four arguments for religious freedom

The Essential Rights and Liberties of Religion in the American Constitutional Experiment

John Witte, Jr.

71 Notre Dame L. Rev. 371 (1996)

Thomas Jefferson once described the religion clauses of the First Amendment to the United States Constitution as a “fair” and “novel experiment” in religious rights and liberties. The religion clauses, declared Jefferson, defied the millennium-old assumptions inherited from Western Europe -- that one form of Christianity must be established in a community, and that the state must protect and support it against other religions. The religion clauses, Jefferson argued, suffer neither prescriptions nor proscriptions of religion. All forms of Christianity must stand on their own feet and on an equal footing with all other religions. Their survival and growth must turn on the cogency of their word, not the coercion of the sword, on the faith of their members, not the force of the law.

This bold constitutional experiment in religious liberty, though neither as fair nor as novel as Jefferson believed, remains intact and in progress in the United States. The First Amendment religion clauses, drafted in 1789 and ratified in 1791, remain the predominant federal constitutional text to govern religious rights and liberties in America. Principal governance of this experiment—initially left to state legislatures and state courts—has since the 1940s fallen largely to the United States Supreme Court and lower federal courts.

The American experiment in religious liberty initially inspired exuberant rhetoric throughout the young republic and beyond. Elhanan Winchester, a Baptist preacher turned Universalist, declared proudly to a London audience in 1789:

There is but one country in the world where liberty, and especially religious liberty, is so much enjoyed as in these kingdoms, and that is the United States of America: there religious liberty is in the highest perfection. All stand there on equal ground. ... A man may be chosen there to the highest civil offices, without being obliged to give any account of his faith, subscribe [to] any religious test, or go to the communion table of any church.

Dozens of such confident endorsements of the American experiment in religious rights and liberties can be found in the sermons, pamphlets, and monographs of the young American republic.

Today, the American experiment inspires far more criticism than praise. The United States does “embosom” all religious sects and denominations, as [Yale] President [Erza] Stiles predicted, not only from Christendom, but from around the world. American citizens do enjoy remarkable freedom of thought, conscience, and belief—too much freedom, according to some commentators. But the laboratory of the United States Supreme Court, which has directed the American experiment for the past fifty years, no longer inspires confidence. Not only have the Court’s recent decisions on the rights of religious minorities in America—particularly Jews, native American Indians, and Muslims—evoked withering attacks in the popular and professional media. The Court’s entire record on religious liberty has become vilified for its lack of consistent and coherent principles and its uncritical use of mechanical tests and empty metaphors. “Religion Clause jurisprudence,” Mary Ann Glendon [writes,]

Religion clause jurisprudence has been described on all sides, and even by Justices themselves, as unprincipled, incoherent, and unworkable. . . . [T]he Court must now grapple seriously with the formidable interpretive problems that were overlooked or given short shrift in the past. The task is an urgent one, for it concerns nothing less than the cultural foundations of our experiment in ordered liberty.

The United States Supreme Court is not the only body that is now “grappling” with the experiment. In the past few years, the testing ground seems to be shifting away from the courts to the legislatures, and away from the federal government to the states—a trend encouraged by several recent Supreme Court opinions. Congress has issued a number of acts to defend the free exercise rights of various religious individuals and groups, and in the Religious Freedom Restoration Act [RFRA] to define the appropriate free exercise test to be used in future cases. At the same time, state legislatures and courts have become bolder in conducting their own experiments in religious liberty that seem calculated to revisit, if not rechallenge, prevailing Supreme Court interpretations of the establishment and free exercise clauses. These recent trends have served to exacerbate the indeterminacy of the American experiment.

When an experiment becomes a “kind of wandering inquiry, without any regular system of operations,” wrote Francis Bacon, the “father” of the experimental method, “prudence commends three correctives.” First, said Bacon, we must “return to first principles and axioms,” reassess them in light of our experience, and “if necessary refine them.” Second, we must assess “our experience with the experiment” in light of these first principles, to determine where “the experiment should be adjusted.” Third, we must “compare our experiments” and experiences with those of fellow scientists, and where we see in that comparison “superior techniques,” we must “amend our experiments” and even our first principles accordingly. Though Bacon offered these prudential instructions principally to correct scientific experiments that had gone awry, his instructions commend themselves to legal and political experiments as well—as he himself sought to demonstrate in seventeenth century English law and politics.

This Article applies Bacon’s prudential instructions to the American constitutional experiment in religious rights and liberties—an experiment that today is, indeed, “wandering, without any regular system of operations.” Applying Bacon’s first instruction, Part I distills from the diverse theological and political traditions and experiences of the eighteenth century the most widely embraced “first principles” of the American constitutional experiment—the “ essential rights and liberties of religion,” to use eighteenth century parlance. These principles included liberty of conscience, free exercise of religion, confessional and structural pluralism, equality of religions before the law, separation of the institutions of church and state, and disestablishment of religion. . . .

This Article is more expansionist than revisionist in inspiration and methodology. The essential rights and liberties of religion analyzed and advocated herein are not new creations. But I ground these principles in several eighteenth century sources and twentieth century international prototypes that have not been part of the conventional discussion. I also strip them of the thick accretions of recent casuistry that have obscured their essential value, vigor, and validity. The call for an integrated framework of religious liberty in America is also not new. But I warn against efforts to reduce the religion clause guarantees to one or two principles alone—even the vaunted principles in vogue today, such as neutrality, separation, equality, or accommodation. Religion is simply too vital and valuable a source of individual flourishing and social cohesion to be left to such primitive legal defenses. As both eighteenth century American writers and twentieth century international jurists have repeatedly argued, a variety of principles must be integrated into an interlocking and interdependent shield of religious liberties and rights for all. The principles of liberty of conscience, free exercise, pluralism, equality, separation, and disestablishment form the essential amalgam of any such shield.

