Yael: I’m really excited for this conversation because I didn’t think there would ever come a time in my life where the const… you know what I’m gonna say.
Schwab: That you went to law school and took constitutional law.
Yael: That the word antidisestablishmentarianism would be even remotely related to anything that I had to say.
Yael: From Unpacked, this is Jewish History Nerds, the podcast where we nerd out on awesome stories in Jewish history. I’m Yael Steiner.
Schwab: And I’m Jonathan Schwab. Yael, last time you told us about some of the really important Jewish figures in the Revolutionary War, but this is such a big and fascinating topic that we needed two episodes to talk about Jews and the revolution and this new young country. So where are we picking this up today?
Yael: Today we’re getting into something that goes to the heart of what America was supposed to be, because the story of Jews becoming full citizens wasn’t just a Jewish story. It was a test case for whether religious freedom in this new nation was real, or just a promise on paper, or a promise not on paper. And what does religious liberty actually mean for the Jews in practice? Were Jews citizens, but citizens that the Christians were tolerating? Or was there really no distinction between a Christian and a non-Christian citizen in the new country? And that’s not something that really gets openly debated until the adoption of the Constitution in 1789. In 1789, we do get to a place where a new constitution is ratified by all of the states, only after ten amendments are added to it.
Schwab: I feel like as an American, I learned this very early on. The first ten amendments, they’re called the Bill of Rights. The First Amendment and the Second Amendment, and then the Third Amendment, much less cool. But just the process, that a constitution was written, and then they were like, we have to change it. We’re not going to put these in the original document, but these will be canonical amendments that we’re going to ratify immediately. It’s just a very strange way to have done it.
Yael: There was a discussion of putting these ten amendments into the body of the Constitution, but I’m like you. I find it fascinating that the First Amendment, this thing that we treasure so deeply as Americans, and is considered the bedrock of…
Schwab: But it’s more popular than the first.
Yael: Exactly. That’s exactly what it is. And so specifically for me, that brings up the question. Because it’s an amendment, because the establishment clause, where Congress shall make no law establishing a state religion, is, yes, the most important thing and the thing that ultimately gets the Constitution to be ratified, but it is still an amendment. Which means it wasn’t at the forefront of the thoughts of the people who drafted the original Constitution. Which leads me back to this question of, are non-Christians citizens because Christians are tolerating them? Or does Christianity not matter when it comes to citizenship? We talk about how this nation was founded as a Christian nation. The founders are Christian, but there’s this amendment. Or is it that the founders were Christian and they deliberately didn’t want their Christianity to matter?
If you had to think of the most important document in American Jewish history, what would it be?
Schwab: It’s the Washington letter to the congregation at Newport.
Yael: Yes, absolutely.
Schwab: It’s the right answer for the purpose of the podcast. And also, I think…
Yael: I think it is the right answer. I don’t even think there’s a close second.
Schwab: Unless you want to say it’s the First Amendment, the enshrining of Jews in American history. A letter from… I don’t remember exactly whether it’s the general of the army, or he’s already by that point the first…
Yael: He’s president. He’s already the president. So it’s interesting. It is, I think, the obvious answer to say that maybe the second most important is the First Amendment, though obviously you could make the argument that those two should be swapped. But they are actually inextricably linked. Because the only reason we have the letter to the Touro Synagogue, to the congregation in Newport, from George Washington, that is an extremely important elaboration of the place of Jews in the new United States as a place where bigotry shall have no sanction, and…
Schwab: Bigotry, no sanction. Yeah. Although, I don’t know if you’re gonna tell the whole story of it. I was just reading about this. I don’t think that I realized and appreciated that the letter is a response to a letter from the congregation. Am I spoiling?
Yael: I also didn’t know that until I prepared for this episode. So this is actually where we’re gonna get to the descendant of Gershom Seixas that I wanted to talk about, which was Moses Seixas, who was the hazzan of the Newport synagogue at this time, 1789. The reason why he even wrote the letter has to do with the ratification of the Constitution. Rhode Island was the last state to ratify the Constitution. They were the last holdout. And when they did finally agree to ratify the Constitution, as a measure of thanks or goodwill, or even possibly a condition to their ratification, a decision was made, and it is actually said that this was their condition to ratifying, that George Washington and other dignitaries would visit the state and meet with certain important people there.
