Religion and the Continental Congress, 1774-1789: Contributions to Original Intent, by Derek H. Davis, Oxford University Press, 2000, 288 pp.; $39.95
Religion and the American Constitutional Experiment: Essential Rights and Liberties, by John Witte, Jr., Westview Press, 2000, 224 pp.; $29, paper
America is a nation that was born Christian; indeed, it was born Reformed Protestant, and this suggests that an assertive and intrusive religiosity shaped this nation’s political institutions and patterns of social life. Curiously, however, this is a heritage that some Christian authors who work and prosper in elite intellectual circles seem embarrassed by and attempt to mitigate or even, in some instances, effectively deny. More particularly, some—by means of a highly selective historiography, an anachronistic focus on “progressive” political actors, and confused depictions of Reformed theology—offer their readers a history of American political and religious life that renders America’s past congenial to contemporary secular sensibilities and provides a valuable tool in “correctly” reading the “original intent” of the religious clauses of the First Amendment.
The works under review, Religion and the Continental Congress, 1774-1789: Contributions to Original Intent, by Derek H. Davis, and Religion and the American Constitutional Experiment: Essential Rights and Liberties, by John Witte, Jr., are guilty of these intellectual shortcomings.[1] What needs to be made clear, and yet is obfuscated in differing ways by these two prominent Christian scholars,[2] is that America from 1630 to 1780 was predominantly Reformed Protestant in its religiosity, and continued to be powerfully Christian for at least the next 75 years. Although it is true that the nature of American religiosity was rapidly changing during the years after the War for Independence, this period witnessed a huge upsurge of pietistic and evangelical Christian activity and must not be viewed as a period of increasing secularization in any simple sense. Indeed, even as the particular goals and aspirations of America’s seventeenth- and early-eighteenth-century Reformed Protestant founders came to be rejected, the vast majority of America’s religious and political leaders continued to insist on an intimate relationship between the public’s need for moral citizens and the essential role of Christianity in achieving this end.
Given the overwhelmingly Christian environment of the early Republic, it is not surprising to learn that there was anything but a strict wall of separation between church and state. Yet this manifest reality is rarely conspicuous in the histories provided by Davis and Witte; in both books, but most particularly in Witte’s account, the reader is directed to attend to the 1820s writings of James Madison and Thomas Jefferson rather than to the actual norms, laws, and practices of the vast majority of Americans living in the late-eighteenth and early-nineteenth centuries. The thrust of both books is to celebrate anachronistically the rise of the separation of church and state, religious pluralism, state neutrality between Christianity and its opponents, and the privatization of religion in America and its effectual disappearance from the public square.
Accordingly, many readers will become confused, conflating all who opposed close connections between church and state— including evangelicals and pietists, Christian humanists, and secular liberals—into a liberal, secular, and “Lockean” amalgam that plays well with contemporary academic sensibilities. Although Witte attempts to avoid such conflation, his efforts come to naught in the sweep of his all-encompassing narrative.
If Witte and Davis had more clearly defined the differences between these varying groups, they would have prepared their readers to understand and give a correct reading to still important documents and statutes, such as Madison’s 1785 Memorial and Remonstrance Against Religious Assessments. Knowing for whom such documents were written and how their original audiences understood these statements gives all of us a better handle on the authentic religious and political culture of the time, and the appropriate place of such essays and legal enactments in continuing Constitutional disputes.
Still more troubling is Davis’s and Witte’s failure to take notice of America’s enduring embrace of the Reformed Protestant (and Jewish) concept of a national covenant. As Perry Miller explained, Americans (including those in the Continental Congress), up until the end of the nineteenth century, believed themselves bound by a special national covenant with God. Under the auspices of a national covenant, when individuals sin, their encompassing group corporately pays—by incurring the wrath of God in the form of floods, wars, famines, plagues, droughts, fires, and other calamities. This aspect of Reform Protestantism, wholly ignored by Witte’s and Davis’s inadequate accounts of Reformed theology, must not be overlooked if one is to make sense of the hostility of Americans before the 1750s to the religiously “errant,” even in a community of saints and wholly fallen sinners whose eternal fates are irresistible and humanly unalterable.
Only when one knows that the members of Congress believed their new nation was bound by a national covenant with God can one understand their concern that irreligious and impious behavior not be condoned in the ranks of the army and navy (and as they trusted, not by the states). Accordingly, to fight against such a possibility, Congress created a demanding code for the military. But this too, like so much else that is inconvenient about the deep religiosity of the years surrounding America’s War for Independence, Witte ignores and Davis slights.
