The Highway Forums General Discussion Theology Discussion Forum Moral Law

The Meaning of "Free Exercise"
Preliminary Thoughts
TIMON CLINE
OCT 10

Dissenting in City of Boerne v. Flores (1997), Justice Sandra Day O’Connor made what is perhaps her only ever astute point. “As is the case for a number of the terms used in the Bill of Rights, it is not exactly clear what the Framers thought the phrase signified.” She’s talking about the Free Exercise Clause.

Rather than review Locke’s musings (for the millionth time) or seek out a principle imbedded in the text. I want to briefly look at the use of the term prior to drafting and ratification of the First Amendment. But at the outset we should note that it is confusing to insist that the Free Exercise clause enshrined a principle of individual right of conscience when, prior to incorporation, the Congress had no ability to guarantee it. It was barred from meddling in religious affairs in the states. And this by desire and design early on. In 1776, John Adams expressed desire for “liberal toleration of all religious denominations,” and hoped that “Congress will never meddle with religion.” “Let every colony,” he declared, “have its own religion, without molestation.” This is exactly the settlement enacted by the Constitution.

If the free exercise of individuals (i.e., right of conscience) was being violated—that they weren’t getting exemptions—by the states, there was nothing the fed could do about it, as was understood for some time.

The first ever free exercise case, Permoli v. Municipality No. 1 of the City of New Orleans, 44 U.S. 589 (1845) denied its own jurisdiction to “question whether an ordinance of the corporate authorities of New Orleans does or does not impair religious liberty.”

“The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws. Nor is there any inhibition imposed by the Constitution of the United States in this respect on the states.”

Louisiana was on “equal footing with the original states in all respects whatever.” Therefore, its relationship to the federal constitution was the same as the first colonies turned states. The same bargain was struck.

“So far as they conferred political rights and secured civil and religious liberties (which are political rights), the laws of Congress were all superseded by the state constitution; nor is any part of them in force unless they were adopted by the Constitution of Louisiana as laws of the state… In our judgment, the question presented by the record is exclusively of state cognizance, and equally so in the old states and the new ones.”

Case dismissed. To claim that this case is “uninformative about the meaning of the free exercise clause,” as Michael McConnell does, is laughable. It is immensely informative, it just doesn’t mean (or didn’t) what people want it to now. The free exercise clause had no bearing on, no ability to temper, state measures. So, if it enshrines some individual right of conscience, of exemption from general policy, then it was a lame duck clause. Given that the convention completely rejected Madison’s proposal for preemptive incorporation of the Bill of Rights to the states, it is clear that such a development was not expected or wanted. What then would this individual free exercise right do? But scholars are certain that such an individual right was included. Who would it be enforced against? Who would enforce it?

What Madison argued in the Memorial and Remonstrance, viz., an individual right to free exercise, was something only a state could recognize and inaugurate. It makes no sense for a national (or general) government that has already exempted itself from religious policy to guarantee that which it had no purview over. It was not that individual free exercise according to conscience was not recognized in each state; it is simply that the federal constitution was incapable of offering any such guarantee.

George Sharswood (1810-1883), in his notes to Blackstone, says that the right to individual “free exercise and enjoyment of religious profession and worship” had “no place under the English system,” and, therefore, was not found in Blackstone. Chancellor Kent had added the “fourth head” to the personal tripartite rights of security, liberty, and property. Sharwood claims that, per Kent, this right was “ordained by the constitution of the United States” and that “the same prohibition on the State legislatures appears in all the State constitutions.” (He cites Kent’s Commentaries 2:34). Kent’s Commentaries were published between 1826 and 1830. Sharswood is writing much later, so perhaps there were multiple editions. But from what I can tell Kent does not mention religion, profession, or worship in Lecture 24 (Of the Absolute Rights of Persons), nor does he mention these topics in Lecture 34 (Of the History, Progress, and Absolute Rights of Property). His Commentaries on American Law feature no heading dedicated to religion, profession, or worship.

In Lecture 11, Kent notes that whilst the United States government has no religious test for office, some states do. He does not mention this in Lecture 18 (Of the Concurrent Jurisdiction of the State Governments). Where Sharwood is getting this is unclear. What he is right about is that the English common law did not deliver a “free exercise” right to America. Sharwood does not tell us what “free exercise” meant in 1791 or, for that matter, prior to 1791.