And when Washington arrived at Newport, a huge group of citizens was there to greet him, among them Moses Seixas, representing the Jewish community of the Touro Synagogue. Seixas writes a letter to Washington. He wants the opportunity to possibly meet or communicate with Washington during this trip. And he writes to George Washington asking for affirmation that the United States will be a place of freedom and equality for Jews, and that is where this original language that is so often quoted comes from. It was Seixas’s letter that said that the United States should be a place to which bigotry is given no sanction, to persecution, no assistance, and where there is for Jews, none to make him afraid. George Washington responds to Seixas’s letter and uses Seixas’s language. And I am not saying this…
Schwab: To bigotry, no sanction. Right.
Yael: I’m not saying this to demean Washington in any way.
Schwab: To associate those terms with Washington, I always assumed those were George Washington’s words. What a beautiful writer he is, what a great idea. But he’s just echoing what was said to him.
Yael: And that’s fine. Those are the things that Seixas wanted assurance of, and George Washington gives him exactly the assurance that he wants.
Schwab: But it’s such fantastic, beautiful language. That was written by a Jew.
Yael: Seixas’s language to open the letter speaks of his fellow citizens. So he makes the assumption that Jews are citizens, even though that has not been elucidated. And up until this point in history, Jews have never been citizens anywhere. I don’t think the concept of citizenry existed when the Jews last had autonomy. So this is really the first time in history that Jews are considering themselves to be citizens. And the question then becomes, are their neighbors considering them to be citizens as well?
Schwab: Right. And what higher affirmation could you possibly have for that than for the president to respond to you and say yes?
Yael: Let’s talk a little bit about Jews as citizens, which George Washington seemed to be happy to affirm that they were, in light of the ratification of the Constitution and the Bill of Rights, where there is this antiestablishment clause. I’m really excited for this conversation because I didn’t think there would ever come a time in my life where the const… you know what I’m gonna say.
Schwab: That you went to law school and took constitutional law?
Yael: That the word antidisestablishmentarianism would be even remotely related to anything that I had to say. But the feud between the Federalists and the Jeffersonians, and I’m gonna review the feud in a second, the feud between them over enumerated rights for United States citizens in the Constitution was focused on whether or not we needed to disestablish religion in this country. Was the country established as Christian? That’s an open question. If it was, do we need to disestablish it as a national religion? And if you’re opposed to that notion, are you an antidisestablishmentarian, one who subscribes to the concept of antidisestablishmentarianism? It’s the longest word in the English language, as I assume most of you know.
Okay. The Jews, by and large, were on the side of the Jeffersonians. The Jeffersonians opposed the Federalists. The Federalists were the ones who wrote the original Constitution, which advocated for a rather strong central government. So you might also remember from Hamilton, they advocated for a strong national debt. The Jeffersonians did not. If you want a quick review of the differences between the Federalists and the Jeffersonians, Hamilton is a very good primer. Hamilton was a Federalist. He wrote 51 of the Federalist Papers. The others were written by John Jay and James Madison, who were also Federalists.
But Jefferson felt that in founding this new nation, declaring independence, and creating a nation state in which all men are created equal, we need to elaborate on what that equality entails. And we needed to elaborate on what the enumerated rights of people are, so that the law does not proscribe any of those rights. The Federalists felt that the Constitution only provided X number of powers. Jefferson felt that that was not sufficient to protect the citizens of these United States, who would only be governed by their own consent. So he and his followers advocated very strongly that the Constitution should not be passed until there was a Bill of Rights protecting the citizens of the United States. The Bill of Rights is what we talked about, the first ten amendments to the Constitution. Think of freedom of speech, freedom of the press, freedom of assembly, your Fourth or Fifth Amendment rights to a speedy trial and to be judged by a jury of your peers.
