Editor’s Note: On May 1, 2025, President Trump signed an Executive Order establishing the Religious Liberty Commission to direct the federal government to “promote citizens’ pride in our foundational history, identify emerging threats to religious liberty, uphold Federal laws that protect all citizens’ full participation in a pluralistic democracy, and protect the free exercise of religion.” On May 16, 2025, President Trump named JWI Affiliated Scholar Professor Mark David Hall to the commission’s Advisory Board of Lay Leaders. On June 16, 2025, Prof. Hall offered the following set of remarks at the Commission’s first public hearing.
I’ve been asked to say a few words about the founders’ understanding of religious liberty and church state relations. This subject is important not just as a matter of history, but because United States Supreme Court justices have insisted that, in the words of Wiley Rutledge, “no provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.” As I documented in a law review article a few years ago, virtually all justices are originalists when it comes to the religion clauses. But many of them profoundly distort the founders’ views of religious liberty and church state relations. Simply put, jurisprudential progressives are poor students of history.
Let me begin by observing that religious liberty, or even religious toleration, simply did not exist in the ancient world. It was simply assumed that a community would embrace the same faith and that rulers would favor it above all others. In his wonderful book Liberty in the Things of God, Robert Louis Wilken demonstrates that religious liberty has its origins in Christianity. Jesus Christ himself encouraged his followers to give “unto Caesar what is Caesar’s, and to God what is God’s” and the early church father Tertullian is the first person “in the history of western civilization to use the phrase ‘freedom of religion.’”
But Wilken recognizes that when Christians came into power, they often did not live up to these ideals of religious liberty for all. From 325, when Emperor Constantine called the council of Nicaea, to the founding of the American colonies, it was common for civic authorities to promote what they considered to be true religion. This often included discriminating against or even persecuting those who deviated from the rulers’ understanding of Christian orthodoxy. America’s earliest colonists, from north to south, were not immune from this temptation.
Fortunately, the way Americans approached religious liberty changed in important ways between the early colonies and the founding era. It is often claimed that religious liberty arose for prudential reasons, or because the Enlightenment came along and saved us from bigotry. There is some truth to both explanations, but even more significant were the powerful arguments for the liberty of conscience by men such as Roger Williams, William Penn, Elisha Williams, Samuel Davies, and John Leland.
These men contended that Christianity, generally, and the Bible, more specifically, required religious liberty for all. These arguments became particularly pronounced during the First Great Awakening, those great revivals that swept America in the 1730s and 1740s. In the roughly 160 years from the earliest settlements to the American founding, the colonies became more accepting of dissenters and dissenting practices. They were coming to understand the importance or religious toleration. Moreover, by the American founding, many civic leaders were coming to the conviction that religious liberty is a natural right, not a gift of the state.
Debates in Virginia illustrate this shift well. In 1776, the Virginia Convention created a committee to write a bill of rights. This task fell largely to George Mason, who drafted what became Article XVI of Virginia’s Declaration of Rights. It reads:
That as Religion, or the Duty which we owe to our divine and omnipotent Creator, and the Manner of discharging it, can be governed only by Reason and Conviction, not by Force or Violence; and therefore that all Men should enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience, unpunished and unrestrained by the Magistrate…
This draft, which was printed and circulated throughout the states, was enormously influential. But it was not the draft that became law. James Madison, in his first significant public act, objected to the use of “toleration” in the article, believing that it implied that religious liberty was a grant from the state that could be revoked at will. The Virginia Convention agreed, and the article was amended to make it clear that “the free exercise of religion” is a right, not a privilege granted by the state.
By the end of the revolutionary era every state offered significant protection of religious liberty. The federal constitution of 1787 did not, but only because its supporters believed the national government did not have the delegated power to pass laws interfering with religious beliefs or practices. In face of popular outcry, the first Congress proposed and the states ratified a constitutional amendment that reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
At a bare minimum, the Free Exercise Clause forbids Congress from, in the words of James Madison, compelling “men to worship God in any manner contrary to their conscience.” It certainly means more than that, but exactly how much more is controversial. Particularly divisive, even among originalists, is the question of whether the Free Exercise Clause requires religious exemptions to general, neutrally applicable laws. But there is no doubt that the founders believed legislatures could craft such exemptions to protect religious minorities. This can be illustrated in multiple ways, including by reference to the US Constitution which contains an accommodation to protect individuals with religious scruples against swearing oaths. But let me focus on just one area: military service.
Among the many roles of the civil government, few are as important as national security. States and nations have regularly relied upon compulsory militia service or conscription to raise armies. Religious pacifists often ask to be excused from such service.
Consider for a minute the government’s options when faced with such requests. Rather than force pacifists to act against their sincerely held religious convictions, civic leaders might eliminate the draft requirement for all. But, assuming conscription is necessary for self-defense, doing so would harm the public. On the other hand, states might force pacifists to serve in the military, and jail or execute them if they refuse. Alas, too many governments have taken this approach. Fortunately, America’s civil leaders generally chose a third way.
