Baptists, Madison and the Virginia fight that put religious liberty first

Virginia once jailed preachers for talking about Jesus to people who wanted to hear it, and the story of how that ended is one the modern argument about religion and government almost never tells, because it does not fit either side's script. In the colonial and Revolutionary Virginia of the 1760s and 1770s, the government of the colony had an official church, the Church of England. Ministers of other denominations, and Baptists in particular, could be arrested for preaching without a license from the authorities. Picture a farmer's field on a Sunday, a preacher on a stump, a crowd of neighbors, and a sheriff at the edge of the crowd with a warrant. That is not a scene from the Old World. That is Virginia. Several Baptist preachers spent time in county jails for the offense.

Now fast forward. By 1786, that same Virginia had passed a statute that declared, in words still striking today, that no man could be compelled to support or attend any religious worship, place or ministry. The people who did it were an unlikely pair: Baptist and Presbyterian dissenters who were sure that Christ did not need a tax collector, and a small, bookish, frail young legislator named James Madison, who was a product of the Enlightenment and a reader of Locke.

Folks, I want you to sit with that for a moment, because it blows up a myth that people on both sides of today's argument repeat. One side says religious liberty was invented by secular skeptics who wanted faith kept out of public life. The other side sometimes says the founders never intended any limit on government support for religion at all. Neither one survives a look at Virginia. Religious liberty in America was pushed through by believers who wanted their faith free, and by statesmen who agreed that a coerced faith is worthless and a state-run church corrupts the state. That alliance is the founding of this particular freedom, and conservatives, who say they honor the founding, ought to know the story cold.

What an established church actually meant

Start with the word establishment, because we use it casually. In Virginia, the established church was not just the church the governor happened to attend. It was supported by public taxes, and the Anglican parishes were governed under colonial law. The vestries, which were local bodies of leading men, handled much of what we would call local government, including the care of the poor. Ministers of the Church of England were paid out of public levies. Dissenters paid too, whether they liked it or not, and they often faced licensing rules and penalties for unlicensed preaching.

You can argue about how harshly any given law was enforced in any given county. What you cannot argue is the principle. The state had picked a church and was backing it with money and force. For the dissenting Baptists, who believed that baptism should follow a personal profession of faith and that the church should be a voluntary gathering of believers, the arrangement was not an abstraction. It meant paying taxes to support clergy they thought were wrong, and risking jail to worship in their own way.

A young Madison saw it. In a letter written in January 1774, he told a friend in Philadelphia that he was troubled by the imprisonment of Baptist preachers in Virginia counties, and he used the strongest language of his young career about the spirit of persecution. A man who grew up in the established church, who had every social reason to look the other way, was offended on principle. Remember that, because the whole fight turns on it: the cause did not belong to one denomination.

1776: from toleration to free exercise

When Virginia wrote its Declaration of Rights in the summer of 1776, George Mason drafted the section on religion, and his draft said that all men should enjoy the fullest toleration in the exercise of religion. Madison, then a young delegate of twenty-five, objected to the word. Toleration, he understood, is something a government grants. A government that grants can revoke. What Madison proposed instead was language saying that all men are equally entitled to the free exercise of religion according to the dictates of conscience. That language went into Article 16 of the Virginia Declaration of Rights.

It is a small edit with a large idea inside it. A right is not a favor. The Danbury Baptists said much the same thing to Thomas Jefferson in 1801, and we will meet that letter in a moment. For now, notice the move: from "we will put up with you" to "this belongs to you by nature." That is a conservative idea if anything is. It says there are things the government may not touch because they were never the government's to give.

1784: Patrick Henry's bill

The war was won, the Anglican establishment was largely unwound in practice, and the next question was what would replace it. In 1784, Patrick Henry, the man of "give me liberty or give me death," backed a proposal usually called a general assessment. It would have levied a tax to support teachers of the Christian religion, and each taxpayer would have chosen which Christian church would receive his share. Taxpayers who belonged to no church could direct their money to a fund for schools.

Let me give you the strongest version of the case for it, because the supporters were not villains. Henry and his allies were worried that the Revolution had weakened public morals and that religion was the glue holding a republic together. The general assessment was also not a favor to one denomination. On paper, it was even-handed among Christian bodies. If you are a modern reader who thinks of an establishment as one church bossing everyone, a multi-denominational tax looks mild.

