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The task of Christian leaders is to understand it [the modern world and its principles] and find news ways of causing the light of the gospel to shine within it.
— Ernest L. Fortin1
In America, the separation of church and state is assumed. It is assumed because it is a matter of rights — because individuals have the right to religious freedom, church and state must be separated. Scholars give different accounts of the extent and limits of the right, but they rarely ask why individuals possess it in the first place. The events of last September, however, suggest that justifying the right to religious freedom remains a foremost task of political theorists. As East meets West and technology continues to shrink the world, the West will fail to defend itself if it cannot defend its way of life, especially the right to religious freedom.
Within the American context, the most influential articulation of the right to religious freedom remains the writings and deeds of Thomas Jefferson and James Madison. Not only did Jefferson and Madison found a nation dedicated to the civil and religious liberty, they explained to their peers and to posterity the reasons that guided their actions. In this paper I review Jefferson's and Madison's defense of the right to religious liberty. Specifically, I examine their thought in light of Fr. Ernest Fortin's writings on the subject. Fr. Fortin's approach to religious freedom differs from America's leading founding fathers. He focuses on the New Testament's apolitical character, and by doing so he deepens our understanding of the reasons for the separation of church and state. Fr. Fortin brings our attention, moreover, to the dangers that separatism poses, especially for the individual human soul, a consideration that is largely absent in Jefferson's and Madison's writings. This paper begins with Jefferson's and Madison's arguments for religious freedom. I then proceed to Fr. Fortin's thoughts on church and state.
Jefferson's Argument for Religious Liberty: The Freedom of the Human Mind
Thomas Jefferson offers his most developed statement of religious liberty in the Virginia Statute for Religious Freedom. To grasp the bill's argument, it is most helpful to start with what the bill actually legislated. The Virginia Statute recognizes one fundamental freedom and places two specific restrictions on the exercise of legislative power. The bill's penultimate paragraph states:
We the General Assembly of Virginia do enact that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened [sic] in his body or goods, nor shall otherwise suffer, on account of his religious opinions or beliefs; but that all men shall be free to profess and by argument maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.2
Jefferson lists two negative rights and one positive right:
1. The right not to be compelled to frequent or to support any worship, place, or ministry whatsoever.
2. The right not to be enforced, restrained, molested, or burdened in one's body or goods, nor otherwise suffer, nor to have one's civil capacities diminished, enlarged, or affected on account of religious opinions or beliefs.
3. The right to profess and by argument maintain one's religious opinions.
The two negative rights (1 & 2), which announce the restrictions on the legitimate exercise of governmental power, follow from the positive natural right of each individual to profess and maintain his religious opinions (3). That is, because every man has the right to profess and maintain his own religious opinions, no legislative assembly legitimately may compel attendance or support of any religious worship or punish an individual on account of religious opinions. The fundamental freedom Jefferson recognizes is freedom of the mind, specifically freedom of the mind with regard to religious opinions. Freedom of the mind establishes the extent and limit of man's right to religious freedom.
Jefferson sets forth the philosophical grounds establishing the freedom of the mind in the statute's preamble. His draft begins:
Well aware that the opinions and beliefs of men depend not on their own will, but follow involuntarily the evidence proposed to their minds; that Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint.... 3
At least three related ideas are contained within Jefferson's assertion that God has created the human mind free. First, freedom of the mind means that the human mind is not predetermined to its conclusions.4 God does not impart to man innate knowledge of Himself or divine truth. Man, in other words, does not know God by nature. The human mind, moreover, is not ruled by a dominating instinct. Unlike animals, man is capable of reason and of rationally apprehending arguments and evidence. Man's mind is free in the sense that it is determined neither by supra-rational insight nor sub-rational passions.
