On June 12, 1776, Virginia’s Fifth Revolutionary Convention unanimously passed the Virginia Declaration of Rights. A trenchant, post-colonial statement affirming humankind’s inherent rights, limited government, and republican principles, the Declaration is arguably the nation’s most imitated founding document and a pillar of American founding principles. George Mason, the Declaration’s principal draftsman, boasted that it was the first of its kind on the American continent. It distilled the great principles of liberty and constitutionalism that revolutionary Americans believed were derived from England’s ancient constitution, common law, and natural rights theory.

　　Though overshadowed by the US Declaration of Independence, the Virginia Declaration was remarkably influential. In addition to directly informing bills of rights framed in numerous states (including Massachusetts, Pennsylvania, and North Carolina), it would go on to influence the creation and adoption of the national Bill of Rights. Perhaps most importantly, the Declaration’s opening lines—“all men are by nature equally free and independent and have certain inherent rights …; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety”—informed the key language of equality and unalienable rights in the second sentence of the Declaration of Independence. This would become a defining expression of an American political creed.

　　As Americans celebrate the Declaration of Independence’s 250th anniversary, they would do well to commemorate alongside it the Virginia Declaration of Rights, also in its 250th year. Adopted a few weeks after the Virginia Declaration, the grand statement of American independence built upon ideas in the former document.

　　Framing the Declaration of Rights

　　Virginia’s Fifth Convention assembled in Williamsburg on May 6, 1776.On May 15, it passed a resolution instructing the Commonwealth’s delegates at the Continental Congress to declare independence from Great Britain. This initiative raised questions about the civil authority extant in the Commonwealth. Believing, perhaps, they had reverted to a state of nature, the delegates thought it necessary to frame a new social compact, beginning with a declaration of humankind’s natural rights, followed by a new plan—or constitution—of civil government. The assembly appointed a committee to prepare a declaration of rights and plan of government. Among those appointed to this committee were George Mason and the young, untested delegate from Orange County, James Madison Jr.

　　Sometime in late May, Mason took the initiative in framing the Declaration, preparing ten articles to which others were added by fellow delegates. A committee draft was printed and circulated up and down the Atlantic seaboard in early June, and it had a significant impact on compatriots in the nascent states engaged in the task of creating new governments. The Convention debated and amended drafts of the Declaration before it was unanimously passed on June 12.

　　In summary, the Declaration has sixteen articles setting forth the essential principles of republicanism—namely, that power is vested in and derived from the people and exercised through their duly elected representatives. It recognizes the inalienable right of “a majority of the community … to reform, alter, or abolish” any government that fails to provide “for the common benefit, protection, and security of the people, nation, or community”; separates the state’s “Legislative and Executive powers” from the “Judiciary”; and disallows taxation or the deprivation of private property for public uses without consent of the people or their representatives. It affirms due process of law, borrowing language from Magna Carta. It also enumerates, among other things, the rights of criminal defendants to be informed of accusations and “to a speedy trial by an impartial jury,” allows for the privilege against self-incrimination, and prohibits “cruel and unusual punishments” and unreasonable searches and seizures. It also protects the “freedom of the Press” and “free exercise of religion.”

　　The genius of the Virginia Declaration is not that it expressed original principles; rather, it distilled and harmonized the republican sentiments of the day, brilliantly summarizing the objectives of those Americans who aspired to be independent and self-governing. With remarkable brevity, it condensed the great principles of liberty derived from English common law and constitutionalism, including principles extracted from Magna Carta (1215), Petition of Right (1628), English Bill of Rights (1689), and the constitutional settlement of the Glorious Revolution of 1688–89. It combined a commitment to fundamental liberties with a brief expression of political and constitutional ideas expounded by Locke, Montesquieu, and others.

　　Protecting the Free Exercise of Religion

　　The Declaration’s sixteenth and final article protecting “the free exercise of religion” is its most original provision, and it expresses arguably the most important American contribution to political thought and practice. It enshrined protections for religious exercise that far exceeded Mason’s initial proposal and, indeed, the most liberal policies of the age. The enacted text states:

　　Art. 16. That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity, towards each other.

　　What protections did religious adherents in Virginia enjoy at the time of independence? The established Church of England and its members were legally favored and protected. Dissenting sects were granted a measure of toleration in religious belief and practice, although they were often burdened in the exercise of their religion. Dissenters had to pay taxes to support the established church (in addition to voluntarily supporting their own church), regularly attend services of the established church (at least once a month), license or register their meetinghouses with the colony’s General Court, and their ministers had to obtain licenses to preach. Baptist ministers, in particular, vigorously resisted licensure requirements, arguing that their “license” to preach came from God, not the civil state. In fact, Baptist ministers were thrown in jail in central Virginia in the mid-1770s for refusing to secure licenses to preach. There are accounts of imprisoned ministers preaching to their flock through prison bars. This is what “toleration” looked like in practice.

