Personalizing the Constitution
By David Adler
The concept of the “personal Constitution,” which we introduced in this column last week, is personified in the First Amendment freedoms, particularly in the rights of religious liberty and freedom of expression. The exercise of these liberties summons the most fundamental beliefs that human beings possess.
The First Amendment affords protection for the component parts of the human spirit and the freedom of conscience — emotions, beliefs and reason. Nothing in the Constitution is more personal than this protection. Various views and strains of thought were entwined in shaping the First Amendment. The Framers began the initial amendment with the words: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Freedom of speech, press, assembly and the right to petition government followed the religion clauses.
The prominence of religious freedom in the minds of the Founders was understandable, given the fact that American colonists belonged to various churches. Recall that many had fled European countries to escape religious oppression. The Founders rejected in the “Establishment Clause” the very idea that government could impose upon the people an official church or even religious orthodoxy. Thomas Jefferson’s Virginia Statute of Religious Liberty, adopted in 1786, formed the basis for the First Amendment’s Establishment Clause, and declared that no person should be compelled to frequent or support any religious worship nor suffer on account of religious opinions and beliefs. Congress, through its authority to enact laws, was meant to stay out of the realm of religion, leaving the people free to decide whether to worship and, if they did, how they would worship.
The “great object” of the Bill of Rights, James Madison had said when introducing his draft of amendments to the House of Representatives, was to “limit and qualify the powers of Government,” for the purpose of making certain that none of the powers granted to the government could be exercised in forbidden fields, including religion. Since Congress was granted no authority to impose religious orthodoxy, or otherwise establish an official church or religion, the assertion that Congress could provide aid to religion in general would mean that the First Amendment was actually “adding” powers to the congressional arsenal. That view would contradict what Madison had said, that the First Amendment was intended to restrict Congress to the powers it possessed in Article I of the Constitution, and since it had no authority to legislate in the field of religion, it could not support religion on any basis. To assert that an express prohibition on power creates power is wholly arbitrary and without any merit.
The starting point for the freedom of religion, then, was found in the Establishment Clause. The freedom of religion, carved out specifically in the “Free Exercise Clause,” the Supreme Court said for the first time in 1940, in Cantwell v. Connecticut, “embraces two concepts — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to the regulation of society.” There is, of course, no need for a constitutional guarantee protecting a freedom to “believe,” since, as the Common Law held, “the devil himself knows not the thoughts of man.” The regulation of conduct in the name of religion will be addressed at a later date, but suffice it to say, that a citizen’s thoughts and beliefs are off limits to the government.
The intensely personal freedom of religion, exercised through one’s exploration of the universe and relationship to God, was linked to freedom of expression in the First Amendment, for natural reasons. Those who discovered the path to salvation would feel the need and certainly the right or even the duty to share the gospel with others. Freedom of expression would serve both the speaker and the listener. Suppression would thus deny to both parties the communication of an important message, perhaps one critical to gaining entry to an afterlife. The concept of broader spiritual liberty was derived from a more narrow religious focus. Men and women who might not embrace a specific church doctrine would suffer a violation of their freedom of expression and spiritual liberty if they were denied access to other speakers and listeners.
The existence of freedom of religion and freedom of expression, born of similar concerns, are more intensely personal than any other liberty protected by the Constitution. They embody the essence of the personal Constitution.
Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.
Send questions about the Constitution to Dr. Adler at [email protected] and he will attempt to answer them in subsequent columns.
This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.