To be sure, Davis and Witte accurately recount some of the story of American religious life in the early Republic. Indeed, although such nuggets are too often buried in endnotes or in highly condensed and isolated asides, one can learn a great deal from each author concerning the true nature of American religious laws and practices in the late-eighteenth and early-nineteenth centuries. Thus, we learn from Davis that during those very years in which he finds that the true essence and “progressive evolving intentions” of America were to be found in a whole-hearted embrace of separation of church and state, only Virginia and New York failed to require religious tests for those wishing to hold public office (and New York nonetheless excluded Catholics). All other states required that state officeholders (and thus, all federal senatorial electors) be Protestant (Connecticut, Rhode Island, Georgia, Massachusetts, New Hampshire, New Jersey, North and South Carolina, and Vermont), Trinitarian Christian (Delaware), accepting of Scripture (Pennsylvania and Vermont), or Christian (Maryland). So much for the separation of church and state.
Moreover, regarding the language of the Journals of the Continental Congress, Davis finds that “the proclamations and official state papers of the Congress are, as Edward F. Humphrey remarked, ‘so filled with Biblical phrases as to resemble Old Testament ecclesiastical documents.'” Davis continues, noting that in the 1770s, America “was still overwhelmingly biblically orthodox in its worldview, and, as already suggested, the religious dimensions of civil government were in that day still generally taken for granted.” Davis thus demonstrates that Congress consistently acted in support of a religiosity that brought together the actions of church and state in its constant appeal for divine aid, daily prayers, appointment of military chaplaincies; its members attending worship services as a body; its proclamations for days of fasting and humiliation; and its ordering that an American Bible either be imported or published. Indeed, Davis acknowledges, “the Continental Congress operated almost totally within an accommodationist paradigm”—a finding which, the author admits, surprised him greatly, as he had expected “to find considerably more evidence than [he] did from the confederation period that would support separationist arguments.”
Similarly, at the colonial and state level, Davis reports that
only three colonies allowed Catholics to vote. They were banned from holding public office in all New England colonies save Rhode Island. New Hampshire law called for the imprisonment of all persons who refused to repudiate the pope, the mass, and transubstantiation. New York held the death penalty over priests who entered the colony, Virginia boasted that it would only arrest them. Georgia did not permit Catholics to reside within its boundaries; the Carolinas merely barred them from office.
It is not surprising, then, that Davis holds that “we must always look beyond the founding era for the latent effects and outcomes of an inchoate ‘original intent.'” He must make this claim, no matter how nebulous, if he is to produce a history purporting to show that the original intent of the Constitution, supporting the radical separationist doctrine preferred by Mr. Davis, is not to be found in the 1780s but instead in the spirit of religious toleration, plurality, equality, and separatism discoverable in Madison’s 1822 “Letter to Edward Livingston” or his late 1820s “Detached Memoranda.”
Nowhere in Davis’s work does one come to learn that it was during the years preceding the War of Independence that members of the clergy played such a critical role in assuring their pious countrymen that political resistance was in keeping with God’s will. In addition, even though the Continental Congress was Davis’s preeminent concern, he fails to make mention of what James Hutson calls the “deeply religious men in positions of national legislative leadership.” For example, Hutson, in his admirable Religion and the Founding of the American Republic, writes that the Secretary of the Congress, Charles Thompson, “retired from public life to translate the Scriptures from Greek to English” and that the famous pamphleteer, John Dickinson, “also retired from public life to devote himself to religious scholarship.” Much the same was true of three of the Congress’s presidents: Elias Boudinot, Henry Laurens, and John Jay.
Not only were many members more deeply pious than one would infer from Davis and Witte, but the public actions of the Congress were far more intrusively religious than indicated by either author. It was not once or twice but at least thirteen times that Congress unapologetically sought, on the nation’s behalf, the intervention of Jesus Christ and, at other times, that of the Holy Ghost (which Davis, curiously, both describes and then later denies). Nor does one learn from Davis or Witte that James Madison had himself been appointed by the Continental Congress on March 14, 1781 to serve, and by all accounts did, on a committee of three “to prepare a recommendation to the states for setting apart a day of humiliation, fasting, and prayer” which was delivered on March 20, 1781, for May 2, 1781.