Here is why Madison and the Baptists did not buy it. Let me lay it out in numbered form, since this is an argument and ought to be treated like one.

1. The state would decide who counts. A bill that supports "teachers of the Christian religion" has to define Christian, define teacher, and define which groups qualify. Once the legislature draws that line, it is in the business of deciding what faith is.
2. Support invites control. Whoever pays the minister sooner or later wants a say in what he preaches. The Baptists knew that the money that comes with no strings this year will come with strings next year.
3. Compelled giving is not charity. A tax is not a gift. A man forced to fund a church he does not believe in is not practicing religion; he is paying a fine.
4. The principle has no stopping point. If the legislature may tax citizens to support Christian teachers, it may tax them to support one denomination, and a later legislature may decide that denomination is the only one.

That last point was Madison's central insight, and he put it in his own words in the document that made his reputation.

June 1785: the Memorial and Remonstrance

Henry left the House of Delegates when he was elected governor in late 1784, and the assessment bill was held over until the next session so the public could weigh in. Madison seized the opportunity. In June 1785 he wrote what is now called the Memorial and Remonstrance Against Religious Assessments, a petition addressed to the General Assembly, and it circulated for signatures in counties across Virginia. It had fifteen numbered points, and it is worth reading in full, which you can do on the website of the National Archives or the Library of Congress in about fifteen minutes.

Several of its arguments are the kind a conservative would write today. Madison argued that religion is an "unalienable" right because the duty we owe our Creator is, in his words, precedent in both order of time and degree of obligation to the claims of civil society; no man's religion can be subject to the will of the majority. In his reading, a man's religion "must be left to the conviction and conscience of every man." He warned that if the legislature could establish Christianity to the exclusion of other religions, it could by the same logic establish one sect of Christians to the exclusion of the others. And he made a point that believers ought to like even better: he argued that Christianity did not need the state's help, that the faith had flourished in its first three centuries without the support of law, and that when it did get legal support it became corrupt. The establishment, in his view, was an insult to the religion it claimed to protect.

The response was remarkable. Petitions poured in from across the state, many of them from Baptists and Presbyterians, and the signatures ran into the thousands. When the General Assembly returned, the assessment bill was dead. Governor Henry was no longer in the House to push it, public sentiment had turned, and the legislature moved instead to take up a different proposal that had been sitting on the shelf since 1779.

January 1786: Jefferson's statute

Thomas Jefferson had drafted the Bill for Establishing Religious Freedom in 1777 and introduced it in 1779, but it went nowhere for years. In 1786, with Jefferson serving as minister to France, Madison steered it through the House of Delegates. It was enacted on January 16, 1786, and Jefferson later listed it among the three accomplishments he wanted on his tombstone.

The preamble is as eloquent as anything the founders wrote. It begins by declaring that Almighty God hath created the mind free. It says that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical. The operative text says that no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor be enforced, restrained, molested or burdened in his body or goods, nor otherwise suffer on account of his religious opinions or belief. Men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and these shall in no wise diminish, enlarge or affect their civil capacities.

Read that with a conservative's eye. It is not hostile to faith. It treats faith as so serious that the government has no business forcing it. The word "sinful" appears in the preamble. A statute written by a man the culture wars love to paint as a hostile skeptic argues that compulsion is sinful. That is the Baptist argument in an Enlightenment accent.

The First Amendment: why the order matters

In 1789 Madison, who had won a seat in the first House of Representatives, took the Virginia fight national. He had promised during his congressional campaign that he would work for a bill of rights, and historians commonly note that his dealings with Baptist leaders, including the Virginia minister John Leland, helped. In June 1789 he proposed amendments, and his first formulation on religion was that the civil rights of none should be abridged on account of religious belief or worship, nor should any national religion be established, nor should the full and equal rights of conscience be infringed.

Congress reworked the wording. The version that was ratified on December 15, 1791 reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Notice three things.

• Two clauses, one purpose. The first clause, called the Establishment Clause, keeps the government from creating a church or giving one a privileged status. The second, the Free Exercise Clause, keeps it from interfering with worship. They are not rivals. Both protect the same thing: a conscience free of state compulsion.
• The word "respecting." Congress could not pass a law establishing a national church, and it also could not pass a law interfering with the arrangements the states had already made. That detail matters in the next section.
• Religion comes first. The first words of the first amendment in the Bill of Rights deal with religion. The order was not an accident of the drafting, but I will not claim to know the mind of every member of Congress. What I can say is that the founders thought this was important enough to put at the head of the list.

