In Howison's History of Virginia from its Discovery and Settlement by Europeans to the Present Time, Chief Justice Waite found a relatively recent and generally well regarded source (it was published just thirty years earlier in 1848) to provide the historical background of Virginia's disestablishment of the Episcopal Church and its statutory protection of religious freedom.
Chief Justice Waite, of course, is searching for signs of Jefferson and Madison, so he overlooks Patrick Henry's contribution to the Virginia debate.
85) It is very likely that Chief Justice Waite concentrated on this chapter in his research into Virginia's pre-constitutional church-state battles; its discussion of the treatment of the Baptists and other dissenting groups, culminating in Madison's Memorial and Remonstrance, is neatly summarized in Waite's opinion.
103) This bill, referred to by Chief Justice Waite in Reynolds, "drew forth a number of able and animated memorials from religious societies of different denominations.
110) In light of the degree to which Bancroft, Howison and Semple link the Virginia experience to the development of civil rights generally, it is easy to see how Chief Justice Waite would become so focused on the Virginia origins of the First Amendment, especially since his entire research effort took place over a few weeks that included the Christmas holidays.
It is interesting to hypothesize about why Chief Justice Waite went so far out of his way to invoke the strict separationist language from Madison and Jefferson when little, if any, was needed to address Mr.
As his biographer Peter Magrath has documented, Chief Justice Waite felt that he, as Chief Justice, had a special responsibility for constitutional cases, and it appears that he switched his vote in Reynolds specifically to be able to write the majority opinion.
As Philip Hamburger demonstrates in his recent book, Separation of Church and State, the strict separationist view that was adopted by Chief Justice Waite in Reynolds had settled into American zeitgeist by the latter portion of the nineteenth century.
In summary, it would be unfair to accuse Chief Justice Waite of engaging in the law office history of twentieth century establishment clause controversies.
at 527 (quoting Letter from George Bancroft to Chief Justice Waite (Dec.