Terrett v. Taylor

In a prior post I talked about the Supreme Court’s decision in Terrett v. Taylor, which in a sense was the first federal case that assessed church/state relations. Taylor has many fascinating details, and I thought that I would elaborate.

Virginia, like many other colonies, had an established church. In 1776, Virginia enacted a statute that disestablished its church but maintained that all of the church’s property would remain church property. Twenty plus years later, though, the state enacted a law asserting that the state actually owned the church’s property.

As a private lawyer, Bushrod Washington advised the Church that any revocation of their land grants would be unconstitutional. In part, this was an argument sounding in property rights, but he addressed the thought that letting the church keep its property after its disestablishment violated the Free Exercise Clause of the Virginia Declaration of Rights. Rejecting this claim, he said that the free exercise issue “cut both ways.” (I was surprised to see this phrase because I thought this as a modern expression, but evidently it is not.) Washington pointed out that the free exercise of the church would be adversely impacted by withdrawing property that was important for its financial well-being, though you could also say that the free exercise of other churches was impeded by the special property privileges of the Episcopal Church. He also stated that the statute that secured the church’s property in 1776 possessed a special presumption of constitutionality because it was contemporaneous with the Declaration of Rights.

The Supreme Court, in an opinion by Justice Story, agreed with these conclusions and held the Virginia law taking away the church property unconstitutional. The Court relied on no federal constitutional provision to strike down this law. Instead, Taylor invoked the “great and fundamental principle of  a republican government, the right of citizens to the free enjoyment of their property.” (In short, a natural law justification that would never pass muster today.) Justice Story also opined that the 1776 statute guaranteeing church property did not violate the Virginia Declaration of Rights; an odd position for a federal court to take, though to be fair the distinctions between state and federal authority were not so clear in 1815.

On the latter point, I am leaning in the direction of saying that Washington must have contributed his earlier analysis to Story’s opinion. We’ll see if I can learn more

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1 Response

  1. Joe says:

    Is this in effect a judicial application of the Guarantee Clause?

    Story also at one point vaguely referenced the “spirit and the letter of the constitution of the United States,” which is somewhat interesting in part because such the letter and spirit was also referenced in McCulloch v. Maryland.

    A limited express constitutional basis was cited at one point: “In respect to the latter statute, there is this farther objection, that it passed after the district of Columbia was taken under the exclusive jurisdiction of congress, and as to the corporations and property within that district, the right of Virginia to legislate no longer existed.”

    The opinion also argues that under the VA bill of rights (lower case used) that its religious freedoms are not violated by giving corporate rights to religious institutions to assist in free exercise. This might be of modern notice.