The only handwritten draft of the Bill of Rights, by Roger Sherman

HANDWRITTEN DRAFT OF A BILL OF RIGHTS FOUND

“A handwritten working draft of the Bill of Rights — the only such document known to exist — has been found and identified in the most likely of places: the Library of Congress.

‘It’s one of the most exciting finds here in years,’ said James C. Hutson, chief of the library’s manuscript division and a scholar on the Constitutional era. Mr. Hutson said he came across the document two years ago, made a mental note to examine it more closely later and has now authenticated it by examining the paper, ink, handwriting and other historical evidence.

The handwritten four-page document — which was never printed in the official Annals of Congress and has not been published anywhere else since then — was found pasted in the back of Vol. 11 of the hundred-plus volumes of the James Madison Papers. The volumes are kept in a secure, temperature-controlled archive in the library’s Madison Building on Independence Avenue. It holds the most precious early American Presidential papers in the nation.

Congressman Was Author

This early draft was written by Representative Roger Sherman of Connecticut on an unknown date in July 1789 while the first Congress was meeting in New York. Sherman, a longtime judge of the Connecticut Superior Court who became a Senator in 1791, served with Thomas Jefferson and Benjamin Franklin on the committee that drafted the Declaration of Independence. He was the only framer to sign all three original founding documents — the Declaration, the Articles of Confederation and the Constitution.

‘Sherman was a member of the select committee appointed by the House to take the subject of the amendments to the Constitution into consideration,’ Mr. Hutson said. ‘He evidently composed a Bill of Rights as a member of this committee, hoping that his colleagues would, as the first words of his draft indicate, ‘Report as their Opinion’ about the document he had written. But the committee reported a far different document, making no mention of the Sherman draft.’

Madison, at the time a Representative from Virginia and considered by historians to be the father of the Bill of Rights, had made a speech the month before the Sherman document was written that included some of the basic ideas that later were included in the first 10 Amendments. But there is no known handwritten draft of Madison’s version. The only version of the Madison speech known to exist is in printed form in the Congressional Register. It was prepared by Thomas Lloyd, a shorthand reporter whose technical skills had become dulled by excessive drinking, according to contemporaries who disputed his garbled, doodled notes. Madison himself condemned the Register as exhibiting ‘the strongest evidences of mutilation & perversion.’

The major contribution of the Sherman draft, Mr. Hutson said, was to advocate that the rights be added as amendments, not worked into the body of the Constitution itself, as Madison proposed.

They Became Law in 1791

Madison’s amendments guaranteeing certain individual liberties were altered and edited, then passed by the House on Sept. 24, 1789, and by the Senate after conference on Sept. 25, 1789. After ratification by most of the states, they became law on Dec. 15, 1791, more than two years later.

Sections of Sherman’s early written draft of the Bill of Rights resemble Madison’s first 10 Amendments. But the document also differs in important respects by omission, and some of its daring language foretells future legislation.

Mr. Hutson said the draft contains 11 proposed amendments, including some that were ignored and others that were accepted by Congress and ratified by the States. Some members of the first Congress strongly opposed a Bill of Rights.

During the debate in Congress, Jefferson wrote to Madison from Paris, where he was the United States Minister to France, prodding him that ‘a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.’

The Sherman document says Congress shall not have power ‘to restrain the liberty of the Press,’ but it does not use the stronger word ‘abridging,’ and the amendment is the eighth rather than the first. The draft says Congress ‘Shall not have power to grant any monopoly.’ The word monopoly does not appear in the Bill of Rights, but prohibition of monopolies was behind the antitrust laws more than a hundred years later. And ‘the right of the people to keep and bear arms’ in the Second Amendment is not mentioned in this draft.

Reason for Two-Year Delay

Mr. Hutson said the reason for the two-year hiatus between his first seeing the Sherman draft and revealing its existence is that he wanted to doublecheck its provenance. During this period, he put it aside because he was deeply involved in editing hundreds of other documents that appear in the fourth volume of ‘The Records of the Federal Convention,’ published this month by Yale University Press. Mr. Hutson believes other researchers may not have found the document because it was in the Madison Papers, not in any Sherman archive. He said the most recent biography of Sherman, for example, did not mention this draft. Other scholars might have looked through the Madison Papers but not recognized the document’s significance.

Even Mr. Hutson had only a hunch about it. He surmised that a draft of the Bill of Rights existed somewhere in the Library of Congress, which contains about 25 million books and over 40 million manuscripts on 532 miles of shelves. His educated guess paid off when he found the Sherman document in the Madison Papers.

