Lord Acton, the great historian of freedom, understood that “liberty is the delicate fruit of a mature civilization.” The liberty of which he spoke embraced a broad scope of human freedom, including dimensions political, intellectual, economic, and, especially, religious. The civilization of which he spoke was the West, whose heritage of Greek philosophy, Roman law, and Christian faith indelibly marked it and inexorably pushed it toward the full panoply of liberties we enjoy today and to which the rest of the world looks. And the history he sought to express was the unfolding witness to the expansion, refinement, and richer application of the principles of liberty.
In celebration of the Acton Institute's tenth anniversary and in the spirit of Lord Acton, Religion & Liberty is publishing a series of essays tracing the history of, as Edmund Burke put it, “this ace spirit of liberty.” We shall look at several watershed documents from the past thousand years (continuing this issue with the Virginia Statute of Religious Liberty), each of which displays one facet of the nature of liberty. We do so to remember our origins and to know our aim. And we do so because, in the words of Winston Churchill, “We must never cease to proclaim in fearless tones the great principles of freedom.” – the Editor
The “establishment clause” of the First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” has long been regarded as the constitutional bulwark of religious liberty in the United States, as well as the locus of the principle of the separation of church and state. Before there was the First Amendment, however, there was the Virginia Statute of Religious Liberty, enacted by the Virginia legislature in January 1786, three years before Congress proposed the First Amendment. Unlike the brief instruction of the First Amendment's “establishment clause,” which is only sixteen words long, the Virginia Statute, at 730 words, not only sets a legal standard but also lays out the whole theory of the interrelationship between civil and religious liberty and the very foundation for limited government itself. Of all the constitutional innovations of the American Founding, this is the most important. Only a small portion of the Virginia Statute is what we would today recognize as a law; most of the Statute is an explanation of the principles behind the law. However, reviewing the political theory expressed in the Virginia Statute helps remind us that the American Founding was about much more than simply securing separation from the imperial monarchy of Great Britain.
The Politically Destabilizing Implications of a Transcendent Doctrine
To understand the mutual and reciprocal relationship of civil and religious liberty in the American form of government, it is necessary to understand exactly what kind of problem the American Founders were trying to solve. The Founders were striving to find a way to harmonize the hitherto competing claims of reason and revelation; however the broader historical and political context of this problem is more complex.
The rise of Christianity in the late years of the Roman Empire revolutionized world politics because it paved the way for the eventual development of liberal individualism. Prior to Christianity, civil and religious authority were unified; the pagan gods of the city and the rulers of the city were one, church and state were indistinguishable, and one's religious allegiance was bound up with one's political allegiance. Christianity planted the seeds to upend all this because it severed an individual's religious obligation from his political obligation, as was expressed in the injunction to “render unto Caesar what is Caesar's, and render unto God what is God's.” Henceforth, one's religious salvation depended on the direct act of faith toward the one God who transcends all temporal and political orders, which is why the Great Commission calls Christians to proclaim the faith in “all nations.”
The implications of such a transcendent doctrine were just as politically destabilizing as Socrates' impious inquiries in ancient Athens-if God's kingdom is not of this world, then the individual's allegiance to the temporal political regime is necessarily weakened-which is why the Roman Empire had either to destroy Christianity or to assimilate it. Having failed at the former, the Empire was forced to do the latter with the Edict of Constantine. Christianity's teaching about the dignity and worth of the individual was a milestone in the long evolution of the idea of liberty, but its liberal individualist implications were slow to be recognized, and European politics became rife with religious faction. Such sectarianism was the basis for most of the conflicts, civil wars, and political struggles throughout Europe for the next 1,500 years.
It was this specter of political faction based on religious sectarianism that the American Founders wanted to avoid. The solution, fortunately, lay within their grasp. By the time of the American Founding, the propitious moment had arrived when the new Lockean political philosophy of liberal individualism fell into congruence with the Christian teaching of the dignity of the individual. Put another way, the traditions of reason and revelation had reached a common ground regarding the nature of the moral order, on which rest the natural rights of mankind. This view is most succinctly expressed in the phrase in the Declaration of Independence that refers to “the laws of nature and nature's God.” Benjamin Rush, a signer of the Declaration, sounded like a good Thomist when he remarked that “reason and revelation say the same thing, only revelation says it in a louder, more insistent voice.”
Claims of a Christian Nation Refuted
The narrower historical context of the Virginia Statute is this: Although Virginia had abolished mandatory church attendance laws in 1777, in 1785 Patrick Henry and other eminent Virginians (including, for a time, George Washington) wanted to grant all Christian denominations equal state recognition-along with taxpayer support. More broadly, there was still considerable support for making the United States officially a “Christian” nation. Samuel Adams, for example, argued that the object of any constitutional reform should be the founding of the “Christian Sparta.” This particular proposal in favor of state support for religion, as well as the broader current of opinion in favor of an explicitly Christian government, excited the efforts of Thomas Jefferson, James Madison, George Mason, and others to advance the ground of civil and religious liberty through the separation of church and state, which, they understood, would strengthen both kinds of liberty.
