Abstract

Intellectual fissures about how to best protect religious liberty in the United States are the product of a nation that has become increasingly more diverse and the Supreme Court’s application of the Religious Clauses. But tensions over how to protect religious liberty were evident even at the founding of the American Republic. This is revealed in the debates within and outside of the Constitutional Convention, the thirteen state ratifying conventions, the First Federal Congress, and the creation of one of America’s first public secular universities—the University of Virginia. Colonial Americans disagreed about how to best preserve religious liberty, especially whether it was better to provide protections in the federal or thirteen state constitutions. A historical examination of these debates can provide a deeper understanding of the complexity of drawing boundaries for the exercise of religious liberty. The historical record also calls into question the wisdom of the Supreme Court adopting Thomas Jefferson’s “wall of separation” metaphor as its constitutional touchstone for Establishment and Free Exercise cases. Fortunately, another standard, rooted in the historical record, can be constructed—the Mutual Independence of Church and State. This standard can be used by the Supreme Court and the lower courts to better protect and promote religious liberty in postmodern America.