Thomas Jefferson’s Views on Religious Freedom as Revealed in the Letter to Elijah Boardman (Part I).

I am presently reading a book by Professor Alan Dershowitz entitled Finding Jefferson: A Lost Letter, Remarkable Discovery, And The First Amendment In An Age Of Terrorism. In the book, Prof. Dershowitz details how he located a previously unknown letter written by the third U.S. President, Thomas Jefferson, in a specialty bookstore in New York, and how that letter gives insight about Pres. Jefferson's view on the reach of the First Amendment.

Personally, I don’t recommend reading the book because too much of the book is either fluff (Chapter one is all about Prof. Dershowitz’s hobby as a collector) or Prof. Dershowitz’s effort to have a one-sided argument with a man who can’t respond (the final chapters are his “letter” back to Pres. Jefferson giving reasons for disagreeing with his views). Also, Prof. Dershowitz is, of course, somewhat of a typical New York liberal in his views, and consequently he takes a fairly heavy-handed, dismissive view of thinkers who believe that America is at heart a Christian nation. Still, the main subjects of the book, Pres. Jefferson's letter itself and the context in which the letter was written, are both fascinating. The book describes the letter, how he discovered it, how it was authenticated, and also provides some decent historical context for the letter. I fully agree with Prof. Dershowitz that the letter represents an important historical find and helps give depth to Jefferson’s understanding of how the First Amendment ought to be applied.

Of course, it is true that Pres. Jefferson was not around when the First Amendment was written. He was in France serving as the American diplomat at that time and he did not help create the language used directly. Still, there is little doubt that Pres. Jefferson's thoughts helped to inform that First Amendment. He was certainly friends with and worked closely with the primary author of the First Amendment, James Madison (who was the fourth president of the United States), and almost certainly had influence on how Madison approached the freedoms addressed. Pres. Madison had worked together with Pres. Jefferson on the Virginia Statute for Religious Freedom, and both had worked on the Kentucky and Virginia Resolutions which both responded to the evils of the Alien and Sedition Acts. And, of course, as Pres. Jefferson's metaphor of a Wall of Separation is widely used as the means of describing the relationship between church and state, it is worthwhile to understand his views.

In the letter discovered by Derschowitz (which I will hereinafter refer to as the "Boardman letter"), Pres. Jefferson replied to a gentleman by the name of Mr. Elijah Boardman, a man of some considerable prominence in Connecticut at the time – and it was Mr. Boardman’s descendent, Dr. George H. Wright, who brought the letter to be sold at the bookstore where Prof. Dershowitz purchased it. Mr. Boardman had apparently sent to Pres. Jefferson the transcript of a sermon by Reverend Stanley Griswold, the pastor of the church in New Milford, Connecticut, and Jefferson wrote the Boardman letter in response to that transcript. (The letter is dated, but the date is very difficult to read.) The letter is fairly short – a total of only 260 words – and begins by thanking Mr. Boardman for the transcript and explaining that he has received it before and largely viewed the sermon favorably. However, there was one section of the sermon with which Pres. Jefferson found he could not agree. To understand the disagreement requires a quick review of the relevant portions of the Griswold sermon.

Griswold's Sermon

In his sermon Rev. Griswold addressed the issue of whether a person might be punished by the government for the content of his speech only, i.e., whether it should be permissible to legally punish someone for expressing an opinion that is contrary to “conscience.” Rev. Griswold takes the broad position that no one should be punished for their opinions as a general matter. Specifically, he says, "The position therefore is doubtless true with respect to what is strictly opinion, that a man ought not to be molested in any shape for his opinions, be they what they may." However, Rev. Griswold first questioned whether speech that is contrary to "conscience" should be free from punishment. He continues: "But the divulging of an opinion with the wanton view to excite broils and cause needless dissensions, or to influence others to do evil, is quite a different thing. This is an overt act, and, as the case may be, an evident immorality." In other words, he agreed that each person was entitled to freedom to believe whatever they wanted to believe, and the mere holding of belief was not punishable. However, once a person enunciated or proclaimed views that were contrary to "conscience," that person had engaged in action and actions were punishable.

