Saturday, April 18, 2015

The conservatism and limits of John Jay, American founder

John M. Pafford makes the argument that John Jay was the most conservative of the American founders in this book review posted over at The Imaginative Conservative: John Jay: Man of Order, Justice, Freedom.  As Pafford points out, Jay's work and contribution to the Founding were substantial, and he deserves far more attention than he usually gets in discussions of the Founding period.  Personally, I would rank Jay alongside Samuel Adams and Fisher Ames as the most overlooked of the founders. 

Which is not to say that Jay's approach to ordered liberty was optimal. As I posted over at the blog American Creation awhile back, Jay shared much of the common bigotry against Catholics so prevalent during the Founding Era. As I wrote over yonder:

I've been reading through The Myth of American Religious Freedom by David Sehat (Oxford Univ. Press, 2011).  One of the interesting points raised thus far in the book is the troubled history of religious liberty for Catholics in the colonial and revolutionary periods in our nation's history. It is well-established that notable Founding Fathers like Thomas Jefferson and John Adams had little respect for the Catholic Church, seeing it as both as a staunch defender of orthodox trinitarianism and as a barrier to a rationalized and largely de-supernaturalized re-imaging of the Christian faith. And it bears noting that those two Founders were right on both counts. Sehat discusses some of the deeper roots of anti-Catholicism in early America, and he pays particular attention to the prime secular justification for anti-Catholic prejudice at the time, namely that Catholics, due to their spiritual allegiance to the Pope, could not be trusted to be faithful citizens.

This concern was so strong, Sehat notes, that it lead to specific language being included in New York's 1777 constitution limiting religious freedom so as not to "justify practices inconsistent with the peace or safety of this State." This wording reflected the concerns of John Jay, to limit the religious freedom enjoyed by Catholics. As quoted at length by Sehat, Jay spoke out in defense of religious freedom, but did not believe that basic civil liberties should be extended to Catholics. As Jay put it, liberty should be granted to everyone,
Except the professors of the religion of the church of Rome, who ought not to hold lands in, or be admitted to a participation of the civil rights enjoyed by the members of this State, until such a time as the said professors shall appear in the supreme court of this State, and there most solemnly swear, that they verily believe in their consciences, that no pope, priest or foreign authority on earth, hath power to absolve the subjects of this State from their allegiance to the same. And further, that they renounce and believe to be false and wicked, the dangerous and damnable doctrine, that the pope, or any other earthly authority, have power to absolve men from sins, described in, and prohibited by the Holy Gospel of Jesus Christ; and particularly, that no pope, priest or foreign authority on earth, hath power to absolve them from the obligation of this oath. 
Any Catholic who had so sworn such an oath, of course, would by its terms have to affirm doctrines contrary to those of the Catholic Church. Specifically, a Catholic who complied with Jay's proposal would have to deny one of the sacraments of the Church (confession), and would have to deny the power of the Pope to release people from vows and oaths. No Catholic, then or now, could in good conscience swear to such requirements. As Sehat notes, "Jay's problem with Catholicism was similar to the views held by many Protestants." Jay viewed Catholicism as conflating spiritual and secular authority, providing too much institutional power to the Catholic Church to intervene in civil affairs. Fortunately for Catholics in New York and for liberty in that state, Jay's efforts to restrict the rights of Catholics only garnered the assent of a little more than a third of the members of the New York constitutional convention. Jay did, however manage to include language in the New York constitution that, to again quote Sehat, "suffused New York's guarantee of religious liberty with Protestant sectarianism, in spite of its apparent separation of church and state."

There is much history within the English political and religious landscape that fueled Jay's attempt to restrict the religious and civic liberty of Catholics in New York. Jay's concerns about papal authority to release people from oaths stretched back to the "Bloody Question" that was posed to Catholic martyrs slaughtered for their faith under Queen Elizabeth I. And even that ardent defender of religious liberty, John Locke, drew the line at toleration for Roman Catholics, as the original text of his Letter Concerning Toleration indicates. And Locke's objection was in substance the same as Jay's -- a concern that Catholics would not be faithful to their nation in light of their obedience to the Pope.

This objection has largely disappeared from American civic life, thanks in large part to the patriotism and service that Catholics have demonstrated for this country. In addition, Catholics have run for high office throughout the country, and served with distinction in public life. Yet while most anti-Catholicism has retreated into the shadows, it is important to note the widespread and deep anti-Catholicism that was present among much of the populace during the Founding period, and to recall how often religious liberty was sacrificed on the altar of prejudice.

Something to keep in mind as the principle of religious liberty again becomes controversial to many of our elites and their institutions.

Update:  over on Twitter the writer and founding father biographer extraordinaire Richard Brookhiser comments:

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