Freedom of the mind means, secondly, that the mind cannot be influenced by coercive force. No man can be compelled by another to adopt any opinion, because "the opinions and beliefs of men depend not on their own will, but follow involuntarily the evidence proposed to their minds." Jefferson here follows Locke's teaching in A Letter Concerning Toleration that the human mind is subject to persuasive evidence and reason alone. "It is only Light and Evidence," Locke explains, "that can work a change in Men[']s Opinions; which light can in no manner proceed from corporal Sufferings, or any other outward Penalties."5 Jefferson adopts this argument, concluding: "All attempts to influence it [the mind] by temporal punishments, or burthens [sic], or by civil incapacitations, tend only to beget habits of hypocrisy and meanness."6
Not only is the human mind persuaded by evidence and reason alone, it cannot reject the evidence it finds persuasive. Freedom of the mind does not mean that man is free to determine his opinions. The opposite, in fact, is true. Freedom of the mind means, thirdly, that the human mind is directed solely by the evidence it finds persuasive. Just as no man's mind can be coerced by another, no man can choose or select his own opinions because opinions "follow involuntarily the evidence proposed to [the] mind." In one sense, then, Jefferson's free mind is radically determined. No individual willfully chooses, determines, or selects his opinions. The human mind, in summary, has been created without innate knowledge of God or a dominating sub-rational instinct; it necessarily follows evidence it finds compelling; and it is governed authoritatively by reason and evidence alone.
From this understanding of the nature and freedom of the human mind, Jefferson derives the right to religious liberty. Because the human mind necessarily follows the persuasive evidence that comes before it, it is irrational and unjust for the state to legislate opinions or to punish men for holding particular opinions. To legislate opinions is futile because law is coercive force, and coercive force cannot change or direct the opinions of individuals. To penalize individuals for their beliefs is unjust because it is to hold individuals accountable for something that lies beyond their control. Men do not willfully choose or self-consciously direct their opinions because opinions result from evidence alone, not choice. "[O]ur rulers can have authority over such natural rights only as we have submitted to them," Jefferson states in Notes on the State of Virginia. "The rights of conscience we could not submit."7 Men cannot submit their rights of conscience because opinions, unlike bodily acts, are not subject to the will. The fact that justifies religious liberty is that men do not govern their minds as they govern their bodies. Rulers and legislators who legislate religious opinions are impiously presumptuous. They legislate what God Himself chose not to command. Since God has created the human mind free, the only regime consistent with "the plan of the holy author of our religion" is one that does not legislate opinions or punish men for the opinions that they hold. "The opinions of men," Jefferson concludes, "are not the object of civil government nor under its jurisdiction."8
Madison's Unalienable Right to Religious Liberty9
James Madison offers his most developed articulation of the right to religious freedom in article one of his "Memorial and Remonstrance." Following Locke's social contract theory, Madison's "Memorial" begins with a statement of natural rights: men have a natural right to exercise religion according to conviction and conscience. The "Memorial" derives this right from the "fundamental and undeniable truth" set forth in the Virginia Declaration of Rights:
Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.10
The "Memorial" presupposes this understanding of religious obligation as its fundamental starting point. It does not attempt to demonstrate how or why religion can be directed only by reason and conviction.11
Because the exercise of religion must follow one's own conscience and conviction, it is a particular kind of natural right, an unalienable natural right. Madison gives two reasons for this claim. First,
because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men....12
Since religion is a matter of conviction and conscience, the essence of religion is opinions — namely, opinions about the duties man owes to the Creator and how those duties ought to be discharged. And opinions, Madison says, depend only on the evidence contemplated by the mind. Like Jefferson, he follows Locke's argument that every man comes to his opinions and beliefs individually by virtue of the evidence he sees and finds persuasive. Since opinions and beliefs can be shaped by evidence alone, no man can impose his opinions on any other man; all that can be proffered is persuasive evidence and argument. Similarly, no man can simply accept the opinions of another, even if he wishes to, if he is not truly persuaded.13 Opinions, then, are very different from other types of property such as land or money. Whereas a man can freely give away his money or have it stolen from him, no man can cede or lose his opinions unless he loses his mind. The right to one's opinions, accordingly, is different from one's right to other forms of property. Whereas men transform their natural right to one's possessions into a civil right to property upon entering into the social compact, men do not similarly transform the right to their opinions. Opinions by their nature cannot be alienated, and therefore religion, which is essentially opinion, is an unalienable natural right.14
The second reason Madison gives for the unalienable character of man's natural religious right is that,
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 degree of obligation, to the claims of Civil Society.15
Here again Madison relies on a distinction made by Locke in A Letter Concerning Toleration. Civil society, Locke maintains, arises in order to overcome war and poverty. At the most basic level, the social compact aims to protect life and to secure the conditions that allow for material comfort.16 Religion, by contrast, is concerned with the good of the soul, which means, ultimately, either eternal salvation or damnation.17 Madison assumes Locke's separation of religion from civic obligations and, from this, concludes that religious duties take precedence over the claims of civil society. Religious duties are precedent in time because a man's relationship with God exists prior to his citizenship. More importantly, religious duties are precedent in degree of authority because man's eternal soul is of higher status than his temporal body. Just as no rational man would ever sacrifice his eternal soul for the temporary good of his body, a man could never rationally forsake his duties to God in order to fulfill his duties as a citizen. Duties of citizenship — that is, the obligations one agrees to upon entering the social compact — cannot trespass upon duties to God. It would be irrational and contrary to the gravity and nature of man's religious obligations for men to agree to a social compact that includes religious obligations or precepts. Religion, thus, is an unalienable natural right.
