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Justice Joseph Story on Original Intent and Religious Freedom

Justice Joseph Story on Original Intent and Religious Freedom


joseph-story2Justice Joseph Story served as a Supreme Court Justice from 1811 through 1845. His Commentaries on the Constitution of the United States (first published in 1833) was required reading in U.S. law schools for over a century, being a cornerstone of early American jurisprudence. As such, it was and still is a critical source as to the original intent of the American Founders in penning and passing the First Amendment, and more particularly, regarding the Religious Establishment and Freedom of Religion clauses.

Justice Story writes:

§ 984. Let us now enter upon the consideration of the amendments, which, (it will be found,) principally regard subjects properly belonging to a bill of rights.

§ 985. The first is “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition government for a redress of grievances.”

§ 986. And first, the prohibition of any establishment of religion, and the freedom of religious opinion and worship.

How far any government has a right to interfere in matters touching religion, has been a subject much discussed by writers upon public and political law. The right and the duty of the interference of government, in matters of religion, have been maintained by many distinguished authors, as well those, who were the warmest advocates of free governments, as those, who were attached to governments of a more arbitrary character. Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion; the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; — these never can be a matter of indifference in any well ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one’s own conscience.

§ 987. The real difficulty lies in ascertaining the limits, to which government may rightfully go in fostering and encouraging religion. Three cases may easily be supposed. One, where a government affords aid to a particular religion, leaving all persons free to adopt any other; another, where it creates an ecclesiastical establishment for the propagation of the doctrines of a particular sect of that religion, leaving a like freedom to all others; and a third, where it creates such an establishment, and excludes all persons, not belonging to it, either wholly, or in part, from any participation in the public honours, trusts, emoluments, privileges, and immunities of the state. For instance, a government may simply declare, that the Christian religion shall be the religion of the state, and shall be aided, and encouraged in all the varieties of sects belonging to it; or it may declare, that the Catholic or Protestant religion shall be the religion of the state, leaving every man to the free enjoyment of his own religious opinions; or it may establish the doctrines of a particular sect, as of Episcopalians, as the religion of the state, with a like freedom; or it may establish the doctrines of a particular sect, as exclusively the religion of the state, tolerating others to a limited extent, or excluding all, not belonging to it, from all public honours, trusts, emoluments, privileges, and immunities.

§ 988. Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as it is not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.

§ 989. It yet remains a problem to be solved in human affairs, whether say free government can be permanent, where the public worship of God, and the support of religion, constitute no part of the policy or duty of the state in any assignable shape. The future experience of Christendom, and chiefly of the American states, must settle this problem, as yet new in the history of the world, abundant, as it has been, in experiments in the theory of government.

§ 990. But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires. It has been truly said, that “religion, or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence.” Mr. Locke himself, who did not doubt the right of government to interfere in matters of religion, and especially to encourage Christianity, has at the same time expressed his opinion of the right of private judgment, and liberty of conscience, in a manner becoming his character, as a sincere friend of civil and religious liberty. “No man, or society of men,” says he, “have any authority to impose their opinions or interpretations on any other, the meanest Christian; since, in matters of religion, every man must know, and believe, and give an account for himself.” The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority, without a criminal disobedience of the precepts of natural, as well as of revealed religion.

§ 991. The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus sought to cut off the means of religious persecution, (the vice and pest of former ages,) and the power of subverting the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. The history of the parent country had afforded the most solemn warnings and melancholy instructions on this head; and even New-England, the land of the persecuted puritans, as well as other colonies, where the Church of England had maintained its superiority, had furnished a chapter, as full of dark bigotry and intolerance, as any, which could be found to disgrace the pages of foreign annals. Apostacy, heresy, and nonconformity have been standard crimes for public appeals, to kindle the flames of persecution, and apologize for the most atrocious triumphs over innocence and virtue.

§ 992. It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject. The situation, too, of the different states equally proclaimed the policy, as well as the necessity, of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others, presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship. (1)

This is a far cry from what is taught in our schools today and insisted upon by many a so-called modern expert who collectively labor – it seems – for a cause the very opposite of the Founder’s original intent – and while so doing, taking aim at, indeed making into PUBLIC ENEMY NUMBER ONE, free religious expression in public life. Such speech – consistent with the very Nature of man as a spiritual being – was supposed to be protected as a God-given, Inalienable Right, not crushed with the iron fist of socialism, humanism, and atheism! – And as to religion, in general, as Story notes, it was to be encouraged. The First Amendment then being a legal written check upon Congress, a legal prohibition if you will, on passing ANY bill—ANY bill into law that would interfere with this free expression in ANY forum (public or private) period. —And again, a prohibition against any law that might tend to hinder the prosperity of religion in general. Finally, as to the Establishment Clause, it had one clear purpose, and ONE ONLY, being a prohibition against a national church—avoiding that great evil and enemy to true religion and civic virtue.

Footnote: Joseph Story, Commentaries on the Constitution of the United States; with a Preliminary Review of the Constitutional History of the Colonies and States, before the Adoption of the Constitution. Abridged by the Author, for the Use of Colleges and High Schools (Boston: Hilliard, Gray, and Company/Cambridge: Brown, Shattuck, and Co., 1833), pp. iii-viii, 693-703.

