Positive Liberty

I may be trespassing on my blog colleague’s domain here a bit, but I wanted to point out a question I think is pretty important in debating religion’s proper place in the American polity: What, exactly, would a Christian government have looked like at the time the Constitution was ratified? And what would religious tolerance have looked like?

That is, if the Founders had set out to create a Christian government — and/or a tolerant one — what precedents might they have followed? This is an important question, since many have argued that the United States is by its very design a Christian nation, as well as a tolerant one, that it has been so ever since the founding, and that endorsement of the Christian religion is by no means intolerant or forbidden. I disagree based in part on the contemporary models that the Founders must have known about and rejected.

My examples are as follows: First, early colonial Maryland was a Christian government, but tolerant of both Protestants and Catholics, and if the Founders had wanted the federal government to be generically Christian as well, they could easily have followed something like Maryland’s example. Failing that, they might have borrowed from the laws of England, which were also considered tolerant for their time, and which both endorsed the Church of England and excluded people of certain religions from public office (notably Catholics). In this era England was both undeniably a Christian nation and overwhelmingly considered a tolerant one — indeed, its penalties against Catholics were far milder than early Maryland’s against Unitarians. Had the Founders followed England, they would have been counted both Christian and tolerant.

And finally, if the Founders had wanted to be tolerant beyond any experiment yet tried on earth, they might have followed the suggestions of John Locke, a thinker whom they followed in so many other areas. Locke’s vision of the relationship between faith and polity was arguably not a specifically Christian one, but it was certainly tolerant. Yet the Founders went beyond even Locke and were more tolerant than he recommended in his “Letter Concerning Toleration.”

All of these approaches were considered tolerant at the time they were adopted. The first two — Maryland and England — were indisputably Christian (Locke’s, perhaps, was arguable). Yet the Founders rejected all three, and they instituted a public order that was more religiously tolerant than any of these, as well as considerably less Christian. (At least in the theological sense; whether it was “Christian” in the sense that it obeyed the Golden Rule and was compassionate to all, that is another question, and one I won’t consider here.)

Below I’ll consider each of the alternatives in order: early colonial Maryland, contemporary England, and Locke’s ideas in “A Letter Concerning Toleration.” I’ll also look at the Maryland Constitution of 1867, which adopted a system of religious tolerance patterned almost exactly on Locke’s. Finally I’ll look at the U.S. Constitution, which was the most radically tolerant of all, and which eventually prompted a challenge to the 1867 language — showing that the Founders had well exceeded Locke’s system of religious tolerance.

Early Colonial Maryland: In the colony of Maryland, the Toleration Act of 1649 was considered a revolutionary step forward. Yet it provided the death penalty for those who denied the divinity of Jesus or the Trinity. Unitarians and Socinians could look forward to the following with some dread:

That whatsoever person or persons within this Province and the Islands thereunto belonging shall from henceforth blaspheme God, that is Curse him, or deny our Saviour Jesus Christ to bee the sonne of God, or shall deny the holy Trinity the father sonne and holy Ghost, or the Godhead of any of the said Three persons of the Trinity or the Unity of the Godhead, or shall use or utter any reproachfull Speeches, words or language concerning the said Holy Trinity, or any of the said three persons thereof, shalbe punished with death and confiscation or forfeiture of all his or her lands and goods to the Lord Proprietary and his heires.

It ordered loss of property and banishment for blasphemy against the Virgin Mary or the Evangelists:

And bee it also Enacted by the Authority and with the advise and assent aforesaid, That whatsoever person or persons shall from henceforth use or utter any reproachfull words or Speeches concerning the blessed Virgin Mary the Mother of our Saviour or the holy Apostles or Evangelists or any of them shall in such case for the first offence forfeit to the said Lord Proprietary and his heirs Lords and Proprietaries of this Province the summe of five pound Sterling or the value thereof to be Levyed on the goods and chattells of every such person soe offending, but in case such Offender or Offenders, shall not then have goods and chattells sufficient for the satisfyeing of such forfeiture, or that the same bee not otherwise speedily satisfyed that then such Offender or Offenders shalbe publiquely whipt and bee imprisoned during the pleasure of the Lord Proprietary or the Lieutenant or cheife Governor of this Province for the time being. And that every such Offender or Offenders for every second offence shall forfeit tenne pound sterling or the value thereof to bee levyed as aforesaid, or in case such offender or Offenders shall not then have goods and chattells within this Province sufficient for that purpose then to bee publiquely and severely whipt and imprisoned as before is expressed. And that every person or persons before mentioned offending herein the third time, shall for such third Offence forfeit all his lands and Goods and bee for ever banished and expelled out of this Province.