Having established the unalienable nature of man's natural religious right, Madison's argument reaches its pinnacle:
We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance.18
The unalienable character of man's natural right to religion has a precise meaning and implication. Because man's religious right is unalienable, it does not become part of the social compact.19 Literally, it is not alienated; men retain what they possessed in the state of nature. The status of mans' religious right, then, is different from property rights such as land or money within the social compact. Whereas the right to land or money is limited equally within civil society (and thereby better secured), religion, Madison says, "is wholly exempt from its [civil society's] cognizance."
Used in a legal sense, the word "cognizance" then as now means "the action of taking judicial or authoritative notice," or "jurisdiction." More generally, it means "knowledge," "perception," or "the state of being aware of."20 A state non-cognizant of religion lacks jurisdiction over religion. It may not take authoritative notice of or perceive religion or the religious affiliation of its citizens. A government non-cognizant of religion, in other words, must be blind to religion; it cannot use religion or religious preference as a basis for classifying citizens. This is the doctrinal teaching of the "Memorial and Remonstrance." The state, which is a product of the social compact between men originally born in the state of nature, must remain non-cognizant of religion because religion is not a part of the social compact. Religion cannot be part of the social compact because of the unalienable character of man's right to direct his religion according to conviction and conscience.
Evaluating Jefferson's and Madison's Arguments
Jefferson and Madison employ both philosophical and theological arguments to justify the right to religious freedom. Their philosophical arguments center on the nature of belief formation. Following Locke, both claim that beliefs are not subject to coercive force, and thus cannot and hence should not be subject to legal jurisdiction. Since beliefs follow "involuntarily," in Jefferson's words, from the evidence proposed to the mind, it is unjustifiable to punish a man for his beliefs. This conclusion follows as long as the premise holds. But it is not self-evident that a man's opinions depend, as Jefferson and Madison claim, only upon the evidence he contemplates. Opinions seem to come about in a variety of ways. Parents and early education are obviously important. One's local community and the mores and customs of one's nation have influence. Insofar as law can affect these things — and law certainly affects the early education one receives as a child — it seems reasonable to believe that law can have at least some effect on individuals' opinions. Such brief considerations are insufficient to reject Jefferson's and Madison's arguments wholesale, but they should at least give us pause.21
Jefferson's and Madison's theological arguments justifying religious freedom seem similarly undeveloped. Jefferson begins with the fact that God has created the human mind free. Madison starts with the premise that the religious duties can be discharged by reason and conviction only. Not being a theologian, I can do no more than raise a few cursory questions. Is it true, as Jefferson claims, that God creates the mind free? Is it clear that God has not imparted to us some natural or native knowledge of Him sufficiently clear to bind us morally? For Madison, a theological inquiry would scrutinize his presumption that religion is a matter of opinion and conviction. Are all religious duties reducible to only opinions and convictions? And if they are, can one fulfill them, as he claims, only if one truly believes? If an individual arrives at his opinions and convictions involuntarily, in what sense can he have an obligation to posses any specific opinion or conviction?