I. The “Genesis” of the American Constitutional Experiment

The religion clauses of the state constitutions and of the First Amendment, forged between 1776 and 1791, express both theological and political sentiments. They reflect both the convictions of the religious believers of the young American republic and the calculations of their political leaders. They manifest both the certitude of leading eighteenth century theologians such as Isaac Backus and John Witherspoon, and the skepticism of such contemporaneous philosophers as Thomas Jefferson and Thomas Paine.

The American experiment in religious rights and liberties cannot, in my view, be reduced to the First Amendment religion clauses alone, nor can the intent of the framers be determined simply by studying the cryptic record of the debates on these clauses in the First Session of Congress—however valuable that source is still today. Not only are these Congressional records incomplete, but the First Amendment religion clauses, by design, reflect only a small part of the early constitutional experiment and experience. The religion clauses, on their face, define only the outer boundaries of appropriate government action respecting religion—government may not prescribe (“establish”) religion nor proscribe (“prohibit”) its exercise. Precisely what governmental conduct short of outright prescription or proscription of religion is constitutionally permissible is left open for debate and development. Moreover, the religion clauses on their face bind only the federal government (“Congress”), rendering prevailing state constitutional provisions, and the sentiments of their drafters, equally vital sources of original intent. Finally, the drafters of the religion clauses urged interpreters to look not to the drafters’ intentions, but, in James Madison’s words, “to the text itself [and] the sense attached to it by the people in their respective State Conventions, where it received all the authority which it possesses.” The understanding of the state conventional delegates was derived from their own state constitutional experiments and experiences, which are reflected in contemporaneous pamphlets, sermons, letters, and speeches. A wide range of eighteenth century materials must thus be consulted to come to terms with the prevailing sentiments on religious rights and liberties in the young American republic.

A. Four Views of Religious Rights and Liberties in the Late Eighteenth Century

Within the eighteenth century sources at hand, two pairs of theological perspectives on religious liberties and rights were critical to constitutional formation: those of congregational Puritans and of free church evangelicals. Two pairs of contemporaneous political perspectives were equally influential: those of enlightenment thinkers and civic republicans. Exponents of these four perspectives often found common cause and used common language, particularly during the Constitutional Convention and ratification debates. Yet each group cast its views in a distinctive ensemble, with its own emphases and its own applications.

It must be emphasized that this is a heuristic classification, not a wooden taxonomy, of the multiple opinions on religious rights and liberties in the early republic. Other views besides these circulated, and other labels besides these were (and can be) used to describe these four views. Moreover, individual writers of the eighteenth century often straddled two or more perspectives, shifted their allegiances or alliances over time, or changed their tones as they moved from formal writing to the pulpit or to the political platform. John Adams, for example, expounded both Puritan and civic republican views. John Witherspoon moved freely between evangelical and civic republican camps. Jonathan Edwards, at least in his political and ethical writings, toed (and moved) the line between old light Puritan and new light evangelical perspectives. James Madison’s early writings on religious liberty had a strong evangelical flavor; his political speeches in the early sessions of Congress often pulsed with civic republican sentiments; his later writings, particularly after his Presidency, were of increasingly firm enlightenment stock.

Nonetheless, exponents of these four views offered distinctive and distinguishable teachings on religious rights and liberties, and collectively had the most influence on constitutional formation. The so-called original intent of the American constitutional framers respecting government and religion cannot be reduced to any one of these views. It must be sought in the tensions among them and in the general principles that emerge from their interaction.

1. Puritan Views

The New England Puritans were the direct heirs of the theology of religious liberty taught by European Calvinists. They had revised and refined this European legacy through the efforts of John Winthrop, John Cotton, Cotton Mather, Jonathan Edwards, Charles Chauncy, Jonathan Mayhew, and a host of other eminent writers. Since the 1630s, the Puritans had dominated the New England colonies.

The Puritans who wrote on religious liberties and rights were concerned principally with the nature of the church, of the state, and of the relationship between them. They conceived of the church and the state as two separate associations, two seats of Godly authority in the community. Each institution, they believed, was vested with a distinct polity and calling. The church was to be governed by pastoral, pedagogical, and diaconal authorities who were called to preach the word, administer the sacraments, teach the young, care for the poor and the needy. The state was to be governed by executive, legislative, and judicial authorities who were called to enforce law, punish crime, cultivate virtue, and protect peace and order.

In the New England communities where their views prevailed, the Puritans adopted a variety of safeguards to ensure the basic separation of the institutions of church and state. Church officials were prohibited from holding political office, serving on juries, interfering in governmental affairs, endorsing political candidates, or censuring the official conduct of a statesman. Political officials, in turn, were prohibited from holding ministerial office, interfering in internal ecclesiastical government, performing sacerdotal functions of clergy, or censuring the official conduct of a cleric. To permit any such officiousness on the part of church or state officials, Governor John Winthrop averred, “would confound those Jurisdictions, which Christ hath made distinct.”

Although church and state were not to be confounded, however, they were still to be “close and compact.” For, to the Puritans, these two institutions were inextricably linked in nature and in function. Each was an instrument of Godly authority. Each did its part to establish and maintain the community. The Puritans, therefore, readily countenanced the coordination and cooperation of church and state.

State officials provided various forms of material aid to churches and their officials. Public properties were donated to church groups for meeting houses, parsonages, day schools, and orphanages. Tax collectors collected tithes and special assessments to support the ministers and ministry of the congregational church. Tax exemptions and immunities were accorded to some of the religious, educational, and charitable organizations that they operated.  Sabbath day laws prohibited all forms of unnecessary labor and uncouth leisure on Sundays and holy days, and required faithful attendance at worship services.