And it established fines for drunkenness, rowdiness, and work on Sunday:

And be it further likewise Enacted by the Authority and consent aforesaid That every person and persons within this Province that shall at any time hereafter prophane the Sabbath or Lords day called Sunday by frequent swearing, drunkennes or by any uncivill or disorderly recreacion, or by working on that day when absolute necessity doth not require it shall for every such first offence forfeit 2s 6d sterling or the value thereof, and for the second offence 5s sterling or the value thereof, and for the third offence and soe for every time he shall offend in like manner afterwards 10s sterling or the value thereof.

How was this a step forward? Well, at least no trinitarian Christian would be persecuted for his religion, whether Catholic or Protestant:

And whereas the inforceing of the conscience in matters of Religion hath frequently fallen out to be of dangerous Consequence in those commonwealthes where it hath been practised, And for the more quiett and peaceable governement of this Province, and the better to preserve mutuall Love and amity amongst the Inhabitants thereof, Be it Therefore also by the Lord Proprietary with the advise and consent of this Assembly Ordeyned and enacted (except as in this present Act is before Declared and sett forth) that noe person or persons whatsoever within this Province, or the Islands, Ports, Harbors, Creekes, or havens thereunto belonging professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled…

I do not know how often the harsher penalties of banishment and death were enforced, but blasphemy laws were typical throughout the colonies in the eighteenth century, and blasphemy itself was a part of English common law. (I’d like to think that if my adopted home state ever hosted anti-Jewish pogroms, I’d have heard about it by now!) In any case, the punishment was softened in time, but a blasphemy law remained on the books in Maryland even into the twentieth century. The laws of early colonial Maryland were not remarkably tolerant by the late eighteenth century, but many places in continental Europe had similar standards, notably France by 1787.

What matters here is that colonial Maryland’s religious laws were so far removed from those of the U.S. Constitution that it would be pedantic to point out the differences, so I’m simply going to move on.

Contemporary England: As mentioned above, blasphemy was an offense in the common law, and the Church of England was the only officially subsidized religious organization. Further, the Test Act of 1679 required all members of Parliament to declare the following:

“I, N, do solemnly and sincerely in the presence of God profess, testify, and declare, that I do believe that in the Sacrament of the Lord’s Supper there is not any Transubstantiation of the elements of bread and wine into the Body and Blood of Christ at or after the consecration thereof by any person whatsoever: and that the invocation or adoration of the Virgin Mary or any other Saint, and the Sacrifice of the Mass, as they are now used in the Church of Rome, are superstitious and idolatrous…”

It was not repealed until 1829. This measure would have been familiar to anyone, like the Founders, who had studied the history and laws of England. And yet England did not otherwise punish Unitarians, Arians, Muslims, Jews, or even atheists, provided that they did not offend against the blasphemy laws.

This may seem a thin toleration indeed: It was in some ways better than Maryland’s, as banishment and death were not among the penalties. Yet in some ways it was worse, since in Maryland any Christian could hold office, and no Church received any state subsidy. Despite its flaws, England’s civil toleration won wide acclaim in the eighteenth century. As Voltaire wrote in 1734,

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There the Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word.

If one religion only were allowed in England, the Government would very possibly become arbitrary; if there were but two, the people would cut one another’s throats; but as there are such a multitude, they all live happy and in peace.

If the Founders had wanted similar praise, they might have simply copied the laws of England. (I know, I know, it would have been a political non-starter to establish the Church of England across the newly independent colonies. The point here is that at the time, neither a religious test nor an established church was considered particularly offensive to those who campaigned for religious toleration.)

Locke: Finally we come to the most radical toleration system of the day, albeit then a purely theoretical one. It was propounded by John Locke in his “Letter Concerning Toleration.” Locke excluded only those religions and belief systems that in his estimation would undercut the foundations of civil society:

I say, first, no opinions contrary to human society, or to those moral rules which are necessary to the preservation of civil society, are to be tolerated by the magistrate. But of these, indeed, examples in any Church are rare. For no sect can easily arrive to such a degree of madness as that it should think fit to teach, for doctrines of religion, such things as manifestly undermine the foundations of society and are, therefore, condemned by the judgement of all mankind; because their own interest, peace, reputation, everything would be thereby endangered.

Another more secret evil, but more dangerous to the commonwealth, is when men arrogate to themselves, and to those of their own sect, some peculiar prerogative covered over with a specious show of deceitful words, but in effect opposite to the civil right of the community. For example: we cannot find any sect that teaches, expressly and openly, that men are not obliged to keep their promise; that princes may be dethroned by those that differ from them in religion; or that the dominion of all things belongs only to themselves. For these things, proposed thus nakedly and plainly, would soon draw on them the eye and hand of the magistrate and awaken all the care of the commonwealth to a watchfulness against the spreading of so dangerous an evil. But, nevertheless, we find those that say the same things in other words. What else do they mean who teach that faith is not to be kept with heretics? Their meaning, forsooth, is that the privilege of breaking faith belongs unto themselves; for they declare all that are not of their communion to be heretics, or at least may declare them so whensoever they think fit.