No one would guess, from these accounts, that Congress early on voted to “discountenance and discourage every species of extravagance and dissipation, especially all horse-racing, and all kinds of gaming, cockfighting, exhibitions of shews, [and] plays.” Similarly, no mention is made of the persistent efforts made by Congress, not the states, to bring American Indians to Christ (see, for example, Journals of the Continental Congress for November 11, 1775, excerpted above). Both authors fail to convey in a reasonably balanced fashion just how intent this Congress was on winning the favor of Christ and the great lengths it went to in order to lead the emerging nation in that direction.
Given such omissions, it is not surprising that Davis must reject the central argument and purpose of his having written his book, which was “to examine the record of the Continental Congress on religion for the purpose of discovering what that record might contribute toward a resolution of the modern debate over the original intent of the constitutional framers regarding the interplay of government and religion in the United States.” And, again, what did he find? He found that his study “revealed that the notion of the separation of church and state, at the federal level, was virtually nonexistent in the confederate period.” His evidence will not permit him both to fulfill the book’s intentions and to come to what he believes is the correct outcome. And so, as we have seen, he is forced to turn to the 1820s writings of Madison to discover the “true” meaning of the religion clauses of the First Amendment. At best, this is a most curious conclusion.
Witte’s text enjoys greater coherence, and evidence that cuts against the grain of his narrative’s loving embrace of the rise in America of a largely secular public sphere and the increasing privatization of religious life (though, for Witte, this does have its limits) is accordingly rarer. But it does exist, though routinely framed in ways that focus the reader’s attention elsewhere. For example, with the seventeenth century under scrutiny, Witte rightly notes that in New England, Quakers “who failed to leave were subject to flogging and the confiscation of their properties. The four Quakers who returned after banishment were hung in the Boston Commons in 1659 and 1660.” But having acknowledged this evidence of pervasively intrusive religion, Witte shifts quickly to seventeenth-century Maryland, which he characterizes as “providing ample inspiration during the constitutional debates of the next century.” The implication is that the case of Maryland provides a significant contrast.
What Witte fails to make clear is that—like almost all the colonies and plantations begun in the seventeenth century—Maryland hardly could be said to have conducted a successful experiment in religious liberty. From Maryland’s inception as a colony, denial of the Holy Trinity was punishable by death; from the 1650s, Roman Catholicism was regularly outlawed, priests were executed, there were religious riots, and indeed there were discriminatory anti-Catholic laws throughout its colonial history. Moreover, in 1692 the Church of England was established in Maryland, which would maintain an establishment until 1810 (it was the last state to disestablish outside New England) and preserve a religious test oath until barred by the United States Supreme Court in 1961. So much for the “exemplary experiment” in religious liberty.
Again, in describing the eighteenth century, we find Witte acknowledging that
government patronized religion in a variety of ways. Officials donated land and personalty for the building of churches, religious schools, and charities. They collected taxes and tithes to support ministers and missionaries. They exempted church property from taxation. They incorporated religious bodies. They outlawed blasphemy and sacrilege, unnecessary labor on the Sabbath and on religious holidays. They established religious test oaths.
Still, when such information is packed in one paragraph and surrounded by flowing narrative arguing to the contrary, most readers will little realize the actual pervasiveness of American public Christianity in the late-eighteenth century with the rise of the evangelical denominations: the Methodists, the Scotch-Irish and New School Presbyterians, and the Baptists. Nor will readers realize that Deism and Unitarianism, the religions of those men so selectively and frequently lauded by Witte and Davis, were dying religions for a minority within a minority.
With the nineteenth century in mind, Witte, like Davis, must find solace in the words of select authors and a handful of Supreme Court decisions. Why? Because, as he again shows in brief vignettes, America continued for much of the century to maintain the close working relationship between church and state that had been practiced, in some places in America, for 200 years before the Civil War. He thus reports that states discriminated, in various ways, against religious minorities. States and localities were comfortable in “endorsing religious symbols and ceremonies,” crosses were common on statehouse grounds, holy days were official holidays, chaplains were “appointed to state legislatures, military groups, and state prisons,” thanksgiving prayers were offered by governors, subsidies were given to Christian missionaries, the costs of Bibles were underwritten, tax exemptions were provided to Christian schools, “public schools and state universities had mandatory courses in the Bible and religion and compulsory attendance in daily chapel and Sunday worship services … [and] polygamy, prostitution, pornography, and other sexual offenses … were prohibited. Blasphemy and sacrilege were still prosecuted. … and other activities that depended on fate or magic were forbidden.” Christianity was simply an accepted “part of the common law.”