Church officials, in turn, provided various forms of material aid and accommodation to the state. Church meetinghouses and chapels were used not only to conduct religious services, but also to host town assemblies, political rallies, and public auctions, to hold educational and vocational classes, to house the community library, to maintain census rolls and birth, marriage, and death certificates. Church officials . . . preached obedience to the authorities and imposed spiritual discipline on parishioners found guilty of crime. They encouraged their parishioners to be active in political affairs and each year offered “election day sermons” on Christian political principles. They offered learned expositions on the requirements of Godly law, and occasionally offered advice to legislatures and courts.

Puritan leaders of colonial New England left little room for individual religious experimentation. Despite their adherence to a basic separation of the institutions of church and state, the New England authorities insisted on general adherence to the creeds and canons of Puritan Calvinism. Already in the 1630s, dissidents from this faith . . . were summarily dismissed from the colony.  Although in the eighteenth century, religious dissidents of many kinds came to be tolerated in the New England colonies, they enjoyed only limited political rights and social opportunities and were subject to a variety of special governmental restrictions, taxes, and other encumbrances.

2. Evangelical Views

Though the evangelical tradition of religious liberty is sometimes traced to the seventeenth century—particularly to Roger Williams, the founder of colonial Rhode Island and William Penn, the founder of Pennsylvania—it did not emerge as a strong political force until after the Great Awakening of circa 1720-1780. Numerous spokesmen for the evangelical cause rose up in the course of the later eighteenth century all along the Atlantic seaboard—Isaac Backus, John Leland, John Wesley, and a host of other pastors and pamphleteers. Though the evangelicals had enjoyed fewer opportunities than the Puritans to institutionalize their views, they nonetheless had a formidable influence on the early American constitutional experiment.

Like the Puritans, the evangelicals advanced a theological theory of religious rights and liberties. They likewise advocated the institutional separation of church and state—the construction of a “wall of Separation between the Garden of the Church and the Wilderness of the world,” to quote Roger Williams. The evangelicals went beyond the Puritans, however, both in their definition of individual and institutional religious rights and in their agitation for a fuller separation of the institutions of church and state. The evangelicals sought to protect the liberty of conscience of every individual and the freedom of association of every religious group. Their solution was thus to prohibit all legal establishments of religion, and, indeed, all admixtures of religion and politics. As John Leland, the fiery Baptist preacher, put it in a proposed amendment to the Massachusetts Constitution:

 To prevent the evils that have heretofore been occasioned in the world by religious establishments, and to keep up the proper distinction between religion and politics, no religious test shall ever be requested as a qualification of any officer, in any department of this government; neither shall the legislature, under this constitution, ever establish any religion by law, give any one sect a preference to another, or force any man in the commonwealth to part with his property for the support of religious worship, or the maintenance of ministers of the gospel.

Later, Leland put the matter even more bluntly: “The notion of a Christian commonwealth should be exploded forever.”

Religious voluntarism lay at the heart of the evangelical view. Every individual, they argued, must be given the liberty of conscience to choose or to change his or her faith. “[N]othing can be true religion but a voluntary obedience unto [God’s] revealed will,” declared the Baptist Isaac Backus. State coercion or control of this choice—either directly through persecution and forced collection of tithes and services, or indirectly through withholding civil rights and benefits from religious minorities—was an offense both to the individual and to God. A plurality of religions should coexist in the community, and it was for God, not the state, to decide which of these religions should flourish and which should fade. “Religious liberty is a divine right,” wrote the evangelical preacher Israel Evans.

Every religious body was likewise to be free from state control of their assembly and worship, state regulations of their property and polity, state incorporation of their society and clergy, state interference in their discipline and government. Every religious body was also to be free from state emoluments like tax exemptions, civil immunities, property donations, and other forms of state support for the church, that were readily countenanced by Puritan and other leaders. The evangelicals feared state benevolence towards religion and religious bodies almost as much as they feared state repression. For those religious bodies that received state benefits would invariably become beholden to the state, and distracted from their divine mandates. “[I]f civil Rulers go so far out of their Sphere as to take the Care and Management of religious affairs upon them,” reads a 1776 Baptist Declaration, “Yea . . . Farewel to ‘the free exercise of Religion’.”

The chief concern of the evangelicals was theological, not political. Having suffered for more than a century as a religious minority in colonial America, and even longer in Europe, they sought a constitutional means to free all religion from the fetters of the law, to relieve the church from the restrictions of the state. In so doing, they developed only the rudiments of a political theory. They were content with a state that created a climate conducive to the cultivation of a plurality of religions and accommodated all religious believers and religious bodies without conditions or controls.

3. Enlightenment Views

Exponents of the enlightenment tradition in America provided a political theory that complemented the religious rights theology of the evangelicals. Though American exponents of the enlightenment claimed early European visionaries such as John Locke and David Hume, they did not emerge as a significant political voice until the mid-eighteenth century. The American Revolution served to transform the American enlightenment tradition from scattered groups of elite philosophers into a sizeable company of intellectual and political lights. Members of this company, though widely divergent in theological perspective and social position, were united in their efforts to convert enlightenment ideals into constitutional imperatives and in their adherence to the political views of such spokesmen as Thomas Jefferson, Benjamin Franklin, and others.

