Should we ask permission for our rights?
At the Liberty Law Blog, Prof. Richard Samuelson argues that John Adams’ defense of religious liberty offers a model for our own day. Adams refused to write Article III of the Massachusetts Constitution—which provided for an established church—because it was inconsistent with his belief in religious freedom. Instead, Samuelson writes, “Adams punted,” and left others to draft that article. And this teaches “an important lesson in democratic politics,” which “entails compromise…. In a democratic republic, the people will have their say. Constitutional politics takes time, but, as Adams realized, constitutional change is best secured when it is chosen, rather than forced upon the people.”
With all respect to Adams—who was certainly a great hero in American history—I have to disagree.
Adams’s record on First Amendment liberties is shabby at best, and his choice to “punt” on one of Americans’ most cherished freedoms is far from his best moment. Rather, it’s a typical example of why James Madison—a far greater hero of religious liberty—had such a low opinion of him. In fact, it was Madison and his colleague Jefferson, who spearheaded America’s greatest accomplishment in terms of religious liberty: the transition from the common law principle of “toleration” to the natural-rights principle of religious liberty.
The British Constitution had long allowed religious toleration to various sects of non-conforming protestants. But as Thomas Paine observed, toleration is not the opposite of intolerance, but the counterfeit of it—it is an indulgence or a permission that the government gives to the citizen, when in fact religious freedom is a natural right of all human beings, and not a permission to be asked of any superior. In 1775, when he was serving with the elder statesman George Mason on the committee to draft the Virginia Declaration of Rights, James Madison insisted on substituting liberty for toleration in the guarantee of religious freedom—a choice which, Madison later remembered, “declared the freedom of conscience to be a natural and absolute right.” The next year, shortly after writing the Declaration of Independence, Jefferson drafted the Virginia Statute for Religious Freedom, which proclaimed religious liberty as a fundamental natural right—and not a gift to be given to people by the state. It took ten years for Jefferson and Madison to get that Statute passed, over the objections of Patrick Henry, who believed in the old “toleration” principle. But when it finally was enacted, the Statute for Religious Freedom disestablished the church on the grounds that individual rights are not permissions that we have to ask others to give us, but a basic right of all mankind.
Adams, by contrast, was wishy-washy at best on matters of religious freedom. Although late in life he claimed to believe in religious liberty (note that the letter Samuelson cites comes from 1812, when Adams was busily revising the record to bolster his own reputation and that of Massachusetts Bay Colony), he was not actually a believer in religious freedom early in life. In fact, he argued that one person’s religious liberty can include the right to dictate the religious faiths of other people: “the people of Massachusetts,” he wrote in his diary,
were as religious and conscientious as the people of Pennsylvania; that their consciences dictated to them that it was their duty to support those laws, and therefore the very liberty of conscience, which Mr. Pemberton invoked, would demand indulgence for the tender consciences of the people of Massachusetts and allow them to preserve their laws…. Pemberton made no reply but this: “Oh! Sir, pray don’t urge liberty of conscience in favor of such laws!”
One might well sympathize with Pemberton, for it is a perverse sense of religious liberty that would say it includes the right to compel other people to abide by one’s own religious views! Of course, at the same time, he wrote of Jefferson’s efforts that they were “worth all the blood and treasure which has been or will be spent in this war.” Yet he was unwilling to say more publicly than that he thought each state should be left to “have its own religion without molestation”—that is, that state governments should be free to oppress their people with impunity.
The crucial difference between Jefferson and Madison on one hand, and John Adams on the other, was that the Virginians recognized the primary value of individual freedom, while Adams long adhered to the “toleration” view that held that government had a fundamental right to control people, with religious liberty being given to them by the state. Madison wrote that government could have no legitimate power to superintend our religious views because “the Sovereignty of the Society as vested in & exerciseable by the majority, may do any thing that could be rightfully done, by the unanimous concurrence of the members,” and “the reserved rights of individuals (of Conscience for example)” were “beyond the legitimate reach of Sovereignty” in any circumstance. Or, as Jefferson put it, “our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” For the Sage of Braintree, at least until later in life, religious freedom was a privilege the government gave out whenever it saw fit.
In short, the lesson Samuelson draws is exactly the reverse from what the history of religious freedom really teaches us: the transition from toleration to liberty reflected the founders’ realization that liberty is not a permission government gives us, but a right with which we are all endowed by our humanity. No “compromise” is appropriate when it comes to individual rights. While constitutional politics may take time, we should never be led into thinking that we have to ask others politely to respect our rights. They are morally obliged to respect our rights in the first place—and constitutional protections for individual rights do not “force” anything “upon the people” except the obligation to leave us alone. That is the lesson we should draw from the victory of religious liberty in America. And we should look for inspiration not to temporizers and compromisers like John Adams, but to those who stood up for the rights of the individual. Late in his life, even John Adams seems to have realized that fact.
Update: A follow-up post here.
What to read next
Shed a (crocodile) tear for Luke Skywalker today, as Mark Hamill’s much ballyhooed Autograph Law is set to be undone and reformed by the same California officials who made the mistake to pass it in the first place. AB 228 has arrived at the Governor’s desk, and in all likelihood will be signed into law any day.
Our new flagship publication, Sword&Scales, offers 16 pages of news and information to bring you up close to the vital work of our legal team. Our ardent defense of the right to own and use private property takes center stage in the inaugural issue. It’s at the core of our mission in the nation’s courts.
On Thursday, in Minnesota Voters Alliance v. Mansky, PLF filed this reply brief in support of its cert petition to the Supreme Court of the United States. In this case, we’re representing Minnesota voters in a First Amendment challenge to a ban on political apparel at polling places.
The Daily Journal published my column on California Cannabis Coalition v. City of Upland, recently decided by the California Supreme Court. As the op-ed points out, the ruling undermines Proposition 218’s requirements that all new taxes at the local level need voter approval.