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The Origins of Our First Amendment & The Servetus Affair

A. Background of the US First Amendment

The phrase "[A] hedge or wall of separation between the garden of the church and the wilderness of the world" was first used by Baptist theologian Roger Williams, the founder of the colony of Rhode Island, in his 1644 book The Bloody Tenent of Persecution. In "The Bloody Tenent" Wikipedia, we read:

Using biblical reasoning, the book argues for a "wall of separation" between church and state and for state toleration of various Christian denominations, including Catholicism, and also "paganish, Jewish, Turkish or anti-Christian consciences and worships."[1] The book takes the form of a dialogue between Truth and Peace and is a response to correspondence by Boston minister, John Cotton, regarding Cotton's support for state enforcement of religious uniformity in Massachusetts. Through his interpretation of the Bible, Williams argues that Christianity requires the existence of a separate civil authority that may not generally infringe upon liberty of conscience which Williams interpreted to be a God given right.[2]bloudy_tenent_of_persecution_for_cause_of_conscience_by_roger_williams

In 1776, Jefferson and James Madison were delegates and close friends in colonial Virginia's legislature although Jefferson was eight years Madison's senior. In 1776, Madison proposed to Virginia's Constitution:

[A]ll men are equally entitled to the full and
free exercise of [religion], according to the
dictates of conscience...." (Craig Smith, Madison and the Constitution.)

From this point forward "the two became fast friends upon meeting in 1776 and remained friends until Jefferson's death fifty years later on July 4, l826." (Id.)

In 1779, Jefferson this time took the lead in the Virginia legislature to get such a bill passed.  In 1779 Jefferson presented a bill to guarantee full religious liberty to all Virginians—not merely tax exemptions to non-Anglicans. Jefferson met with resistance from those who deemed his measure too radical. Among them was Patrick Henry, who countered by proposing a “general assessment” on all citizens to support Christianity itself as the established religion of Virginia. “What we have to do I think is devoutly to pray for his [Henry’s] death,” Jefferson joked in a letter to Madison. (National Humanities Center.) The bill failed.

Jefferson and Madison were undaunted, and continued to press the Virginia legislature to grant the right of religious liberty. Madison responded to Henry that government's role was not to promote any religion. If Virginia sponsored all Christian religions, as Henry requested, it would be dangerous to liberty, for “Who does not see that the same authority, which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?”

In 1785, Thomas Jefferson wrote Notes on the State of Virginia (1785), and said in similar fashion: “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say that there or twenty gods or no God. It neither picks my pocket nor breaks my leg.” (C.L. Heyrman, "The Separation of Church and State.")

In 1786, the Virginia legislature finally passed Jefferson’s bill for religious freedom. It provided that “…no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever…nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.” (Id.)

The reasoning of the two men -- Madison and Jefferson -- were so identical on this issue that when Jefferson in 1789 sent his draft provision on what became the first amendment, it read almost identical to what Madison drafted -- even though Jefferson's version came late in the mails from France during 1789. In it Jefferson insisted that "all persons shall have full and free liberty of religious opinion; nor shall any be compelled to frequent or maintain any religious institution." (History.org.)

Thus, by long collaboration in the Virginia Legislature on the identical terms of what became the First Amendment, it can fairly be said that both Madison and Jefferson were its drafters.

On January 1, 1802, Jefferson explained the thinking behind the First Amendment to the Baptist Association of Danbury, Connecticut, and being the literate man Jefferson was, he alluded to Roger William's book of 1644 -- The Bloody Tenent which mentioned the goal of a 'wall of separation between church and state':

"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State."(Boyd, Julian P., Charles T. Cullen, John Catanzariti, Barbara B. Oberg, et al, eds. The Papers of Thomas Jefferson. Princeton: Princeton University Press, 1950 at 36:258. Source: Monticello.org.)

B. The Servetus Affair

The Servetus Affair helps us further understand our First Amendment. In fact, that episode with Servetus was an event mentioned many times by the first drafter of the First Amendment, Thomas Jefferson. It indubitably helps explain what he meant by the rationale for the First Amendment as creating a separation of church and state.

What a history lesson teaches is that the modern practice of distinct boundaries -- the church having domain over conscience alone, in one's heart, word or print, but the state having domain over actions that constitute crimes -- was the real objective behind the doctrine of separation of church and state as reflected in the First Amendment. (Reynolds v. U.S. (1879) (that metaphor "may be accepted almost as an authoritative declaration of the scope and effect of the amendment.") Thankfully, the First Amendment has largely succeeded in its original purpose.

However, because many modern jurists have forgotten the Servetus Affair, they are also slowly losing grip on the true meaning of and purpose of the First Amendment. As a result, the law is slipping backwards as the explosion of hate-crime legislation proves.

