Religion and the Continental Congress, 1774-1789: Contributions to Original
in America Series. Religion in America Series. Oxford and New York: Oxford
University Press, 2000. xv + 309 pp. Appendices, Index. $39.95 (cloth), ISBN
Gaspare J. Saladino , Documentary History of the Ratification of the
Constitution and the Bill of Rights, 1787-1791, University of
Continental Congress: Politicians or Preachers?
H. Davis -- director of the J.M. Dawson Institute of Church-State Relations
at Baylor University and editor of the Journal of Church and State --
fills a void in the study of church-state relations by examining the
proceedings and acts of the Continental Congress regarding religion, a
subject that has been neglected or dismissed as irrelevant.
seeks to discover Congress's original intent respecting church-state
relations to determine if it might help resolve "the modern debate over the
original intent of the constitutional framers regarding the interplay of
government and religion" (p. 199). He links his study to his interest in
present-day church-state relations.
makes four claims. (1) Because original intent, when ascertainable, is
critical, it "is a valid starting place in constitutional interpretation"
(p. xi) and the U.S. Supreme Court should employ original intent when
deciding cases involving constitutional issues. (2) Conflicting ideas and
inadequate sources, however, often make original intent unclear, so that
judges must also consider political and social developments since the
thus embraces the concept of the "living constitution.") (3) The proceedings
and official acts of Congress and its records "elucidate" its original
intent in the area of church-state relations. And (4) the framers' and
founders' original intent "was to break with history and inaugurate a
framework of church-state 'separation' in the new nation, although there are
vital reasons today to be sensitive to 'accommodationist' claims and
practices" (p. xiv).
chapter 1, Davis declares that by understanding the framers' and founders'
original intent regarding religion's role we take a "necessary first step"
(p. 9) in understanding the Constitution's religion clauses. Both groups
were close to the age of religious despotism, so that whatever they said,
wrote, or did about guaranteeing religious liberty is crucial. Even though
the records of the Federal Convention, the state ratifying conventions, and
the First Federal Congress do not provide sufficient information "to
determine with precision the intended meaning of the religion clauses" (p.
21), both groups did indeed write suggestively about religion and the state.
Because original intent is "permanently relevant" to the debate over
religion's role, scholars should continue to study the subject, beginning
with colonial times and ending with present-day practices and theories.
Chapters 2 through 4, Davis
reviews the historical and religious background of the American Revolution.
Chapter 2 shows that some states began to disestablish their churches in the
early years of the Revolution; by 1787, seven did not support religion.
Religious tests also disappeared in a few states. America's first
constitution, the Articles of Confederation, was silent about both
developments, which were in the province of the states. On the other hand,
the U.S. Constitution -- in a revolutionary step -- prohibited religious
tests for federal office holding, thereby advancing the cause of religious
liberty. The clauses of some later state constitutions were patterned on the
Constitution's religious tests clause.
Chapter 3 demonstrates how the Great Awakening's pietism and the
Enlightenment's rationalism joined in supporting the revolt against Britain.
Deeply religious, Americans believed that, as God's agents for creating His
kingdom on earth, they had to rid America of George III, the Antichrist. As
Davis observes, "Without this religious sanction, the American colonies
probably would never have gone to war with Britain" (p. 51). This religious
impulse> drove the Continental Congress. To Enlightenment rationalists, the
Revolution was a part of an optimistic vision of a larger revolution that
would establish universal peace, freedom, and morality and promote human
Chapter 4 reveals that both the pietist and rationalist movements in
eighteenth-century American religion favored independence, and believed that
God favored independence as well. The first movement stressed the "inner
workings of the Holy Spirit in the believer's life"; the second "assigned to
reason a primacy over revelation in apprehending religious truth" (p. 40).
They also supported republican government, giving it a biblical, deisitic,
and agnostic basis; and they recognized the interdependence of political
liberty and religious freedom.
Drawing on both pietism and rationalism, Congress engaged in religious acts
and legislated on religious matters. It justified these actions because
religion was essential to a well-ordered state. Moreover, since Congress had
no legal authority to justify its existence, it was obliged to appeal to a
higher authority. Lastly, perilous times also called for reliance on a
Chapters 5 through 9, Davis
demonstrates that Congress rarely hesitated to deal with religion. It
resembled "a group of priests laboring on behalf of a new national church"
so that its sessions were "sometimes imbued with a profoundly religious
spirit" (pp. 65, 66). It engaged in prayer, heard sermons and attended
funerals as a group, and legislated on such matters as "sin, repentance,
humiliation, divine service, fasting, morality, prayer, mourning, public
worship, funerals, chaplains, and 'true' religion" (p. 65).