Different theologians, I suspect, would answer these questions differently. What concerns us here is only to point out that Jefferson's and Madison's do little to defend their theological claims. Perhaps most strikingly, neither attempts to explicitly deduce their theology from the Bible. Locke, and not the New Testament, seems to have held most sway over Jefferson and Madison. Whether Locke's thought ultimately rests on a Christian foundation deeply divides scholars, and that question need not detain us. What we can say with confidence is that Jefferson and Madison employ theological justifications for religious freedom, but do not in their pubic documents or, as far as I know, in their private writings develop and defend their theology.
These observations are also far too insufficient to reject either Jefferson's or Madison's defense of religious liberty. My intention is only to raise what seem to me difficulties in our founders' thought. Their philosophical arguments for religious freedom seem to rest on an incomplete account of the nature of belief formation. Their theological arguments seem insufficiently grounded upon the Bible or Christian tradition.
Fr. Fortin, the Bible, and the Separation of Church and State
Fr. Fortin's reflections on church and state, in contrast to Jefferson's and Madison's, begin with the Bible. His exegesis is as bold as it is simple: the New Testament is radically apolitical; Christianity differs from both Judaism and Islam on the one hand and pagan religion on the other by its uniquely apolitical character. Citing agreement with the great nineteenth century historian Fustel de Coulanges, Fr. Fortin states the matter as follows:
Here for the first time was a religion [Christianity] that was not the source of law, did not call for the establishment of a particular regime, refrained from laying down rules for the governance of civil society, and saw no need to prescribe the rites that give shape to the communal life of that society. The God that it proclaimed was not attached to any tribe, people, or race. In contrast to the gods of the polis, he did not command hatred between nations and make it a duty to detest foreigners but taught that all human beings were entitled to the same gentle and benevolent treatment. He was a God for whom there were no strangers to profane the temple or taint the sacrifice by their presence. His worshippers were not required to renounce their citizenship in the earthly city but formed a spiritual and sacramental community that transcended national boundaries, held together as it was by faith in Christ and the bonds of brotherly love. To be a member of that community, one had only to render to Caesar what is Caesar's and to God what is God's. A saving doctrine, which promised immortality and in which anyone could be instructed, had replaced the sacred or ancestral law as the high road to happiness.22
In a different essay, Fr. Fortin further develops the same point:
The gospel, as anyone who reflects on it soon discovers, is a notoriously apolitical document. It shows little awareness of the distinction between political regimes, does not indicate any preference for one over the others, imposes none of its own, and makes no specific recommendations for the reform of the social order. It was to be preached to all nations but was not destined to replace them or meant to compete with them on their own level. It takes for granted that Christ's followers will continue to organize their temporal lives within the context of the society to which they happen to belong and, which it is strenuously opposed to all forms of injustice, it leaves the administration of pubic affairs to the authorities whom God has ordained for their purpose. Nor does it give much encouragement to political speculation. It realizes that "Christians," as they soon would be called (Acts 11:26), were liable to be dragged before governors and kings but tells them only no to worry about defending themselves. What they were to say would be given to them in that hour by the Holy Spirit (Matt. 10:18). Its own ideal, in short, is strictly transpolitical. It makes a good deal of sense to speak of a Hebrew polity, since that is what the Hebrew scriptures are all about; it makes no sense at all to speak of a Christian polity, however frequently people may have done so in the past. Christ himself renounced all political ambitions. His kingdom was emphatically not of this world.23
Christianity is apolitical, according to Fr. Fortin, because it severs religious faith from political citizenship. The Christian God is the god of all, both citizen and stranger. As such, God is no longer the source and authority of civil law. Christians can be at home in a variety of regimes, which means that their true home lies in no political regime. The true home of the true Christian is not of this world. By offering otherworldly salvation, Christianity sows the seeds for the destruction of the classical polis and the conception of the regime as a total way of life.
What Fr. Fortin helps us to understand is that the apolitical or transpolitical character of Christianity makes the separation of church and state possible. The separation of church and state is not strictly speaking a Christian doctrine, but because of its transpolitical character, Christianity can accept it. Christians need not live in a specific place or under a specific set of divinely ordained laws. Christian salvation can be achieved in almost any regime because it is primarily a matter of faith. Insofar as it does require rituals and actions, if in fact it does, they are at a minimum.