‘I compared the handwriting in the draft with known Sherman documents in the library and by an endorsement on the draft reading, ‘Amendments to the Constitution,’ Mr. Hutson said. ‘As you can see on the fourth page, in a fainter hand that I also recognized, it says, ‘by Mr. Sherman July 1789.’ That is in James Madison’s neat, small handwriting that resembles Thomas Jefferson’s. It differs from Washington’s great looping, rotund hand. Jefferson was the Minister in Paris at that time. He and Madison regularly wrote to each other, and some of their letters are in this volume, too.’

The Sherman document is nine by seven and a quarter inches, on regular 18th-century acid-free rag paper. The ink is brown but unfaded. Mr. Hutson explained that it was an ink known as iron gall, which was made by using tannic acid from the bark of trees. He lifted the edge of the document and allowed a visitor to peruse it. In an age of duplication, it seemed a little unreal to be handling an original piece of American history.

‘That Is Exciting!’

The significance of the Sherman document was interpreted a few days ago by Leonard W. Levy, one of the leading constitutional scholars in the country. Mr. Levy, the Andrew W. Mellon All-Claremont Professor of Humanities and chairman of the history faculty at the Claremont Graduate School in California, is editor in chief of the newly published four-volume ‘Encyclopedia of the American Constitution.’ After he was shown a copy of the Sherman draft by Mr. Hutson, Professor Levy responded in writing:

‘Wow! That is exciting! I am tremendously appreciative that you share with me such a discovery. I had never heard of the document. . . . Thanks to Sherman, the amendments became what we call the Bill of Rights grouped together, instead of insertions at particular points in the text of the original Constitution, as Madison proposed. Think of all the symbolism that would have been lost if there had been no ‘First Amendment’ but was instead something inserted in Article I, Section 6 of the Constitution.’

Comparing the Sherman draft with the Madison draft that was finally approved as the Bill of Rights, Mr. Hutson said, it becomes clear that the final document was tightened up, with more universal language, that greater importance was given to some rights, especially in judicial matters, and that other amendments were ignored because they were too controversial or already part of the Constitution.

Little Known of Early Days

Mr. Hutson, who is 49 years old, has taught history at Yale, where he received his doctorate, and served as an editor of the Benjamin Franklin papers there. He has been with the Library of Congress since 1972. Sitting at his desk in the Library’s Madison Building, he described how the Sherman draft came into existence:

‘That Sherman should have prepared a draft contradicts received opinion about his role in the creation of that charter and shows how little we know about its birth. The accepted view of Sherman is that he was a foe of the Bill of Rights. What Sherman actually opposed, however, was Madison’s efforts to incorporate amendments into the body of the Constitution rather than append them as a group at the end of the document.’

Mr. Hutson pointed to the Sherman draft and other printed documents about the first Congress and said:

‘Far from opposing Madison on the substance of a bill of rights, Sherman included in his draft many of the provisions contained in Madison’s speech of June 8, 1789, which introduced to Congress the subject of such a Bill of Rights. In places, he borrowed Madison’s exact language. Although Sherman added some ideas of his own, his draft was an effort to condense and refine Madison’s original proposals. He was more of a collaborator than an adversary of Madison.

‘How or when it came into the possession of Madison, who served with Sherman on the select committee, is unclear. Whatever the case, Madison added Sherman’s draft to his papers and there it has remained, unknown to scholars till now.’

Original Intent Is Murky

Mr. Hutson believes that the Sherman draft is of particular relevance today because it underscores the lamentable condition of the documentation about the records of the Constitution and the Bill of Rights. He said the document addresses questions being debated about the original intention of the framers of the Constitution.

‘Attorney General Meese has expressed the notion that judges, in interpreting the Constitution, should be close to the original intent of those who wrote it,’ Mr. Hutson said. ‘It is his view to limit the Constitution as an instrument of social and libertarian reform. But to try to recover original intent from records that are nonexistent or not faithful to actual proceedings may be an impossible hermeneutic assignment.'”
-Excerpt courtesy of The New York Times, “Handwritten Draft of a Bill of Rights Found,” by Herbert Mitgang, Special To the New York Times, July 29, 1987. (top) “Freedom of the press would have been an Eighth Amendment right, not a First Amendment one, if the Bill of Rights drafted by Roger Sherman had been adopted by the first Congress.” -Image courtesy of The New York Times, Times Machine, “Handwritten Draft of a Bill of Rights Found,” by Herbert Mitgang, Special To the New York Times, July 29, 1987

Bill of Rights draft raises questions

Sherman may have had hand in Bill of Rights

“WASHINGTON — The discovery of a version of the Bill of Rights handwritten by Roger Sherman, one of Connecticut’s delegates to the 1787 Constitutional Convention, may cause scholars to rethink Sherman’s role in the development of the Constitution’s first 10 amendments, a government historian said Wednesday.

The generally accepted view of Sherman, who served as mayor of New Haven and represented Connecticut in the U.S. House and Senate, is that he opposed the Bill of Rights, said Library of Congress historian James H. Hutson.