Indeed, let’s go back further.

Earlier usage of “free exercise” in the English language stood for full toleration, as in, you were allowed to practice your religion outwardly, not just privately.

My research into late sixteenth and seventeenth century employment of the term cannot yet be considered exhaustive, but it’s a good start. (Yes, this is a research dump. That’s the point of this Substack… so I don’t forget or lose things.) Some examples:

Richard Knolles (1545-1610 (The Turkish History (1687-1700)) notes that early in Islamic conquest, out of necessity, “free toleration of all religions” was granted in order to compete with Christianity, “especially in outward appearance, courted and favored the Christians,” attempting to draw parallels between Islam and Christianity to sooth relations (50). “Mahomet himself” guaranteed this in the “Alchoran” (“If you adore not what I adore, let your Religion be to you, and mine to me”). The standard Mahometan policy was to tolerate existing (“anciently founded”) Christian churches but not permit Christian expansion (52).

Pierre Du Moulin questioned whether it was just for the Pope to tolerate Jews in Rome, “which believe that Jesus Christ was a seducer and deceiver, and there to permit them the free exercise of their religion, and yet to condemn to the first those that say there is no other mediator but Jesus Christ, neither any other propitatorie [sic] sacrifice for his death [i.e., Protestants].” Father Cotton a Iesuite, the Kings confessour, his two and thirtie… (1614) 51.

Edward Brerewood: Noting that in the dukedoms of the Dutch low countries, “only Protestants have the public (for otherwise Arians, Anabaptists, Socinians are here privately tolerated) and free exercise of their religion.” Enquiries touching the diuersity of languages, and religions through ... (1614).

So, in this sense, free exercise meant preferential treatment. But generally, free exercise means outward practice. In other words, free exercise isn’t about inward belief but external demonstration.

But in the mid-seventeenth century, “free exercise” seems to mean unimpeded but not necessarily favored (i.e., not given establishment privileges). Mere toleration on the other hand seems to be that which is not actively persecuted if exercised un-freely, that is, privately. The distinction is between public and private (corporate) religious expression (public services, mainly). Corroborating examples:

“Some heathen emperors also gave commandment, that men should cease from persecuting the Christians, and that Christians should have the free exercise of their religion, build oratories, and places for their meetings and assemblies, and quietly possess them, for the service of their God.” Christopher Sibthorp, A reply to an ansvvere, made by a popish adversarie… (1625), 45.

“… the free exercise of holy function… and free exercise of ecclesiastical function…” Thomas Morton, The grand imposture of the (now) Church of Rome manifested… (1626), 322. “… free exercise of their ministry…” Robert Sanderson, Ten sermons preached … (1627), 37. “… with an edict which was read that the king granted them the free exercise of their religion restoring unto them the cathedral church of Carthage…” John Floyd, An apology of the Holy Sea… (1630), 127. “… free exercise of the mass…” John Hayward, The life, and raigne of King Edward the Sixt (1630), 121. “… the free preaching of pure doctrine, the free exercise of powerful practice…” John Bond, A doore of hope, also holy and loyall activity two treatises… (1641), 16. See also George Hakewill, An ansvvere to a treatise vvritten by Dr. Carier, by way of a letter… (1616), 4 (“… permitting those churches the exercise of their religion within your dominions…”). William Camden, Annales the true and royall history of the famous empresse Elizabeth ... (1625) (“… others who being zealous of the Roman Religion, fretted that they were not permitted the free exercise thereof…”).

You get the gist. The search must and will continue into the late century, but this seems to be the general usage, and I haven’t seen any scholarly treatments of the subject begin there. Free exercise in the early to mid-seventeenth century is when you’re allowed to have church buildings, and pastors, and preaching, etc. The outward forms of worship. The reference point is institutional and communal not individual.

Jumping ahead: By the eighteenth century, toleration seems to have entailed open or public practice and establishment meant state tax support for “maintenance” of ministers and other civil privileges for members of the favored religion.

In a 1772 essay by Franklin in The London Packet, he recounted the founding of New England. Those emigrants left England “to establish a new country for themselves, at their own expense, where they might enjoy the free exercise of religion in their own way.”

Two years later, Hamilton’s Full Vindication of the Measures of the Congress complained that in Canada, English law had been replaced by French law resulting in the establishment of the “Romish faith.” By contrast, “The free exercise of the protestant faith depends upon the pleasure of the Governor and Council.”