Schwab: The right to bear arms.
Yael: Also everyone’s favorite, the right not to have to host soldiers in their own home.
Schwab: But that makes sense with what you’re saying. The Constitution is saying the government can have an army. What is the limit to what they can do with that army? And the Bill of Rights protects citizens and says, okay, the government’s army cannot live in your house.
Yael: Right. Exactly. As a lawyer, I personally think the Bill of Rights is generally a good idea, because I think if something is not in writing…
Schwab: We have a pro Bill of Rights position on this podcast.
Yael: That being said, I just want to go back to how this relates to the Jews. In general, many of the Jews were Jeffersonians. They wanted a Bill of Rights because it protected them and their ability not only to practice their own religion, but a guarantee that the state would not establish a religion that would persecute them, or that would take precedence over their religion. And that was a concept that never existed before. And here, this is the state saying, we’re not gonna make a religion. You’re never gonna be a second class citizen because you’re a Jew.
Schwab: Back to what you were saying before, it’s not that you will be tolerated, because tolerance is an important idea, but you are seen as part of the citizenry, and everyone who is a citizen has the right to be who they are.
Yael: Right. And tolerance is important, but we shouldn’t even need tolerance here. I read this really detailed and interesting book. It’s a relatively new book, actually, by a historian at Auburn University named Adam Jortner, and it’s called A Promised Land: Jewish Patriots, the American Revolution, and the Birth of Religious Freedom. It’s extremely interesting and it’s extremely detailed, and there is no way that I can even remotely begin to convey everything that’s in it. That being said, Jortner’s thesis, or one of his main arguments, is that Jews became citizens through their actions in the founding of the country. It was not that Jews were given citizenship by Christians. It’s that the concept of citizenship opened up to these people by overthrowing their colonial government, and all of the people, including the Jews, took citizenship. That when Haym Salomon advanced funds to the Continental Army that was trying to create a new nation, he was doing that to exercise citizenship in the new nation. When Sheftall was on that British warship not eating pork, he wasn’t doing it as a Jew fighting for the American cause. He was doing it as an American.
And there is no indication in the founding documents that Jews should have to be tolerated by a Christian majority. It’s that Americans are Americans, and they can each worship in their own way. And if you look at the writing of most of the founding fathers, in their personal writings or in correspondence, things that don’t necessarily make it into a social studies textbook, you will see that most of them believed that the religion of their co-citizens is irrelevant as long as they have a moral code. As long as you’re not hurting anybody else, you’re good by me. And that is true of many of the founding fathers.
Schwab: I’m curious where you’re going next, but the distinction, I assume, is that this is different from when Jews become citizens much later on in a lot of European countries. That’s called emancipation, right? The Jewish citizens are accepted, they’ve been there, and now Germany is gonna set its Jews free and make them citizens, out of the goodness… But here, Jews become citizens at the same time as everybody else.
Yael: We didn’t talk about quote unquote emancipation of Jews in the American Revolution because their status under colonial rule wasn’t clear. They were already free-ish. They didn’t need to be emancipated from anything. But it was never codified.
Schwab: Right, all the Americans who weren’t enslaved were…
Yael: White landowning males.
Schwab: Yeah. But they all declared independence from Britain at the same time, right? And there was then no distinction of different levels of citizens based on your religion, at least.
Yael: So this is all great. It’s great for the Jews. It’s a brand new concept. And we like to think about religious liberty as this high minded ideal that underpins the United States of America, even before the United States of America. Why did the Pilgrims come here? For religious liberty. Why did Roger Williams found your favorite state of Rhode Island? Religious liberty. We like to say religious liberty underpins the greatness of this nation. And that’s a really high minded idea. But ultimately, at the end of the day, what does that mean? Sometimes the exercise of religious liberty comes down to practicality.