The establishments that outlived 1791

If you think the story ends neatly in 1791, you have been misled by the tidy version. The First Amendment constrained Congress. It did not bind the states, and several states kept their own establishments for decades. Connecticut kept a Congregationalist establishment until its constitution of 1818. New Hampshire's system of town-supported churches was repealed in 1819. Massachusetts held out longest: the state constitution of 1780 allowed towns to tax for the support of public Protestant worship, and that system was finally ended by an amendment ratified in 1833.

This is why so many Baptists, Methodists, Quakers and other minority believers in New England kept up their fight into the 1800s, and why the Danbury Baptists were petitioning Jefferson in 1801. They lived in a state where the established church was a fact of life. It was not until the Fourteenth Amendment, ratified in 1868, and the Supreme Court's later decisions that the religion clauses came to apply to state and local governments too. The Court held that the free exercise protection applied to the states in Cantwell v. Connecticut in 1940, and that the establishment protection did in Everson v. Board of Education in 1947.

We will leave the argument about what those later rulings do and do not mean for other posts, including where 'a wall of separation' really comes from and what it was built for and the three-part test that haunted churches for fifty years is finally gone. The point here is smaller and more basic. The founding generation did not hand down a finished rule. They fought out a principle, state by state, with believers on both sides, and the principle that won was that faith should be free and government should not pick the winner.

The strongest objection, answered

There is a serious objection from people who want more public acknowledgment of faith, and I want to put it fairly. It goes like this: if the founders really opposed any government involvement with religion, why did Congress hire chaplains, why did presidents issue Thanksgiving proclamations, and why did the Northwest Ordinance of 1787 declare that religion, morality and knowledge are necessary to good government and the happiness of mankind? Doesn't the Virginia story prove too much?

It is a fair point, and the right answer is that the Virginia fight does not support a rule that government must be hostile to faith. Madison himself, as a congressman, voted for chaplains and later had mixed second thoughts, and the same founders who passed the Establishment Clause lived comfortably with public acknowledgment of religion. What the Virginia fight establishes is narrower and more durable. It says government cannot compel belief or worship, cannot compel people to pay for someone else's religion, and cannot make civil rights depend on religious opinion. It does not say that public life must be a religion-free zone, and the people who fought for it would have been astonished to hear the claim.

That distinction is exactly what makes the Virginia story useful to conservatives. We are the ones who say the founders meant what they wrote. The founders wrote a ban on a national church and a guarantee of free exercise. Both parts are binding, and the way to honor them is not to stretch one into a license to scrub faith from every public square, or to stretch the other into a license for the state to promote a favored creed.

What to remember

The founding argument over religion was never a fight between the religious and the irreligious. It was a fight between those who thought the state should enforce belief and those who thought belief should be free. Dissenting Baptists, with a long memory of jail cells, and a statesman steeped in the Enlightenment ended up on the same side, and the result was the first of our liberties. Texts like Article VI's ban on religious tests, discussed in Article VI, the atheist notary and the clause every believer should defend, and the debates covered in Seven claims about God and the founding, tested against the record, fill in the rest of the picture. For the wider setting, see The Founding Ideas in Order, From Magna Carta to the Bill of Rights and Five cases that ended America's religious penalty in school aid.

If someone tells you religious liberty was a gift from secular elites, tell them about the preachers in the Virginia jails. If someone tells you the founders wanted a government that quietly favored one faith, tell them about the Remonstrance and the thousands who signed it. Either way, you will be standing on solid ground, and you will be on the side of the people who did the actual work.

The bottom line

• Religious liberty in America was won by believers, especially Baptist dissenters, working with Madison and Jefferson. It was never a fight between faith and freedom.
• The Virginia statute of 1786 rests on the idea that compelled belief and compelled support are wrong in themselves, a principle that protects every church, including yours.
• The First Amendment bars both a government-picked church and government interference with worship. Defend both clauses, not just the one that suits your side this year.
• The state establishments that lasted until 1833 remind us that rights are won and kept by ordinary people showing up, petitioning and signing their names.
• Read the Memorial and Remonstrance yourself, and hand a copy to a friend who thinks this is a modern argument. It takes fifteen minutes and wins the debate.