Issuing this order about free speech will not make it less likely that progressives will continue to misuse executive authority for their own purposes.
Jurists and scholars regularly assert that the Establishment Clause must be interpreted in light of the views of James Madison and Thomas Jefferson. As readers of this series know, I find this to be problematic for many reasons. Even if one believes that a few Founders deserve special consideration, it makes little sense to emphasize the views of a man (Jefferson) who did not help draft or ratify the amendment, even as other legislators who played important roles in crafting and approving it are virtually ignored.
Madison deserves credit for advancing the First Amendment through the first federal Congress, but he did not act alone. Scholars have long studied the records of the debates over this amendment, but they have shown relatively little interest in the men who served on the key committees that drafted it.
State conventions debating the ratification of the Constitution proposed more than 200 amendments containing at least 100 distinct provisions. Representative Madison distilled amendments from this collection, added a few of his own, and put these proposals before Congress. The House eventually created an 11-member select committee to decide which amendments to consider. Each state had one representative on this committee. (Rhode Island and North Carolina had not yet ratified the Constitution and so were not represented.) Madison sat on it on behalf of Virginia, but it was chaired by Representative John Vining of Delaware. There is no reason to believe that Vining, or seasoned statesmen on the committee such as Representative Roger Sherman of Connecticut, simply deferred to their colleague from Virginia.
When students of the First Amendment’s religion clauses consider congressional debates over its wording, they usually begin with the language Madison put forward in his speech of June 8, 1789 before the House. This is not unreasonable, but it is important to remember that earlier proposals had been made by individuals and ratifying conventions. More significantly, the whole House did not discuss Madison’s version of this amendment. What was debated there was the version offered by the select committee.
There were important differences between the two. Madison’s version reads: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.” Whereas the House select committee’s version reads: “No religion shall be established by law, nor shall the equal rights of conscience be infringed.”
Jurists and scholars attempting to understand what Madison hoped to accomplish by his proposal regularly turn to his earlier experiences and writing on the subject, especially his Memorial and Remonstrance (1785). By the same logic, if one is interested in what the House select committee hoped to accomplish by its proposal, it is reasonable to turn to earlier works by its members. In this essay, I consider the views of the man who came to represent Georgia on this committee.
Baldwin on Church and State
Abraham Baldwin was born in Connecticut in 1754. He graduated from Yale College, served as a full-time chaplain in the Revolutionary Army from 1779 to 1783, and was a tutor at Yale for three years. Yale’s president, Ezra Stiles, recruited him to be a full professor of divinity, but Baldwin declined and studied law instead. Licensed to practice law in 1783, he moved to Georgia the following year.
There he was promptly elected to the state General Assembly. After Governor Lyman Hall requested that the legislature design a school system where “every encouragement [is] given to introduce religion,” Baldwin drafted a statute to create a state university (the first state-funded university in the nation) and to provide oversight for other public schools in Georgia. The statute began with a preamble proclaiming that it should be:
among the first objects of those who wish well to the national prosperity, to encourage and support the principles of religion and morality, and early to place the youth under the forming hand of society, that by instruction they may be molded to the love of virtue and good order.
The bill also required that “all officers appointed to the instruction and government of the university shall be of the Christian religion.” As was often the case in this era, the proposed law’s discriminatory provisions went hand in hand with one protecting religious liberty, in this case the requirement that:
trustees shall not exclude any person of any religious denomination whatever, from free and equal liberty and advantages of education, or from any of the liberties, privileges, and immunities of the university in his education, on account of his or their speculative sentiments in religion, or being of a different religious profession.
Baldwin’s statute favored Christianity with respect to employment, although the provision quoted above prohibits trustees from discriminating against people of a “different religious profession.” This provision may have been crafted specifically to protect members of Savannah’s Jewish community. The legislature approved the bill, and Baldwin was appointed the first president of the University of Georgia (even as he continued to hold other public offices).
