Liberty of Conscience and the Persistence of Blasphemy Laws in the United States

When I first started blogging on the issue of the political-theology of the American founding many years ago, I grappled with the notion that blasphemy laws continued to exist in the United States under its constitutional order. I quoted the following from the late Straussian scholar Walter Berns in his book "Making Patriots":

Liberty of conscience was widely accepted at the time of the Founding, but this did not prevent some jurists and legislatures from insisting, at least for a while (and given our principles it could be only for a while), that Christianity was part of the law, meaning the common law. So it had been in England, and so, it was assumed by some (but not Jefferson), it would continue to be in America. But there was no disagreement about the place of the common law. Indeed one of the first things done by the states after independence was to declare (here in the words of the New Jersey constitution of 1776) that “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution].”  

But if the “rights and privileges” contained in the various state charters or constitutions included the right of liberty of conscience, and if, in turn, this right required, in Madison’s words, “a perfect separation between ecclesiastical and civil matters,” what did it mean to say that Christianity was part of the common law? Very little, as it turned out; and it turned out as it had to turn out. Consider, for example, the case of blasphemy in America…. pp. 32-33.

Berns then went on to note that to the extent that blasphemy prosecutions survived for a short period of time in the early American republic, it was redefined as something akin to a secular breach of the peace, with blasphemy now stripped of its religious character.

This site from the Library of Congress notes something similar:

One of the first recorded instances of someone being convicted for blasphemy in the state of New York occurred in 1811. In People v. Ruggles, the New York Supreme Court upheld the conviction, saying that the crime of blasphemy is “independent of any religious establishment,” and that it affects “the essential interests of civil society.” In 1824, the Pennsylvania Supreme Court similarly upheld a conviction for blasphemy in Updegraph v. Commonwealth. That court also concluded that blasphemy laws seek “not to force conscience by punishment, but to preserve the peace of the country….” Two more similar cases came down in the 1830s, with State v. Chandler in 1837 and Commonwealth v. Kneeland in 1838. In these cases, the Delaware Supreme Court and the Massachusetts Supreme Court both upheld blasphemy convictions on the grounds that they were meant to preserve public peace rather than punish beliefs.

Because these cases involved state law, the outcomes and rationales for them could differ. The Chandler decision gives a secular, pluralistic rationale for blasphemy laws:

If in Delaware the people should adopt the Jewish or Mahometan religion, as they have an unquestionable right to do if they prefer it, this court is bound to notice it as their religion, and to respect it accordingly. 

 ...

It will be seen then that in our judgment by the constitution and laws of Delaware, the christian religion is a part of those laws, so far that blasphemy against it is punishable, while the people prefer it as their religion, and no longer. The moment they change it and adopt any other, as they may do, the new religion becomes in the same sense, a part of the law, for their courts are bound to yield it faith and credit, and respect it as their religion. Thus, while we punish the offence against society alone, we leave christianity to fight her own battles, ...

This is not "Christian Nationalism." Personally, I think blasphemy laws are NOT consistent with notions of "liberty of conscience" or the First Amendment. Here is an interesting letter from John Adams to Thomas Jefferson, dated January 23rd, 1825 wherein he makes that point:

... There exists I believe throughout the whole Christian world a law which makes it blasphemy to deny or to doubt the divine inspiration of all the books of the old and new Testaments from Genesis to Revelations. ... [E]ven in our Massachusett which I believe upon the whole is as temperate and moderate in religious zeal as most of the States A law was made in the latter end of the last-century repealing the cruel punishments of the former laws but substituting fine and imprisonment upon all those blasphemers upon any book of the old Testament or new Now what free inquiry when a writer must surely encounter the risk of fine or imprisonment for adducing any argument for investigation into the divine authority of those books? ... I think such laws a great embarassment. great obstruction to the improvement of the human mind. Books that cannot bear examination certainly ought not to be established as divine inspiration by penal laws. It is true few persons appear desirous to put such laws in execution and it is also true that some few persons are hardy enough to venture to depart from them; but as long as they continue in force as laws the human mind must make an awkward and clumsy progress in its investigations. I wish they were repealed. ...

 

Law and Liberty Symposium on Harvey Mansfield

Check it out here. Harvey Mansfield is a Straussian. I don't consider myself a "Straussian." Though I am "Straussian influenced" and "Straussian interested." They ask the right questions and engage in intense philosophical inquiry. They also have extremely contentious understandings, many of which I can't endorse. 