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30 – January 30 – THIS DAY IN BAPTIST HISTORY PASTThe first church in Tennessee



1806 – A BAPTIST CHURCH WAS THE FIRST CHURCH OF ANY KIND IN THE STATE OF TENNESSEE – Tidence Lane died on January 30, 1806. He was born near Baltimore, MD on August 31, 1724. His Anglican father Richard was an ardent opponent of the Baptists. The message of the Separate Baptists had a great effect on Tidence after the family moved to North Carolina.  He married Esther Bibber in May 1743 and heard Shubal Stearns preach, fell under conviction and was gloriously saved. In 1758 his younger brother Dutton was saved and both boys were called to preach.  His father was so irate that he pursued the youngest brother with the intent to kill him. Tidence and Esther had nine children, seven of them sons. Pressures, from the British Governor William Tryon against the Baptists, caused Tidence to turn toward Tennessee where the gospel had never been declared. His was the first church of any denomination organized in the State of Tenn. In 1779. he was the first Moderator of the First Association in the state, organized on October 21, 1786, 10 years before Tenn. was admitted into the Union. Lane’s success was so great that by 1790 Tenn. had 18 churches, 21 preachers and 889 members.


Dr. Greg J. Dixon; adapted from:  Day in Baptist History Vol. I: Cummins Thompson/   pg. 40.




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252 – Sept. 09 – This Day in Baptist History Past


The Pastor of Firsts


1764 – Rev. Samuel Stillman became the sixth pastor of the First Baptist Church of Boston, Mass., which was the fourth oldest church in America. The church had endured persecution, decline and revivals. At age 27, Stillman found around sixty discouraged members. Those of prominence often attended services, including President John Adams. Samuel, a small man weighing less than 100 pounds at the time of his death in 1807 did gigantic exploits for God, many of them firsts. He had to flee during the Revolutionary War but returned to re-gather his flock. He helped establish America’s first Baptist College. He was a leader in the organization of the Warren Baptist Association to assist in the fight against the entanglement of the church and state. In 1802, ten years before the Judson’s and Rice went to Burma he led in starting the Mass. Baptist Missions Society. And First church was the first to install a stove for heat against the bitter New England winters. Alas, what worldliness, (Ha). [Nathan E. Wood, The History of the First Baptist Church of Boston (Philadelphia American Baptist Pub. Society, 1899), p. 242. This Day in Baptist History II: Cummins and Thompson, BJU Press: Greenville, S.C. 2000 A.D. pp. 494-95.] .]  Prepared by Dr. Greg J. Dixon


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Twice a Baptist


Edward Baptist, Jr. was born in the State of Virginia on this date in 1828.  His mother’s name was Eliza and his father too was a noted Baptist preacher.  Young Edward trusted Christ at an early age and was immersed.  At about twenty-four years of age he was ordained into the gospel ministry.  He spent several years in Alabama ministering in strategic churches, where he served with distinction.  In 1856 he returned to Virginia accepting a call to a church in Spottsylvania County.  He spent the rest of his life pastoring a number of churches in the same county as a circuit-riding pastor.  By 1893 his unusual pastorate involved four churches.  Goshen, Mine Road, Mount Hermon, and Rhoadesville churches had a combined membership 473.  He would minister to each church on a Saturday and Sunday each month.  During 1893 he baptized fifty-eight converts into the fellowship of the four churches.  On Jan. 29, Pastor Baptist departed this world and entered into the presence of the Lord.  Dr. L.J. Haley wrote his obituary and said the following, “Elder Baptist was a man of stern and upright religious and moral character.  He was a true and unselfish friend, kind and gentle in his family, a friend and generous neighbor, a loyal and patriotic citizen, an able and eloquent preacher of the gospel, a faithful and loving pastor, and a man and Christian, who in all the relations and responsibilities of life earnestly and conscientiously strove to do his duty and to make himself useful and helpful to his fellow-man.  He was a man of extraordinary power and ability in the pulpit.  I can truthfully say that some of the finest specimens of pulpit oratory I ever listened to came from the lips of E.G. Baptist, Jr.”


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Massachusetts, passed a law against the Anabaptists

November 13, 1644 – The General Court in Massachusetts, passed a law against the Anabaptists that backfired against them with the general citizenry. In the body of the law, the Anabaptists were called among other things, “…incendiaries of commonwealths, and the infectors of persons in main matters of religion, and the troublers of churches…and they have held the baptizing of infants unlawful…some have denied the ordinance of magistracy, and the lawfulness of making war, every such person or persons shall be sentenced to banishment.” However, pressures mounted on the General Court so that, though they would not repeal the law, they publicly confessed that the Baptists were ‘peaceable’ citizens amongst them.” There is a difference in the Baptist position of religious liberty based on freedom of conscience and the religious toleration allowed by some “state churches.” Baptists believe that a free church in a free state is a New Testament principle…The right of every soul to direct access to God is an inalienable right, with which the state must not interfere.” State churches have arrived at the position of allowing other churches to exist, but favorable laws and/or fiscal levies are often to be granted the favored church. This is thought by some to be “toleration,” but Baptists believe that the end of governmental administration is equal justice under law. Baptists, therefore repudiate every form of compulsion in religion or restraint of religious freedom. In 1644, a poor man, Thomas Painter, was tied up and whipped because he refused to have his child baptized. This is what led Thomas Painter to become an Anabaptist.

Dr. Greg J. Dixon from: This Day in Baptist History Vol. I: Cummins/ Thompson/ , pp. 472-73.

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