American politicians had fixed ideas about separation of church and state.
Consequently, many of the Continental Congress's religious practices --
based largely on "expedience" -- were revived by the first congresses under
the U.S. Constitution. In the early post-Constitution years, many
Representatives and Senators believed that these practices "were neither
reserved to the states nor proscribed to Congress" under the Constitution's
religion provisions (p. 135). The actions of the Continental and early
federal congresses have been seized upon by present-day "accommodationists"
who insist that the founders intended that government promote religion. But
Davis invariably insists that such was not the case.
seek God's aid in fighting the war, the Continental Congress appointed
thanksgiving and fast days, which were then proclaimed by state executives.
Without the war, Congress might not have appointed such days. The First
Federal Congress continued thanksgiving days. Another practice resumed by
this Congress was the Continental Congress's custom of beginning its
sessions with a prayer offered by its chaplain. This resumption, Davis
states, was generated by "tradition, not principle" (p. 80). A few federal
Representatives, especially James Madison, charged that these actions
violated the principle of separation of church and state. As a wartime
president, however, Madison proclaimed thanksgiving days. President Madison
also accepted, against his separationist principles, the system of military
chaplains initiated by the Continental Congress and continued by the First
Congress also invoked God in official documents. Most important, the
Declaration of Independence advanced the notion that government and law must
conform with a higher law -- the "Laws of nature and Nature's God" (p. 201).
When George III violated natural law and rights, the American people, whom
God endowed with natural and unalienable rights, had a God-given duty to
revolt. As Davis writes, the Articles of Confederation's "provisions were
aligned with the pleasure and consent of `the Great Governor of the World'"
(p. 201). The eye of Providence on the verso of the Great Seal adopted by
Congress attested the delegates' view that God oversaw the creation of the
legislating on religious matters, the Continental Congress sometimes
advanced the principle of religious freedom, which, in turn, tended to
further church-state separation -- a fact pleasing to present-day "separationists."
But Davis admits that "separationists" are far from satisfied. Because war
made Bibles scarce, Congress endorsed the publication of an American Bible,
although it refused to fund the project for two reasons -- first, it lacked
funds; second, the Bible might not appeal to all religious groups. To enlist
Quebec Roman Catholics in the cause of independence, the Articles of
Confederation granted them the right to maintain any religious worship,
without losing their civil rights. Congress granted foreign mercenary
soldiers civil and religious freedom if they settled in the new nation. It
allowed conscientious objectors to perform alternative services to military
service. Postwar treaties with The Netherlands, Sweden, and Prussia granted
their citizens freedom of conscience while residing in or visiting the
United States. The Northwest Ordinance of 1787 prohibited a citizen's arrest
on account of his mode of worship.
Continental Congress, however, did not interfere with religious matters in
the states, especially with respect to their religious establishments. The
Articles of Confederation gave the states superior sovereignty and Congress
deferred to that sovereignty. When Massachusetts's
dissenting Baptists petitioned Congress, complaining that they were forced
to pay religious taxes, Congress refused to consider their petition.
Congress rejected an article in John Dickinson's draft of the Articles that
attempted to protect religious minorities by prohibiting states from
requiring dissenters to support established churches, from imposing
religious tests, and from compelling oath-taking. Congress also transferred
the funding of an American Bible from itself to the states.
U.S. Constitution did not alter this federal deference to the states on
religious matters. The framers did not want such explosive religious issues
to disrupt government operations. The Constitution, however, did prohibit
religious tests, but only for federal office holding.
Chapter 10 considers the founders' views on virtue's value to a republic.
Liberty could not exist without virtue; loss of virtue doomed a nation.
Although recommending various means to cultivate virtue, the Continental
Congress, unlike some state governments, refused to foster virtue through
religion, except through proclaiming thanksgiving and fast days and
appointing military chaplains. It did not compel virtue, nor did the U.S.