I'm interested in their view on Locke. They think he was either an atheist or a "deist" as we understand the term today (cold, non-intervening distant deity). There is no question Locke was an "esoteric" something; but I doubt it was THAT as opposed to some kind of freethinker on doctrines like The Trinity. I haven't studied Hobbes as much as Locke, but I doubt he was an atheist or cold deist either.

Though Locke did seem to be influenced by Hobbes in the sense that they spoke of a "state of nature" and then of a "social contract and rights." They may have had different understandings of such; however they were still speaking on that common philosophical ground. On the religion issue, Strauss himself aptly noted that this construct was "wholly alien to the Bible." Yet, during the revolutionary era, the concept of state of nature/social contract and rights ended up being preached from the pulpit.

The Straussian discourse involves the implications of all of this.

For instance, here is how Mansfield understands Locke and America's Declaration of Independence:

Certainly, we live in a world influenced by the ideas of modern political philosophy—and Mansfield provides a key to this influence for the low price of his book. He introduces us to Hobbes, who provides an image of man in his natural condition, wherein he has a right to his own person, yet nothing to safeguard this right. God has no place in this state of war, where each person has the right to preserve his life in whatever way he judges necessary. What comes out of this natural state of war? The idea of the social contract—a new kind of government based upon reasonable consent. “Nature teaches men to preserve themselves,” Mansfield explains, “but … reason teaches men to seek peace by consenting to a common power over them, the sovereign.” Reason now is the foundation of government. 

Locke gives us the right to private property by expanding man’s natural right to his own body to include a right to the products of man’s labor. This has direct political implications. For when men, once again driven by reason, exit the state of nature into the social contract, they do so not only to preserve life but to protect private property. Locke domesticates Machiavelli and Hobbes, and we see his influence overtly enshrined in documents like the Declaration of Independence.

Understanding America's Declaration of Independence as "domesticating Machiavelli and Hobbes" seems a bit of a stretch to me. Though, I agree that the notion of unalienable rights to life, liberty and pursuit of happiness really have nothing to do with the Bible or traditional practice of Christianity and that the DOI, although a theistic document, is not a "Christian" one.

The revolutionary language of America's DOI is more of a product of Enlightenment philosophy. However, there is other language in that document that speaks more of "resistance" under the extant positive law that resonates with reformed theology/philosophy. 

Understanding What Drove Political-Theological Notions of Liberty of Conscience During The American Founding

Catholics Persecuted Protestants; Protestants Persecuted Catholics; and Protestants Persecuted One Another.

The different sects disagreed with one another. But it went beyond mere disagreement. America's founders were acutely aware of the history of religious conflict that occurred after the Protestant reformation. The "political-theological problem," recent in their historical memory, that America's founders wished to transcend. This needs to be stressed to understand how America's founders understood the notion of "liberty of conscience" which they viewed as the most "unalienable" of rights. 

Here is George Washington reflecting on this dynamic:

I was in hopes that the enlightened & liberal policy which has marked the present age would at least have reconciled Christians of every denomination so far that we should never again see their religious disputes carried to such a pitch as to endanger the peace of Society.

There is contention over whose ideology is responsible for the American founding. As I see it, the ideological origins of the American founding came from disparate streams that formed an amalgam. Christianity, or Protestant Christianity, was one of four or five chief ideological sources (see Bernard Bailyn). Though, the Protestant Christian component was extremely "pluralistic" for lack of a better term, in a sectarian sense of the term (pluralities of sects). 

Mark David Hall and others argue that reformed/Calvinism predominated. That may be true. However, there were plenty of other sects who not only fought for their "place at the table," but did so with a strong distrust of Calvinists, especially of the Presbyterian bent. This is John Adams writing on how he regretted his recommendation for a National Fast as President because of Presbyterian distrust!

The National Fast, recommended by me turned me out of office. It was connected with the general assembly of the Presbyterian Church, which I had no concern in. That assembly has allarmed and alienated Quakers, Anabaptists, Mennonists, Moravians, Swedenborgians, Methodists, Catholicks, protestant Episcopalians, Arians, Socinians, Armenians, & & &, Atheists and Deists might be added. A general Suspicon prevailed that the Presbyterian Church was ambitious and aimed at an Establishment of a National Church. I was represented as a Presbyterian and at the head of this political and ecclesiastical Project. The secret whisper ran through them “Let us have Jefferson, Madison, Burr, any body, whether they be Philosophers, Deists, or even Atheists, rather than a Presbyterian President.” This principle is at the bottom of the unpopularity of national Fasts and Thanksgivings. Nothing is more dreaded than the National Government meddling with Religion.

