The Essential Rights and Liberties of Religion in the American Constitutional Experiment
John Witte Jr.
Emory University School of Law
Notre Dame Law Review, Vol. 71, 1996
This Article applies Bacon's prudential instructions to the American constitutional experiment in religious rights and liberties - an experiment that today is, indeed, "wandering, without any regular system of operations." Applying Bacon's first instruction, Part I distills from the diverse theological and political traditions and experiences of the eighteenth century the most widely embraced "first principles" of the American constitutional experiment - the "essential rights and liberties of religion," to use eighteenth century parlance. These principles included liberty of conscience, free exercise of religion, confessional and structural pluralism, equality of religions before the law, separation of the institutions of church and state, and disestablishment of religion. Applying Bacon's second instruction, Part II analyzes the American constitutional experience in light of these first principles, lifting these principles out of the familiar free exercise and establishment clause cases of the past half century. Applying Bacon's third instruction, Part III considers the principles and practices of the American experiment against prevailing international norms of religious rights and liberties, finding much of the American experiment confirmed, but also finding portions of it need of refinement.
This Article is more expansionist than revisionist in inspiration and methodology. The essential rights and liberties of religion analyzed and advocated herein are not new creations. But I ground these principles in several eighteenth century sources and twentieth century international prototypes that have not been part of the conventional discussion. I also strip them of the thick accretions of recent casuistry that have obscured their essential value, vigor, and validity. The call for an integrated framework of religious liberty in America is also not new. But I warn against efforts to reduce the religion clause guarantees to one or two principles alone - even the vaunted principles in vogue today, such as neutrality, separation, equality, or accommodation. Religion is simply too vital and valuable a source of individual flourishing and social cohesion to be left to such primitive legal defenses. As both eighteenth century American writers and twentieth century international jurists have repeatedly argued, a variety of principles must be integrated into an interlocking and interdependent shield of religious liberties and rights for all. The principles of liberty of conscience, free exercise, pluralism, equality, separation, and disestablishment form the essential amalgam of any such shield.
Number of Pages in PDF File: 76
Keywords: Bacon, religious right, religious liberty, religionAccepted Paper Series
Date posted: June 21, 2011
© 2013 Social Science Electronic Publishing, Inc. All Rights Reserved.
This page was processed by apollo3 in 0.343 seconds