’s God." 182 Every human being is born with these rights, so no labor is required to obtain them. 183 It should be noted that Madison does not say that our rights are our property; rather, he says we have property in our rights. Our rights themselves cannot be said to be our property because we cannot change them or dispose of them as we can our tangible property. This is because we did not acquire them; they are in us by nature. In the Second Treatise, John Locke explains that there are four characteristics of property: it can be acquired, possessed, used, and disposed of. 184 The property in our rights only fulfills the second and third property characteristics. We have property in our rights because we possess those rights and have full exercise over them, but we can never claim to have the ability to change or destroy them. We cannot destroy or change something that is intrinsic to our nature.

As rights are different in nature from tangible property, so are opinions. Yet opinions are different in nature from rights as well. They are in fact a third distinguishable type of property. Though a man does not construct his opinions with his own hands or purchase them from someone else who has already built them, he is also not born with them already in his possession as his rights are. He labors to form opinions, which involves contemplating evidence that is before him and determining whether or not certain claims are true. This evidence, like natural rights, is something which is not created by human labor, nor is the truth which the man is attempting to reach. Truth is a correct understanding of Reality; 185 a man may or may not come to this correct understanding, but Reality will not change whether or not he does. When a man mixes his labor with physical nature in order to create something new or to use something which is in his possession, he inevitably changes the physical nature in some way, but this is clearly not so with Reality, or transcendent Nature. For example, a man who becomes a theist does not change the nature of God through his belief. Because of its transcendence, Reality is not affected by, nor does it depend on, human labor.

This explains Madison’s argument that property in opinions " leaves to everyone else the like advantage." A man’s understanding of Reality is the substance of the opinion which he reaches, and this Reality does not become his own exclusively no matter how much labor was required to understand it. When a man labors for and acquires tangible property, he has the power to prevent others from handling that property; he appropriates it to himself exclusively. However, when a man forms an opinion, he does not acquire the substance of the opinion. Rather, he discovers it. He cannot exclusively appropriate the Reality which he has discovered so that others cannot discover it as well; in discovering it, he cannot remove any part of it to keep for himself. 186 Further, he cannot alter or appropriate to himself the evidence which led him to that opinion because the evidence that leads men to their religious conclusion is not man-made, but rather is something that is a part of Nature. 187 The mind is only able to discover, not appropriate. Therefore, just as a man cannot dispose of his rights, he also cannot dispose of his opinions as he can other property. Rights cannot be disposed of because they are an intrinsic part of each man; opinions cannot be disposed of, or alienated, because their substance is intrinsic to Reality—something over which the man has not control. "Whereas a man can freely give away his money or have it stolen from him, no man can cede or lose his opinions unless he loses his mind." 188 Perhaps this is one of the reasons Madison argues that "[c]onscience is the most sacred of all property." Tangible property only requires labor to attain something which was crafted by men or to create something oneself, whereas property in opinions involves labor to reach some truth—an understanding of Reality—which no amount of human labor could have created. Opinions cannot follow the dictates of others because they, unlike other property, involve this transcendent Reality, or Nature, which is completely separate not only from human society, but from any human creation. A man cannot give up his executive power over this right. 189

Madison’s first argument for the inalienability of the rights of conscience makes certain metaphysical assumptions that reveal his understanding of the &