In 1785, Baldwin drafted a statute entitled For the Regular Establishment and Support of the Public Duties of Religion. It began with a preamble declaring that:
AS THE KNOWLEDGE and practice of the principles of the Christian religion tends greatly to make good members of society, as well as good men, and is no less necessary to present, than to future happiness, its regular establishment and support is among the most important objects of legislature determination; and that the minds of the citizens of this state may be properly informed and impressed by the great principles of moral obligation and thus be induced by inclination furnished with opportunity, and favored by law to render public religious honors to the Supreme Being.
The bill guaranteed that “all the different sects and denominations of the Christian religion shall have free and equal liberty and toleration in the exercise of their religion within the state.” It also required each Georgia county “which contains thirty heads of families” to choose a “Minister of the Gospel who shall on every Sunday publicly explain and inculcate the great doctrines and precepts of the Christian religion.” This minister would be supported by public tax revenues, and the bill provided that counties with larger populations could have multiple ministers.
This bill was passed by the state legislature, but, apparently, its provisions were never acted upon. As in other states, Georgians were coming to question the wisdom of establishing an official religion, and were even turning against multiple establishments. Nonetheless, we can look to this bill to help us understand the views of its drafter, Baldwin, on how church and state should relate to one another.
Baldwin and the Establishment Clause
When the First U.S. Congress convened in March 1789 in New York, Baldwin, who had been a member of the Confederation Congress and a delegate to the Constitutional Convention, was elected to serve in it. His stint in the House would last six terms, until his appointment in 1800 to the U.S. Senate, where he would serve until his death in 1807.
With respect to the Bill of Rights, we know that Baldwin was on the aforementioned House select committee, but there are no records of the committee’s deliberations. Baldwin apparently did not participate in public debates over the First Amendment, although a September 13, 1789 letter to his brother-in-law strongly suggests that he was pleased that the Senate removed Madison’s proposal that no state “shall infringe the equal rights of conscience, nor the freedom of speech.” He voted in favor of the amendments that Congress sent to the states to be ratified.
In light of his service as a paid military chaplain and the laws he drafted as a member of the Georgia legislature, it seems reasonable to conclude that Abraham Baldwin supported religious liberty and opposed establishing a national church, but that he also thought it appropriate for governments to support and encourage religion in general.
There are excellent reasons to oppose state involvement with religion, but originalist arguments are not among them. When we consider the Founders who played key roles in crafting the First Amendment we see that few, if any, desired to build a high and impregnable wall of separation between church and state. And when we broaden from that group to look at the Founding generation as a whole, there is even less reason to believe that they desired such an outcome.
 It is often assumed that Jefferson’s Virginia Statute for Religious Liberty had a tremendous influence on the men who drafted and ratified the First Amendment. I show how tenuous is this assumption in “Madison’s Memorial and Remonstrance, Jefferson’s Statute for Religious Liberty, and the Creation of the First Amendment,” American Political Thought 3 (Spring 2014), 32-63.
 I owe this point, and my introduction to Baldwin’s views of church-state relations, to Mark J. Chadsey, “Abraham Baldwin and the Establishment Clause,” Journal of Catholic Legal Studies 51 (2012), 1-40.
 Kenneth R. Bowling, “‘A Tub to the Whale’: The Founding Fathers and Adoption of the Federal Bill of Rights,” Journal of the Early Republic 8 (1988), 228.
 The 11 members of the committee were: John Vining, James Madison, Abraham Baldwin, Roger Sherman, George Gale, Aedanus Burke, Nicholas Gilman, George Clymer, Egbert Benson, Benjamin Goodhue, and Elias Boudinot.
 I have already considered one other member of this committee’s approach to these questions (Sherman), and plan to explore others in future posts.
 Chadsey, “Abraham Baldwin and the Establishment Clause,” 17.
 As I have argued elsewhere, this conclusion is problematic even with respect to Madison and Jefferson, especially if one considers what they actually did in their public capacities. See, for instance, https://www.heritage.org/political-process/report/did-america-have-christian-founding.