Jefferson vs. Story

The fact-checking site Politifact has assigned a “pants on fire” rating to Bryan Fischer’s claim that when America’s founders said “religion” they meant “Christianity.”

Fischer based his argument on a decision by Chief Justice Joseph Story, an arch-conservative figure in the history of American freedom of religion. Politifact points to a number of quotes from the founders that would seem to disagree. Here’s Jefferson:

In his autobiography, Thomas Jefferson spoke directly to the debate over the crafting of a Virginia statute for religious freedom. Jefferson describes a proposal to add the phrase “the plan of Jesus Christ, the holy author of our religion.”

“The insertion was rejected by a great majority,” Jefferson wrote, “In proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.”

John Ragosta, the Robert C. Vaughan Fellow at the Virginia Foundation for the Humanities, pointed us to that excerpt. Ragosta did not dispute that the great majority of people in America were Christians, but he said that makes the vision of the founders that much more impressive.

“They were looking to the future,” Ragosta said. “They knew that other people would come to America … and that the rights that they were discussing were universal.”

I’m going to use this as an excuse to post one of my favorite Jefferson quotes, against one of Story’s other horrible decisions. Story maintained that American common law included biblical injunctions. So if it’s in the Bible, it is also in the body of unwritten law. This was an attempt to get blasphemy laws past the First Amendment.

In his letter to Major John Cartwright, Jefferson considers the legal history that supposedly linked the Bible to British common law and thus to American common law. He finds it so frustrating that he breaks into song:

I was glad to find in your book a formal contradiction, at length, of the judiciary usurpation of legislative powers; for such the judges have usurped in their repeated decisions, that Christianity is a part of the common law. The proof of the contrary, which you have adduced, is incontrovertible; to wit, that the common law existed while the Anglo-Saxons were yet pagans, at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed. But it may amuse you, to show when, and by what means, they stole this law in upon us.

[… long list of case law snipped …]

And thus we find this chain of authorities hanging link by link, one upon another, and all ultimately on one and the same hook, and that a mistranslation of the words “ancien scripture,” used by Prisot. Finch quotes Prisot; Wingate does the same. Sheppard quotes Prisot, Finch and Wingate. Hale cites nobody. The court in Woolston’s case cites Hale. Wood cites Woolston’s case. Blackstone quotes Woolston’s case and Hale. And Lord Mansfield, like Hale, ventures it on his own authority. Here I might defy the best-read lawyer to produce another scrip of authority for this judiciary forgery; and I might go on further to show, how some of the Anglo-Saxon priests interpolated into the text of Alfred’s laws, the 20th, 21st, 22d, and 23d chapters of Exodus, and the 15th of the Acts of the Apostles, from the 23d to the 29th verses. But this would lead my pen and your patience too far.

What a conspiracy this, between Church and State! Sing Tantarara, rogues all, rogues all, Sing Tantarara, rogues all !

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