Jefferson was the author of the Virginia Statute of Religious Liberty, but because he was serving as Ambassador to France at the time, his bill was shepherded through the legislature by Madison, who would go on to write the First Amendment in 1789. (Madison anticipated much of Jefferson's argument in his own “Memorial and Remonstrance Against Religious Assessments,” which he wrote in 1785.) Jefferson, it is said, wrote the Virginia Statute with Locke's Letters on Toleration at his elbow. And here an important distinction must be observed-the distinction between mere toleration of religion and religious freedom as a matter of right. Toleration clearly implies that whatever religious freedom a sovereign may allow is a matter of his discretion and indulgence; therefore, it might be removed or restricted at any time. The American scheme moved well beyond religious toleration to religious liberty as a matter of right. George Washington put the matter memorably in his famous letter to the Newport Synagogue: “It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.”
“It Neither Picks My Pocket Nor Breaks My Leg”
Most recollections of the Virginia Statute highlight the phrase directed against having state-sanctioned or taxpayer-supported denominations: “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” (Why, by the way, cannot this same principle be applied to modern proposals to have taxpayer funding for political candidates? But that is another subject.) But much more important than the principle of dis-establishment of religion is Jefferson's explanation of the broader theory behind it. In this sense the Virginia Statute can be regarded as Jefferson's commentary on the Declaration of Independence. The Statute makes three explicit references to natural right, and this is the heart of the matter. It is because all people have the natural right of conscience - to choose their own form of worship free of governmental interference or coercion - that government is obligated to respect the freedom of religion. But the same principle of equal rights derived from nature means that religious sects should not seek to impose their own doctrine on others through the means of political power. This is because the ground of all of our rights is the same as the ground of our right to religious liberty; therefore, it is unnecessary and wrong to impose religious doctrine through secular means.
As the Virginia Statute puts it, “our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.” (Jefferson put the point more memorably with his remark in Notes on Virginia that, “It does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.”) Jefferson, who is often accused of having been a closet atheist, recognized a second sound reason for dis-establishment that many clear-thinking Christians at the time shared with him: Establishing an official church, requiring church attendance by law, or supporting churches with taxpayer money (all of which were proposed in Virginia at the time) “tends only to corrupt the principles of that religion it is meant to encourage.” While the Anglican and Baptist denominations in Virginia wanted state sanction and taxpayer support, several evangelical denominations opposed it, correctly observing that “religious establishment has never been a means of prospering the gospel.” The Presbyterian Church of Virginia agreed, adding in a petition that “experience has shown that this dependence [on government], where it has been effected, has been an injury rather than an aid.” Religion and morality, the Presbyterians concluded, “can be promoted only by the internal conviction of the mind and its voluntary choice which such establishments cannot effect.”
In other words, if, instead of grasping for secular political power, different Christian denominations competed for the souls of citizens, then religion, paradoxically, could have a larger and more salutary effect on the character of society. It is tempting to see this as an example of the superiority of competition over monopoly, and although this would not be wrong (the example of moribund state churches in Europe today bolsters this point), it is too superficial. The paradox of strengthening religion by seemingly weakening it politically is central to the American character. Consider the following two statements by George Washington. In 1796, Washington said that “the government of the United States of America is not in any sense founded on the Christian religion.” Yet in his famous farewell address two years later, Washington said, “Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”
A Rebuke to Attackers of Reason and Revelation in Equal Measure
This was not a contradiction or even a paradox to the Founders because they understood the essential harmony between the moral teachings of reason (natural law, if you like) and the moral teachings of revealed religion when it came to political questions. The principle of the separation of church and state is today widely misinterpreted to mean the exclusion of religion from public life. The Founders, to the contrary, thought a fastidious neutrality on the part of the state between denominations and faiths would strengthen the influence of faith in our culture.
It is important to recognize today that the embrace of the marginalizing view of the separation of church and state arises ultimately from the skeptical attack on all revealed religion that began, coincidentally, at the same time as the rise of liberal individualism during the Enlightenment. But the radical skepticism that first trained its sights on revealed religion was not satisfied with this target alone, and the progress of what we call “postmodernism” has shown that radical skepticism now attacks and rejects the possibility of objective reason as well as revelation. In other words, the modern attack on religion has become equally an attack on the secular basis of our individual natural rights as the Founders understood them. This is why the Virginia Statute, rightly understood, is a rebuke to the so-called liberals of our day who attack reason and revelation in equal measure and who, by doing so, undermine the basis of both civil and religious liberty.
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