Constitution attempt to improve people through government. The Constitution
was made for a moral people; it was not made to produce such a people. In
time, the cultivation of virtue gave way to Madisonian pragmatism; political
power was to be so arranged that stable, secure government could exist even
without political virtue.
states that, on the continental level, the notion of church-state separation
was virtually non-existent. The Continental Congress legislated on religious
matters, except when such concerns were in the realm of the states. Although
Congress acted within this "accommodationist paradigm," the founding era was
a transitional period in which historical evidence "supports separationism
as the paradigm of church-state thought that best captures the progressively
evolving intention of the founding fathers" (p. 227). That intention
included religious liberty, which, as it developed incrementally, further
separated church and state. The First Amendment's religion clauses were
drafted as the republic moved toward a separationist paradigm. But "a
complete separation was probably never in view -- nor should it be" (p.
founders were intent on breaking with history, believing that government
operated best when it left religion alone. They sought to keep politics and
religion in separate spheres, but God was not forgotten -- even though the
U.S. Constitution does not mention Him. "With the spread of Enlightenment
rationalism," affirms Davis,
"the pervading theological metaphor for God's method of controlling the
universe was a constitutional paradigm" (p. 208). God would govern the
universe through the Constitution, whose drafting He oversaw.
Davis concludes, "provided it remains sensitive to longstanding
accommodationist practices, is indeed the best course for the future of America"
(p. 229). He favors the retention of some accommodationist practices
initiated by the Continental Congress or the early federal congresses and
executives because they signify that government is not hostile to religious
faith. But he warns accommodationists that these early practices do not form
the basis of the framers' original intent because their original intent was
moving toward separation. The prevention of a coalition between government
and religion was fundamental to the nation's political happiness.
has amply demonstrated that the strong religious sentiments of most members
of the Continental Congress suffused many of their pronouncements and
legislative actions and that the framers and founders moved toward
church-state separation, while remaining sensitive to the intense religious
feelings of Americans. Davis recognizes and tries to ameliorate the demand
of some present-day religious groups for further accommodation of religion,
a condition that makes these threatening times in the area of church-state
relations in our pluralist, democratic society. Optimistic that a
consensus is attainable, Religion and the Continental Congress is an
eloquent, civilized, and conciliatory plea for better understanding between
accommodationists and separationists.
Although Davis shows conclusively that the Continental Congress's records
"elucidate" original intent in the area of church-state relations, he
recommends, somewhat paradoxically, that, since the founding era was a
transitional period in these relations, "original intent, in terms of its
implementation, is sometimes better located in the post-founding era" (p.
135), which, of course, is open-ended. Consequently, the interpretative task
of overburdened Supreme Court Justices becomes even more complicated and
overwhelming. They must concern themselves with the more numerous
implementers of the Constitution. In part, Davis recommends this approach
because the records left by the framers and ratifiers are so often judged
inadequate. He also urges the study of the colonial period and the use of
natural-rights and natural-law theories to discover original intent. These
wide-ranging and free-wheeling approaches, so favored by many protagonists
of the concept of the "living constitution," are constitutionally and
philosophically anathema to many, though not all, practitioners of
constitutional law. (Paradoxically, some originalists, such as Justice
Clarence Thomas, also advocate constitutional interpretation's recourse to
natural law, which they seek out in the course of their originalist
sometimes warns the Justices against the approaches of some scholars of
church-state relations in determining original intent, but he does not
provide the Justices with precise ideas about the proper bounds for
accommodating religion. Then again, perhaps he believes that it is not his
place to establish or even to recommend guidelines. That role belongs to the
has read widely but not deeply, deliberately avoiding historiographic
snares; absent are lengthy, learned notes discussing conflicting historical
interpretations. This was a wise approach because his study's
comprehensiveness would have made his task even more difficult.
Nevertheless, his choices of some secondary accounts are questionable; he
also omits some important secondary works and inadequately uses certain
primary sources. For example, he lists what he describes as several of the
best accommodationist works, choosing such shallow works as those by Robert
L. Cord and Michael J. Malbin over the more substantial books and articles
of Arlin J. Adams and Charles J. Emmerich (joint authors), Gerard V.