The primary purpose of enlightenment writers was political, not theological. They sought not only to free religion and the church from the interference of politics and the state, as did the evangelicals, but, more importantly, to free politics and the state from the intrusion of religion and the church. Exponents of the enlightenment movement taught that the state should give no special aid, support, privilege, or protection to organized religion in the form of tax exemptions, special criminal protections, administrative subsidies, or the incorporation of religious bodies. Nor should the state predicate its laws or policies on explicitly religious grounds or religious arguments, or draw on the services of religious officials or bodies to discharge state functions. As Madison put it in 1822: “[A] perfect separation between ecclesiastical and civil matters” is the best course, for “religion & Gov. will both exist in greater purity, the less they are mixed together.”  In an 1832 letter to Rev. Jasper Adams, he wrote:

[I]t may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions & doubts on unessential points. The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Gov. from interference in any way whatever, beyond the necessity of preserving public order, & protecting each sect ag. trespasses on its legal rights by others.

Such views were based on a profound skepticism about organized religion and a profound fear of an autocratic state. To allow church and state to be unrestricted, it was thought, would be to invite arbitrariness and abuse. To allow them to combine would be to their mutual disadvantage -- to produce, in Thomas Paine’s words, “a sort of mule-animal, capable only of destroying, and not of breeding up.” Such views were also based on the belief that a person is fundamentally an individual being and that religion is primarily a matter of private reason and conscience and only secondarily a matter of communal association and corporate confession. Every person, James Madison wrote, has the right to form a rational opinion about the duty he owes the Creator and the manner in which that duty is to be discharged.

Post-revolutionary Virginia proved to be fertile ground for political exponents of the enlightenment tradition to cultivate these views. Article 16 of the 1776 Virginia Bill of Rights, influenced in part by James Madison, provided:

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.

The famous Virginia Statute on Religious Freedom, drafted by Thomas Jefferson in 1777 and ultimately passed in 1786, provided even stronger enlightenment language. The statute begins by celebrating that “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.” It then guarantees: “That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”

These lofty protections of individual religious rights went hand-in-hand with the close restrictions on corporate religious rights that were also advocated by enlightenment exponents. For example, before the turn of the nineteenth century, the Virginia legislature outlawed religious corporations (a prohibition still in place in Virginia and West Virginia).

4. Civic Republican Views

The “civic republicans,” as they have come to be called in recent histories, were an eclectic group of politicians, preachers, and pamphleteers who strove to cultivate a set of common values and beliefs for the new nation. Their principal spokesmen were John Adams, Samuel Adams, Oliver Ellsworth, George Washington, James Wilson, and other leaders—though the movement attracted considerable support among the spiritual and intellectual laity of the young republic as well. Just as the enlightenment leaders found their theological allies among the evangelicals, so the republican leaders found their theological allies among the Puritans.

To be sure, the civic republicans shared much common ground with evangelical and enlightenment exponents. They, too, advocated liberty of conscience for all and state support for a plurality of religions in the community. They, too, opposed religious intrusions on politics that rose to the level of political theocracy and political intrusions on religion that rose to the level of religious establishment. But, contrary to evangelical and enlightenment views and consistent with Puritan views, civic republicans sought to imbue the public square with a common religious ethic and ethos—albeit one less denominationally specific and rigorous than that countenanced by the Puritans.

“Religion and Morality are the essential pillars of Civil society,” George Washington declared. “[W]e have no government,” John Adams echoed, “armed with power capable of contending with human passions unbridled by morality and religion.” “Religion and liberty are the meat and the drink of the body politic,” wrote Yale President Timothy Dwight. According to the civic republicans, society needs a fund of religious values and beliefs, a body of civic ideas and ideals that are enforceable both through the common law and through communal suasion. This was what Benjamin Franklin had called the “Publick Religion” (and what is now called the “civil religion”) of America, which undergirded the plurality of sectarian religions. This “Publick Religion” taught a creed of honesty, diligence, devotion, public spiritedness, patriotism, obedience, love of God, neighbor, and self, and other ethical commonplaces taught by various religious traditions at the time of the founding. Its icons were the Bible, the Declaration of Independence, the bells of liberty, and the Constitution. Its clergy were public-spirited Christian ministers and religiously devout politicians. Its liturgy was the proclamations of prayers, songs, sermons, and Thanksgiving Day offerings by statesmen and churchmen. Its policy was government appointment of legislative and military chaplains, government sponsorship of general religious education and organization, and government enforcement of a religiously based morality through positive law.

Civic republicans countenanced state support and accommodation for religious institutions, for they were regarded as allies and agents of good government. “[R]eligion and its institutions are the best aid of government,” declared Nathan Strong, “by strengthening the ruler’s hand, and making the subject faithful in his place, and obedient to the general laws.”  Civic republicans, therefore, endorsed tax exemptions for church properties and tax support for religious schools, charities, and missionaries; donations of public lands to religious organizations; and criminal protections against blasphemy, sacrilege, and interruption of religious services. In theory, such state emoluments were to be given indiscriminately to all religious groups. In reality, certain Protestant groups received the preponderance of such support, while Quakers, Catholics, and the few Jewish groups about were routinely excluded.

Post-revolutionary Massachusetts proved to be fertile ground for the cultivation of these civic republican views. The 1780 Constitution of Massachusetts, for example, proclaimed that “[i]t is the right as well as the duty of all men in society, publicly and at stated seasons, to worship the SUPREME BEING, the great Creator and preserver of the universe.” For “the public worship of God and instructions in piety, religion, and morality, promote the happiness and prosperity of a people, and the security of a republican government.”

These civic republican views also found favor in the Continental Congress, which authorized the appointment of tax-supported chaplains to the military, tax appropriations for religious schools and missionaries, diplomatic ties to the Vatican, and recitations of prayer at its opening sessions and during the day of Thanksgiving. The Continental Congress also passed the Northwest Ordinance in 1787, which provided, in part: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

These four views—Puritan, evangelical, enlightenment, and republican—helped to inform the early American experiment in religious rights and liberties. Each view was liberally espoused by federal and state leaders in the early American republic, informally in their letters and pamphlets, and formally in the Constitutional Convention and ratification debates. Each left indelible marks in the documents and developments of early American constitutionalism.

