Thomas JEFFERSON, James MADISON and the first amendment to the United States Constitution
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ADDRESS TO COLLOQUE INTERNATIONAL FRANCO-AMERICAIN PARIS, UNIVERSITE DE LA SORBONNE – SEPTEMBER 28, 2002
It is an honor to be invited to address you on this occasion and in this place. As a native of Virginia I was early instructed on the accomplishments of Mr. Jefferson. He was larger than life for those of us who, in childhood, visited Monticello, on that “little mountain” overlooking Charlottesville. Sometime in the forties my father began to explore with me the career of this remarkable figure. It was only natural that the first major research I undertook, a college senior thesis, would focus upon the theme of religious establishment and the First Amendment to the United States Constitution. I learned it was while serving as American ambassador to France that Jefferson unfailingly urged his friend James Madison to secure a Bill of Rights in the newly minted Constitution. Madison was convinced by his friend and saw to that task in 1789. Jefferson and Madison formed a friendship when they met in 1776 and their common cause to establish religious freedom began to flower. Madison, at age 25, challenged his elders at the 1776 Virginia Convention and successfully achieved alteration of George Mason’s Declaration of Rights by replacing the guarantee of “. . . the fullest Toleration in the Exercise of Religion” to the “free exercise of religion.” Meanwhile Mr. Jefferson, in Philadelphia, composed the Declaration of Independence and, a year later, in Fredericksburg, completed his Bill for Establishing Religious Freedom in Virginia. There the matter rested for some while as the colonies broke with England and undertook the Revolution that created a new nation of 13 states. With a governing document, “The Articles of Confederation,” the nation began to function and one of its primary requirements was a strong voice in Europe. For that task three of the most distinguished patriots, Benjamin Franklin, John Adams and Jefferson were selected. Thus, on July 5th, 1784 Jefferson, his daughter and his servants left Boston for Le Havre, and proceeded to take up the post of Ambassador in Paris. There General Lafayette served as his aide-de-camp. Jefferson’s biographer, Merrill Peterson, notes that Lafayette was Jefferson’s liaison in all matters touching the relationship between France and the United States. Together they worked for Franco-American commerce. Of that work Jefferson observed, “I only held the nail, he (Lafayette) drove it.” As Jefferson took up his office in Paris, Madison began their correspondence with a letter dated August 20, 1784. Jefferson’s final letter from Paris was dated September 17, 1789. In that span of time the two friends explored the nature of the new nation and mutual concerns to which Madison would give attention.
As Jefferson departed Madison had become a powerful figure in Virginia politics. Once more religion would be the agenda when the General Assembly met in the Fall of 1784. Two issues dominated Madison’s agenda. Faced with a bill to assess all citizens for support of religious education, Madison circulated what was to become his classic statement on religious establishment – A Memorial and Remonstrance – that served, along with petitions by Baptists, Presbyterians and Methodists, to defeat the assessment. That accomplished, Madison moved quickly to place before the General Assembly Jefferson’s Bill for Establishing Religious Freedom. After some tinkering with the prologue, the Assembly adopted the operative third section of the Bill without change and it was signed into law in January of 1786. Along with the Declaration of Independence, this Bill was Jefferson’s most prized possession. In Madison’s letter of January 22, 1786 to Jefferson, he wrote : “The steps taken throughout the Country to defeat the General Assessment had produced all of the effect that could have been wished. The table was loaded with petitions and remonstrances from all parts against the interposition of the Legislature in matters of Religion. A general convention of the Presbyterian church prayed expressly that the bill in the Revisal might be passed into law, as the best safeguard short of a constitutional one, for their religious rights. . . The enacting clauses past without a single alteration, and I flatter myself have in this country extinguished for ever the ambitious hope of making laws for the human mind.”
