Esbeck on Law and Religion at and after the Founding

Carl H. Esbeck, University of Missouri School of Law, has posted Religion during the American Revolution and the Early Republic, which will also appear in Silvio Ferrari, ed., Law & Religion (Ashgate Publishing Co., U.K., 2013).  Here is the abstract:    

This paper is part of an anthology and will appear in volume one under the heading Historical Introduction to Law and Religion in the West. The editor requested an extended essay concerning religion and religious liberty in the American War of Independence and its aftermath. The paper is juxtaposed with another on the French Revolution, providing a comparison for the role religion played in these events that continue to shape the world. In addition to the War itself, which unfolded over 1775-1783, changes within American Protestantism had a leveling effect on society and, by the early years of the republic, the political and religious culture exalted liberty, individualism, and the voluntary church.

The Quebec Act of 1774 illustrates the degree to which American patriots reacted against Roman Catholicism. This act of Parliament preserved the established role of the Catholic Church in French Canada, including public funding and full sanction by the British government. British tolerance of the Catholic establishment drew harsh protests from Congress, even mention as a grievance in the Declaration of Independence. American sensitivity was to Old World political uses of religion. The patriots believed that a fully-empowered Catholic hierarchy to the north and west of them would bring Old World intrigues involving the Roman Church. To be an American was to be in sympathy with Protestantism, to be Protestant was to be republican, and to be republican was to oppose Catholic absolutism. Moreover, the British were departing from their constitutional commitment to representative government when they unilaterally imposed taxes and other oppressive acts on colonial subjects. This was seen as an offense to republicanism and each American’s inalienable rights. The breach of the Lockean social contract legitimated armed rebellion.

Where American patriots might have suffered divisions due to religion, instead the denominations united in support of the Revolution. The unity of Protestants among themselves (excepting Quakers and Church of England) and with the Enlightenment-rationalists behind the War-time effort was widespread. Notwithstanding divergent theological and philosophical ideas, there was a general set of beliefs on which Protestants could agree. Rationalists, in turn, were able to join with Protestants regarding an organization of the central government which respected conscience and left authority over religion in the States. In 1783, Congress under the Articles of Confederation received a petition from the Papal Nuncio in Paris. The Catholic Church in France sought recognition of a Catholic bishop in the United States. Congress replied that such matters were not its jurisdiction, but that power was reserved to the States. Once the French scheme became public, Catholics in the United States contacted authorities in Rome about opening a bishopric that dealt directly with the Vatican. This is an example of religious intrigue that Americans abjured.

The last major act of the Confederation Congress was passage of the Northwest Ordinance of 1787. It was rushed to completion by the Ohio Company, a venture by New Englanders willing to tender cash needed by Congress to pay war debts. Consistent with the establishmentarian leanings of New Englanders, the Company wanted glebes in the territories for the support of religion. Members of Congress outside New England opposed glebes and were able to force their no-aid view into the final draft of the Ordinance. This was an early example of American continental government embracing the voluntary principle. In the federalist republic instituted in 1789, once again jurisdiction over religion was primarily reserved to the States. Disestablishment was not spurred forward by the Constitution or Bill of Rights. Rather, disestablishment was a state-law affair that had been progressing in some colonies when they first adopted constitutions in 1776, and which continued state-by-state until completed in Massachusetts in 1833.

As the Revolution subsided, America witnessed a dramatic rise in Protestant expansion and influence on the broader culture. So extensive were the alterations by a more populist and personal religion, that this period is called the Second Great Awakening (1790s-1820s). During this time it was voluntaryistic religion that served as a seedbed for ordinary citizens, imbuing them with the civic virtues to sustain the nascent republic.