B. The Essential Rights and Liberties of Religion

Despite the tensions among them, exponents of these four groups generally agreed upon what New England Puritan jurist and theologian Elisha Williams called “the essential rights and liberties of [religion].” To be sure, these “essential rights and liberties” never won uniform articulation or universal assent in the young republic. But a number of enduring and interlocking principles found widespread support; many of which were included in state and federal constitutional discussions. These principles included liberty of conscience, free exercise of religion, pluralism, equality, separationism, and disestablishment of religion. Such principles remain at the heart of the American experiment today.

The common goal of these principles was to replace the inherited tradition of religious establishment with a new experiment that rendered religious rights and liberties the “first freedom” of the constitutional order. To be sure, a number of writers were reluctant to extend religious liberty to Catholics and Jews, let alone to Muslims and Indians—and these prejudices are sometimes betrayed in the earliest drafts of the state constitutions. For many eighteenth century writers, the term “religion” was synonymous with Christianity (or even Protestantism), and the discussion of “religious liberty” was often in terms of the “liberty or rights of Christians.” And, to be sure, some Puritans and civic republicans continued to support what John Adams called a “slender” form of congregationalist establishment in some of the New England states—consisting principally of tax collections and preferences for the congregational churches and schools. But such “compromises” do not deprive the early American experiment, and the sentiments that inspired it, of their validity or ongoing utility. By eighteenth century European standards, this experiment was remarkably advanced, and calculated to benefit the vast majority of the population.

Virtually all eighteenth century writers embraced religious liberty as the “first liberty” and the “first freedom.” It is “the most inalienable and sacred of all human rights,” wrote Thomas Jefferson. “Christian liberty, both civil and ecclesiastical, is the greatest blessing of the kind, that we can enjoy,” wrote the congregationalist preacher Jonathan Parsons, “and therefore to be deprived of either, is the greatest injury that we can suffer.” At the same time, virtually all writers denounced the bloody religious establishments of previous eras. James Madison reflected commonplaces of the day when he wrote:

[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry, and persecution. . . . Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion.

1. Liberty of Conscience

Liberty of conscience was the general solvent used in the early American experiment in religious liberty. It was universally embraced in the young republic—even by the most churlish of establishmentarians. The phrase “liberty of conscience” was often conflated with the phrase “free exercise of religion,” “religious freedom,” “religious liberty,” “religious privileges,” or “religious rights.” James Madison, for example, simply rolled into one linguistic heap “religious freedom” or “the free exercise of religion according to the dictates of conscience.” In another passage, he spoke of “religious liberty” as the “religious rights . . . of a multiplicity of sects.” Such patterns of interwoven language appear regularly in later eighteenth century writings; one term often implicated and connoted several others. To read the guarantee of liberty of conscience too dogmatically is to ignore the fluidity of the term in the eighteenth century.

Nonetheless, many eighteenth century writers ascribed distinctive content to the phrase. First, liberty of conscience protected voluntarism -- “the right of private judgment in matters of religion,” the unencumbered ability to choose and to change one’s religious beliefs and adherences. The Puritan jurist Elisha Williams put this matter very strongly for Christians in 1744 (directly contradicting the rigid opinions of his great grandfather John Cotton, a century before):

Every man has an equal right to follow the dictates of his own conscience in the affairs of religion. Every one is under an indispensable obligation to search the Scriptures for himself . . . and to make the best use of it he can for his own information in the will of God, the nature and duties of Christianity.

James Madison wrote more generically in 1785: “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” The evangelical leader John Leland echoed these sentiments in 1791.  Puritan, enlightenment philosophe, and evangelical alike could agree on this core meaning of liberty of conscience.

Second, and closely related, liberty of conscience prohibited religiously based discrimination against individuals. Persons could not be penalized for the religious choices they made, nor swayed to make certain choices because of the civil advantages attached to them. Liberty of conscience, Ezra Stiles opined, permits “no bloody tribunals, no cardinals inquisitors-general, to bend the human mind, forceably to control the understanding, and put out the light of reason, the candle of the Lord in man.” Liberty of conscience also prohibits more subtle forms of discrimination, prejudice, and cajolery by state, church, or even other citizens. “[N]o part of the community shall be permitted to perplex or harass the other for any supposed heresy,” wrote a Massachusetts pamphleteer, “. . . each individual shall be allowed to have and enjoy, profess and maintain his own system of religion.”

Third, in the view of some eighteenth century writers, liberty of conscience guaranteed “a freedom and exemption from human impositions, and legal restraints, in matters of religion and conscience.” Persons of faith were to be “exempt[ ] from all those penal, sanguinary laws, that generate vice instead of virtue.” Such laws not only included the onerous criminal rules that traditionally encumbered and discriminated against religious nonconformists, and led to fines, whippings, banishments, and occasional executions of dissenting colonists. They also included more facially benign laws that worked injustice to certain religious believers -- conscription laws that required religious pacificists to participate in the military, oath-swearing laws that ran afoul of the religious scruples of certain believers, tithing and taxing laws that forced believers to support churches, schools, and other causes that they found religiously odious. Liberty of conscience required that persons be exempt or immune from civil duties and restrictions that they could not, in good conscience, accept or obey.

It was commonly assumed in the eighteenth century that the laws of conscientious magistrates would not tread on the religious scruples of their subjects. As George Washington put it in a letter to a group of Quakers:

[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness: and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit.

Where general laws and policies did intrude on the religious scruples of an individual or group, liberty of conscience demanded protection of religious minorities and exemption. Whether such exemptions should be accorded by the legislature or by the judiciary, and whether they were per se a constitutional right or simply a rule of equity -- the principal bones of contention among recent commentators -- the eighteenth century sources at my disposal simply do not clearly say.