So the Jeffersonians successfully get the Bill of Rights added to the Constitution. The states all ratify. Initially, the Constitution was going to be adopted without a unanimous vote, but Washington felt that if we are going to start this new nation as e pluribus unum, out of many, one, out of the thirteen colonies becoming one nation state, I want everybody to be on board. I want to start out strong. And so they do wait to get everybody’s approval. Rhode Island is the last. And all of a sudden, we have a government that is forbidden from establishing its own religion. Great. What does that mean on a practical level? Where in the governance of a country is this relevant?
The first and major place that it becomes relevant for Jews is in the realm of something called a test oath. There was nothing written in the Constitution that said a Jew can’t hold political office. But what is the process for holding political office? If you look in each state, you are required to take an oath. And what is the language of that oath? In a lot of places, you can’t serve in a governmental position without taking an oath, quote, professing the Christian religion, or pledging the divinity of Christ. So if your ability to serve as a state functionary is conditioned on being able to take an oath like that, then do you really have the same rights as all of your fellow citizens? But at the same time, there’s nothing in the Constitution that says a state can’t have an oath like that.
So that is, I think, the first conflict. That’s the first test case that arises. And over a period of time, well into the 1800s, those test oaths gradually go away as they are challenged in court by various Jewish officials. But there was a test oath in New Hampshire until the 1870s. So that’s a pretty long… I mean, to be fair to New Hampshire and give them the benefit of the doubt, I did not look into this, and I don’t know if anyone tried to challenge it until the 1870s.
Schwab: Pretty bad, New Hampshire. A lot of people didn’t want to be in the government of New Hampshire, okay.
Yael: But in order to demonstrate that Jews could hold certain offices, the various presidents started appointing Jews to federal offices. In Maryland, there was a gentleman named Reuben Etting, who was appointed to a federal position. And that was fine, because the federal government had removed any mention of God from the oath for that position, per the Constitution. But a Christian oath remains in place in the state of Maryland. And when his brother, who, by the way, was the son in law of Barnard Gratz, who said that the king’s speech was narishkeit, tried to serve in a state position in Maryland, he was unable to, because they had a very explicit Christian oath that he wouldn’t and couldn’t take. And Maryland was a very Catholic colony, but there were also Catholics that couldn’t serve.
And in addition to the Jews being concerned by these test oaths limiting the scope of their citizenship, there were also Christians who felt that test oaths belittled their religion. If we require you to say that you’re a Christian in order to do X, Y, or Z, are we just encouraging people to say that they’re Christians without actually being Christian, without being true to their own religious beliefs? So while there were obviously advocates for these oaths, people who didn’t like Jews, didn’t like Catholics, didn’t like Muslims, and Muslims in the language of these documents and correspondence are often referred to as Mohammedans. In some places they are referred to as Turks. There’s a whole litany of words that are used that I think just comes from vernacular or lack of education. I’m sure a lot of it comes from bias. But there are people who don’t like Jews or Muslims or Catholics or whoever, and want to keep these oaths in place. But there are also people who are devout Christians who say, no, these oaths are bad for us also.
But Solomon Etting, Reuben Etting’s brother, Reuben Etting having held one of these federal positions in Maryland, Solomon Etting challenges the test oath in Maryland. And ultimately, his challenge leads to the floating of what is called the Jew Bill in Maryland, which would allow for elimination of the oath. It goes through numerous iterations. It’s voted down several times. It does ultimately pass, but it takes until 1826.
Schwab: So, a while. But better than New Hampshire.
Yael: Yes, better than New Hampshire. It took eight years from its initial introduction in the legislature in Maryland. It was initially introduced in 1818. And other religious requirements in the state constitution of Maryland were not struck down until 1867. So, as I mentioned before, religious liberty and the prohibition of the United States government establishing a religion, those are all really good philosophical ideas that…
Schwab: Take a while to work out.
Yael: Exactly. But when you get into the nitty gritty, what does it mean? And because we have Federalists and we have anti-Federalists, and we have people who advocate for states’ rights, and who think that states’ rights should supersede anything that is not an express federal power in the original Constitution, we have these practical problems that arise on a day to day basis with respect to what Jews and other non-Christians can or can’t do on the ground.