…Lastly, those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all; besides also, those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of a toleration. As for other practical opinions, though not absolutely free from all error, if they do not tend to establish domination over others, or civil impunity to the Church in which they are taught, there can be no reason why they should not be tolerated.

In other words, Locke insisted that anyone in a social contract must affirm a belief in a just and all-powerful God who would reward or punish them in the afterlife. Yet that God did not have to be Christian. All that the Lockean God had to do was to offer rewards for those who lived peaceably, kept oaths, and spoke the truth — and offer punishments for those who broke the peace, reneged on oaths, or lied.

Locke’s approach would have welcomed virtually all members of the “big three” monotheisms as citizens. It would perhaps enfranchise people of certain other faiths, too. Yet it would have excluded atheists, agnostics, and many pagans. As of 1787, a government built on these lines would have been the most religiously tolerant state in the world.

Yet there were certainly limits. The quoted text above has always been a favorite passage of mine to teach to students; sometimes I ask them to name one religion or belief system that Locke would have tolerated, and one that he would not, and to justify their answers. Often the responses vary, and often there is room to argue either side. Much depends on whether the religion in question ever taught that it need not keep oaths with infidels, and this can become a fairly obscure question: For example, the Jesuits of the seventeenth century were certainly accused of teaching the “mental reservation,” whereby oaths were no longer binding, but they denied it in public. Locke’s language above, I think, was intended to exclude the Jesuits and all those who agreed to the idea of the mental reservation. (How one can exclude this in practice is, of course, another matter.)

One certainty is that atheism is out of the question, as are cults that practice ritual murder or theft. Universalists — who believe that there is no Hell — are a doubtful case, and would perhaps not be tolerated according to the argument laid out here: If there is no punishment in the afterlife for breaking an oath, then why not go ahead and break it? Indeed, if we tally up the exceptions (atheists, agnostics, maybe many Catholics, Universalists, those Jews who do not affirm the existence of Hell, and so forth), Locke’s toleration starts looking pretty empty.

Yet Locke’s formula proved popular in the United States. Indeed, Maryland itself ended up adopting exactly his approach, and Locke’s formula was written into Articles 36 and 37 of Maryland’s state Constitution of 1867 (article 36 amended in 1970):

Article 36: That as it is the duty of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to protection in their religious liberty; wherefore, no person ought by any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights; nor ought any person to be compelled to frequent, or maintain, or contribute, unless on contract, to maintain, any place of worship, or any ministry; nor shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief; provided, he believes in the existence of God, and that under His dispensation such person will be held morally accountable for his acts, and be rewarded or punished therefore either in this world or in the world to come.

Nothing shall prohibit or require the making reference to belief in, reliance upon, or invoking the aid of God or a Supreme Being in any governmental or public document, proceeding, activity, ceremony, school, institution, or place.

Nothing in this article shall constitute an establishment of religion.

Article 37: That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God; nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution.

If these provisions had not been declared to violate the U.S. Constitution, I and all other Maryland atheists would have been negligible to serve as either a witness or a juror in Maryland, since I affirm neither God nor the afterlife. But, in Locke’s view, this was about as tolerant as one could get, and I have every reason to think that Locke would have approved of these provisions.

The U.S. Constitution: When the above arguments are paired with the U.S. Constitution, however, things become very interesting. As I have blogged in the past, the Fourteenth Amendment, the religious test clause, and First Amendment work together to forbid either the federal or the state government from creating religious crimes, established religions, or religious tests for public office. Here are the relevant passages.

First, the test clause:

…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Now, the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And now the relevant section of the Fourteenth Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These provisions clearly come from a different mental universe than the Maryland Toleration Act of 1649. They flatly forbid anything like England’s Test Act. They don’t even nod toward Locke’s idea that a commonwealth can only exist among believers in God. They declare very simply that the federal government may not get involved, and that the state governments may not be any more restrictive than the federal government already is.

The Fourteenth Amendment seems to invite a challenge to articles 36 and 37 of Maryland Constitution, and the challenge came in 1961’s Torcaso v. Watkins, which held them to violate the liberty protected under the First Amendment. The status of article 37 is a question I am still researching, but I understand it to be unconstitutional and therefore invalid even as amended.

The overall point, however, is clear: Locke’s God-and-afterlife commonwealth itself is arguably not a Christian polity, and the commonwealth established under the U.S. Constitution is more tolerant and less Christian still.

The U.S. Constitution was created by individuals who undoubtedly were well aware of the models I have given above (indeed, each one is representative of several other, similar models, whether in the colonies or elsewhere in the mental or physical world of the late eighteenth century). The most salient fact about the U.S. Constitution is that its authors rejected every one of them in favor of a republic that neither legally nor rhetorically required belief in God and the afterlife.

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