Above I suggested that Jefferson and Madison do not defend their theological arguments for religious liberty. Fr. Fortin helps us to see the theological framework that Jefferson and Madison assume. The following list is not exhaustive, but it seems to me that at least these theological tenets are required before an argument for the separation of church and state can be made:
1. God does not require or ordain a specific type of regime.
2. God does not require or ordain a specific person or group of persons to rule politically.
3. Salvation is otherworldly.
4. Salvation is not achieved through following a specific set of acts or practices that can be prescribed by civil law.
To repeat, these preconditions alone are not sufficient for the separation of church and state, but without them, it appears to me impossible. Perhaps more clearly than any other contemporary writer on the subject, Fr. Fortin supplies the theological premises that Jefferson and Madison assumed in their arguments for religious freedom.
The Dangers of Separatism:
Not only does Fr. Fortin help us to see why Christianity is open to the separation of church and state, he cautions us of its hazards. In his characteristic way, Fr. Fortin offers his criticism in a zinging one-liner: "The fact of the matter is that modern liberalism has always been better at taking care of our bodies than our souls."24 The separation of church and state along with a free market economy constitute the core of modern liberalism. "The Regime of Separatism," as he calls it, is not neutral, as some claim, toward serious religious faith. " If the state is indifferent to religion or, at the very least, to the distinction between religions," Fr. Fortin writes, "chances are that most of its citizens will be indifferent as well."25 Better in a way, he somewhat shockingly says, that government should be straightforwardly hostile toward religion. At least persecution has the effect of strengthening the resolve of believers.
Modern liberalism relegates religious belief to the private sphere. It becomes, like everything else, a choice for the individual. But the very fact that religion is a choice, Fr. Fortin claims, saps it of its vitality. Liberal neutrality toward religion, which is required if the state is to give all religious equal respect, implicitly denies that any one religion possess an intrinsic claim to such respect. To that extent then, neutrality inevitably works against religion, for few people are likely to acquiesce in the traditional orthodoxy's stringent demands unless they believe in it heart and soul.26 To state the matter differently, serious faith has always been understood in terms of duties and obligations. The very nature of religious belief thus demands that it be understood not merely as a matter of individual choice.
Fr. Fortin is clearer in his diagnosis of the spiritual ills of modern society than in his prescriptive remedy. His self-understood task, one gathers, is to explain the tendencies of our regime and our way of life, not so much to offer a solution. In fact, if anything one is struck by Fr. Fortin's modesty. Even if he is correct in claiming that modern liberalism tends to enfeeble the human soul, it is not so clear, he says, that state-sponsored religion would do much better. Prayer in public schools, although not an example Fr. Fortin employs, illustrates the point. While we may decry the judicial animus against religion in public schools, it is by no means clear that public school sanctioned prayer would deepen children's souls or their faith. One can only imagine to what gods the teachers unions would have them pray.
What then, would Fr. Fortin have us do? If anything, he would have us become more self-aware. For the Church, that means understanding its own mission more clearly and how that mission lies in tension with the tendencies of liberal democracy. First and foremost, the Church must remember that its end is the salvation of souls, not to foster liberty or equality, the twin gods of liberalism. The Church also must understand the specific pressures it faces within modern liberalism. To take just one example, separated from state-support, the Church in America is subject to "market forces." Ideally, this might lead to increased vigor in evangelization, but too often it results in clerical capitalization to popular opinion.
Fr. Fortin's advice to individuals, especially to students, similarly is to understand the dangers modern liberalism poses to one's soul. Contemporary American liberalism in particular preaches in the language of business and commerce. We are directed to the pursuit of great material wealth and the pleasures of the body. We have little awareness of the disinterested activities of the mind or the deepest longings of our souls. The great danger, especially for the most gifted students, is the pursuit of wealth resulting in an empty life of easy-going indifference and mindless conformism. If we are to avoid such a fate, we must fight the tendencies of our own regime. For those capable, Fr. Fortin teaches us, there is no better starting point than the great books. In them, we find not only an explanation of our own way of life, but the fundamental alternatives to it.