　　There are accounts of imprisoned ministers preaching to their flock through prison bars. This is what “toleration” looked like in practice.

　　Article 16 declares that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” This formulation was proposed by James Madison, replacing Mason’s initial draft stating that “all Men shou’d enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience.” Although Mason’s language reflected the most enlightened, liberal policy of the age, it did not go far enough to satisfy Madison. Madison’s revision emphasized one of the most important insights of American political thought. A state policy of religious toleration, he contended, is an inadequate substitute for religious liberty because it dangerously casts the right of religious exercise as a mere privilege that can be granted or revoked at the pleasure of civil authorities (often acting in concert with an established church) rather than as a natural, inalienable right. Madison thought religious liberty was a fundamental right, possessed “equally” by all citizens (including religious dissenters), located beyond the reach of civil magistrates, and subject only to the dictates of a free conscience.

　　Significantly, proposed and enacted texts of Article 16 addressed other issues that continue to vex discussions of religious exercise today. The first line, for example, offers a definition of “religion.” What is it that religious liberty protects (and, by implication, what is outside the protection of religious liberty)? “Religion,” answers Article 16, is “the duty which we owe to our Creator.” Religious liberty, it would seem, does not encompass any and all deeply held beliefs, even though they might, in some sense, parallel religious beliefs and concerns. This definition of “religion” would reverberate through the political and legal discourse of the age. Madison, for example, used this definition in his famous “Memorial and Remonstrance against Religious Assessments” (June 1785).

　　Furthermore, the protections for religion in the Virginia Declaration are not restricted to beliefs only but extend to “the manner of discharging” religious duties. In other words, religious rights encompass both beliefs and the practices that follow from those beliefs and allow for the fulfillment of duties owed to the Creator.

　　Article 16 affirms that “religion … can be directed only by reason and conviction, not by force or violence.” Religious liberty insists that individuals must be free to inquire, reason, persuade, and believe pursuant to the dictates of their consciences, absent external coercion, restraint, or persecution. As Thomas Jefferson wrote in the Virginia Statute for Establishing Religious Freedom (January 16, 1786):

　　Almighty God hath created the mind free; that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being lord both of body and mind, yet chose not to propagate it by coercions on either. …

　　If God created the mind free and desired that it should remain free, then it is contrary to God’s will—even an offense against God—to deny humankind religious freedom.

　　Both Mason and Madison acknowledged “that all men” should be entitled to exercise their “religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate” (emphasis added). This suggests that religious duties are prior to civil obligations; thus, the exemption of religion from the authority of the civil state and the civil state’s recognition of and protections for the “exercise of religion.” After quoting Article 16, Madison elaborated on this point in the “Memorial and Remonstrance.” The duty we owe to the Creator, he wrote, “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe.” (Article 16, as enacted, dropped this reference to the civil magistrate.)

　　Another insight regarding the appropriate scope of religious liberty emerged from the Convention’s deliberations. Mason’s initial draft authorized a civil magistrate to restrict conduct if “under Colour of Religion, any Man disturb the Peace, the Happiness, or Safety of Society, or of Individuals.” Madison countered with a more expansive understanding of religious freedom that disallowed the magistrate from interfering with “the free exercise of religion, … Unless the preservation of equal liberty and the existence of the State are manifestly endangered.” Mason, in short, gave the civil magistrate broad powers to restrain religious exercise that disturbs the peace and happiness of not only society but also individuals. Madison, by contrast, espoused a principle of no interference with “the free exercise of religion” except to preserve “equal liberty” and the civil state itself. (Article 16, as enacted, did not include this clause qualifying the scope of religious exercise.)

　　Finally, in his initial proposed amendment to what would become Article 16, Madison included this clause: “therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges.” This language, if adopted, would have effectively terminated an official ecclesiastical establishment in Virginia. But it proved too radical for the times, and the language was dropped, and the Church of England remained, technically, the established church of Virginia. Its power and influence, however, were much diminished by the passage of Article 16.

　　Frequent Recurrence to Fundamental Principles

　　In the Declaration’s penultimate article, the Virginia Convention reminded citizens of what is required to maintain a “free Government” and “the blessings of liberty.” These can be “preserved” only “by a firm adherence to justice, moderation, temperance, frugality, and virtue,” thought to be vital principles of republicanism. Then, underscoring the Declaration’s importance to Virginia’s continuing experiment in republican self-government, the article counseled, “no free Government, or the blessings of liberty, can be preserved to any people but … by frequent recurrence to fundamental principles.”

　　In this year of semiquincentennial celebrations, including the 250th anniversary of the Virginia Declaration, Americans would do well to make “frequent recurrence to [the] fundamental principles” succinctly expressed in the Virginia Declaration, so that we may continue to enjoy in this land a “free Government” with “the blessings of liberty.”