Positive Liberty

Some folks are surprised to learn that blasphemy laws and some prosecutions under them persisted after the ratification of the Bill of Rights. I don’t interpret that to mean blasphemy laws are consistent with Free Speech; clearly they are not. Rather, their persistence was more a function of the original federalist understanding of the First Amendment where none of the Bill of Rights, including the First Amendment’s religion clauses, applied against state and local governments.

Walter Berns, a brilliant scholar with whom I often disagree (for instance, he has notably called for reinstituting censorship and believes Free Speech forbids prior restraints only, not after the fact prosecutions), explained the secular rational for blasphemy laws. He discussed a founding era blasphemy case, which as I will show, I think, he either partially misunderstood or “found” a controversial “Straussian” meaning; but he nonetheless accurately explained how blasphemy laws might properly exist in a nation like the United States which was founded to be a secular commercial republic. As he writes in 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 notes how blasphemy laws remained on the books, but in post-Founding America, the judges, in maintaining their consistency with the rights of conscience, had to “redefine the offense” to include utterances against any religion that would tend to cause a breach of the peace. In other words, the policy behind the offense was now to protect the peace, not the Christian or any religion. These state courts had effectively “stripped blasphemy of its religious character.” Leading Berns to ask, rhetorically, “who can quarrel over a blasphemy law that protects one and all [religions] alike”?

Under the old understanding of blasphemy laws, the purpose was to protect the Christian religion from harm. As such, a Christian commonwealth would be charged with protecting the Christian religion only. Under the principles of modern republicanism, on the other hand, blasphemy laws protect breaches of the peace and as such, the law has a duty to protect whatever is the dominant religion of the people.

[My understanding is that founding era republicanism views Free Speech as a natural right, and therefore, government has no right to proscribe any kind of "blasphemy"; elsewhere Berns has argued that because citizens surrender their natural rights when leaving the state of nature, they surrender their right to speak freely, in exchange for living in an orderly society; however, many scholars differ with Berns on whether founding theory teaches that man surrenders his natural rights when leaving the state of nature. And that's probably because the Founders themselves and philosophers they followed differed on what exactly is surrendered, what is retained.]

However, when I go back and look at the original case, People v. Ruggles, Berns’ reports doesn’t seem quite right. Rather, Judge Kent himself seems to invoke both rationales, protecting the Christian religion from harm and protecting from breaches of the peace, in upholding the blasphemy convictions. It’s interesting to see Judge Kent struggle with the seeming conflict between blasphemy laws and liberty of conscience.

It will be fully satisfied by a free and universal toleration, without any of the tests, disabilities, or discriminations, incident to a religious establishment. To construe it as breaking down the common law barriers against licentious, wanton, and impious attacks upon christianity itself, would be an enormous perversion of its meaning. The proviso guards the article from such dangerous latitude of construction, when it declares, the “the liberty of conscience hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of this state.”

What he quotes from NY’s Constitution justifies the secular rationale for blasphemy laws, but not protecting the Christian religion from harm. However, Kent makes it clear that he believed (and that’s all it is, one judge’s opinion) under New York law, Christianity receives special protection from harm:

Nor are we bound, by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the grand Lama; and for this plain reason, that the case assumes that we are a christian people, and the morality of the country is deeply ingrafted upon christianity, and not upon the doctrines or worship of those impostors.

Two interesting things to note. First, Kent’s opinion on how to reconcile liberty of conscience with blasphemy laws that protect Christianity was not uncontroversial. At the New State Convention in 1821 Erastus Root attempted to amend the Constitution to overturn the Ruggles opinion, arguing that it violated the letter and spirit of New York’s Constitution. His amendment failed though.

More importantly, I’m sure many lesser known Founding Fathers believed as Judge Kent did — that the law should protect the Christian religion and not that of “imposter” religions. It has not been determined what the two hundred and some odd men who, as a group, comprised the “Founders” believed in this and many disputed areas, which is one reason why they probably settled on broad language limiting what the federal government could do, and left most matters up to the states.

But I do know, in studying what the key Founders — the men whose faces grace US currency — believed and it is nothing like Kent’s opinion. They believed “religion” meant all religions and as such the law would equally protect Islam and Hinduism with Christianity. Madison and Jefferson believed it violated natural right for tax dollars to support the Christian religion (or any religion). Washington differed. Yet, because Judaism and Islam — two religions he mentioned by named — had equal rights with Christianity, such believers, Washington noted were by right entitled to exemptions or accommodations from laws which would take their tax dollars to support Christianity. As he wrote:

I am not amongst the number of those who are so much alarmed at the thoughts of making people pay towards the support of that which they profess, if of the denomination of Christians; or declare themselves Jews, Mahomitans or otherwise, and thereby obtain proper relief. As the matter now stands, I wish an assessment had never been agitated, and as it has gone so far, that the Bill could die an easy death; because I think it will be productive of more quiet to the State, than by enacting it into a Law; which, in my opinion, would be impolitic, admitting there is a decided majority for it, to the disquiet of a respectable minority. [My emphasis.]

As I’ve written elsewhere, these Founders seemed to go even further than merely believing all religions should be equally protected by the law, but that they all lead to the same God. They made clear that the organic, or “higher law” that founds America — the spirit of founding era republicanism — is not Christianity, but rather reason, or some kind of natural theism (”the laws of Nature and Nature’s God”) which endows all religions with equal rights. Thus, if Christianity is protected under blasphemy laws, the spirit of republicanism demands all religions, or whatever religion the people may be, likewise be protected, for the sole rationale of protecting the public order from breaches of the peace, not protecting any particular religion from harm. Arguably, the spirit of republicanism holds all blasphemy laws to violate the natural right to free speech.

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