Like a modern day Tocqueville, Fr. Fortin brings a perspective to the separation of church and state from outside of the regime. Such a view is not easy to come by, especially for American students of the American political tradition. I write here only for myself, but as an admirer of America's founding fathers one too easily forgets that men like Jefferson and Madison were political partisans. They sought to establish religious freedom, not to ponder its possible dangers. We ought not overlook how radically successful they were. Americans thoroughly imbibe their language of freedom and rights. We do not question whether church and state should be separated. We lack knowledge of any other possibilities. To be an honest critic and a thoughtful patriot, one must gain a critical distance from one's own prejudices. Fr. Fortin helps us to gain this perspective. He shows us the theological preconditions assumed by Jefferson and Madison in their defenses of religious liberty. He also cautions us of the dangers that the regime they founded poses for our souls. While he never suggests that he stands opposed to separatism, Fr. Fortin reminds us that the American experiment in religious freedom is not simply an unmitigated success.
Notes
1 "Sacred and Inviolable: Rerum Novarum and Natural Rights," in Human Rights, Virtue, and the Common Good: Untimely Meditations on Religion and Politics, ed. J. Brian Benestad (Lanham, MD: Rowman & Littlefield Publishers, Inc., 1996), 212. href="#footnote1return">(Return)
2 Jefferson, "A Bill for Establishing Religious Freedom," in The Papers of Thomas Jefferson, ed. Julian P. Boyd (Princeton: Princeton University Press, 1950-), 2:546. Jefferson's original draft was modified by the Virginia assembly. Since the purpose of this paper is to examine Jefferson's thought, all citations are to Jefferson's original text. href="#footnote2return">(Return)
3 Ibid., 545. href="#footnote3return">(Return)
4 Harry V. Jaffa, American Conservatism and the American Founding (Durham, North Carolina: Carolina Academic Press, 1984), 44. href="#footnote4return">(Return)
5 John Locke, A Letter Concerning Toleration, ed. James H. Tully (Indianapolis: Hackett Publishing Company, Inc., 1983), 27. href="#footnote5return">(Return)
6 Jefferson, "A Bill for Establishing Religious Freedom," in The Papers of Thomas Jefferson, 2:545. href="#footnote6return">(Return)
7 Jefferson, Notes of the State of Virginia, Query XVII, "Religion," in The Writings of Thomas Jefferson, Library edition, ed. Andrew A. Lipscomb (Washington, D.C.: The Thomas Jefferson Memorial Association, 1903-05), 2:221. Cf. Locke in A Letter Concerning Toleration, 26:
Nor can such power [care of souls] be vested in the Magistrate by the consent of the People; because no man can so far abandon the care of his own Salvation, as blindly to leave it to the choice of any other . . . . For no Man can, if he would, conform his Faith or Worship to the Dictates of another.href="#footnote7return">(Return)
8 Jefferson, "A Bill for Establishing Religious Freedom," in The Papers of Thomas Jefferson, 2:546. href="#footnote8return">(Return)
9 This section of the paper is taken in part from Vincent Phillip Muñoz, "James Madison's Principle of Religious Liberty," under review for publication by The American Political Science Review. href="#footnote9return">(Return)
10 Virginia Declaration of Rights, Article. 16; "Memorial and Remonstrance," Article 1. href="#footnote10return">(Return)
11 Gary Rosen identifies this starting point as "the obvious Protestant subtext of the "Memorial and Remonstrance." Rosen then draws out the following theological implications: "Religious truth becomes a particular sort of experience rather than a doctrine. In this view, sincerity takes the place of right-thinking and -acting." Gary Rosen, American Compact: James Madison and the Problem of Founding (Lawrence: University Press of Kansas, 1999), 23. Rosen is correct that the starting point of Madison's argument is compatible with certain strains of Protestantism, but this does not make Madison's argument necessarily Protestant. href="#footnote11return">(Return)
12 Madison, "Memorial and Remonstrance," Article 1. href="#footnote12return">(Return)
13 John Locke, A Letter Concerning Toleration, 27. href="#footnote13return">(Return)
14 Madison also makes the distinction between alienable (e.g., money) and unalienable (e.g. opinions) types of property in his essay on property, which appeared in National Gazette in 1792:
In its larger and juster meaning, it [property] embraces everything to which a man may attach a value and have a right, and which leaves to every one else the like advantage. In the former sense, a man's land, or merchandise, or money, is called his property. In the latter sense, a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. . . . In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. . . . Conscience is the most sacred of all property; other property depending in part on the positive law, the exercise of that being a natural and unalienable right.