Bradley, Daniel L. Driesbach, and Michael McConnell, which are well known to
him. Jack N. Rakove's Original Meanings is singled out as the most
comprehensive work on original intent, but Davis does not adequately engage
Rakove's complex and nuanced analysis. Nor does he cite a fine anthology of
seminal articles on original intent edited by Rakove. Davis's analysis of
the heated debate in New England over Congress's courting of Quebec's Roman
Catholics would have been enhanced by the work of Charles P. Hanson, who
discusses the Revolution's disruptive effects on New England
Missing from his chapter on the Declaration of Independence are valuable
works by Allen Jayne and Pauline Maier. Jayne believes that the Declaration
is a basic text in the movement for religious freedom; while Maier skilfully
recounts the complex story of the declaration's origins and writing as a
collective political process. Davis's account of religion in
Revolutionary America also would have profited from a volume in the splendid
sixteen-volume series, "Perspectives on the American Revolution," done under
the auspices of the United States Capitol Historical Society.
does not exploit sufficiently two documentary editions that speak volumes
about original intent in the founding era -- namely, the documentary
histories of the Constitution's ratification and the First Federal
Congress. The former is useful in determining the ratifiers' original
intent on church-state relations and the state of their thinking and
knowledge concerning religion's role in history and American life. The
latter contains the most authoritative texts of the debates and proceedings
of Congress on the adoption of the Bill of Rights.
Davis asserts that
the colonies "probably" would not have revolted had they not believed that
they were God's agents. Political, constitutional, and economic grievances
were enough to continue Americans on a revolutionary course begun long
before 1775. Were founders and framers as aware of how their deeds advanced
the cause of religious freedom as Davis believes? Did they
have a plan? Nor are their voices sufficiently evident on the question of
religious despotism, although Davis's
contention about this despotism's impact on them is well-founded. He is
among the few historians who have tried to explain why Britain's attempt to
establish an Episcopal bishop in America
is not listed among the grievances in the Declaration of Independence. His
answer -- that religious liberty was not at stake because the colonies
controlled religion locally (pp. 110-112) -- is not entirely persuasive in
light of the intense hostility aroused by that attempt. Perhaps,
Congress believed that the issue of religion was best left alone. Moreover,
34 of the 56 signers of the Declaration were Episcopalians, while 45 of the
68 delegates in Congress on 4 July 1776 were Episcopalians.
criticisms aside, Derek H. Davis throws open a long-neglected area that
contains relevant and useful information on the framers' and founders'
original intent respecting church-state relations. Historians and
constitutional lawyers can expand his findings, while jurists can draw upon
a significant "reservoir of material" (p. 23). Most important, Davis shows
that the founders and framers neither intended to entrench religion in the
federal state nor to establish a secular state.
Because, this linkage (though interesting and relevant), as Davis admits,
makes his study "considerably more complex" (p. x), this reviewer has
elected to focus on the founding era. Davis's
book is based upon his 1993 doctoral dissertation, completed at the
University of Texas at Dallas.
Davis might have made another point more strongly -- that the framers of the
Bill of Rights and the state declarations of rights "were vague if not
careless draftsmen" -- a point stressed by constitutional historian Leonard
W. Levy. See especially Leonard W. Levy, The Establishment Clause:
Religion and the First Amendment, 2nd ed. (Chapel Hill: University of
North Carolina Press, 1994); and Leonard W. Levy, Origins of the Bill of
Rights (New Haven and London: Yale University Press, 1999). In October
1999 I reviewed for H-LAW the latter book, which is especially harsh on the
framers' drafting abilities.
valuable work, unavailable to Davis when he was writing his book, that also
recognizes that these are dangerous times for church-state relations and
that calls for a heightened presence of religion in American life is Nancy
L. Rosenblum, ed., Obligations of Citizenship and Demands of Faith:
Religious Accommodation in Pluralist Democracies (Princeton, N.J.:
Princeton University Press, 2000), an anthology whose contributors include
political theorists, philosophers, legal scholars, and social scientists. In
her introduction, Rosenblum states that "religious challenges are the most
pervasive and powerful" challenges facing liberal democracy today (p. 3).
The anthology's contributors consider the "proper bounds" that should exist
between church and state in "religiously pluralist democracies"; they oppose
absolute separation of church and state; and they "share the aim of
democratic accommodation of religion" (p. 4).
For a discussion of these books and articles, see Gaspare J. Saladino, "The
Bill of Rights: A Bibliographic Essay," in Patrick T. Conley and John P.
