Wednesday, April 23, 2008

Esbeck on Protestant Dissent and the Virginia Disestablishment, 1776-1786

Protestant Dissent and the Virginia Distestablishment, 1776 - 1786 is a new article by Carl H. Esbeck, University of Missouri School of Law. It is forthcoming in the Georgetown Journal of Law & Public Policy (2008). Here's the abstract:
In Everson v. Board of Education (1947), the Supreme Court elevated the events surrounding the disestablishment of the Anglican Church in Virginia during and soon after the American Revolution as a principal guide for the meaning of the Establishment Clause. The rule to come out of the Virginia experience is that support for religion should be voluntary thus, no active support by the government.
An in-depth examination of James Madison's Memorial and Remonstrance opposing Patrick Henry's Assessment Bill is undertaken here not only because of its role in the Virginia disestablishment, but because it is the most important document on religious freedom by an American. In a blend of Lockeian views and those of Protestant dissenters, Madison argues that government should have "no cognizance" over claims of "religious truth," as opposed to religious teachings that speak to moral issues of interest to our common life together and hence properly of interest to civil government. Back in 1785, however, Madison's Memorial was less influential than petitions filed by Virginia's Presbyterians and Baptists. A careful look at all these petitions shows that the theological reasons for opposing a religious establishment were the more persuasive. The primary aim of the petitions was to protect organized religion from being corrupted by too close an embrace by the civil state.
Virginia's dramatic story is told here of how a few well-placed statesmen of Lockeian sympathies made common cause with religious dissenters to narrowly carry off a defeat of Henry's tax for the support of clergy salaries. The lesson is that the government's jurisdiction ("cognizance") over the church is limited, as civil government is without authority to actively support (or interfere with internal matters of) organized religion, all to the mutual benefit of church and state.