Finally, much has been made about Thomas Jefferson's letter to the Danbury Baptists wherein he invokes the term "separation of church and state." Much ink has been spilt on "the context" of what was meant by Jefferson's "Wall of Separation" and the implications thereof. Here is something to keep in mind: The "context" of the letter was a "complaint" about a particular religious sect who had control over Connecticut's then religious establishment -- the reformed/Calvinistic Congregational Church. Both Jefferson and the Danbury Baptists wanted to be "separate" from THEM. That's against whom their "wall" was directed.

Reformed Calvinists Deserve Credit For Political Liberty, But not Liberty of Conscience or Religious Liberty

Mark David Hall and his cohorts have shown an undeniably powerful, reformed/Calvinistic component driving the political-theological dimensions of the American founding. The "Calvinist resisters" as they have been termed, because they taught a privilege/right/duty to "resist tyranny." Here is Mark quoting John Adams on the matter:

In 1787, John Adams wrote that John Ponet’s Short Treatise on Politike Power (1556) contains “all the essential principles of liberty, which were afterwards dilated on by Sidney and Locke.”  He also noted the significance of Stephanus Junius Brutus’ Vindiciae Contra Tyrannos.  ...

Other names in this tradition might include Samuel Rutherford of "Lex Rex" fame and John Knox, who lead the reformation of the Church of Scotland. Calvin, as part of the political leadership of the City State of Geneva, saw a theological unitarian named Michael Servetus executed for heresy. To the extent that Calvin's 16th and 17th century "resisters" spoke on the matter, to a man, they supported Servetus' execution. A later generation of reformed thinkers, including America's founders John Witherspoon, Roger Sherman and others would not have supported what happened to Servetus because by that time they had accepted principles of liberty of conscience as taught by John Locke and his successors. 

Locke was not necessarily the first figure to argue for the right to freely practice and publicly speak on matters that others view as heretical. But, it's important to note that they came from outside of the Calvinist/reformed tradition. The Dutch Arminians and the American Roger Williams anticipated Locke. However, America's founders, including ministers preaching from the pulpit, were much likelier to invoke Locke than Williams, or other sources who may have anticipated Locke. 

This is ironic for numerous reasons, one of which is that Roger Williams founded an American colony. And to the extent that orthodox Christians like Witherspoon might wish to invoke a traditional orthodox Christian on the behalf of the proposition of "liberty of conscience" for all, they had that in Williams but instead turned to Locke, a putative Christian, but unorthodox, and who posited a notion of "state of nature/social contract and rights" that was, as Leo Strauss put it, "wholly alien to the Bible." 

Whatever contributions the reformed Calvinist types contributed to the notions of political liberty in the American founding, it's not right to credit them for the notions of liberty of conscience/religious liberty that America's founders endorsed. For that we would have to credit other Christian traditions and the Enlightenment. 

Congrats to our friend Mark David Hall

The renowned scholar Mark David Hall (at George Fox and Regent Universities) recently was appointed to the White House's Religious Liberty Commission's Advisory Board. As such, he can present his material to the public under the auspices of "Whitehouse.gov," which is what he does here in a lecture entitled, "The Story of America: The Faith of Our Founders."

For perspective, realize that quarreling is in the spirit of this blog. The embedded video is roughly 13 minutes long and only scratches the surface of Dr. Hall's research. For a more in depth analysis with "point/counterpoint," see this post and thread where, after the release of Dr. Hall's book, Dr. Gregg Frazer, now a Dean at The Master's University, expressed his disagreement with Mark, and the late great Tom Van Dyke, of course, was there to chime in.

Great Britain v. America: "Christian Nations"?

