« Eric Segall: Originalist Fiction as Constitutional Faith
Michael Ramsey
| Main | Seven Problems with Antidiscrimination Due Process
Chris Green »


Seth Barrett Tillman: A Religious Test in America?
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted A Religious Test in America?: New Sources on the 1809 Motion to Vacate Jacob Henry's North Carolina State Legislative Seat (29 pages) on SSRN.  Here is the abstract:

During 1776, but prior to announcing the Declaration of Independence, the Continental Congress instructed the state legislatures to call conventions to draft constitutions to regularize their local state governments so that each could be administered in the name of the People and absent royal governors and royal officers. North Carolina heeded the revolutionary call—in 1776, it implemented a new constitution with a bill of rights. One interesting feature of the 1776 North Carolina Constitution was that Article 32 imposed a religious test against non-Protestants. Article 32 stated:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

This particular provision would remain on the books, and largely unenforced, until North Carolina revisited this issue in the 1835 North Carolina Constitutional Convention (which drafted amendments to the 1776 North Carolina Constitution which were subsequently ratified by the People). Still, in 1809, there was one apparent attempt to enforce the religious test provision. Jacob Henry had qualified for a second, annual term in North Carolina’s lower legislative house: the House of Commons. Henry was Jewish. On December 5, 1809, another member put forward a motion to declare Henry’s seat vacant based on the 1776 North Carolina Constitution’s religious test. The next day, the Commons adjudicated the motion, and it failed. Henry kept his seat.

The modern, tertiary literature relating to the 1809 motion to vacate Henry’s seat is largely based on a secondary literature: i.e., antebellum documents from the mid-1810s into the 1850s. Some of those early documents may have been part of the public debate surrounding reform of the 1776 North Carolina Constitution’s religious test, including debates on proposed amendments to the 1776 North Carolina Constitution heard in the 1835 North Carolina Constitutional Convention—where there was a substantial effort to reform the state constitution by abandoning the religious test from the 1776 North Carolina Constitution. Admittedly, some of those records carry good indicia of authenticity and reliability, as some of the participants had been part of the earlier 1809 drama. On the other hand, there is some reason to doubt the reliability of these records: they were created in light of debate surrounding ongoing political reform. Furthermore, these were not contemporaneous records—by 1835, when the state constitutional convention met, memories of 1809 might well have grown dim.

In this short paper, I intend to summarize the standard narrative handed down to us from the 1830s, to illustrate how that narrative has been understood (or, perhaps, misunderstood) by historians and other academics in more modern times, along with problems in that narrative. Next, I will put forward newly found records from December 1809 and early 1810 offering a significantly different account of what happened on the floor of the Commons in 1809. Having done so, I offer some personal reflections in regard to the difficulties surrounding legal history, particularly where (as here) the underlying historical issues touch on our deeply held moral and political beliefs, about the good society, and our common historical past.