Yet Witte simultaneously would have us believe that from the seventeenth century, Americans had continually been guided by an adherence to six essential rights and liberties:
(1) liberty of conscience; (2) free exercise of religion; (3) religious pluralism; (4) religious equality; (5) separation of church and state; and (6) [the] disestablishment of religion.
One must suppose, then, that much of the 300 years before his preferred 1940s Supreme Court religious cases, which he seems in a rather tortured fashion to have projected back onto American history, can be seen as a strange aberration from the true but until recently undiscovered liberal pattern of American church and state relations.
In short, both of these Christian scholars seem embarrassed by much of America’s authentic religious past. They write to provide a more “appropriate” portrait that can be used to guide the movements of the United States Supreme Court without their having openly to reject the legitimating but manipulated fiction of “original intent.” But the difficulty these books present arises not just because they are sophisticated polemics addressed to educated Americans and students of the Court, but because they do more than distort the past; that is, as I have shown, they also tell in an encapsulated fashion the true story of the intimate relation between church and state in American history. Thus, they undermine their own theses while at the same time they insulate themselves from ready criticism for entirely missing, as so many others have done, the real story of church and state relations in America.
In one sense they are right: the visions of those authors they have emphasized, from Madison onward, have come to fruition, and much of America, in a nation deeply divided on such issues, has moved in the direction they endorsed. But then, why didn’t Davis and Witte simply tell the story of the prescient and victorious few while admitting that most Americans, at least during the late-eighteenth and early-nineteenth centuries, disagreed with them and lived their lives and wrote their laws accordingly? Wouldn’t that have been more honest and simpler?
I surmise that Davis and Witte couldn’t do that because then they would undermine the democratic legitimacy of their outlook and compromise the hallowed status of being guided by “original intent,” while also providing ammunition to those who defend a more muscular Christian presence in America’s public life. Thus, in the end they had to write the histories they did—incoherent in one instance and skillfully selective in the other.
Lastly, each of these books, in ways I haven’t been able to discuss in any detail, fails to meet accepted intellectual standards. Their descriptions of the Enlightenment, Republicanism, Reform Protestantism, Pietism, and natural law are wholly derivative and dependent on selective editors and secondary scholarship, overly simplistic, and, often, inaccurate in a fashion that forced brevity can’t explain. Is it today too much to ask that busy scholars actually read those works they are going to discuss and write about with assumed authority? Is it too much to ask, with Davis in mind, that they make a concerted effort to ensure that their citations regularly match those of the texts from which they are drawn and that they don’t confuse documents? How curious, if the history of Christian America cannot be regularly trusted to the most highly regarded Christian Americans.
Barry Alan Shain is associate professor of political science at Colgate University. He is the author of The Myth of American Individualism: The Protestant Origins of American Political Thought (Princeton Univ. Press) and is currently working on a book tentatively titled Revolutionary America’s Declaration: The Nature of Rights at the Founding.
1. It should be noted that in addition to the period under discussion, Witte devotes nearly half of his book to an exploration of late-nineteenth- and twentieth-century state and federal court decisions and jurisprudence as they relate to matters of church and state. Thus, this work, which is more a general survey than a focused monograph, has a much broader focus than can be captured in what follows.
2. Derek H. Davis is director of the J. M. Dawson Institute of Church-State Relations at Baylor University, which offers M.A. and Ph.D. degrees in church-state studies. In addition, he is the editor of the Journal of Church and State. According to colleagues who know Davis, he is well-regarded within the Southern Baptist Convention and is held in high esteem by the Baptist Joint Committee. The work under review appears in an Oxford University Press series, Religion in America, edited by Harry S. Stout of Yale University. John Witte, Jr., is the Jonas Robitscher Professor of Law and Ethics and director of the Law and Religion Program at Emory University. Witte is the author of ten books and 90 professional articles, and has recently been named director of a new Center for the Interdisciplinary Study of Religion, which is jointly funded by a $3.2 million grant from The Pew Charitable Trusts and a $1.6 million grant from Emory University. Clearly, then, Davis and Witte are men of considerable standing.
NOTE: For your convenience, the following books, which were mentioned above, are available for purchase: • Religion and the Continental Congress, by Derek H. Davis • Religion and the American Constitutional Experiment, by John Witte, Jr.
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