Indeed, the concept of `separation of church and state' by Jefferson in his famous letter of 1802 was meant to reflect the lessons learned from the Servetus Affair. Jefferson was very familiar with the Servetus case, having written elsewhere that modern-day Calvinists were accusing a Dr. Cooper of "Unitarianism...as if it were a crime, and one for which, like Servetus, he should be burned...." 1 Jefferson also bemoaned modern day Calvinists who rely upon "their oracle Calvin who consumed the poor Servetus." 2 Jefferson spoke again of "the fire and faggots [i.e., burning logs] of Calvin and his victim Servetus." 3 In another allusion to the Servetus' case, Jefferson said "the Trinitarian idea triumphed not by reason but by the word of the fanatic Athanasius, and grew in the blood of thousands and thousands of martyrs." 4

Only with that context can one deeply understand Jefferson's famous letter of 1802 (and Roger William's reference in 1644). Jefferson explains the rationale to the First Amendment was to form "a wall of separation between church and state." But this did not mean a wall at the public courthouse prohibiting entry of an emblem of the Ten Commandments. It did not mean we cannot put "in God we trust" on our coins. It did not mean our patriotic anthem cannot thank God for our blessings. These are childish applications of the literal words about `separation.'

Rather, the prohibition on Establishing Religion or Abridging the freedom of religion in the First Amendment had primarily to do with the countours of punishment or state burdens (like taxes) over conscience. Jefferson explained in this same letter to the Danbury Baptist Association (Jan. 1, 1802) what he meant. It matches precisely the lessons learned from the Servetus Affair:

"All attempts to influence [religious thoughts] by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being both Lord of body and mind, yet chose not to propagate it by coercions on either, as was his Almighty power to do." 5

Thus, Jefferson meant that the state had no role any longer in imposing on the liberty of conscience (i.e., our First Amendment, transgressed by "meanness" in the Servetus Affair). Conscience was the domain of the church or private belief. At the same time, the church had no right to inflict in matters of conscience the punishments or burdens that belonged to the state, such as deportation, confinement, taxes or death (i.e., transgressed by Calvin's use of the criminal courts to punish heresy). Hence, the powers of the state were kept from the church. They were not to be used in matters of conscience which belonged to the kingdom of God. Hence, a wall. Luther's theory in the 1500s of two kingdoms was a precursor of this view.6

What was on his mind was the same concern when Jefferson got passed into the Virginia Constitution a bill in 1776 which ended civil punishments for not attending church.8

Similar changes took place outside Virginia during 1776-1777 as the legislatures repealed taxes which had been imposed on everyone to pay for the state churches in Massachusetts and Connecticut. See our discussion of the same under the "Glasite" movement which influenced such new ideals.

Hence, the wall of which Jefferson spoke was not to separate any emblem of Law that comes from religion such as the Ten Commandments. He would laugh if someone wished to take 'In God We Trust' off our coin. Rather, what was on the mind of the founders was the Servetus Affair, and the need to put a wall separating the church from any longer using the state's power to punish or coerce to force a religious belief or practice upon any single individual. If you failed to believe, or failed to attend church, or did not want to support a church body, the punishment or imposing a burden on your decision no longer belonged to the state.

Thus, reviewing the Servetus Affair helps remind us that the principle of 'separation of church and state' did not originate to remove symbols of religion on public land or buildings or coins. To think religion could be established by mere civic expressions of a generalized faith in God or appreciation for the Ten Commandments is silly. To think that prohibiting such activities was the First Amendment's intended purpose (or could ever be its intended meaning) is to lose sight of its true message that the state should not impose its terrifying penalties or painful burdens for wrong belief or failure to financially support a church. Putting up the 10 Commandments in Court imposes no penalties for looking away. Putting "in God we trust" on a bill does not reward its user for its use, or penalize anyone who does not agree with its statement.

Implication on Hate Crime Legislation

This is why modern hate crime legislation,9 which exacerbates criminal penalties based on hateful beliefs, is so inimical to the underlying premise of the separation of church and state. The true theory behind that phrase was that matters of private belief, whether religious or otherwise, would no longer be punished with criminal penalties. Once hate crimes were legitimized in the U.S.,10 and now exist in 43 states, it was no surprise that expressive gestures that do no physical harm but which `intimidate' others can now be criminalized, so says the Supreme Court. 11

The better solution is to use wholesome teaching on civic responsibilities, supported by appropriate civil damages after-the-fact and/or injunctions to correct the effects of invidious bias and socially-unacceptable ideas (e.g., false and misleading defamation, civil rights violations, etc.). On the other hand, it should be strongly presumed as wrong to use criminal penalties to change the way people think. Hate-crime legislation should be subjected to the heighest scrutiny, given the original goals of the First Amendment. It was originally intended to correct for the abuse of criminal laws over conscience, as the Servetus Affair was etched into the minds of those who drafted the amendment.