There is a quotation from the British jurist William Blackstone oft-cited in the "Christian Nation" debates that relates to Christianity's relationship to the common law, and also a notion of "higher law." (This notion of "higher law" has been termed the "Brooding Omnipresence in the Sky" by Justice Oliver Wendell Holmes, Jr.) From Blackstone:

This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; an such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason: whose office it is to discover, as was before observed, what the law of nature directs in every circumstances of life; ... And if our reason were always, as in our first ancestor before his transgressions, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the talk would be pleasant an easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

This has given manifold occasion for the benign interposition of divine providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason hath been pleased, at sundry times and in divers manners, to discover and enforce it's laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude that the knowlege of these truths was attainable by reason, in it's present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system, which is framed by ethical writers, and denominated the natural law. Because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority: but, till then, they can never be put in any competition together.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. ...

There is a problem, though, in the use this of quotation to argue on behalf of American Christian Nationalism: Blackstone wasn't talking about America, but rather Great Britain. Blackstone was also a Tory who took the side of Great Britain against America; he defended the notion of absolute Parliamentary sovereignty in his teachings.

Indeed, one thing I'd like people to understand is that to the extent that America might have been a "Christian Nation" in a political-theological sense, Great Britain was every bit as much, if not more so. The above quotation, again, would be apt in demonstrating that Great Britain may have been some kind of "Christian Nation." 

When America successfully rebelled from Great Britain, she retained the common law, but did need to "revise" it for her newfound circumstances. So, for the "American view," you would need to turn to American commentators. While many founders expressed their views on the common law, only two of which I am aware did comprehensive restatements: James Wilson of Pennsylvania and St. George Tucker of Virginia. 

America's founders disagreed on the exact nature of Christianity and the "common law" and Law itself. Below I reproduce James Wilson's position. Wilson, unlike others (like Jefferson), did believe that "Christianity" was part of the common law. What he meant by this and Christianity's relationship to "Law" is something scholars debate to this day. I know that my interlocutors and I have spilt much ink discussing and debating the meaning of Wilson's passage produced below. But note the difference between what was reproduced above by Blackstone and Wilson's position:

[H]ow shall we, in particular instances, learn the dictates of our duty, and make, with accuracy, the proper distinction between right and wrong; in other words, how shall we, in particular cases, discover the will of God? We discover it by our conscience, by our reason, and by the Holy Scriptures. The law of nature and the law of revelation are both divine: they flow, though in different channels, from the same adorable source. It is, indeed, preposterous to separate them from each other. The object of both is ― to discover the will of God ― and both are necessary for the accomplishment of that end.

[...]

Reason, say they, is the first rule of man, the first principle of morality, and the immediate cause of all primitive obligation. But man being necessarily dependent on his Creator, who has formed him with wisdom and design, and who, in creating him, has proposed some particular ends; the will of God is another rule of human actions, another principle of morality, obligation, and duty. On this distinction, the kinds of obligation, external and internal, are founded. These two principles must be united, in order to form a complete system of morality, really founded on the nature and state of man. As a rational being, he is subject to reason: as a creature of God, to his supreme will. Thus, reason and the divine will are perfectly reconciled, are naturally connected, and are strengthened by their junction.

[...]

Reason and conscience can do much; but still they stand in need of support and assistance. They are useful and excellent monitors; but, at some times, their admonitions are not sufficiently clear; at other times, they are not sufficiently powerful; at all times, their influence is not sufficiently extensive. Great and sublime truths, indeed, would appear to a few; but the world, at large, would be dark and ignorant. The mass of mankind would resemble a chaos, in which a few sparks, that would diffuse a glimmering light, would serve only to show, in a more striking manner, the thick darkness with which they are surrounded. Their weakness is strengthened, their darkness is illuminated, their influence is enlarged by that heaven-descended science, which has brought life and immortality to light. In compassion to the imperfection of our internal powers, our all-gracious Creator, Preserver, and Ruler has been pleased to discover and enforce his laws, by a revelation given to us immediately and directly from himself. This revelation is contained in the holy scriptures. The moral precepts delivered in the sacred oracles form a part of the law of nature, are of the same origin, and of the same obligation, operating universally and perpetually.

[...]

But whoever expects to find, in [Scripture], particular directions for every moral doubt which arises, expects more than he will find. They generally presuppose a knowledge of the principles of morality; and are employed not so much in teaching new rules on this subject, as in enforcing the practice of those already known, by a greater certainty, and by new sanctions. They present the warmest recommendations and the strongest inducements in favour of virtue: they exhibit the most powerful dissuasives from vice. But the origin, the nature, and the extent of the several rights and duties they do not explain; nor do they specify in what instances one right or duty is entitled to preference over another. They are addressed to rational and moral agents, capable of previously knowing the rights of men, and the tendencies of actions; of approving what is good, and of disapproving what is evil.