All the early state constitutions include a guarantee of liberty of conscience for all. The Delaware Constitution provides typical language:

That all men have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences and understandings; and that no man ought or of right can be compelled to attend any religious worship or maintain any religious ministry contrary to or against his own free will and consent, and that no authority can or ought to be vested in, or assumed by any power whatever that shall in any case interfere with, or in any manner controul [sic] the right of conscience and free exercise of religious worship.

The Pennsylvania Constitution adds a protection against religious discrimination: “Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship.” It also provides an exemption for conscientious objectors: “Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent.” The Constitution of New York addressed both state and church intrusions on conscience, and endeavored

not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance wherewith the bigotry and ambition of weak and wicked priests and princes have scourged mankind [and thus] declare, that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind.

The Constitution of New Jersey provided exemptions from religious taxes, using typical language: “nor shall any person . . . ever be obliged to pay tithes, taxes, or any other rates, for the purpose of building or repairing any other church . . . or ministry, contrary to what he believes to be right.”

The principle of liberty of conscience also informed some of the federal constitutional debates on religion. Article VI of the Constitution explicitly provides: “[N]o religious Test [oath] shall ever be required as a Qualification” for public office, thereby, inter alia, protecting the religiously scrupulous against oath-swearing. Early versions of the First Amendment religion clauses included such phrases as: “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead”; “The civil rights of none shall be abridged on account of religious belief or worship . . . nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed”; “Congress shall make no law . . . to infringe the rights of conscience.” Such phrases were ultimately abandoned (though not argued against in the extant records) for the more pregnant language: “Congress shall make no law . . . prohibiting the free exercise [of religion].” This language does not leave conscience unprotected, but more protected. Since Congress cannot “prohibit” the free exercise, the public manifestation, of religion, a fortiori Congress cannot “prohibit” a person’s private liberty of conscience, and the precepts embraced therein.

Liberty of conscience was the cardinal principle for the new experiment in religious liberty. Several other “essential rights and liberties of religion” built directly on this core principle.

2. Free Exercise

Liberty of conscience was inextricably linked to free exercise of religion. Liberty of conscience was a guarantee to be left alone to choose, to entertain, and to change one’s religious beliefs. Free exercise of religion was the right to act publicly on the choices of conscience once made, without intruding on or obstructing the rights of others or the general peace of the community. Already in 1670, the Quaker leader William Penn had linked these two guarantees, insisting that religious liberty entails “not only a mere liberty of the mind, in believing or disbelieving . . . but [also] the exercise of ourselves in a visible way of worship.” By the next century, this organic linkage was commonly accepted. Religion, Madison wrote, “must be left to the convictions and conscience of every man; and it is the right of every man to exercise it as these may dictate.” For most eighteenth century writers, religious belief and religious action went hand-in-hand, and each deserved legal protection.

Though eighteenth century writers, or dictionaries, offered no universal definition of “free exercise,” the phrase generally connoted various forms of free public religious action—religious speech, religious worship, religious assembly, religious publication, religious education, among others. Free exercise of religion also embraced the right of the individual to join with like-minded believers in religious societies, which religious societies were free to devise their own modes of worship, articles of faith, standards of discipline, and patterns of ritual. Eighteenth century writers did not speak unequivocally of what we now call group rights, or corporate free exercise rights, but they did regularly call for “ecclesiastical liberty,” “the equal liberty of one sect . . . with another,” and the right “to have the full enjoyment and free exercise of those spiritual powers . . . which, being derived only from CHRIST and His Apostles, are to be maintained, independent of every foreign, or other, jurisdiction, so far as may be consistent with the civil rights of society.”

Virtually all of the early state constitutions guaranteed “free exercise” rights—adding the familiar caveat that such exercise not violate the public peace or the private rights of others. Most states limited their guarantee to “the free exercise of religious worship” or the “free exercise of religious profession”—thereby leaving the protection of other noncultic forms of religious expression and action to other constitutional guarantees. A few states provided more generic free exercise guarantees. Virginia, for example, guaranteed “the free exercise of religion, according to the dictates of conscience”—expanding constitutional protection to cultic and noncultic religious expression and action, provided it was mandated by conscience. The Georgia constitution provided even more flatly: “All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State.” The First Amendment drafters chose equally embracive language of “the free exercise” of religion. Rather than using the categorical language preferred by state drafters, however, the First Amendment drafters guaranteed protection only against Congressional laws “prohibiting” the free exercise of religion. Whether Congress could make laws “infringing” or “abridging” the free exercise of religion—as earlier drafts sought to outlaw—was left open to subsequent interpretation.

 3. Pluralism

Eighteenth century writers regarded “multiplicity,” “diversity,” or “plurality,” as an equally essential dimension of religious rights and liberties. Two kinds of pluralism were distinguished.

Evangelical and enlightenment writers urged the protection of confessional pluralism—the maintenance and accommodation of a plurality of forms of religious expression and organization in the community. Evangelical writers advanced a theological argument for this principle, emphasizing that it was for God, not the state, to decide which forms of religion should flourish and which should fade. “God always claimed it as his sole prerogative to determine by his own laws what his worship shall be, who shall minister in it, and how they shall be supported,” Isaac Backus wrote. Enlightenment writers advanced a rational argument. “Difference of opinion is advantageous in religion,” Thomas Jefferson wrote:

The several sects perform the office of a Censor morum over each other. Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. . . . Reason and persuasion are the only practicable instruments.

Madison wrote similarly that “the utmost freedom . . . arises from that multiplicity of sects which pervades America, . . . for where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest.” Other writers added that the maintenance of multiple faiths is the best protection of the core guarantee of liberty of conscience.

