Rights and Liberties of Religion

THE ESSENTIAL RIGHTS AND LIBERTIES OF RELIGION

Puritans, Evangelicals, Republicans, and Enlightenment exponents-these four
groups of founders held up the four corners of the wide and swaying canopy
of opinion on religious liberty in eighteenth-century America. Beneath this
canopy were gathered what they called the "essential rights and liberties"
of religion: (1) liberty of conscience; (2) free exercise of religion; (3)
religious pluralism; (4) religious equality; (5) separation of church and
state; and (6) disestablishment of religion.1

These six principles appear regularly in the debates over religious liberty
in the eighteenth century, though with varying definitions and priorities.
They were also commonly incorporated into the original state and federal
constitutions, though with different emphases and applications. They
re-main at the heart of the American experiment today-as central
commandments of the American constitutional order and as cardinal axioms of
a new American logic of religious liberty.

The common goal of these six principles was to replace the inherited
tradition of religious establishments with a new experiment in religious
liberty. To be sure, a number of founders were reluctant to extend the pale
of religious liberty to Catholics and Jews-let alone to believers in
African or Native American religions. These restrictive views are sometimes
betrayed in the draft religion clauses of the state and federal
constitutions. A number of founders understood "religion" to mean
Christianity (or even Protestantism). Accordingly, their discussion of
"religious liberty" was cast in terms of the "liberties" or
"rights" of
(Protestant) Christians.2 And, to be sure, some states continued to support
what John Adams called a "mild and equitable" establishment of
religion-consisting principally in the collection of tithes for favored
churches and clerics and the administration of religious oaths for high
political offices. Before 1789, eleven of the original thirteen states
extracted such oaths from high officials, and four collected religious
tithes.3

Such seeming compromises of religious liberty, however, must be judged on
their own terms, not on ours. It is easy enough to weigh eighteenth-century
practices against twentieth-century norms and to find many of them
wanting-just as twenty-second-century historians will doubtless weigh our
practices against their norms and find many of them wanting. But such
chronological snobbery is ultimately fruitless.

Judged by eighteenth-century Western standards, the American experiment in
religious liberty was remarkably advanced. First, its efforts to ex-tend
the pale of religious liberty to the vast majority of the population were
almost unprecedented. Many of the new constitutional provisions on
religious rights and liberties were cast in broad terms-and applied on
their face to "all persons" rather than simply to the narrow band of
"citizens." Those constitutional provisions that were more denominationally
specific could easily be extended to other religious groups, as later state
courts and constitutional conventions repeatedly demonstrated. Second, the
"mild and equitable" establishments of religions that remained were not the
repressive regimes of earlier eras, featuring pogroms, inquisitions,
persecutions, and religious wars. They were instead the constitutional
expression of the Republican argument that each community must establish by
law some form of public religion, some image and ideal of itself, some
common values and beliefs to undergird and support the plurality of private
religions. The notion that a state and society could remain neutral and
purged of any religion was, for many founders, a philosophical fiction.
Absent of a commonly adopted set of values and beliefs, politicians would
invariably hold out their private convictions as public ones. It was thus
essential for each community to define the basics of its public religion,
even while guaranteeing essential religious rights and liberties for all it
subjects.4

Virtually all the founders embraced religious liberty as the "first
liberty" and the "first freedom" of the new constitutional order.5
Religious liberty is "the most inalienable and sacred of all human rights,"
wrote Thomas Jefferson.6 "Religious liberty, both civil and ecclesiastical,
is the greatest blessing of the kind, that we can enjoy," wrote the Puritan
preacher Jonathan Parsons, "and therefore to be deprived of either, is the
greatest injury that we can suffer."7

At the same time, virtually all writers denounced the bloody persecution
and repression of previous eras of religious establishment. James Iredell,
a leading lawyer from North Carolina, reflected commonplaces of the day
when he wrote:

Our guarantee of religious liberty for all... is calculated to prevent
evils of the most pernicious consequences to society. Every person in the
least conversant in the history of mankind, knows what dreadful mischiefs
have been committed by religious persecutions. Under the color of religious
tests the utmost cruelties have been exercised. Those in power have
generally considered all wisdom centered in themselves, that they alone had
a right to dictate to the rest of mankind, and that all opposition to their
tenets was profane and impious. The consequence of this intolerant spirit
had been, that each church has in turn set itself up against every other,
and persecutions and wars of the most implacable and bloody nature have
taken place in every part of the world. America has [now] set an example to
mankind to think more modestly and reasonably; that a man may be of
different religious sentiments from our own, without being a bad member of
society.8