In 1775, Hamilton complained about the Quebec Act, a subject of much consternation for him and other Americans at the time. The Act had, in effect, given “the Church of Rome” a “sanction of legal establishment” in that province. In other words, Catholicism had been established in the king’s dominion (i.e., “permanent support of Popery”). This was a most subversive and tyrannical act by the home government. The text of the Act, as quoted by Hamilton, is significant.

“And for the more perfect security and ease of the minds of the inhabitants of the said province, it is hereby declared, that his Majesty’s subjects professing the religion of the church of Rome in the said province, may have, hold, and enjoy, the free exercise of the religion of the church of Rome, subject to the King’s supremacy, &c. and that the clergy of the said church may hold, receive and enjoy their accustomed dues and rights, &c.”

In this case, “free exercise” entailed, for Hamilton, establishment insofar as Roman practice was permitted and clergy supported. It was not just that individual Roman Catholics were tolerated in Quebec. The “free exercise” of that church, by civil sanction, meant that it had been granted authoritative, official status—not simply the toleration of “his Majesty’s subjects professing the religion of the Church of Rome,” but also the recognition of “the clergy of said church.” The “free exercise” of Protestantism and Romanism were mutually exclusive for Hamilton.

Staying in Canada, The Instructions and Commission from Congress to Benjamin Franklin, Charles Carroll, and Samuel Chase for the Canadian Mission (March 20, 1776), the “whole people” of Canada were promised that were promised that the “Exercise of their Religion” would be “undisturbed.” Whatever was in place would remain, and the clergy would retain their estates and whatever other state benefits then enjoyed.

“the Government of every Thing relating to their Religion and Clergy shall be left entirely in the Hands of the good People of that Province, and such Legislature as they shall constitute: provided however that all other Denominations of Christians be equally entitled to hold Offices and enjoy civil Privileges and the free Exercise of their Religion and be totally exempt from the Payment of any Tythes or Taxes for the Support of any Religion.”

Free exercise was, again, inseparable from the outward, communal, institutional practice. Establishment meant public funds; free exercise meant public practice.

The Jefferson Doctrine

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. My still timid contention is that the free exercise provision can only refer to the establishments or religious policy of the states. Congress won’t meddle in those affairs (i.e., the free exercise of state religious policy). That’s what the establishment clause provision means and there’s really only one clause, as Steven Smith likes to point out. And contra Munoz, provisions in the state constitutions can’t help you on this because their referent is obviously, necessarily distinct. A state could guarantee free exercise of individuals, but the fed couldn’t. In any case…

In his Second Inaugural address, Thomas Jefferson reported that, per the constitution, his first administration had left the “free exercise” of religion to the states “as the constitution found them.” Whatever his faults Jefferson’s constitutional theory is not why we’re in the mess we’re in today, as I’ve said before. His wall of separation was basically an exaggerated summary of the pre-incorporation establishment clause. His Fair Copy commentary confirms all this. Akshually, Jefferson was good on the First Amendment. Later, twentieth century courts were just stupid; or rather, motivated.

Michael McConnell rebukes Jefferson for—get this!—not being cutting edge, not being progressive enough. He was still too narrow, too Lockean. He had this weird distinction between belief and action (“the legislative powers of government reach actions only, and not opinions “)—a very traditional distinction, to be sure (see Richard Baxter, for example)—says McConnell.

Hence,

“Jefferson’s understanding of the scope and rationale of free exercise rights, however, was more limited even than Locke’s… Jefferson’s advocacy of a belief-action distinction placed him at least a century behind the argument for full freedom of religious exercise in America… Thus, while Jefferson was one of the most advanced advocates of disestablishment, his position on free exercise was extraordinarily restrictive for his day.”

Now McConnell cites William Penn, Obadiah Holmes, and a random comment from St. George Tucker to say that freedom of conscience or belief requires freedom of action. Ergo, free exercise means freedom of conscience actualized, I guess. Wild. Jefferson was antiquated because a Quaker and a Baptist said so—they define the cutting edge (and proper edge), apparently. And this matters why? Do you see now how bad (certainly slim) much of the historical scholarship on this question is? Much philosophical wish casting under the guise of history.

More research in order, but isn’t all this curious? Sandy Day was more directionally correct than the “originalists.”