John Jay and religious liberty.

• Author: Hartog, Jonathan Den
• Position: Symposium on the Meaning of Religious Liberty in the Anglo-American Legal Tradition

The topic, "The Meaning of Religious Liberty in the Anglo-American Tradition," is of perennial concern. It has been debated and defended since the Puritan settlements of the seventeenth century, through the period of the American Revolution, and throughout the nation's history. (2) Still, in recent years, the meanings and contours of religious liberty have again been challenged and questioned in public discourse. Significant religious liberty cases have also come before the Supreme Court, including Hosanna-Tabor v. EEOC, Burwell v. Hobby Lobby, and Little Sisters of the Poor v. Burwell (which has been granted writ of certiorari). (3) Within such public debates, an historical recounting of the development of the tradition of religious liberty is simultaneously useful and instructive.

To this end, the American jurist and Founding Father John Jay (1745-1829) provides valuable insights. Born in New York, he was educated at King's College (now Columbia University). He entered the bar at the end of the colonial period, and he built a thriving legal practice in New York City before the start of the American Revolution. (4) When the Revolution came, he was pulled into the press of public affairs, and he fulfilled his duties admirably for almost thirty years--including serving as the First Chief Justice of the United States Supreme Court. Still, he never forgot his legal training, and he returned repeatedly to the significance of law for the structuring of society. It was his legal training that ultimately framed his constitutional beliefs and even his foreign policy approaches.

Along with his legal successes, Jay married into the prominent Livingston family, a connection that would draw him into the political conflict. He supported the patriot cause, and he was elected by New York City to the First and Second Continental Congresses. Jay was not present in Philadelphia to sign the Declaration of Independence because his presence was needed back in New York, to give leadership to the state's patriots. He was serving in the Convention when news of the Declaration reached them, and he led the body in endorsing the Declaration. The Convention quickly appointed Jay to serve as the first Chief Justice of the New York Supreme Court. He filled that role for the next two years and provided material support for the Revolution. In 1778, New York sent him back to Congress, and the next year he served as President of Congress. At the end of 1779, Congress appointed him as a diplomat to the Spanish Court, and Jay attempted to further American standing abroad for the next several years. When the British indicated they would discuss peace, Congress sent Jay to Paris to negotiate alongside John Adams and Benjamin Franklin, In this way, Jay became an active participant in the movement for independence. (5)

After the Revolution, Jay contributed his talents to supporting the new republic. After signing the Peace Treaty, he returned home and found himself elected back to Congress and then named Secretary of Foreign Affairs. This position required executing Congress's legislation and dealing with foreign powers. In that position, Jay suffered under the national weakness that resulted from the Revolution and the Confederation government. Not surprisingly, Jay supported the effort to create a stronger national government through the movement for the new Constitution in 1787. Although New York did not appoint him to the Constitutional Convention, he approved of the resulting document.

Jay became a prominent and influential Federalist. He not only contributed to The Federalist Papers, but he also authored the influential Address to the People of the State of New-York, on the Subject of the Constitution. Furthermore, he carefully guided the New York Ratifying Convention to approve the document over vehement Anti-Federalist objections. Under the new government, Washington appointed Jay as the first Chief Justice of the United States Supreme Court, where Jay worked to guide the Court in a nationalist direction. (6) His role as "Chief' lasted until a new war with Britain threatened and Washington sent Jay to London to negotiate a new treaty, resulting in the Jay Treaty in 1794. Upon his return, Jay was elected governor of New York, a position he held for two terms. Throughout the 1790s, Jay functioned as a Federalist--an important political identity as American parties coalesced. This was especially true with his views on religion. (7) He finally retired in 1801.

Even in his retirement, Jay demonstrated concern for the republic he helped establish by offering political commentary from his home in Bedford, New York. Along with his political contributions, he also served as the second President of the American Bible Society and provided leadership for a voluntary association with Christian motivations. Because of his background, Jay served as an important figure during the founding era, and he was well-positioned to speak to the issue of religious liberty.

This article makes four claims about Jay's understanding of religious liberty. First, Jay's appreciation of religious liberty grew out of personal and familial experience. His concerns for religious liberty were not simply abstract. They emerged from his family's actual experience of religious intolerance and subsequent discovery of religious liberty. Second, Jay's understanding of religious liberty developed over time. His increasing comprehension of the principles of religious liberty holds promise because it demonstrates that thinkers can develop a greater appreciation of the principle. Third, for Jay, religious liberty encouraged religious believers to bring their faith to bear on politics, and it did not imply privatization or secularization. Instead, expression of religion in public could promote corporate success. Thus, religious liberty was an invitation for public engagement, rather than a wall built to oppose it. Fourth, Jay's experience with religious liberty encouraged movement toward a more voluntary expression of Christianity in the new nation. In the process, he found this new organization for Christianity beneficial for the growth of the faith. When put together, these ideas suggest that Jay witnessed and participated in the creation of an ideal of religious liberty for America during the founding era. Importantly, they communicate significant ideas from the founding era which bear repeating, understanding, and appreciating in the present.

1. THE JAY FAMILY EXPERIENCE AND RELIGIOUS LIBERTY

   Jay's appreciation of religious liberty was shaped by elements within his own and his family's experience. The first of these elements was his family's own persecution. The Jay family was Huguenots (French Protestants) from France. After Louis XVI revoked the Edict of Nantes, which had provided some toleration for the Huguenots, he brought the power of the French state down upon the movement in order to force Huguenots to convert to Catholicism. Because the Jays refused to convert, they were exiled. Augustus Jay, John Jay's grandfather, escaped from France, landed in South Carolina, and eventually moved to New York, where he married into the colony's mercantile elite. Augustus's son, Peter, was John Jay's father. (8) The family nurtured its identity as Huguenot exiles and never forgot the persecution they had suffered. These facts were passed on to John, who later recorded the affairs of his Huguenot ancestors in the form of "autobiographical fragments." (9) In these "fragments," Jay highlighted the dangers that arose from "the persecuting spirit of popery." (10) Their story helped shape his thinking about religion and religious liberty.

   Jay's own experience growing up in the religiously diverse setting of colonial New York was also significant. Spending most of his time in Rye, New York, where he and his family were received into the Anglican church, Jay was surrounded by vociferous Quakers, English Presbyterians, and Calvinists that had relocated from Connecticut. In Rye, the competition of religious groups was intense, even though they occasionally worshipped together and shared the public...