Sherman, like many others at the Constitutional Convention, believed that the unamended Constitution sufficiently limited the role of government and left many rights to individuals. He also believed that many state constitutions protected individual rights.

But the existence of the previously unknown four-page Sherman draft, which differed in many ways from the final version of the Bill of Rights, could mean that the Connecticut politician supported adding the Bill of Rights to the Constitution, Hutson said.

But Christopher Collier, Connecticut state historian and the author of a major biography of Sherman, questioned Hutson’s assessment of the document’s significance and said he had serious doubts that it represented Sherman’s thinking. He agreed, however, that it was in Sherman’s handwriting.

Collier, a professor of history at the University of Connecticut, said he believes it is more like ‘a committee report or his notes about somebody’s speech. I don’t believe it is a Roger Sherman draft of the Bill of Rights.’

No other copies of the Bill of Rights are known to exist, other than the final version. The Bill of Rights, which became part of the Constitution in 1791 after 11 states ratified it, generally describes the relationship between the individual and government, and is thought by many legal scholars to provide the underpinnings for privacy rights later found by the Supreme Court but not explicitly spelled out in the Constitution.

The Sherman draft includes some proposals, such as a ban on monopolies, that did not become part of the final version. And it failed to ban establishment of a state religion, which became part of the First Amendment. The draft has several references to freedom of speech and the press. Those rights also became part of the First Amendment.

Hutson discovered the document, written in July 1789 on acid-free rag paper, two years ago as he was going through a volume of the massive papers of James Madison. Madison is often referred to as a chief architect of the Constitution.

The Sherman draft of the Bill of Rights, 9 by 7 Va inches, was attached to the back of pages within Vol. 11. It was written in a brownish ink made from tannic acid from tree bark and has not faded very much.

The discovery was reported in the New York Times Wednesday, one day after the 200th anniversary of a House of Representatives’ publication of a proposed Bill of Rights. The House version made no mention of Sherman’s draft and differed from Sherman’s version in many respects.

Hutson said he delayed publicizing his finding because he was engaged in editing the fourth volume of ‘The Records of the Federal Convention,’ published this month by Yale University Press. He also delayed because he wanted to verify that the document was written by Sherman. He said he did not fear that it might be discovered by someone else before he completed his work.

‘I wasn’t quite sure, I didn’t quite know what it was,’ said Hutson, who holds undergraduate and doctoral degrees from Yale.

Hutson speculated that Sherman wrote the draft to show how a bill of rights could have been written as a separate entity, rather than integrated by Congress into the Constitution as Madison had proposed. The existence of the draft seems to signify that Sherman, who had opposed a bill of rights during debates at the Constitutional Convention, could have changed his views and came to believe the amendments were needed. Hutson said he believed Sherman’s objections were based more on the form than the content of the Bill of Rights.

‘He really opposed Madison’s proposals to weave the amendments into the Constitution,’ Hutson said. During debate in the House of Representatives in August 1789, Sherman said Congress should not ‘interweave our propositions into the work itself because it will be destructive of the whole fabric.’

‘From his point of view, I think form was important,’ Hutson said.

But Hutson also acknowledged that there is limited documentation about the views of many politicians who were serving in Congress when the Bill of Rights was drafted.

‘The evidence is very, very sparing and it’s not easy to find out what anybody was doing,’ Hutson said.

Collier, who published ‘Roger Sherman’s Connecticut Yankee Politics and the American Revolution’ in 1971, said he was highly skeptical of Hutson’s claims that the document represented Sherman’s views.

Pointing to a section of the Sherman document that outlines the separation of powers in the federal government which did not become part of the ratified Bill of Rights, Collier said Sherman had argued in a published letter during Connecticut’s convention to ratify the Constitution that separation of powers was ‘an error in politics.’ The inclusion of this concept as Article 11 in the draft Bill of Rights, ‘is uncharacteristic of his political thought Collier said.

Collier also doubted that a concept in Article 2 referring to rights of conscience in religious matters reflects Sherman’s views.

‘Roger Sherman was opposed to putting a ban on religious tests for government office,’ Collier said. He said that during debate about the Constitution, Sherman argued against a proposal to make it unconstitutional to require a religious oath for government office-holders.

But the document’s discovery is still very significant, Collier said, particularly for those who want to illuminate the views of the nation’s founders.

‘When you want to find out what the Founding Fathers intended by the Bill of Rights,’ the newly revealed document will be helpful, Collier said. ‘You find in this statement earlier language’ than that of the final version.

The document seems to demonstrate, he said, that freedom of speech, part of the First Amendment in the final version of the Bill of Rights, ‘refers to speech in general,’ not just so-called ‘political speech’ involving matters affecting government, he said.

‘This will require a tremendous amount of study. A lot of scholars will be doing a lot of work with this,’ Collier said.

