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What Mr. Jefferson said

Yesterday’s post contained a brief item wondering how people opposing construction of an Islamic community center and mosque near the former World Trade Center site in New York could square that opposition with the First Amendment to the Constitution.

One commenter accused me of “politically correct posturing” and said that the opposition of a large number of people is sufficient reason to oppose it. Another commenter dislikes what she has heard about the imam organizing the project and its funding, adding that the First Amendment has limits that do not include protection of “propaganda” for a religious faith she does not share of like. Both made irrelevant allusions to Pearl Harbor.

Neither comment, you notice, directly addressed the question.

I did not publish that question yesterday out of a spirit of puckish provocation. I would genuinely like to know how, since opposition to this project appears to come mainly from Republicans, how a conservative upholder of the Constitution reconciles attempts to shut down the project with the First Amendment’s guarantee of free exercise of religion.

(Particularly after Mayor Bloomberg said, “We would betray our values—and play into our enemies' hands—if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists. ...”)

To assist in that consideration, I’m offering below an historical document, the Virginia Act for Religious Freedom, drafted by Thomas Jefferson in 1779 and enacted in 1786. It is one of the three things, along with writing the Declaration of Independence and establishing the University of Virginia, that he chose to have listed on his tombstone.

The complete document, though instructive, is written in eighteenth-century syntax, and eighteenth-century legal syntax at that. So, though I encourage you to consider the entire text, I first excerpt a key passage:

... that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own. ...


The Virginia Act for Religious Freedom

Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporal rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind; that our civil rights have no dependence on our religious opinions, more than our opinions in physics or geometry; that, therefore, the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to the offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; that it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them.

Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.

And though we well know this Assembly, elected by the people for the ordinary purposes of legislation only, have no powers equal to our own and that therefore to declare this act irrevocable would be of no effect in law, yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.

Posted by John McIntyre at 10:44 AM | | Comments (6)
        

Comments

The First Amendment forbids the government from limiting the free exercise of religion. It does not limit the rights of other people to criticize what someone else chooses to say or do, or to try to prevent them from doing it, through non-governmental means Some speech and actions may be constitutionally protected, but they may also be very bad as matters of public policy.

"... to suffer the civil magistrate to intrude his powers into the field of opinion ... ."

As one of "the civil magistrates" (a trial court judge), I have come to appreciate with each passing year on the bench how freeing it is to be enjoined from intruding "into the field of opinion." I've got enough to do to understand arcane and byzantine statutes, conflicting appellate decfisions, and the complications attendant to the facts of even the simplest of cases.

I recall reading an obituary for a trial court judge a number of years ago, back when I was a much newer judge, and one attorney lauded the late trial judge as someone who knew how to use the position to change society for the better. Why any judge would want to use the position for more than judging under the law is beyond me. The job is demanding enough just doing that.

Amen.

Thank you for that.

All judges should read Tim's opinion. Also all newspaper publishers, reporters, social workers and anyone who has convinced himself that his job (mission!) is to make things better for some people. Vivat Timotheus!

On Twitter, @fivethirtyeight made the point I was laboring toward more compactly:

"The problem with some critics of the mosque is that they treat the 1st Amendment as a technicality, rather than (also) a set of values."

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About John McIntyre
John McIntyre, mild-mannered editor for a great metropolitan newspaper, has fussed over writers’ work, to sporadic expressions of gratitude, for thirty years. He is The Sun’s night content production manager and former head of its copy desk. He also teaches editing at Loyola University Maryland. A former president of the American Copy Editors Society, a native of Kentucky, a graduate of Michigan State and Syracuse, and a moderate prescriptivist, he writes about language, journalism, and arbitrarily chosen topics. If you are inspired by a spirit of contradiction, comment on the posts or write to him at john.mcintyre@baltsun.com.
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