One day in 1802, an elderly gentleman took a copy of a petition to the Connecticut state assembly, threw it to the floor, planted his foot upon it and declared, “This is where it belongs!”
The petition was made by Baptists in the town of Danbury, Connecticut. Connecticut, along with several other states, had an established church, the Congregational. An established church enjoyed a clear and practical arrangement with the state, modeled after that of the Church of England. “Under state law,” writes Michael Toth, “Congregationalist churches received a sum for the salaries of their ministers, and other religious costs, paid for by the state’s residents.”
According to the First Amendment, Congress, meaning the federal entity, is forbidden to pass any laws “respecting an establishment of religion.” In the parlance of the time, this meant that the federal legislature should not have anything to do one way or another with establishments such as that of Connecticut. So the Danbury Baptists did not appeal to the Supreme Court of the United States, which would have pointed to the plain language of the Constitution and declared itself to have no standing in the case. Instead, they petitioned the Connecticut assembly.
They were not claiming persecution. “By the end of the eighteenth century,” writes Toth, “members of three specified religious denominations (Baptists, Quakers, and Anglicans) were permitted to direct their contributions to their own churches.” Assuming that the Danbury Baptists were no less generous to their church than were the Congregationalists to theirs, what they disputed was not the cost but the principle of the thing. For in order to claim the exemption you had to be a member attending the church in question, a stipulation which seems fair enough. But what if you were not a member of any church? Why should you pay to support Congregationalist ministers? Why should you contribute to the quarrying of the limestone and the hewing of the timber to build their houses of prayer?
The Danbury Baptists thus wrote to President Jefferson, to enlist his support. That elicited Jefferson’s famous letter, in which he opined that Americans in their Bill of Rights had erected a “wall of separation between Church and State.” If they had, it must have been a gaseous sort of wall, because the people of Connecticut had been passing through it for fifteen years without noticing. What Jefferson meant by that phrase, too, is disputable. Given the folkways of his fellow citizens, which he took as a matter of course, he could not possibly have meant that the state could drive from its precincts the Christian culture upon which it was based. The sticking point was the financing and the explicit legal relationship between a specific body of government, and a specific religious organization requiring a specific set of duties of its members. Those duties (not books, essays, feelings, opinions, words, allusions, or folk art) went generally by the name “religion.”
Jefferson’s letter, we know, has assumed the status of a supra-constitutional dictum from on high, even though he was not a member of the Constitutional Convention, he did not sign the Constitution, and he never served as a judge. That is one of the ironies of history.
But the irony is richer than most Americans know. Jefferson looms large in our American mythology because he drafted the Declaration of Independence, and he became president. The founder of the University of Virginia would have faded into the crowd of other founders were it not for the election of 1800. His personal opinions on matters of church and state, however we might define them, are worthy of attention and respect, but no more worthy than are the opinions of the other founders who were at least as wise and as patriotic as he, who gave as much as he did for the nascent country, but who happened not to have become president later on.
One of those men was the fellow who trod upon that petition from Danbury. His name was Oliver Ellsworth. It is his splendid biography by Michael Toth that I have cited above. But why should we care about what a long forgotten man believed?
Everyone at the time would have known the name of Ellsworth. Unlike Jefferson, Ellsworth was actually a member of the Constitutional Convention—and a crucial member at that. It was Ellsworth and his ally Roger Sherman who crafted the compromise that settled the dispute between the large states and the small states as to the composition of the United States Congress. James Madison, of the populous Virginia, wanted senators to be apportioned to the states according to their population. Alexander Hamilton, royalist at heart, wanted senators to be appointed by the president for life. Madison was uncharacteristically in the grip of an idea—arithmetical equality—while Hamilton was deeply suspicious of the power of local political bodies.
But Ellsworth, as Toth shows, was the real statesman here. He was a devout Congregationalist, and that taught him to respect local autonomy and local authority. For each town in Connecticut was founded as a parish, self-sufficient and independent. And in colonial times, each town sent the same number of delegates to the assembly, regardless of population. Think of it as a way to represent not persons but associations, ways of life, small polities that might contribute a great deal to the broader colony, while maintaining their own vibrant identities. So Ellsworth and Sherman proposed the Connecticut Compromise. The House of Representatives would be apportioned according to population, but each state, regardless of population, would send two men to the Senate, elected by the state legislatures. That compromise fit well with the character of the Constitution as a whole, which was, as Ellsworth said before Madison did, “partly national and partly federal.”
That was not all that Ellsworth did. He was elected to the Senate, where he was immediately appointed to a committee to determine what had been left undetermined in the Constitution: establishing federal courts and assigning them their areas of competence. Ellsworth deserves more credit than any other man as the founder of our system of appellate courts.
That came also with controversy. Were local juries competent to decide cases involving federal law? Though he was himself a Federalist, Ellsworth was no ideologue. He trusted the common people, in their villages and towns, to exercise some measure of authority in interpreting and executing federal law. For that, he won the admiration even of such deeply suspicious Anti-Federalists as George Mason. It was no surprise to anyone, then, that after the retirement of John Jay, President Washington appointed Ellsworth to the highest judicial office in the land. Thus, he became the second chief justice of the Supreme Court, swearing in John Adams as president in 1797, and retiring for reasons of health in 1800.
The man who denounced the Baptist petition and supported the establishment of a state church in Connecticut had been a drafter of the Constitution, which Jefferson was not, a creator of the federal court system, which Jefferson was not, and the chief justice of the Supreme Court, which Jefferson was not. So we should attend to his point of view.
Ellsworth did not make a theological case for his position. That would have been out of place, because state support for churches must rest upon a state interest as such. So he made the same case for the existing law as has been made for public support for schools. We pay for the instruction of children even if we have no children ourselves, because such instruction is a crucial public good. Since a republican society grants to people a wide latitude of action, it is unusually dependent upon the moral probity of its members. If government exists, as Ellsworth said, to promote the “peace, order, and prosperity of society,” it cannot attain its primary end unless the people are brought up in good morals. For that purpose, religious institutions—meaning, in Connecticut in 1802, Christian churches—are highly desirable, even indispensable. “In the opinion of this committee,” wrote Ellsworth, “the legislature may aid the maintenance of that religion whose benign influence on morals is universally acknowledged.”
Grant that the “wall of separation” is a late fiction of our own, dependent upon a misreading of a letter of the most secular of our founders, and one who had no particular relation to the law in question or to our judicial system. We see then that Ellsworth’s defense of friendly relations between the state and religious institutions depends upon a question of fact. If good morals are essential for a free republic to endure, and if in fact a certain group of institutions does indeed promote those morals—especially if no other institution succeeds at promoting them—then it follows as a matter of course that a well-governed state may be friendly to those institutions, as it may be friendly to other associations, financial, educational, mercantile, or fraternal, that promote the common good.
It is time for us to reconsider the practical wisdom of Chief Justice Ellsworth.