As for his disagreement with Hutson, Collier said, ‘He and I would have to agree to disagree on whether or not this represents Roger Sherman’s views.'”
-Excerpt courtesy of Newspapers.com, Hartford Courant, “Bill of Rights draft raises questions,” by Miranda S. Spivack, July 30, 1987

Text of a draft Bill of Rights

The following is a draft version of the Bill of Right written by Roger Sherman of Connecticut in July 1789. The last two lines of Article 4 end with blank spaces in the original.

“Report as their opinion, that the following articles be proposed by Congress to the legislatures of the several states to be adopted by them as amendments of the Constitution of the United States and when ratified by the legislatures of three fourths (at least) of the said states in the union, to become a part of the Constitution of the United States pursuant to the fifth Article of the said Constitution.

1. The powers of government being derived from the people, ought to be exercised for their benefit, and they have an inherent and unalienable right to change or amend their political constitution whenever they judge such change will advance their interest and happiness.

2. The people have certain natural rights which are retained by them when they enter into society, such as the rights of conscience in matters of religion; of acquiring property, and of pursuing happiness and safety; of speaking, writing and publishing their sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to government by petition or remonstrance for redress of grievances. Of these rights therefore they shall not be deprived by the government of the United States.

3. No person shall be tried for any crime whereby he may incur loss of life or any infamous punishment, without indictment by a grand Jury, nor be convicted but by the unanimous verdict of a Petit Jury of good and lawful men freeholders of th vicinage or district where the trial shall be had.

4. After a census shall be taken, each state shall be allowed one representative for every thirty thousand Inhabitants of the description in the second section of the first Article of the Constitution, until the whole number of representatives shall amount to but never exceed .

5. The militia shall be under the government of the laws of the respective states, when not in the actual service of the United States but such rules as may be prescribed by Congress for their uniform organization and discipline shall be observed in officering and training them; but military service shall not be required of persons religiously scrupulous of bearing arms.

6. No soldier shall be quartered in any private house in time of Peace, nor at any time, but by authority of law.

7. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted in any case.

8. Congress shall not have power to grant any monopoly or exclusive advantages of commerce to any person or company; nor to restrain the liberty of the Press.

9. In suits at common law in courts acting under the authority of the United States, issues of fact shall be tried by a Jury if either party request it.

10. No law that shall be passed for fixing a compensation for the members of Congress except the first shall take effect until after the next election of representatives posterior to the passing such law.

11. The legislative, executive and judiciary powers vested by the Constitution in the respective branches of the Government of the United States shall be exercised according to the distribution therein made, so that neither of said branches shall assume or exercise any of the powers peculiar to either of the other branches. And the powers not delegated to the government of the United States by the Constitution, nor prohibited by it to the particular States are retained by the states respectively, nor shall any the exercise of power by the government of the United States particular instances herein enumerated by way of caution be construed to imply the contrary.”
-Excerpt courtesy of Newspapers.com, Hartford Courant, “Bill of Rights draft raises questions,” by Miranda S. Spivack, July 30, 1987

Roger Sherman and the Bill of Rights

“This note analyzes the draft Bill of Rights in Roger Sherman’s handwriting found among the James Madison papers at the Library of Congress in 1987 and the circumstances of its formulation. Though in Sherman’s handwriting, it represents not his personal views, but the work of members of the congressional select committee, on which he served, charged with preparing a draft from James Madison’s initial proposals. The draft differs from both Madison’s initial proposals and the version finally adopted, and these differences provide material increasing our understanding of the Bill of Rights.

Scott D. Gerber is Visiting Assistant Professor at The College of William and Mary. He is the author of To Secure these Rights: The Declaration of Independence and Constitutional Interpretation (1995).

In 1987, James H. Hutson, chief of the manuscript division of the Library of Congress, reported that he had discovered among the James Madison papers a draft of the Bill of Rights written by Roger Sherman. This document, reprinted in Appendix A, is the only original draft of the Bill of Rights known to exist.

Hutson’s discovery led to a heated exchange of correspondence among several leading American historians. On one side is Hutson, who argues that the draft shows Sherman ‘to have been more a collaborator than an adversary of Madison in his efforts to induce Congress to adopt a bill of rights.’ ‘That the contrary impression prevails is primarily the result of the lamentable condition of the documentation of the birth of the Bill of Rights…'”
-Excerpt courtesy of JStor, Polity, Vol. 28, No. 4, “Roger Sherman and the Bill of Rights,” by Scott D. Gerber, The College of William and Mary, Summer, 1996

Roger Sherman and the Creation of the American Republic

“The draft [in Sherman’s handwriting,] reprinted in the appendix, is the only handwritten draft of the Bill of Rights known to exist.