Thus, whenever criminal penalties today are heightened purely on the basis of socially undesirable thoughts, that hits at the core of what the First Amendment sought to eradicate. Having lost the memory of the Servetus Affair has caused the loss of memory of what was the core purpose of the First Amendment. This memory loss has opened the door to approval of hate-crime legislation among other slips in upholding freedom of speech and religion.

Side-Note on Jefferson's Support of Government Bequests to Christian Causes

Many claim that Jefferson's own legislative policies prove the state can fund Christian causes in the USA without violating the Establishment of Religion Clause. They cite the fact Jefferson supported the federal government giving money to build a Catholic church for an Indian tribe, and supporting Congress giving missionary money to preach the gospel to the `heathen.'7

However, Jefferson probably regarded support of a Christian religion among non-US citizens, i.e., Indians (as they were then viewed as a 'foreign nation') and "heathen" in other lands did not transgress the Establishment of Religion clause of the First Amendment. It is doubtful he would have agreed on such expenses to promote a specific church or religion among US citizens inside the USA.

For more information, see "First Amendment,"Wikipedia. See also "The First Amendment and What It Means for Free Speech Online," Comparatech.

See also Philip Hamburger, Separation of Church and State (2002)
--------------------------------------------------------------------------------

1. May 1820, quoted in The Jeffersonian Cyclopedia (1900) at 207.

2. Edwin Scott Gaustad, Sworn on the Altar of God: A Religious Biography of Thomas Jefferson (Wm. B. Eerdmans, 1996) at 177.

3. Thomas Jefferson, Memoir, Correspondence, and Miscellanies: From the Papers of Thomas Jefferson (F. Carr & Co., 1829) at 45-46.

4. Charles B. Sanford, The religious life of Jefferson (1984) at 90.

5. Social and Political Philosophy (John Sommerville & Ronald E. Santoni, eds.) (1963) at 247. The back-draft negative effect of zealous pursuit of mere heresy was that we lost the ability to prosecute the only religious crime which was ever legitimately also a public crime: blasphemy. But since we are not angels, and do not follow the Bible's requirement of two eye-witnesses, it appears we are far from ready to ever re-invigorate such a crime into modern codes.

6. Justo L. Gonzalez, The Story of Christianity (Harper Collins, 1984) at 36.

7. David E. Guinn, Faith on Trial: Communities of Faith, the First Amendment, and the Theory of Deep Diversity (Lexington Books, 2006) at 31.

8. Marion Levy, Leonard W. Levy, Seasoned Judgments: The American Constitution, etc (Transaction Publishers, 1997) at 100.

9. Once authorized by the Supreme Court in 1993, hate-crimes are now used in 43 states. They provide enhanced penalties if a defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity. A hate crime is not a crime where the hateful motive is relevant to proving the elements of crime, contrary to how some explain these laws. So far, a hate crime is something already criminal which is punished more severely because the ideology (motive) behind the hate was a societally-rejected bias.

10. In approving hate-crime legislation, the Supreme Court engaged in a euphemism to resolve its contradiction of sound jurisprudence. It first admitted correctly this principle: "But it is equally true that a defendant's abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge." Wisconsin v. Mitchell, 508 U.S. 476, 485 (U.S. 1993). However, then by labelling the enhancement as punishing the evil motive of selecting a victim due to an ideology (there racism), the Supreme Court said this was not punishing thought, i.e., abstract beliefs. Yet, it is indeed punishing thought, albeit a more dangerous thought that may lead to crimes.

Dr. Phyllis Gerstenfeld in The Hate Debate and Policy Problems (Sage Publications: 2004) mentions this criticism, and says "I admit to still feeling ambivalent on this matter myself." She adds: "I remain firmly on the fence." (Id., at 3, 37.) In other words, she feels queezy about adding penalties to an act that is already criminal solely because of the kind of thoughts held by the perpetrator. Perhaps the biggest problem is that such a statute, in the wrong hands, is an evil weapon, which we saw how it worked in Calvin's hands in 1553. Today, any prosecution of any crime, if a prosecutor wishes to intimidate a defendant, can turn your life upside down. The prosecutor simply starts interviewing all your friends and family to find out any hateful thoughts you ever expressed about a person in the category of your alleged victim. If it is there, the prosecution becomes a vendetta against your abstract thoughts if they can fall into the category of 'evil motive.' Hence, we have arrived at punishing abstract thoughts on the pretense we are not doing so, and are merely punishing an evil motive. These are words without any distinction.

11. "The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation." Virginia v. Black, 538 U.S. 343, 363 (U.S. 2003)(held without such limitation, it was unconstitutional).