Puritan and civic republican writers insisted as well on the protection of social pluralism—the maintenance and accommodation of a plurality of associations to foster religion. Churches and synagogues were not the only “religious societies” that deserved constitutional protection. Families, schools, charities, and other learned and civic societies were equally vital bastions of religion and equally deserving of the special protections of religious rights and liberties. These diverse social institutions had several redeeming qualities. They provided multiple forums for religious expressions and actions, important bulwarks against state encroachment on natural liberties, particularly religious liberties, and vital sources of theology, morality, charity, and discipline in the state and broader community.

Pluralism was thus not just a sociological fact for several eighteenth century writers; it was a constitutional condition for the guarantee of true religious rights and liberties. This was a species and application of Madison’s argument about pluralism in Federalist Paper No. 10—that the best protection against political tyranny is the guarantee of a multiplicity of interests, each contending for public endorsement and political expression in a federalist republic.

4. Equality

The efficacy of liberty of conscience, free exercise of religion, and confessional pluralism depended on a guarantee of equality of all peaceable religions before the law. For the state to single out one pious person or one form of faith for either preferential benefits or discriminatory burdens would skew the choice of conscience, encumber the exercise of religion, and upset the natural plurality of faiths. Many eighteenth century writers therefore inveighed against the state’s unequal treatment of religion. Madison captured the prevailing sentiment: “A just Government . . . will be best supported by protecting every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.”

This principle of equality of all peaceable religious persons and bodies before the law found its way into a number of early state constitutions. The Constitution of New Jersey insisted that “there shall be no establishment of any one religious sect in . . . preference to another.” Delaware guaranteed Christians “equal rights and privileges” -- a guarantee soon extended to all religions. Maryland insisted that Christians “are equally entitled to protection in their religious liberty.” Virginia guaranteed that “all men are equally entitled to the free exercise of religion.” New York guaranteed all persons “free exercise and enjoyment of religious profession and worship, without discrimination or preference.” Even Massachusetts, which maintained a “slender” establishment, nonetheless guaranteed that “all religious sects and denominations, demeaning themselves peaceably, and as good citizens of the commonwealth, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.”

The principle of equality also found its place in early drafts of the First Amendment religion clauses, yielding such phrases as: “nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed”; “Congress shall make no law establishing one religious sect or society in preference to others. . . .”; and “Congress shall make no law establishing any particular denomination of religion in preference to another. . . .” Madison, in fact, regarded protection of the “equal rights of conscience” as the “most valuable” guarantee for religious liberty, and he argued that it should be universally guaranteed at both the federal and state levels. These provisions and arguments were abandoned for the more generic guarantees of disestablishment and free exercise at the federal level—guarantees which presumably are to apply equally to all religions.

5. Separationism

The principle of separationism was designed primarily to protect religious bodies and religious believers in their inherent rights.

On the one hand, separationism guaranteed the independence and integrity of the internal processes of religious bodies. Elisha Williams spoke for many churchmen when he wrote: “ [E]very church has [the] Right to judge in what manner God is to be worshipped by them, and what Form of Discipline ought to be observed by them, and the Right also of electing their own Officers.” In the mind of most eighteenth century writers, the principle of separation of church and state mandated neither the separation of religion and politics nor the secularization of civil society. No eighteenth century writer would countenance the preclusion of religion altogether from the public square or the political process. The principle of separationism was directed to the institutions of church and state, not to religion and culture.

On the other hand, the principle of separationism also protected the liberty of conscience of the religious believer. President Thomas Jefferson, for example, in his famous 1802 Letter to the Danbury Baptist Association, tied the principle of separationism directly to the principle of liberty of conscience:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

Separationism thus assured individuals of their natural, inalienable right of conscience, which could be exercised freely and fully to the point of breaching the peace or shirking social duties. Jefferson is not talking here of separating politics and religion. Indeed, in the very next paragraph of his letter, President Jefferson performed an avowedly religious act of offering prayers on behalf of his Baptist correspondents: “I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man. . . .”

The principles of pluralism, equality, and separationism—separately and together—served to protect religious bodies, both from each other and from the state. It was an open question, however, whether such principles precluded governmental financial and other forms of support of religion altogether. Evangelical and enlightenment writers sometimes viewed such principles as a firm bar on state support, particularly financial support, of religious beliefs, believers, and bodies.

Puritan and republican writers often viewed such principles only as a prohibition against direct financial support for the religious worship or exercise of one particular religious group. General governmental support for religion—in the form of tax exemptions to religious properties, land grants and tax subsidies to religious schools and charities, tax appropriations for missionaries and military chaplains, and similar general causes—were considered not only licit, but necessary for good governance.

6. Disestablishment

For some eighteenth century writers, particularly the New England Puritans who defended their “slender establishments,” the roll of “essential rights and liberties” ended here. For other writers, however, the best protection of all these principles was through the explicit disestablishment of religion. The term “establishment of religion” was a decidedly ambiguous phrase—in the eighteenth century, as much as today. The phrase was variously used to describe compromises of the principles of separationism, pluralism, equality, free exercise, and/or liberty of conscience. The guarantee of “disestablishment of religion” could signify protection against any such compromise.

According to some eighteenth century writers, the guarantee of disestablishment protected separationism. In Jefferson’s words, it prohibited government

from intermeddling with religious institutions, their doctrines, discipline, or exercises. . . . [and from] the power of effecting any uniformity of time or matter among them. Fasting and prayer are religious exercises; the enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own peculiar tenets. . . .

This view of disestablishment of religion was posed in the penultimate draft of the establishment clause: “Congress shall make no law establishing articles of faith or a mode of worship . . . .”—a provision rejected for a mere generic guarantee.