Most early American colonies required adult males to serve in the militia. Members of the Society of Friends, better known as Quakers, were often pacifists who refused to do so. As early as the 1670s a few colonies began excusing them from military service provided they pay a fine or hire a substitute. All colonies did so by the mid-eighteenth century, often expanding accommodations to include other religious citizens. During the War for Independence, the Continental Congress supported these accommodations with the following July 18, 1775 resolution:
As there are some people, who, from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed Country, which they can consistently with their religious principles.
I could give many more examples of the founders and later civic leaders crafting religious accommodations, but let me turn to the question of whose religious liberty should be protected. Fortunately, by the late 18th century the answer was “everyone.” This commitment led the Constitution’s framers to ban religious tests for federal office, and it is evident in George Washington’s inspirational letter to the Hebrew Congregation in Newport, Rhode Island. There were only about 2,500 Jews in four or five cities in this era, and they had little political or economic power. Nevertheless, he promised this tiny religious minority that:
All possess alike liberty and conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
As Washington’s letter makes clear, all Americans—Christians and non-Christians alike—have a right to freely exercise their faith.
Washington concluded this letter with the following paragraph:
…May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid. May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.
This short paragraph contains at least nine biblical allusions, including one to Micah 4:4, Washington’s favorite verse. This conclusion helps demonstrate that while America’s founders favored religious liberty, they did not think religion must be scrubbed from the public square.
Jurists, academics, and activist who favor of the strict separation of church and state often contend that the First Amendment must be interpreted in light of Thomas Jefferson’s 1802 letter to the Danbury Baptist Association where he famously suggested that the First Amendment created a “wall of separation between Church & State.” This metaphor lay dormant with respect to the Supreme Court’s establishment clause jurisprudence until 1947, when Justices Hugo Black seized upon it as the definitive statement of the founders’ views on church-state relations.
As appealing as the wall metaphor is to contemporary advocates of the strict separation of church and state, it obscures far more than it illuminates. Leaving aside the fact that Jefferson was in Europe when the Constitution and Bill of Rights were written, that the letter was a profoundly political document, and that Jefferson only used the metaphor once in his life, it is not even clear that it sheds useful light upon Jefferson’s views, much less those of his far more traditional colleagues.
Jefferson issued calls for prayer and fasting as governor of Virginia, and in his revision of Virginia’s statutes he drafted bills stipulating when the governor could appoint “days of public fasting and humiliation, or thanksgiving” and to punish “Disturbers of Religious Worship and Sabbath Breakers.” As a member of the Continental Congress he proposed that the nation adopt a seal containing the image of Moses “extending his hand over the sea, caus[ing] it to overwhelm Pharaoh” and the motto “Rebellion to tyrants is obedience to God.” He closed his second Inaugural Address by encouraging all Americans to join him in seeking “the favor of that Being in whose hands we are, who led our forefathers, as Israel of old…,” and two days after completing his letter to the Danbury Baptists he attended church services in the U.S. Capitol, where he heard John Leland, the great Baptist minister and opponent of religious establishments, preach.
My point here is not that Jefferson was a pious man who wanted a union between church and state. His private letters make it clear that he was not an orthodox Christian, and his public arguments and actions demonstrate that he favored a stricter separation between church and state than virtually any other founder. Yet even Jefferson, at least in his actions, did not attempt to completely remove religion from the public square. And what Jefferson did not completely exclude, most founders embraced.
This point may be illustrated in a variety of ways, but a particularly useful exercise is to look at the first Congress, the body that crafted the First Amendment. One of Congress’s first acts was to agree to appoint and pay congressional chaplains. Shortly after doing so, it reauthorized the Northwest Ordinance, which held that “Religion, Morality, and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall forever be encouraged.”
More significantly for understanding the First Amendment, on the day after the House approved the final wording of the Bill of Rights, Elias Boudinot, later president of the American Bible Society, proposed that the president recommend a day of public thanksgiving and prayer. In response to objections that such a practice mimicked European customs or should be done by the states, Connecticut’s Roger Sherman “justified the practice of thanksgiving, on any signal event, not only as a laudable one in itself, but as warranted by a number of precedents in holy writ: for instance, the solemn thanksgivings and rejoicings which took place in the time of Solomon, after the building of the temple, was a case in point..” The House agreed, as did the Senate, as did the President. The result was George Washington’s famous and theologically rich 1789 Thanksgiving Day Proclamation. I’m afraid I don’t have time to quote from this text now, but I encourage you to look it up and read it if you are not familiar with it.
America’s founders did not want Congress to establish a national church, and many opposed establishments at the state level as well. Yet they believed, as George Washington declared in his Farewell Address, that of “all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports.” Moreover, almost without exception they agreed civic authorities could promote and encourage religion, and that it was appropriate for elected officials to make religious arguments in the public square.
Thank you very much.