NOTES

1. See Elisha-Williams, The Essential Rights and Liberties of Protestants:
A Seasonable Plea for the Liberty of Conscience, and the Right of Private
judgment in Matters of Religion, Without any Controul from Human Authority
(Boston, 17441. The term "essential rights and liberties" was quite common
among the founders, The Virginia Ratifying Convention, for example,
provided "that, among other essential rights, the liberty of conscience,
and of the press, cannot be cancelled, abridged, restrained, or modified,
by any authority of the United States." Jonathan Elliot, ed., The Debates
in the Several State Conventions, on the Adoption of the Federal
Constitution (Washington, DC, 1854), 1:327 (hereafter cited as Debates
James Madison spoke of "essential rights" of religious freedom and rights
of conscience. See his speech of August 17, 1789 in The Debates and
Proceedings in the  Congress of the United States, March 3, 1789-May 27,
1824 (Washington DC: Gales and Seaton, 1834-1856), vol. 1, column (col.)
784 (hereafter cited as Annals); id., Letter to George Eve, in The Papers
of James Madison, ed. W. T. Hutchinson, William M. E. Rachal, Robert A.
Rutland (Chicago, 1962), 11:404, 405. Likewise John Adams included religion
among "our most essential rights and "Instructions of the Town of Braintree
to their Representative, 1765," In the Works John Adams, ed. C. F. Adams
(Boston, 1850-1856), 3:465. The Federal Framer saw "the free exercise of
religion" as one of the "essential rights." Letter IV (October 12, 1787),
in The Anti-Federalist, ed. Herbert J. Storing (Chicago 1985), 58.

2. See, e.g., Delaware Declaration of Rights (1776), sec. 3 ("That all
men professing the Christian religion ought forever to enjoy equal rights
and privileges in this state"); Constitution of Maryland, Declaration of
Rights, XXXIII (1776) ("all persons, professing the Christian religion, are
equally entitled to protection in their religious liberty"); Constitution
of South Carolina (1778), XXXVIII ("That all denominations of Christian
Protestants in this State, demeaning themselves peaceably and faithfully,
shall enjoy equal religious and civil privileges"). See discussion in Edwin
S. Gaustad, "Colonial Religion and Liberty of Conscience," in The Virginia
Statute for Religious Freedom: Its Evolution and Consequences in American
History, ed. Merrill D. Peterson and Robert C. Vaughan (Cambridge, 1988),
23, 39; Thomas J. Curry, The First Freedoms: Church and State in America to
the Passage of the First Amendment (New York/Oxford, 1986), 194-197.

3. See generally Chester J. Antieau, Arthur T. Downey, and Edward C.
Roberts, Freedom from Federal Establishment: Formation and Early History of
the First Amendment Religion Clauses (Milwaukee, 1964); Chester J. Antieau,
Philip M. Carroll, and Thomas Carroll Burke, Religion Under the State
Constitutions (Washington, DC, 1965).

4. See my "'A Most Mild and Equitable Establishment of Religion': John
Adams and the Massachusetts Experiment," Journal of Church and State 41
(1999): 213.

5. See William Lee Miller, The First Liberty: Religion and the American
Republic (New York, 1986); Curry, The First Freedoms; James E. Wood Jr.,
The First Freedom: Religion and the Bill of Rights (Waco, TX, 1990).

6. Thomas Jefferson, "Freedom of Religion at the University of Virginia
(Oct. 7, 1822)," in The Complete Jefferson, Containing His Major Writings,
ed. Saul K. Padover, (Freeport, NY, 1943), 958.

7. Jonathan Parsons, Freedom from Civil and Ecclesiastical Slavery
(Newburyport, RI, 1774), 10.

8. North Carolina Ratification Debates, July 30, 1788, in Elliot, ed.,
Debates, 4:196-197.

SOURCE: Religion and the American Constitutional Experiment. Essential
Rights and Liberties, John White Jr. Westview Press (2000) pp 37-39

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You are invited to check out the following:

The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm

American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm

The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html

[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]

HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/

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. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning.  Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic."  New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
. . .
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James Veverka wrote:
One of the ways to counter the attack on American Constitutional principles
by the religious right is to address their revisionism, misinformation and
distortions.

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USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote

"You pilot always into an unknown future;
facts are your only clue. Get the facts!"

That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.

It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.

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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE

http://members.tripod.com/~candst/index.html

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