Of all the actions with which Jefferson made common cause with his friend Madison, none was more critical to both than the Jefferson Bill concerning Religious Freedom. It is no surprise, therefore that when news from Madison announced its passage, Jefferson responded : “The Virginia act for religious freedom has been received with infinite approbation in Europe and propagated with enthusiasm. I do not mean by the governments, but by the individuals which compose them. It has been translated into French and Italian, has been sent to most of the courts of Europe, and has been the best evidence of the falsehood of those reports which stated us to be in anarchy. It is inserted in the new Encyclopedie, and is appearing in most of the publications respecting America. In fact it is comfortable to see that standard of reason at length erected, after so many ages during which the human mind has been held in vassalage by kings, priests and nobles; and it is honorable for us to have produced the first legislature who has had the courage to declare that the reason of man may be trusted with the formation of his own opinions.” (The Republic of Letters , edited by James Morton Smith. . I, pp. 458-459)
These simple words remain a beacon for persons around the globe who find human reason and compassion to be the bedrocks of the natural rights of human kind. It needs to be observed that Jefferson was a theist, a term he would define for himself alone. The clearest of those affirmations of his beliefs are to be found in a letter Jefferson wrote to Benjamin Rush on April 21, 1803. “To the corruptions of Christianity I am indeed opposed; but not to the genuine precepts of Jesus himself. I am a Christian, in the only sense he wished any one to be; sincerely attached to his doctrines, in preference to all others; ascribing to himself every human excellence; & believing he never claimed any other. . . . It behooves 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.” Jefferson concluded: “. . . 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.”
These words are particularly pertinent in the current climate in the United States. There are many citizens who resist the Jefferson arguments, but the Sage of Monticello looms too large to risk open dispute with his ideas. A recent solution exercised by the Library of Congress in 1998 was to “misquote” Jefferson. In a display of materials relating to religion in the history of the nation, the Library reduced Jefferson’s words to “I am a Christian . . .” This tampering with the document, which they have in hand, has made all decisions by the staff suspect.
In reality, the letter to Rush is the connecting link between Jefferson’s personal beliefs and his theories relating to religious establishments. The same concepts which motivated his commitment to religious freedom led Jefferson to life long advocacy of “separation of church and state.” Today the term “church and state” raises issues not clearly enunciated by Jefferson. In employing the word “church” he did not suggest that the state in some way has a special category for Christians not available to Jews and Muslims and Hindus. What he meant was that the state should be separate from any and all religious institutions. And, indeed, such a view was espoused on the shores of North America for the first time by Roger Williams, a founder of Rhode Island in the 17th Century. Williams, a staunch Protestant, addressed this issue directly in his likening of the state to a ship whose Captain had equal responsibility for all passengers, irrespective of their religious philosophy. That Captain was to maintain order and safety so that passengers of all religious and philosophical perspectives, including atheism, would receive equal treatment under the law during their voyage.
Had all states maintained the Jefferson/Williams “separation” model the religious wars of persecution that have so frequently defined statecraft, to the detriment of majority and minority alike, would not have flourished as they have. The sad truth is that religion seems incapable of sustaining a commitment to policies that were born out of the ideas of justice and equality. Almost without exception, minority religions, born in an environment of harassment and persecution, upon achieving power, have turned that very arrogance of power on the next generation of new minorities. Perhaps the most feared phrase among most religious leaders around the globe is “free thought.” As a well spring of new ideas free thought led Jefferson to affirm: “I have sworn eternal hostility upon all tyranny over the minds of men.” That was his creed.
The next chapter in this saga occurred in 1789 when Madison proposed to the newly elected United States Congress that it adopt what are now known as the First Amendment religion clauses. Mason’s Virginia Declaration of Rights, Article 16, amended by Madison, had launched a debate that culminated, 13 years later, in a new light of freedom for the infant nation. In this struggle Jefferson was the moving force in convincing Madison to support an amendment to the New Constitution, labeled the Bill of Rights.