[...]

These considerations show, that the scriptures support, confirm, and corroborate, but do not supercede the operations of reason and the moral sense. The information with regard to our duties and obligations, drawn from these different sources, ought not to run in unconnected and diminished channels: it should flow in one united stream, which, by its combined force and just direction, will impel us uniformly and effectually towards our greatest good.

Again, as noted, we've spilt much ink debating what Wilson means here. Dr. Gregg Frazer notes that all of this is "reminiscent of Aquinas" but also that Wilson is privileging "reason" over "revelation" (something Aquinas never did). Others disagree. 

But note, unlike Blackstone, Wilson doesn't use verbiage like human reason is "corrupt," "blind[]," and that "the revealed law is of infinitely more authenticity than that moral system... denominated the natural law." Rather Wilson thought "[r]eason and conscience can do much; but still they stand in need of support and assistance," and that "the scriptures support, confirm, and corroborate, but do not supercede the operations of reason and the moral sense."

William Livingston on Church-State Separation

I wrote this in 2010. Here is the "quotation" from Livingston, I uncovered:

Hence the motley junction of king-craft and priest-craft (the most fatal engine ever invented by Satan for promoting human wretchedness) usually called the alliance between church and state, but in reality a most atrocious conspiracy between two public robbers, for sharing between them the plunder of nations; and for that purpose mutually supporting and supported by each other. And hence all politico-ecclesiastical establishments under pretence of promoting religion, by kings who generally have none, and church dignitaries who seldom care for any.

John Adams: Loved the Bible but thought its Extant Texts Corrupted By Institutional Authorities

John Adams' eccentric and nuanced opinions of the Bible/Christian religion are especially prone to "out of context," cherry picking for various sides in the historical political-theological culture wars, wishing to "score points." 

For instance, he once wrote to Thomas Jefferson:

I have examined all, as well as my narrow Sphere, my Streightened means and my busy Life would allow me; and the result is, that the Bible is the best book in the World.

Yet, he also believed that he was reading a canon of books whose contents had been corrupted. In Adams' world, the Roman Catholic Church was the chief "corrupter of Christianity," but that corruption also infected institutional Protestantism as well. For instance, Adams -- who considered himself a "liberal unitarian Christian" -- blamed Roman Catholicism for the doctrines of the Trinity and Incarnation which he bitterly rejected; he also rejected the King James Bible because it was too Catholic!

As he wrote to his son and namesake:

What do you call “The Bible”? The Translation by King James the first? More than half a Catholick.?

But it went beyond merely the KJV. In the same letter he continued:

“The Bible a Rule of Faith.”! What Bible? King James’s? The Hebrew? The Septuagint,? The Vulgate? The Bibles now translated or translating into Chinese, Indian, Negro and all the other Languages of Europe Asia and Affrica? Which of the thirty thousand Variantia are the Rule of Faith? 

But he had especial disdain for the KJV. As he also wrote to Thomas Jefferson:

We have now, it seems a National Bible Society, to propagate King James's Bible, through all Nations. Would it not be better, to apply these pious subscriptions, to purify Christendom from the corruptions of Christianity, than to propagate these corruptions in Europe, Asia, Africa, and America! 

In particular, John Adams didn't trust ANY of the texts of the Bible whose original manuscripts were written in Hebrew. He thought the original Hebrew manuscripts were ordered burnt by Pope Gregory the 9th such that essential truths contained therein were purposefully concealed. 

In fact, Adams thought this included not just the Old Testament, but St. Paul's writings. Adams believed, contrary to most biblical scholars, that Paul's original writings were in Hebrew (and thus burnt as part of Pope Gregory's efforts) as opposed to Greek.

Ultimately, this quotation from Adams summarizes how he approached the extant texts of then available Bibles:

What suspicions of interpolation, and indeed fabrication, might not be confuted if we had the originals! In an age or in ages when fraud, forgery, and perjury were considered as lawful means of propagating truth by philosophers, legislators, and theologians, what may not be suspected?

Though, Adams was still a devout theist and believer in Jesus (as he Adams understood Him) and thought somewhere in there, the Bibles whose corrupted texts he was reading contained profound truths.