James H. Hutson has argued that the draft shows Sherman ‘to have been more a collaborator than an adversary of Madison in his efforts to induce Congress to adopt a bill of rights.’ Scott D. Gerber challenged this assertion in a research note entitled, ‘Roger Sherman and the Bill of Rights.’ He relied heavily on Sherman’s initial opposition to a bill of rights and his later arguments against provisions contained in the draft to make his case. It is true that Sherman would have preferred to have avoided the subject altogether, but the draft and subsequent debates make it clear that Sherman was an active participant in the creation of the Bill of Rights.

Madison’s first draft of the Bill of Rights contained nine proposed amendments that would have been interspersed throughout the Constitution. It began by prefixing ‘to the constitution a declaration — That all power is originally vested in, and consequently derived from the people.’ Other amendments would have affected the number of representatives and their compensation, protected a variety of individual and procedural rights, and would have prevented states from violating ‘the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.’ In response to James Wilson’s argument in the ratification debates that an enumeration of rights might be dangerous because rights not protected might be considered unprotected, he included a version of what became the Ninth Amendment. To assuage anti-Federalist fears regarding the scope of the national government’s power, Madison proposed an early formulation of the Tenth Amendment.

The select committee’s draft in Sherman’s hand follows Madison’s draft, but there are important differences. First, with respect to religion, Madison proposed that ‘[t]he civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established,’ whereas the select committee’s draft reads ‘[t]he people have certain natural rights which are retained in Society. Such are the rights of Conscience in matters of religion.’ Denoting religious liberty to be a ‘natural right’ rather than a ‘civil right’ is a stronger claim, and it is notable that the draft in Sherman’s hand does not contain an embryonic establishment clause. This proposed amendment also listed several other ‘natural rights,’ many of which ended up being included in the First Amendment.

A second major difference is that virtually all of the criminal procedural provisions contained in what became amendments four through six were present in Madison’s draft but are missing from Sherman’s. As well, Madison’s proposal to add what became the Ninth Amendment was not included in this draft nor were his restrictions on states retained. Finally, it is noteworthy that the draft in Sherman’s hand contained a provision that is not in Madison’s speech or the final version of the Bill of Rights — an amendment stipulating that ‘Congress Shall not have power to grant any monopoly or exclusive advantages of commerce to any person or Company.’

The draft of the select committee’s report in Sherman’s hand includes some proposals that Sherman later opposed in the ensuing debates. For instance, it contains a version of what became the Third Amendment. When the House of Representatives debated the measure later in the summer, Sherman was the only member to object, noting that ‘it was absolutely necessary that marching troops should have quarters, whether in time of peace or war, and that it ought not to be put in the power of an individual to obstruct the public service.’ It is therefore misleading to refer to provisions in the draft as being ‘Sherman’s proposals,’ as scholars have done on occasion.

On July 28, the select committee issued a printed report proposing nineteen changes to the Constitution. The report differs significantly from the draft in Sherman’s hand. On August 13, the House began debating the proposals amendment by amendment. The first proposal was to insert before the words ‘Government being intended for the benefit of the people, and the rightful establishment thereof being derived from their authority alone’ before the words ‘We the people’ in the Constitution’s preamble. Sherman immediately rose to object both to the wording of the amendment and its placement. He argued that

we cannot incorporate these amendments in the body of the Constitution. It would be mixing brass, iron, and clay… I conceive that we have no right to do this, as the Constitution is an act of the people, and ought to remain entire — whereas the amendments will be the act of the several legislatures.

With respect to the substance of the amendment, Sherman remarked that he agreed with the basic sentiment, but because ‘if the constitution had been a grant from another power, it would be proper to express this principle; but as the right expressed in the amendment was natural and inherent in the people, it is unnecessary to give any reasons or ground…’

To understand Sherman’s approach to the Bill of Rights, it is necessary to recognize that he really believed that Congress was limited to the powers enumerated in Article I, Section 8 of the Constitution. Because of these constraints, amendments prohibiting Congress from doing things it did not have the power to do, like establishing a religion or restricting the press, were unnecessary. However, Sherman did think Congress possessed powers reasonably implied by those enumerated in the Constitution. Accordingly, he could in good conscience support the creation of a national bank, and he opposed versions of what became the Tenth Amendment that might have made it more difficult for Congress to act on these implied powers.

Many proposed amendments engendered little discussion, and Sherman made few additional comments that shine light on his political ideas. On August 21, he again referred to the views of delegates at the Constitutional Convention to oppose an amendment that would prohibit Congress from regulating federal elections ‘except when any state shall refuse or neglect, or be unable, by invasion or rebellion, to make such election.’ He supported without comment a motion to eliminate the prohibition on double jeopardy and opposed an amendment concerning the separation of powers as ‘unnecessary.’ He also argued against a cumbersome amendment proposed by Thomas Tucker respecting when and how Congress could levy direct taxes.