IN THE MATTER OF DANBURY, CONNECTICUT – 1802
In the past few years there has emerged a serious challenge to the scholars who have done research on the famous Danbury correspondence and the significance of the letter written by Jefferson in response to the Danbury Baptist Association in Connecticut, a committee of which, sent him a cordial letter commending his presidency and affirming their sentiments as “uniformly on the side of Religious Liberty.” They went on to protest that in their State, “Religion is considered as the first object of Legislation.” Jefferson’s response was warm and cordial. He wrote : “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none oth¬er for his faith or his wor¬ship, that the legislative powers of government reach actions only, and not opin¬ions, I con¬tem¬plate with sovereign reverence that act of the whole Ameri¬can people which declared that their legisla¬ture should ‘make no law respecting an estab¬lishment of reli¬gion, or prohibiting the free exercise there¬of,’ thus building a wall of separa¬tion between Church and State.” Now let us be clear. Jefferson’s reference to the “religion clauses” of the First Amendment was made with the full awareness of what its author, James Madison, intended in 1789. The two patriots were of one mind on the subject at hand. Madison employed “separation” at least three times in his correspondence. In his letter to Robert Walsh on March 2, 1819 he wrote : “. . . morality of the Priesthood & the devotion of the people have been manifestly increased by the total separation of the Church from the State.” The question of New England politics is interesting to discuss, but the sole issue before us is not the Danbury Baptists, but rather President Jefferson. He was, after all, quoting a colleague, Mr. Madison. Further, as my wife and I first noted several years ago at the Library of Congress, Jefferson initially included the modifier “eternal” to apply to “separation.” He was serious about this. As to the Danbury Baptists who wrote the letter, anyone who has read it¬ can categorically state that there is not a single shred of criticism of Mr. Jefferson in the entire letter. 
Modern critics of “separation” frequently insist that Jefferson dashed off his letter of response, and Justice Rehnquist wrote in Wallace v. Jaffree that it “was a short note of courtesy.” The evidence is totally to the contrary. Jefferson received the Danbury Letter on December 30, 1801. On January 1, 1802, he sent the letter, a draft of his response, and a request that Attorney General Levi Lincoln offer his thoughts. Jefferson noted that he had long wished to find a way of saying why he did not proclaim fastings and thanksgivings, as his predecessor had done. Jefferson wrote: “The address, to be sure, does not point at this, and its introduction is awkward. But I foresee no opportunity of doing it more pertinently. I know it will give great offense to the New England clergy; but the advocate of religious freedom is to expect neither peace nor forgiveness from them. Will you be so good as to examine the answer and suggest any alterations which might prevent an ill effect, or promote a good one, among the people?” Mr. Lincoln replied on the same day with the suggestion that Jefferson alter his comments on proclamations because, with the exception of Rhode Island, the other New England states were used to “proclamations from their respective executives.”  He went on: “This custom is venerable, being handed down from our ancestors . . . [and] they regretted very much the late conduct of the legislature of Rhode Island on this subject.”  Based on Lincoln’s advice, Jefferson excised “Congress thus inhibited from acts respecting religion and the Executive authorized only to execute their acts, I have refrained from prescribing even those occasional performances of devotion.  Explaining his decision, Jeffer¬son wrote in the margin of the original draft that “ this paragraph was omitted on the suggestion that it might give uneasiness to some of our republican friends in the eastern states where the proclamation of thanksgivings etc. By their Executive is an antient habit and is respected. 
What a remarkable story this is. In 1801, Baptists in Connecticut were still persecuted under a “mild” establishment. The First Amendment to the Constitution applied only to Federal action. Thus, Jefferson, as President, could do nothing about the state laws except to anticipate seeing “the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.”  In their hearts the Baptists knew that and so stated when they wrote: “We are sensible that the President of the United States, is not the national legislator, and also sensible that the national government cannot destroy the Laws of each State; but our hopes are strong that the sentiments of our beloved President . . . will shine and prevail through all these States and all the world till Hierarchy and Tyranny be destroyed from the Earth.”  These letters and events together reflect how seriously Mr. Jefferson approached the plight of fellow citizens, and, when understood in that context, make the separation metaphor profoundly significant.  It was born out of human suffering, not rational abstraction. It is difficult to fathom how modern critics such as Daniel Driesbach and Philip Hamburger seem to possess such disdain for facts.