There are just two anecdotes I want to end with that I think capture a lot of what we’ve talked about. One is the Le Guen case, Le Guen versus Isaac Gouverneur and Peter Kemble, in the Supreme Court of New York in 1797. And what this was was a commercial dispute. And ultimately, the facts in the case came down to the testimony of a Jew.
Schwab: Okay, interesting.
Yael: The initial argument that was made is that we can’t trust the oath of a Jew. A Jew can’t take a Christian oath. We cannot trust anything that they say. And of all people, Alexander Hamilton, the staunch Federalist, the one that had no interest in the First Amendment, not because he was against religious liberty, but because he didn’t think we needed it, was the one who advocated in that case, as an attorney, that Jews can take an oath. It can be an oath that does not invoke Christianity. And Jews can be believed, because they are equal citizens of this country, regardless of their ability to swear allegiance to a Christian God. So I thought that was really interesting.
Schwab: Interesting that Hamilton, of all people, who doesn’t usually fall on that side, is the one arguing for it. Although there’s a whole thing, we referenced this previously, but Alexander Hamilton grew up in a Jewish-ish milieu.
Yael: Right. And maybe he knew that Jews…
Schwab: He’s like, I know Jews can be trusted. I had great Jewish teachers in my Jewish school that I went to.
Yael: Actually, part of the belief that Jews could not take oaths at all, much less oaths to a Christian religion, is Kol Nidre.
Schwab: Oh, interesting. It’s like, we can’t trust Jews because they’re always saying bli neder. They’re constantly being like, I’m not swearing to it.
Yael: No, no, no, I won’t swear to it. There were people who knew enough about Jews to know that Kol Nidre, which is the prayer that opens the most important day of the Jewish calendar… What do we start with? What is the most important mantra of your religion? All my vows should be disregarded.
Schwab: So interesting that it gets interpreted then as, Jews can’t be trusted because their oaths don’t mean anything to them. When the actual meaning is, we take oaths so seriously that for the Day of Atonement, you need to start by saying, I cannot be held to vows that I made, because I might not be able to fulfill them.
Yael: Right. It’s not even within my human capacity to live up to this oath. So I’m sure there were people who would say we can’t trust Jews because they’re not trustworthy. But there were also people saying we can’t trust Jews because their oaths are fundamentally flawed. Look at their liturgy. Because they knew enough about Judaism to be dangerous.
Schwab: One of the important outcomes of the case is, we can rely on the…
Yael: You can rely on the testimony of a Jew.
Schwab: As the first court cases are being decided in the young years of our country, we’re figuring out what a trial by jury and a jury of your peers means, and that a Jew can testify, and their testimony is just as valid as anybody else’s.
Yael: And you can face your accuser, and your accuser can be a Jew. So yeah, that’s a good point. Jortner in his book says this is sort of forgotten. And as someone who has studied both law and Judaism for a long time, I didn’t know about it. I think it should be, totally…
Schwab: This should be up there. I was gonna say in Jewish texts, but also, yeah.
Yael: Right? Marbury v. Madison, which is the case that enshrines judicial review in the United States, is taught as a fundamental case explaining how our judicial system works. And I think Le Guen should be up there, particularly because it involves Hamilton.
The last person I want to talk about is a man named Mordecai Manuel Noah, who is a descendant both of Jonas Phillips, who was the one who sent the Declaration of Independence letter in Yiddish, and also of Gershom Seixas, which makes sense, because as we mentioned before, families were all marrying each other. Mordecai Manuel Noah was appointed consul to Tunis by James Madison. And this was in 1813. So actually, it works out chronologically to end at this point, because I think the War of 1812 really changes things in the United States.
When James Madison appoints Mordecai Manuel Noah to be the consul to the Kingdom of Tunis, he was the first Jew appointed to such a prominent position. And his tenure in Tunis, without getting into details, does not work out. And part of the reason his tenure in Tunis does not work out, I think, is because Jews were not so well regarded in that part of the world. And some of the correspondence says that he doesn’t get along with the Turks. And I mentioned before that was a pejorative term. But it doesn’t work out, and he is essentially fired, because as a Jew, he isn’t able to do what he needs to do, because people are holding it against him. And he ultimately gets fired because he is a Jew.