On August 22, the house appointed Egbert Benson, Theodore Sedgwick, and Sherman to ‘prepare an introduction to and arrangement of Articles of Amendment.’ Their report of August 24 consisted of sixteen articles and was sent to the Senate, which amended and returned them to the House on September 14. The House Journal notes that the changed were debated on September 19, but there are no records of these debates. On September 21, the House agreed to some of the Senate’s amendments, disagreed to others, and appointed Madison, Sherman, and John Vining to a conference committee to reconcile the differences. The Senate appointed Sherman’s protege Oliver Ellsworth to head the Senate delegation, and he was joined by Charles Carroll and William Paterson. On September 24, the committee reported twelve proposed amendments, which the House approved with a few minor changes. There was no role call vote, so it is impossible to know if Sherman supported the amendments, but it is unlikely that he would have been appointed to the conference committee if he still opposed them. The next day, the Senate approved the twelve amendments passed by the House, and they were sent to the states where the ten that we now know as the Bill of Rights were quickly ratified.

Original Intent and the Bill of Rights: The Case of Church and State

America’s founders differed with respect to whether and / or how civic authorities should support Christianity. On balance, Reformed Christians were more sympathetic to significant state support for religion, as suggested by the survival of establishments in Vermont (1820), and Massachusetts (1833). Yet when Supreme Court justices have turned to founding era history to shine light on the meaning of the religion clauses, they have overwhelmingly relied on the views of the two southern Anglicans — Thomas Jefferson and James Madison. This approach is particularly ahistorical because Jefferson was not even involved in crafting or ratifying the First Amendment.

In the 1947 establishment clause case of Everson v. Board of Education, Justice Wiley Rutledge observed that ‘no provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined and the terse summation of that history.’ In his opinion, Rutledge made sixty-two distinct historical references, including eleven to Thomas Jefferson and twenty-eight to James Madison, to support the conclusion that the First Amendment requires the strict separation of church and state. He made no reference to Roger Sherman.

James Madison is often called the father of the Bill of Rights, and there is no doubt that he deserves much credit for the final product. He initially proposed it, he pushed for it, and he was heavily involved in debates and committee work surrounding it. However, even the brief treatment provided here makes it evident that he did not dominate the process. Sherman was on the important committee of eleven that reported amendments to the House (a committee chaired by John Vining, not Madison), and the draft Bill of Rights in Sherman’s hand shows that he was an active participant. The text of every amendment put forward by Madison was ultimately changed, and some of his suggestions were rejected altogether. Notably, his proposal to prohibit states from restricting certain rights, which he considered ‘the most valuable amendment on the whole list,’ was not adopted. It was not a critical committee, yet it is worth noting that Sherman, not Madison, sat on the three-person House committee charged with arranging the amendments proposed by the House. While Madison may have chaired the conference committee, if this study has shown anything, it is that ‘father Sherman’ hardly deferred to the young Madison. Moreover, the House delegation had to negotiate with a formidable delegation from the Senate — a delegation headed by Sherman’s protege Ellsworth. The committee’s conference report, is is worth noting, was penned by Ellsworth.

It is understandable that scholars and jurists favoring the strict separation of church and state are drawn to Madison and Jefferson. Although even those founders did not consistently act on this principle; Madison’s Memorial and Remonstrance (1785) and his ‘Detached Memoranda’ (c. 1817), and Jefferson’s Bill for Establishing Religious Liberty (1779) and his letter to the Danbury Baptists (1802) offer support for this position. Yet Jefferson was in France when the Bill of Rights was drafted, and if Madison was a driving force behind the First Amendment, the document was ultimately a product of a community — a community that included the following members of Reformed churches: Roger Sherman, Oliver Ellsworth, John Langdon, Caleb Strong, Paine Wingate, Philip Schuyler, Abraham Baldwin, Elias Boudinot, Jonathan Elmer, William Paterson, Fisher Ames, Abiel Foster, Benjamin Huntington, James Jackson, Jeremiah Wadsworth, Nicholas Gilman, Egbert Benson, James Schureman, Henry Wynkoop, Daniel Hiester Jr., Daniel Huger, Benjamin Bourne, William Smith, and Hugh Williamson. Certainly these men were not all equally influential, but at least Sherman, Ellsworth, Huntington, Baldwin, Boudinot, Paterson, and Ames played important roles in key committees and / or debates. None of these seven men advocated anything like a wall of separation between church and state, and there is little reason to believe that many of their colleagues did either.

One way to illustrate this point is to look at other actions of the First Congress that concern religion. Notably, on the day after the House approved the final wording of the Bill of Rights, Elias Boudinot proposed that the president recommend a public day of thanksgiving and prayer. In response to objections by Aedenus Burke and Thomas Tucker that those practices mimicked European customs and that such calls were properly issued by states, Sherman:

Justified the practice of thanksgiving, on any signal event, not only as a laudable one in itself, but as warranted by a number of precedents in holy writ: For instance, the solemn thanksgivings and rejoicings which took place in the time of Solomon, after the building of the temple, was a case in point. This example he thought, worthy of christian imitation on the present occasion; and he would agree with the gentleman who moved the resolution.