Kaminski, eds., The Bill of Rights and the States: The Colonial and
Revolutionary Origins of American Liberties (Madison, Wis.: Madison
House, 1992). For pithy comments on major accommodationist and separationist
works, see the selected bibliography in Levy's The Establishment Clause
(note 2, above).
Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of
the Constitution (New York: Alfred A. Knopf, 1996); and Jack N. Rakove,
ed., Interpreting the Constitution: The Debate over Original Intent
(Boston: Northeastern University Press, 1990).
Charles P. Hanson, Necessary Virtue: The Pragmatic Origins of Religious
(Charlottesville and London: University Press of Virginia, 1998). See also
Charles H. Metzger, The Quebec Act: A Primary Cause of the American
Revolution (New York: The United States Catholic Historical Society,
1936); and Francis D. Cogliano, No King, No Popery: Anti-Catholicism in
(Westport, Conn., and London: Greenwood Press, 1995).
Jefferson's Declaration of Independence: Origins, Philosophy, and Theology
(Lexington: University Press of Kentucky, 1998); and Pauline Maier,
American Scripture: Making of the Declaration of
(New York: Alfred A. Knopf, 1997).
See Ronald Hoffman and Peter J. Albert, eds., Religion in a Revolutionary
Age (Charlottesville and London: University Press of Virginia, 1994).
Merrill Jensen, John P. Kaminski, Gaspare J. Saladino et al., eds., The
Documentary History of the Ratification of the Constitution, 15 vols. to
date (Madison, Wis.: State Historical Society of Wisconsin, 1976--); and
Linda Grant De Pauw, Charlene Bangs Bickford, Kenneth R. Bowling et al.,
eds., Documentary History of the First Federal Congress, 1789-1791,
14 vols. to date (Baltimore and London: The Johns Hopkins University Press,
1972--). The latter project has also published Helen E. Veit, Kenneth R.
Bowling, and Charlene Bangs Bickford, eds., Creating the Bill of Rights:
The Documentary Record from the First Federal Congress (Baltimore and
London: The Johns Hopkins University Press, 1991). Another collection of
valuable documents is Neil H. Cogan, ed., The Complete Bill of Rights:
The Drafts, Debates,Sources, and Origins (New York and Oxford, Eng.:
Oxford University Press, 1997), which briefly traces the origins of the
establishment and free exercise clauses of the First Amendment, using
primary sources, dating back to the American colonial charters and coming up
through the First Federal Congress.
See Arthur Lyon Cross, The Anglican Episcopate and the American Colonies
(1902; reprint ed., Hamden, Conn.: Archon Books, 1964); Carl Bridenbaugh,
Mitre and Sceptre: Transatlantic Faiths, Ideas, Personalities, and Politics,
1689-1775 (New York: Oxford University Press, 1962); and Peter M. Doll,
Revolution, Religion, and National Identity: Imperial Anglicanism in
British North America, 1745-1795 (Madison and Teaneck, N.J.: Farleigh
Dickinson University Press, 2000).
For these figures, see J. C. D. Clark, The Language of
Political Discourse and Social Dynamics in the Anglo-American World
(Cambridge, Eng., and New York: Cambridge University Press, 1994), 339n.
Clark also notes that Episcopalians were badly split on the question of
independence. The fourth section of his book considers the American
Revolution as a war of religion. On this theme, see also chapter 7 of Jon
Butler, Awash in a Sea of Faith: Christianizing the American People
(Cambridge, Mass., and London, Eng.: Harvard University Press, 1990).
Call Number: KF4783 .D385 2000
United States. Continental Congress
Freedom of religion--United States--History
Church and state--United States--History
Constitutional history--United States
Citation: Gaspare J. Saladino . "Review of Derek H. Davis, Religion and the
Continental Congress, 1774-1789: Contributions to Original Intent," H-Law,
H-Net Reviews, October, 2000. URL:
“Derek H. Davis’s book offers a fresh, informative
account of official ‘American’ actions and attitudes toward religion before
the implementation of the United States Constitution…While Davis’s efforts
at extrapolating from his research to contemporary issues of religion,
state, and society may not be as compelling as his historical investigation,
the book does contribute to current discussion of those thorny matters as
Mark A. Noll, review of Religion and the Continental
Congress, 1774-1789: Contributions to Original Intent, by Derek H.
Davis, The American Historical Review 106 (June 2001): 974-975.