The Original Intent Of The Free Exercise Of Religion Clause

Many today mistakenly interpret these religion clauses to mean something like, “Americans are tolerant of private religious conduct.” But mere “toleration” of “private” religious conduct was precisely what James Madison, a primary author of the Bill of Rights, was careful to avoid. He favored the protection of robust freedom.

Madison’s commitment to religious freedom in public may have begun when he reviewed the proposed Virginia Declaration of Rights in 1776. That document suggested “all men should enjoy the fullest toleration in the exercise of religion.”

Yet years earlier, he had personally witnessed the supposedly tolerant Colony of Virginia imprison Baptist ministers because their beliefs were out of step with the predominantly Anglican colony. Such religious “tolerance” sent minority ministers to jail.

More fundamentally, Madison recoiled at the notion that exercise of religion was a gift from government to be merely “tolerated.” He saw it rather as a hallmark of a free society—an unalienable right endowed by a creator—that exists independent of government.

Many years after witnessing religious persecution in Virginia, Madison chaired the House conference committee on the Bill of Rights. In that role, he seized the opportunity to reject the language of toleration, instead grounding his proposal for the First Amendment in the language of individual liberty: “the civil rights of none shall be abridged on account of religious belief or worship … nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.” Read more»

Michael Berry, “What the Founders Understood About Religious Freedom That We Must Recover.”

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3 comments

  1. Dr. Clark,
    I want to pitch this idea into this discussion, though I don’t recall hearing or reading of this perspective. We know that the Founding Fathers were trying to at least prevent the kind of high handed government pressure over which religion one practiced in Europe, and to stop denominational persecution. So, when they were framing the Constitution as they did regarding religion, do you think that they also had the Islamic religion in mind as one to allow? I ask this for two reasons. One is that one of the main problems that people coming to America were fleeing was what I mentioned earlier, i.e. oppression by the government or denominational bodies, as we all well know, so I suggest that that was their paradigm in which they were thinking, i.e. religion within the Christian realm. My second reason to assume that they did not intend to allow for Islam, is the fact that as a young nation, we were already involved in conflict with Muslims who were capturing our merchant ships in the Mediterranean area usually holding ships, sailors, and cargo for ransom. As I understand it, our fledgling government even had a budget line item designated to pay off these marauders. ..until Thomas Jefferson became President and put together the beginnings of a powerful Navy for the purpose of stopping this Muslim confiscation of goods, ships, and placing Americans into slavery. When we read of some of the words of the Muslim pirates from that period, their rhetoric sounds just like the rhetoric of ISIS today. That is, they believed that their view was the only correct one and all others must either submit or die. So, I wonder if our Founding Fathers really had them in mind too when they drafted our Constitution? It’s hard to argue that they did when their experience with them was what it was, and the Islamic mindset was what it was. For those who would argue that our Founding Fathers were including them, why would they when the Islamic belief system annihilates our first amendment right regarding the freedom of religion? I wonder if there is any original documentation regarding that from the Founders?

  2. The address of the Danbury Baptist Association in the State of Connecticut, October 7, 1801, to Thomas Jefferson, is germane and worth reading. Here’s an excerpt:

    ‘Our sentiments are uniformly on the side of religious liberty: that Religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, [and] that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor. But sir, our constitution of government is not specific. Our ancient charter, together with the laws made coincident therewith, were adapted as the basis of our government at the time of our revolution. And such has been our laws and usages, and such still are, [so] that Religion is considered as the first object of Legislation, and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights. And these favors we receive at the expense of such degrading acknowledgments, as are inconsistent with the rights of freemen ………………. etc.

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