Rev. Griswold then draws a distinction between those who are stating views that the person holds honestly as important and helpful from those that are advanced with the desire to "embroil society and throw it into divisions and confusion". Where a person is honestly putting forward an opinion that he honestly believes, simply because it is contrary to existing dogma is not a reason to punish the person. As he notes, if we were to punish people for merely expressing an opinion that is different, that would be akin to punishing the disciples for spreading the Good News of Jesus Christ in their Jewish and Pagan world. However, he then notes that "certain opinions may be attempted to be propagated; in which no honest view can possibly exist...." What is the difference? He notes the existence of a "line."

I believe there is such a thing as a conscience in man, an inherent sense of right and wrong in every intelligent creature through the world. Some speculativists have pretended to doubt the reality of such a principal in man; but were never able to divest themselves of it.

We all feel this principle operating with a sure and uncontrollable sway within us. It is indeed a Monitor the Vice-gerent of God Almighty in the soul. I suppose it to be inseparable from the rational faculties. When we do good, it approves and speaks peace to the mind. When we do evil, it condemns and torments.

This, then, is the line I would have to divide between opinions, to separate those the teaching of which shall be punishable, from those which may be taught with impunity. On the one side are all those things concerning which conscience dictates something. On the other all those things concerning which she dictates nothing.

The language he uses here concerning a "conscience in man" would not be unfamiliar to the people of the early 19th Century. It was the language that was used by Theologian and Signer of the Declaration of Independence, John Witherspoon.

Witherspoon's Use of Conscience as Echoed in Griswold's Sermon

Rev. John Witherspoon was a Scottish Presbyterian clergyman who also served as the President of the College of New Jersey (now known as Princeton). He was extremely well-known around the time of the Constitution, and his writings and teaching influenced several of the founders including Pres. Madison. Rev. Witherspoon wrote about the idea of conscience:

The moral sense implies also a sense that such and such things are right and others wrong, that we are bound in duty to do the one, and that our conduct is hateful, blameable and deserving of punishment if we o the contrary; and there is also in the moral sense or conscience an apprehension or belief that reward and punishment will follow according as we shall act in one way or the other." ~ The Selected Writings of John Witherspoon, 163, as quoted in "James Madison, John Witherspoon, and Oliver Cowdery: The First Amendment and the 134th Section of the Doctrine and the Covenant" (hereinafter, Madison Article), Smith, Rodney K., Brigham Young University Law Review, 2003, p 898

To Rev. Witherspoon, the moral sense, was "precisely the same thing [that] in scripture and common language we call conscience. It is the law which our Maker has written upon our hearts, and both intimates and enforces duty previous to all reasoning." ("Selected Writings of John Witherspoon, 161, as quoted in Madison Article, p. 898.) So, when Rev. Griswold writes of the "conscience" of man and opines that where "conscience" teaches something is right that it cannot be punished, he is directly alluding to the Biblical statement that all men are born with "the knowledge of God in their hearts" as stated in Romans 2:15. And Rev. Griswold clearly acknowledges this portion of his sermon where he says:

If a person should endeavor to propagate an opinion, that it is right to steal, to lie, to cheat, to rob, to murder, or to do anything which conscience, or “the law written on the heart,” plainly condemns, such person, even though he himself be not guilty of these crimes in an overt form, yet justly subjects himself to the reprehention and censure of all his fellow-creatures, and as the case may be I believe to some severer punishment. Could we be content to have an person of this description run about and inculcate to these crimes upon our children and upon simple ones? Certainly we could not and ought not. Such an one ought to be taken up, and if he will not cease to teach these things, he should not only be censured and reprimanded, but absolutely confined from running at large to poison society and unhinge it from its foundations. Such an one I believe would be liable for good principles of law and reason to be punished as an accessory, at least as an advisor and mover of the crimes of his pupil.

So, Rev. Griswold makes a very straightforward case that when a person speaks in such a way that he advocates violating the clear, unmistakable truths of God's word -- advocating that others steal, lie, cheat, rob and murder (and certainly more) -- it would be appropriate for the civil government to punish such a person for clearly harmful speech. Jefferson does not agree.

In part II, I will examine Jefferson's response to Rev. Griswold as revealed in the Boardman letter, and I will wrap up what lessons can be taken away from the debate about the meaning of the First Amendment and especially the religion clauses of that Amendment.