The House approved the motion and appointed Boudinot, Sherman, and Sylvester to a committee to meet with senators on the matter. The Senate concurred with the House’s motion, and Congress requested that President Washington issue what became his famous 1789 Thanksgiving Day Proclamation. The proclamation reads in part:

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore His protection and favor…
I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is beneficent Author of all the good that was, that is, or that will be…
And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions, to enable us all , whether in public or private stations, to perform our several and relative duties properly and punctually, to render our national government a blessing to all the People.

It is noteworthy that both Burke and Tucker worked against the Bill of Rights and that Boudinot and Sherman almost certainly supported it. There is no record of the House vote in favor of asking the president to declare a day of public prayer and thanksgiving, but the September 26 New York Daily Advertiser noted that it passed by ‘a great majority.’

Similarly, among the very first actions of the House of Representatives was to appoint a committee consisting of Boudinot, Sherman, Tucker, Madison, and Bland to communicate with a Senate committee about appointing chaplains. The two committees recommended that each house appoint a chaplain, that they be of different denominations, and that each week they alternate the chamber in which they would serve. On April 27, Sherman made the motion that the House ‘proceed to the nomination and choice of a Chaplain.’ The House eventually selected the Presbyterian William Linn and the Senate chose the Episcopalian Samuel Provost. After George Washington and John Adams took their oaths of office on April 30, they joined representatives and senators for ‘divine services’ led by Reverend Provost at St. Paul’s Chapel, Congress, including Madison, voted to pay the chaplains and other congressional officers a few months later.

The Northwest Ordinance was passed by the Confederation Congress in 1787, and it was reauthorized by the First Congress. The act protected religious liberty by requiring, ‘No person demeaning himself in a peaceable and orderly manner shall ever be molested on account of his mode of worship or religious sentiments.’ It also declared that ‘Religion, Morality, and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall forever be encouraged.’ Although the ordinance did not specifically provide for the funding of religious schools or churches, the early Congresses engaged in both of these activities.

Two months after approving what became the First Amendment, representatives debated a bill regulating the militia when called into national service. Madison offered an amendment to exempt from militia service

persons conscientiously scrupulous of bearing arms. It is the glory of our country, said he, that a more sacred regard to the rights of mankind is preserved, than has heretofore been known. The Quaker merits some attention on this delicate point, liberty of conscience: they had it in their own power to establish their religion by law, they did not. He was disposed to make the exception gratuitous, but supposed it impracticable.

Sherman immediately supported Madison’s amendment, arguing that he believed

the exemption of persons conscientiously scrupulous of bearing arms to be necessary and proper. He was well convinced that there was no possibility of making such persons bear arms, they would rather suffer death than commit what appeared to them a moral evil — though it might happen that the thing itself was not a moral evil; yet their opinion served them as proof. As to their being obliged to pay an equivalent, gentlemen might see that this was as disagreeable to their consciences as the other, he theretofore thought it adviseable to exempt them as to both at present.

The amended bill eventually passed, but with the requirement that conscientious objectors must hire a substitute.

Records of the debates over the Bill of Rights are notoriously incomplete, but when the religion clauses are considered in light of other actions of the First Congress — as well as the arguments and actions of its authors and supporters elsewhere —a clear pattern emerges. Because of its limited powers, Congress could neither create an established church nor restrict religious liberty. The First Amendment restated these limitations, but there is little evidence to suggest that its authors intended it to create a ‘wall of separation between Church & State.’ For instance, Sherman and his colleagues clearly thought that the national government could encourage and fund religious practices. As well, there is no reason to conclude that these men understood the free exercise clause to require a religious exemption from generally applicable laws or that the establishment clause prohibited legislatures from making such exemptions.

Sherman, like Thomas Jefferson, authored a significant state law concerning religious liberty, and, unlike Jefferson, he participated in debates on the First Amendment. It is therefore striking that when Supreme Court justices have used history to interpret the First Amendment’s religion clauses, they have made 112 distinct references to Jefferson but have mentioned Sherman only three times. Indeed, excluding James Madison (referenced 189 times), justices have made only twenty-one references to all of the other members of the First Congress combined! If jurists or scholars are truly interested in the original intent of those who drafted the First Amendment, it makes little sense to ignore the views and actions of Sherman and most of his colleagues…