And this becomes a national issue. And what Madison does is he immediately appoints another Jew to another consular position, just to show, I didn’t fire him because he was Jewish. I fired him because he was bad at his job. Look, I’m appointing a Jew to a new position. Which is something that happens now all the time. All my best consuls are Jewish. But ultimately, over time, Noah continues to fight the good fight, saying that he was fired for being Jewish. And he does eventually manage to collect damages for costs that were incurred by him being fired from his position in Tunis. And I think what’s interesting to me about his story is that it shows how quickly Jews were able to rise to prominence in the post Revolutionary War United States, taking a major position. But how, at the end of the day, when things go wrong, they can be blamed on Jews, and they can be blamed on their Judaism.
Schwab: What gets blamed exactly?
Yael: In Tunis, one of the tasks given to Noah was to free some sailors who had been captured by the Algerian Navy. He was put in charge of negotiating a very hush hush diplomatic agreement to get these sailors back. And it involved the Swedish consul, and the Swedish consul was a virulent antisemite. And ultimately, the Swedish consul, for antisemitic reasons, blamed the entire affair on Noah, because he was Jewish. And that ultimately led to Noah’s firing.
Schwab: So his being Jewish was an obstacle to him completing his job, because there were people who hated Jews.
Yael: Exactly. That is exactly what happened. The Swedish consul doesn’t want to work with him, so he gets fired. And he spends a bunch of years subsequently trying to prove that he was fired because he was Jewish. And he does ultimately get compensation from the government for whatever costs were incurred by him over this time. Madison denies it. He says, it is certain that your religious profession was well known at the time you received your commission, and that in itself it could not be a motive for your recall. But ultimately, Madison tries to cover up by immediately appointing a new Jewish consul. And then, many years later, Noah is able to prevail.
So the Jews do make it to the top of the ladder. But once they’re there, they still have to work with people who may not like them.
Schwab: Diplomatically representing us to other countries that don’t have the progressive ideas that America does.
Yael: It’s, what do you mean a Jew is negotiating this? In my country, Jews don’t negotiate anything. So Jews in the revolutionary period make remarkable contributions to the founding of the United States, and they make remarkable strides in their ability to serve in both the federal government and the state governments, and abroad as diplomats. But as you see, it is the practicalities of Jews having these rights and powers that ultimately need to be negotiated, to see if the American experiment of all men being created equal can work. Because you need everyone’s buy in. You need the guy administering the oath to say Jews can take oaths. You need the other diplomats that you’re working with to say, I’ll work with a Jew. Because they’re not looking at him as an American representative. They’re looking at him as a Jew.
And this is the duality that American Jews still deal with on a daily basis. We obviously have made huge amounts of progress, and I don’t want to diminish that in any way. But we can look at the news. A congressional candidate in San Francisco who has fairly far left progressive policies was pretty violently harassed and ejected from a progressive space because his policies didn’t matter. The fact that he was a Jew is what mattered.
Schwab: It sounds a lot like an oath of office test, right? You have to disclaim some sort of thing in order to be able to hold an office.
Yael: And one of the things I wrote in my notes was that it was a good thing there were no purity tests, the way that we have them now, in the Revolutionary War period. Because the same people who granted us rights, like Jefferson, had words in their writings that denigrated Jews. But at the end of the day, the things that they did for Jews were significantly more important. And if we had refused to take any benefit from people who were not one hundred percent perfect, we never would have gotten anywhere.
Schwab: Thanks for listening to Jewish History Nerds, brought to you by Unpacked, an OpenDor Media brand.
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Yael: Most importantly, be in touch. Write to us at nerds@unpacked.media. We really love to hear from you. Jewish History Nerds is hosted by me, Yael Steiner.
Schwab: And by me, Jonathan Schwab. Our education lead is Dr. Henry Abramson, and our editors are Rob Perra and Ari Schlach.
Yael: We’re produced by Jenny Falcon. Thanks for listening.