SOME CLOSING THOUGHTS
A. CAREER AND FRIENDSHIP
A few months before his death I interviewed Jefferson’s celebrated biographer, Dumas Malone in his office at the University of Virginia. When I made the appointment he said: “Come soon. At my age (94) you never know.” We talked at length about the remarkable friendship between Jefferson and James Madison. The gifted scholar warmed to the subject and offered these thoughtful insights. “The friendship between Jefferson and Madison was one of the greatest in history.” He mused: “We know that they played chess together, but mostly they just talked. And their conversations were so frequent and extensive that it becomes difficult to determine where one man’s thinking begins and the other’s ends. They were loyal friends. Madison was a better constitutionalist than Jefferson; he was the more judicious of the two. Jefferson had the more daring mind. I regard the work of Madison and Jefferson on the subject of religious freedom as extremely important. The two men may not have been entirely consistent about other forms of freedom, but on religious freedom they were absolutely consistent.”
JEFFERSON, MADISON AND HISTORY
Jefferson left instructions respecting his tombstone, a monument that still stands in a wooded area near his beloved Monticello. He instructed that the following inscription appear. “Author of the Declaration of American Independence, of the Statute of Virginia for Religious Freedom and Father of the University of Virginia.”
Perhaps the most feared phrase among religious leaders around the globe is “free thought.” As a well spring of new ideas, free thought led Jefferson to affirm: “I have sworn eternal hostility upon all tyranny over the minds of men.” That was his creed. I think the distinguished historian Henry Steele Commager put it best. “There is no doubt that in the revolutionary era the American people and the nation were religious in a score of ways. It was common to Protestants, Catholics, Jews and deists. . . . I would describe it . . . as a religion of morality and of virtue.” Commager goes on to state: “Its testaments, moral, philosophical, or political, celebrated virtue, equality in the sight of God and the law, justice, and life here rather than hereafter. It believed in one form of immortality – the immortality of fame – which was the spur: ‘Take care of me when dead, and be assured that I shall leave with you my last affections’ [Jefferson wrote this in his final letter to Madison in 1826.] It was in a sense the cri de coeur of their generation.” So, as Commager remarks, “Madison may be saying to us over the arch of time: ‘Take care of me when I am dead.” Madison did precisely what his friend asked. Think again of the Jefferson tomb inscription. (1) Madison was the leading architect of the Constitution, a document that was chiseled from the rock solid thought in Jefferson’s Declaration of Independence. (2) Madison served as the president of Mr. Jefferson’s University of Virginia for ten years after Jefferson died. (3) Madison shaped the First Amendment to preserve the brilliant message of Jefferson’s Bill for Establishing Religious Freedom. It has been a remarkable gift to allow me to celebrate the 200th birthday of the Danbury Letter. To do so in the beautiful city of Paris, which Mr. Jefferson dearly loved, makes it even more special.
 I am indebted to the editors of The Papers of Thomas Jefferson for supplying me with a photocopy of the letter which I transcribed here:
The address of the Danbury Baptist Association in the State of Connecticut, as¬sembled October 7th 1801. To Thomas Jefferson Esq. President of the United States of America. Sir, Among the many millions in America and Europe who re¬joice in your Election to office; we embrace the first opportunity which we have enjoyd in our collec¬tive capacity, since your Inauguration, to express our great satisfac¬tion, in your ap¬pointment to the chief Majestracy in the United States: And though our mode of expression may be less courtly and pompious than what many others clothe their addresses with, we beg you, Sir to believe, that none are more sincere. Our Sentiments are uniformly on the side of Reli¬gious Liberty—That Religion is at all times and places a mat¬ter between God and in¬dividuals—That no man ought to suffer in name, person, or effects on account of his religious Opin¬ions—That the legitimate Power of civil government extends no further than to punish the man who works ill to his neighbors: But Sir our constitu¬tion of gov¬ern¬ment is not spe¬cific. Our antient char¬ter together with the Laws made coinci¬dent therewith, were adopted as the Basis of our government, at the time of our revolution; and such had been our Laws & usages, and such still are; that Reli¬gion is considered as the first object of Legislation; and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors grant¬ed, and not as inalien¬able