Bench Memos

Religious Freedom’s Pride of Place

The other day at the New York Times website, Peter Manseau, a scholar in residence at Maryland’s Washington College, with the assistance of his students in a college program called “Historically Correct,” published a piece titled “Is Religious Freedom Really Primary?“  But it’s not a good sign when “correcting” the historical record results in more confusion than it dispels. 

Manseau cites quite a few contemporary political leaders who refer to religious liberty as our “first freedom,” including President Obama, Mitt Romney, Paul Ryan, Bill Clinton, and George W. Bush.  I agree with Manseau that it’s a mistake to make a big deal out of the “firstness” of the First Amendment as a textual matter, but for a reason he never mentions.  When the proposed amendments now known as the Bill of Rights came from the Congress in 1789, what became the First Amendment was third on the list.  It was only because the first two proposed amendments were not ratified that the third became the First, quite accidentally.  But neither the first nor the second proposed amendment expressed any sweeping rights of the individual, each being more of a “structural” amendment dealing with representation.  (The second proposed amendment, finally ratified more than two centuries later, became the Twenty-seventh.)

For Manseau, the “firstness” of religious freedom is in need of some serious downgrading for a couple of reasons.  One is that there have been at various times competitors for priority or importance.  Some twentieth-century libertarians prize freedom of speech above all else.  And gun-rights enthusiasts are prone to elevate the Second Amendment above the First.

But Manseau’s main argument rests upon a pretty thoroughgoing misunderstanding of the debates over church and state at the time of the founding.  He begins thus:

[T]he actual Constitution does not say anything about religious liberty except to state in Article 6 that no religious “test” will be required of officeholders. . . .  The First Amendment, adopted four years later in 1791, does protect “the free exercise” of religion – but only after barring government from “establishing” religion. Viewed strictly in terms of sequence, the First Amendment’s “first freedom” might be seen as freedom from rather than freedom of religion.

Of course the First Amendment is part of the “actual” Constitution, just not part of the original Constitution.  And does Manseau suppose that the no-religious-test clause is not an important blow struck for religious liberty?  But his more important error is to describe the Establishment Clause, which precedes the Free Exercise Clause, as expressing a principle of “freedom from religion.”  There was absolutely no one at the time of the founding who would have characterized the Establishment Clause that way.  The founders did not view the two religion clauses (if they even thought of them as “two”) as tugging in opposite directions, one away from religion and the other toward it.  They universally understood the two clauses to be protections of the freedom of religion, achieving the same object in different but complementary ways.  The principle of “no establishment” was not to protect the state from the church, but to protect the church from the state.

In a similar way, Manseau manages to mangle the oft-told tale of Patrick Henry vs. James Madison.  When Henry introduced legislation in Virginia in 1785 to spend tax dollars on the support of clergy, Madison responded with his famous Memorial and Remonstrance Against Religious Assessments.  Manseau would have us believe “[t]here were forces for and against religious liberty” in this struggle.  Does he think Henry was “against” religious liberty?  Even Madison did not say so, or appear to think so.  Their argument was over the best way to protect religious freedom, and the vibrancy of religious belief and practice.  Henry thought it was through direct government support, while Madison thought that was a grave error. 

It is difficult to know what Manseau’s point actually is at this stage of his argument.  He begins with a kind word for Henry:

Henry’s proposal was considered religiously tolerant in its day, but Madison and Jefferson thought it did not go far enough. They pushed for the state to remove itself entirely from the business of promoting religion of any kind.

It was this victory against 18th-century supporters of religion in Virginia that inspired the federal protections to which 21st century supporters of religion often appeal.

So who, then, were the “forces . . . against religious liberty”?  Not Henry, whose position Manseau describes as “considered religiously tolerant in its day.”  Perhaps the “forces . . . against religious liberty” were Madison and Jefferson?  No, that can’t be right . . .

But describing Madison and Jefferson as winning a “victory against 18th-century supporters of religion” doesn’t quite hit the mark either.  It is true that they “pushed for the state to remove itself entirely from the business of promoting religion of any kind.”  But that, at least in Madison’s case, was because he thought that both freedom and religion flourished best when the government does not “employ Religion as an engine of Civil policy.”  Madison’s Memorial and Remonstrance explicitly argues that the best and most effective support of religion among the people is a policy of freedom.  He argued that Henry’s bill was “adverse to the diffusion of the light of Christianity,” which he described as a “precious gift.”  Does this sound like he was not a “supporter of religion” while Henry was, or that he was devoted to “freedom from religion,” as Manseau seems to think?

Manseau’s fundamental error is that he will not slow down and listen to the actual arguments made by Madison and others.  Madison’s Memorial speaks for many of the founders, perhaps all of them, when he expresses with a beautiful directness exactly why we should consider religious freedom the first and foremost of all our liberties:

This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society,who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign.

Like every other partisan of the principles of the Declaration of Independence, Madison understood our rights to be the gift of our Creator.  To Him we owe everything; to Him is our very first duty and obligation.  On this basis, religious freedom is the first of our rights, because it springs from the first of our duties.

If you don’t come to grips with this first and best argument that religious freedom is the first of all our liberties, then you’re bound to wander among irrelevant considerations about what is said where in the Constitution, or what various self-interested actors in our own day have decided to elevate in importance for their own reasons.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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