Connecticut elected its five members of the House of Representatives at large, so there were no one-on-one contests that regularly occurred in single-member districts. Nevertheless, Pierpont Edwards, youngest son of Jonathan Edwards Sr. and brother of Sherman’s pastor Jonathan Edwards Jr., calculated that because both he and Sherman were from New Haven, that Sherman had to be defeated in the fall of 1790 if Edwards were to be elected to the House of Representatives. Accordingly, he wrote a series of anonymous essays falsely accusing Sherman of lying about his support for a controversial bill to raise congressional pay to six dollars per day (Sherman, prudently, missed that vote). Once authorship of the letters became known, the old Puritan wrote a public letter to Edwards denying his involvement and lecturing the younger man:

I am as sensible as you of the importance of having persons of irreproachable characters to fill public offices: for promoting persons of bad moral character would be a dishonor to government, and tend to introduce a general dissolution of manners. The Psalmist says, The Wicked walk on every side, when wise men are exalted.
That you may better know and pursue your own true interest to love your neighbor as yourself and avoid vain jangling is the desire of your sincere well wisher.

Edwards, it turned out, had miscalculated the willingness of Connecticut to elect multiple representatives from the same town. After the fall 1790 elections, three of Connecticut’s five representatives were citizens of New Haven: Sherman, Edwards, and James Hillhouse.”
-Excerpt courtesy of Google Books, “Roger Sherman and the Creation of the American Republic,” by Mark David Hall, 2013

ROGER SHERMAN TABLET

TRIBUTE PAID TO NEW HAVEN’S REVOLUTIONARY PATRIOT.

“With appropriate and impressive exercises the bronze tablet commemorative of Roger Sherman was unveiled at the Union League club house yesterday afternoon at 4 o’clock. The tablet was erected by the Connecticut Society, Sons of American Revolution, and the ceremonies conducted by this society proved to be a very interesting event.

The tablet was described in this paper yesterday, and was placed on the front of the Union league, as the club house is on the site on which originally stood the homestead of Roger Sherman, the Revolutionary patriot and statesman…

Hon. Jonathan Trumbull of Norwalk, president of the Connecticut society, Sons of American Revolution, came to the front and made his address of acceptance in behalf of the society, speaking in part as follows:

‘Mr. President General: It is with great satisfaction that the Connecticut society of Sons of the American Revolution receives from you this lasting memorial of Connecticut’s great and good patriot and statesman. In receiving it on this birthday of Nathan Hale, it has for us a double significance; for between the short career of our young patriot and the long career of our patriot sage and statesman are indicated, so far as two lives may indicate them, the entire range and scope of Connecticut’s heroism and patriotism in the days of the American Revolution.

The well worn term, a self-made man, applies peculiarly to him its best sense. Bred a shoemaker in the days when that occupation still made him an important member of his community, his native genius, his indomitable industry, his sound common sense led him by steady steps to advance to the highest and most important duties of public life. Deprived of the advantages of a collegiate education, he became, by his own, a successful merchant, and a jurist and statesman of the highest order. Thus he rose from shoemaking to land-surveying, to membership in the general assembly, to mercantile life, to the bench of the superior court of Connecticut. Fitted, through his long schooling, for higher things, he represented his state in the Continental congress from its first session in 1774 to the victorious days of 1781; again in the constitutional convention of 1787 where the crowning service of his long career was performed; and again in the house and senate of the United States until the close of his busy and supremely useful life.

His personal character fitted him for a leader. Calm, imperturbable, unmoved by personal considerations, his only thought was the greatest good to the greatest number. He lived in the times when Connecticut needed no orators, and bred none; but every word he uttered in congress and convention was uttered at the right moment, and carried more weight than all the flowers of oratory.

It was something that he should have been selected on a committee of twenty-four of the forty-four members of the first Continental congress to draft the declaration of rights which was adopted in the early days of the session. It is far more that he should have been appointed on a committee of thirteen to draft the articles of confederation which some of the states were so slow in adopting. But his crowning honor in the Continental congress was his appointment on a committee of five which drew up the Immortal declaration of independence which Connecticut, first of all the thirteen states, instructed her delegate to promote and ratify.

As Sons of the American Revolution we honor him as one who not only did much in declaring our independence, but did infinitely more in placing it upon the solid and sure foundation of liberty protected by law.’

The address making Union league custodian of the tablet was made by Judge Morris B. Beardsley of Bridgeport. Judge Beardsley’s address was very brief, but was very pithy…

‘We have chosen this form of memorial for the jurist, patriot, statesman, we place it on the site of his home, opposite the university whose treasurer he was, and to whose students for all time we commend his virtues; in the heart of the city whose chief officer he was at his decease.

And now, President Martin, on behalf of the society which I represent, I deliver to the Union league club the custody of our tablet in the full belief that its care and preservation will be to you and those who shall succeed you a labor of love, a proud commission and a cherished privilege.'”
-Excerpt courtesy of Newspapers.com, The Morning Journal-Courier, “Roger Sherman Tablet,” June 7, 1904

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