rights: and these fa¬vors we receive at the ex¬pense of such degrading acknowl¬edge¬ments, as are in¬consistent with the rights of freemen. It is not to be wondered at therefore; if those, who seek after power & gain under the pretense of govern¬ment & Religion should re¬proach their fellow men—should reproach their chief Magis¬trate, as an enemy of religion Law & good order because he will not, dare not assume the prerogatives of Jehovah and make Laws to govern the Kingdom of Christ. Sir, we are sensible that the President of the [U]nited States, is not the national leg¬islator, and also sensible that the national government cannot destroy the Laws of each State; but our hopes are strong that the sentiments of our beloved Presi¬dent, which have had such genial affect already, like the radiant beams of the Sun, will shine and prevail through all these States and all the world till Hierarchy and Tyranny be destroyed from the Earth. Sir, when we reflect on your past services, and see a glow of philanthropy and good will shining forth in a course of more than thirty years we have reason to believe that America’s God has raised you up to fill the chair of State out of that good will which he bears to the Millions which you preside over. May God strengthen you for the arduous task which providence & the voice of the people have cald you to sustain and support you in your Administration against all the predetermined opposition of those who wish to rise to wealth & importance on the poverty and subjection of the people. And may the Lord preserve you safe from every evil and bring you at last to his Heavenly Kingdom through Jesus Christ our Glorious Me¬diator. Signed in behalf of the Association. Nehh Dodge Ephram Robbins The Committee Stephen S. Nelson
 Letter from Levi Lincoln to Thomas Jefferson (Jan. 1, 1802) (available in collection of Jefferson Papers (Manuscript Division) Library of Congress, Washington, D.C.).
 Letter from Thomas Jefferson to Committee of Danbury Baptists (Jan. 1, 1802), supra note 207, at 510.
 Id. The note, in Jefferson’s hand, does not alter Jefferson’s consistent refusal to make such proclamations. It merely reflects his awareness that the “antient” traditions of the New England states, except for Rhode Island, would require time before they were altered. At the national level religious exercises were subject “only to the voluntary regulations and discipline of each respective sect.” See id. These words were in the paragraph Jefferson omitted
 Letter from the Danbury Association, supra note 210. We are reminded that James Madison anticipated just the problem the Danbury Baptists experienced, knowing, as he did, that it was at the state level that violations of rights were most likely to occur. Thus did he attempt, unsuccessfully, to pass a bill applying the Religion Clauses to state laws. Id.; see supra notes 198-200 and accompanying text.
 When Thomas Jefferson responded to the Baptists in Danbury, Connecticut, they were being severely persecuted because they were not a part of the Congregationalist establishment in that state. Jefferson sought to use his reply to enunciate his own principles on the subject of religious freedom and non-establishment. On December 30, 1801, he wrote his first draft of a letter that was to be sent two days later. Letter from Thomas Jefferson to Committee of the Danbury Baptist Association, supra note 207, at 510. In the original, Jefferson included a single word which he deleted with pen strokes prior to writing the final draft. As first devised by Jefferson, the wording was “thus building a wall of eternal separation between church and State.” Id. In 1995 my careful reading of the original manuscript in the Library of Congress leaves no doubt as to that word. Whatever prompted the President to strike that word, it is clear that as he first phrased his assessment of the First Amendment, the word “eternal” came to mind. This strongly suggests that separation of church and state was never simply a political solution for Jefferson, but a fundamental principle to which he was dedicated. While it certainly can be argued that Jefferson struck the word because he decided he did not mean it, a more plausible explanation is that he saw the word as an intrusive adjective that deflected from the effect of the crisp phrase “wall of separation.” All we can say with certainty is that when he first devised the phrase, the word “eternal” flowed naturally in the context for him. To my knowledge no one has previously deci¬phered the word “eternal.” In 1998 the FBI , using all its vaunted research equipment to find out what we already knew. Jefferson did, in fact, use the word eternal in one of his most remembered phrases swearing “eternal hostility against every form of tyranny over the mind of man.” Letter from Thomas Jefferson to Benjamin Rush (Sept. 23, 1800), in A JEFFERSON PROFILE, supra note 55, at 120.