Madison's emphasis. James Madison, "Property," 1792, in The Mind Of The Founder: Sources of the Political Thought of James Madison, revised edition, ed. and Introduction by Marvin Meyers (Hanover and London: Brandeis University Press, 1981), 186-87. href="#footnote14return">(Return)
15 Madison, "Memorial and Remonstrance," Article 1. href="#footnote15return">(Return)
16 Locke, A Letter Concerning Toleration, 26. href="#footnote16return">(Return)
17 Ibid., 28. href="#footnote17return">(Return)
18 Madison, "Memorial and Remonstrance," Article 1. href="#footnote18return">(Return)
19 For a discussion of the Founders' understanding of the difference and relationship between natural rights and civil rights see Philip A. Hamburger, "Equality and Diversity: The Eighteenth-Century Debate About Equal Protection and Equal Civil Rights," in 1992 The Supreme Court Review, eds. Dennis J. Hutchinson, David A. Strauss, Geoffrey R. Stone (Chicago: The University of Chicago Press, 1993), 299-317. href="#footnote19return">(Return)
20 The Oxford English Dictionary, prepared by J.A. Simpson and E.S.C. Weiner, 2nd ed. (Oxford: Clarendon Press, 1989), 3:446-47. See also the entries under "cognition" and "cognizance" in Samuel Johnson, A Dictionary of the English Language (London: W. Strahan, 1755) and John Ash, The New and Compete Dictionary of the English Language (London: 1775). href="#footnote20return">(Return)
21 In this light, I call attention to Locke's account of how religious beliefs are typically formed in The Essay Concerning Human Understanding, Book IV, Chapter 20, §9:
There is nothing more ordinary than children's receiving into their minds propositions (especially about matters of religion) from their parents, nurses, or those about them: which being insinuated into their unwary as well as unbiased understandings, and fastened by degrees, are at last (equally whether true or false) riveted there by long custom and education, beyond all possibility of being pulled out again. For men, when they are grown up, reflecting upon their opinions, and finding those of this sort to be as ancient in their minds as their very memories, not having observed their early insinuation, nor by what means they got them, they are apt to reverence them as sacred things, and not to suffer them to be profaned, touched, or questioned: they look on them as the Urim and Thummim set up in their minds immediately by God himself, to be the great and unerring deciders of truth and falsehood, and the judges to which they are to appeal in all manner of controversies.href="#footnote21return">(Return)
22 Ernest L. Fortin, "The Regime of Separatism: Theoretical Considerations on the Separation of Church and State," in Human Rights, Virtue, and the Common Good: Untimely Meditations on Religion and Politics, ed. J. Brian Benestad (Lanham, MD: Rowman & Littlefield Publishers, Inc., 1996), 3. href="#footnote22return">(Return)
23 Ernest L. Fortin, "Social Activism and the Church's Mission," in Human Rights, Virtue, and the Common Good: Untimely Meditations on Religion and Politics, ed. J. Brian Benestad (Lanham, MD: Rowman & Littlefield Publishers, Inc., 1996), 254-55. href="#footnote23return">(Return)
24 Ernest L. Fortin, "From Rerum Novarum to Centesimus Annus: Continuity or Discontinuity?" in Human Rights, Virtue, and the Common Good: Untimely Meditations on Religion and Politics, ed. J. Brian Benestad (Lanham, MD: Rowman & Littlefield Publishers, Inc., 1996), 226. href="#footnote24return">(Return)
25 Ernest L. Fortin, "The Regime of Separatism," in Human Rights, Virtue, and the Common Good, 11. href="#footnote25return">(Return)
26 Ibid. href="#footnote26return">(Return)