For other eighteenth century writers, the guarantee of disestablishment protected the principles of equality and pluralism by preventing government from singling out certain religious beliefs and bodies for preferential treatment. This concept of disestablishment came through repeatedly in both state and federal constitutional debates.

For still others, disestablishment of religion meant foreclosing government from coercively prescribing mandatory forms of religious belief, doctrine, and practice -- in violation of the core guarantee of liberty of conscience. Such coercion of religion inflates the competence of government.

Such coercion of religion also compromises the pacific ideals of most religions. Thomas Paine, who is usually branded as a religious skeptic, put this well:

All religions are in their nature mild and benign, and united with principles of morality. They could not have made proselytes at first, by professing anything that was vicious, cruel, persecuting, or immoral. . . . Persecution is not an original feature in any religion; but it is always the strongly marked feature of all law-religions, or religions established by law. Take away the law-establishment, and every religion reassumes its original benignity.

Such coercion of religion also compromises the individual’s liberty of conscience. As the Pennsylvania Constitution put it: “[N]o authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul [sic], the right of conscience in the free exercise of religious worship.”

The vague language of the First Amendment—“Congress shall make no law respecting an establishment”—could readily accommodate these separationist, equality, or noncoercion readings of “disestablishment.” Congress may not “establish religion” outright. Nor may Congress make laws that “respect” an establishment of religion—that is anticipate, “look towards,” or “regard with deference,” such an establishment, to use common eighteenth century definitions of “respecting.” The best way to assess whether a Congressional law violates this prohibition is to see whether it compromises any one of the cardinal principles of separationism, equality, and noncoercion protected by the disestablishment guarantee.

7. Interdependence and Incorporation of Principles

For all the diversity of opinion one finds in the Constitutional Convention debates, pamphlets, sermons, editorials, and broadsides of the eighteenth century, most influential writers embraced this roll of “essential rights and liberties of religion”—liberty of conscience, free exercise of religion, pluralism, equality, separationism, and disestablishment of religion. To be sure, many of these terms carried multiple meanings in the later eighteenth century. And to be sure, numerous other terms and norms were under discussion. But in the range of official and unofficial sources at my disposal, these principles were the most commonly discussed and embraced.

On the one hand, eighteenth century writers designed these principles to provide an interwoven shield against repressive religious establishments. Liberty of conscience protected the individual from coercion and discriminatory treatment by church or state officials and guaranteed unencumbered, voluntary choices of faith. Free exercise of religion protected the individual’s ability to discharge the duties of conscience through religious worship, speech, publication, assembly, and other actions without necessary reference to a prescribed creed, cult, or code of conduct. Pluralism protected multiple forms and forums of religious belief and action, in place of a uniformly mandated religious doctrine, liturgy, and polity. Equality protected religious individuals and bodies from special benefits and from special burdens administered by the state, or by other religious bodies. Separationism protected individual believers, as well as religious and political officials, from undue interference or intrusion on each other’s processes and practices. Disestablishment precluded governmental prescriptions of the doctrine, liturgy, or morality of one faith, or compromises of the principles of liberty of conscience, free exercise, equality, pluralism, or separationism.

On the other hand, eighteenth century writers designed these principles to be mutually supportive and mutually subservient to the highest goal of guaranteeing “the essential rights and liberties of religion” for all. No single principle could by itself guarantee such religious liberty. Eighteenth century writers, therefore, arranged these multiple principles into an interlocking and interdependent shield of religious liberties and rights for all. Religion was simply too vital and too valuable a source of individual flourishing and social cohesion to be left unguarded on any side.

It is in the context of this plurality of opinions and panoply of principles that the First Amendment religion clauses should, in my view, be understood. The religion clauses were a vital, but only a small, part of this initial constitutional protection of essential rights and liberties of religion. They bound only the national government, and (on their face) set only the outer boundaries to its conduct vis-’a-vis religion—forbidding either prescriptions or proscriptions of religion. The religion clauses, together, were designed to legitimate, and to live off, the state constitutional guarantees of religious rights and liberties. The guarantees of disestablishment and free exercise depended for their efficacy both on each other and on other religious rights and liberties that eighteenth century writers regarded as “essential.” The guarantees of disestablishment and free exercise standing alone—as they came to be during the 1940s when the Supreme Court “incorporated” these two guarantees into the due process clause of the Fourteenth Amendment—could legitimately be read to have multiple principles incorporated within them.

Indeed, it might not be too strong to say that the “first incorporation” of religious rights and liberties was engineered not by the Supreme Court in the 1940s when it incorporated the religion clauses into the due process clause, but by the First Congress in 1789 when it drafted the First Amendment religion clauses. This “first incorporation”—if it can be so called—had two dimensions. First, the pregnant language that “Congress shall make no law respecting an establishment of religion” can be read as a confirmation and incorporation of prevailing state constitutional precepts and practices. Such state practices included “the slender establishments” of religion in the New England states, which nonetheless included ample guarantees of liberty of conscience, free exercise, equality, plurality, and institutional separation of church and state. Such practices also included the “establishments of religious freedom” (in Jefferson’s phrase of 1779) that prevailed in Virginia and other southern and middle states. The First Amendment drafters seem to have contemplated and confirmed a plurality of constitutional constructions “respecting” religion and its establishment. Second, the embracive terms “free exercise” and “establishment” can be read to incorporate the full range of “essential rights and liberties” discussed in the eighteenth century. Eighteenth century writers often used the term “free exercise” synonymously with liberty of conscience, equality, separationism, and pluralism. They similarly regarded “non” or “disestablishment” as a generic guarantee of separationism, pluralism, equality, free exercise, and liberty of conscience.  Read in context, therefore, the cryptic religion clauses of the First Amendment can be seen to embody—to incorporate—multiple expressions of the “essential rights and liberties of religion.”