The rationale for what is now called “originalism” has chiefly to do with the legitimacy of the 1787 Constitution.
John Adams reconciliation of natural right with popular consent is the task of constitutional politics.
Timothy Sandefur seems to let his dislike for John Adams get in the way of his analysis. Sandefur thinks that the issue is “the transition from the common law principle of ‘toleration’ to the natural-rights principle of religious liberty.” More generally, he suggests the issue is the transition from the idea that law creates rights to the idea that men, by nature, have rights. That is not the issue here. Adams had robust ideas of individual rights, including the rights of conscience, from the time he was a young man, as Brad Thompson has demonstrated in his John Adams and the Spirit of Liberty. That’s why, as Sandefur notes, in one of the letters to which he links, Adams said that the effort to secure the rights of conscience in Virginia were “worth all the blood and treasure which has been or will be spent in this war.” It is also why he refused to endorse Massachusetts’s religious establishment. Many historians have mistakenly attributed the establishment, in Article III, of the Massachusetts’s Constitution’s Declaration of Rights, to Adams. Sandefur accepts the correction in the narrow sense, but does not consider what that means for our understanding of Adams.
Adams realized, as Sandefur does not seem to, that it was one thing for Americans to accept that men have rights by nature, in the abstract, and it was another to get them to enact laws and constitutions that secured those rights in practice. That was the one of the main challenges American statesmen faced after declaring independence. How Adams approached that problem was the burden of my post.
In 1779 and 1780, Massachusetts became the first state to have a constitution drafted by a special convention and then ratified by the people–no insignificant feat. The constitution, drafted mostly by Adams, featured a two house legislature, an executive with a veto (which could be overridden by a 2/3 vote of the legislature), justices with tenure during good behavior, and prudently hedged separations among the legislative, executive, and judicial branches. The trouble Adams faced was that without an establishment the constitution would not be ratified. That bothered Adams. He was a believer in the rights of conscience, but he also thought it was important to establish the right of men consent to their constitution–following the wisdom outlined in the Declaration:
to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
There was a tension, in other words, between the liberty of conscience and the right of the people of Massachusetts to have a government with “such principles” and “such forms” as to them seemed “most likely to effect their Safety and Happiness.”
If we take his post literally, Sandefur ignores this issue. His title “should we ask permission for our rights?” suggests that interpretation. If this is what he meant, it is deeply problematic, for it suggests that the text of the constitution, and the process of writing, ratifying, and amending the constitution is irrelevant. If women have, by nature, a complete right to do whatever they choose to their bodies, then, by this logic, the Supreme Court was free to ignore the opinions of the sovereign American people, embodied in the Constitution that we the people ratified. According to this point of view, consent (ie: asking permission) being irrelevant to the supreme law of the land, the Court is free to assert, as it did in 1973, that there is such a right. Similarly, pro-lifers would be free to assert that the right to life of all human beings, at conception, is absolute, and, therefore, the Court may say that no state may allow any abortions whatsoever. If consent matters, then it’s a different story.
I suspect that Sandefur doesn’t mean to imply that. Instead, he seems to subscribe to the common belief that Adams had a less robust idea of the rights of conscience than did Jefferson and Madison, the tag team most responsible for the Virginia Statute Establishing Religious Liberty. Hence he mistakes an essay about the difficulty of reconciling individual rights with the, equally natural, right of the people to consent to the government and laws under with they live for a defense of the notion that governments, not nature, are the source of rights. Again, Adams was frustrated by Article III precisely because he rejected that view.
In this context, it is worth pointing to the last part of the Virginia Statute:
And though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with 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.
The Virginia Statute was merely a statute. It was not a part of a declaration of rights, and it was not ratified by the people. Had ratification been necessary in Virginia, as it was in Massachusetts, Madison may not have been able to end Virginia’s establishment in the 1780s. Were that the case, Madison may very well have taken the same road Adams did in Massachusetts. After all, he and Jefferson punted on slavery, just as Adams did on religious liberty, precisely because they could not get the people of Virginia to consent to ending that gross violation of the rights of man.
By Sandefur’s logic, taken literally, if one can use the failure to end establishment in Massachusetts in 1780 as proof Adams did not believe in the liberty of conscience, one could just as easily say that Jefferson and Madison did not believe that slavery was a violation of natural right, since they did not end it in Virginia in 1776 or even in their lifetimes. After all, slavery is hard to reconcile with his blanket assertion that “the Virginians recognized the primary value of individual freedom.” That’s unfair to Jefferson and Madison. But it is unfair to Adams to say that the failure to end establishment in Massachusetts in 1780 indicates that he did not believe in or understand the rights of conscience.
While we’re on the topic, we should note how slavery ended in Massachusetts. The very Declaration of Rights which Sandefur criticizes declared that “all men are born free and independent, and have certain natural, essential, and unalienable rights.” Given that Declaration, the Courts of Massachusetts declared the slavery no longer existed in the state. That was perfectly consistent with Adams’s view. In the 1780s, Massachusetts did not go so far with respect to religious liberty. Massachusetts respected the right of all to worship as they chose. At the same time, the people did not think it was a wrong to force men to contribute to churches. Adams thought that was a wrong, but he also realized he could not win that fight in 1780, just as Jefferson and Madison could not win the fight over slavery in Virginia at the same time.
There was and is, in short, a difference between recognizing a right in principle and securing it in law. Are we, like Thoreau, to refuse to comply with laws because our government, in some ways, fails to respect our rights? As Thoreau realized, any alternative to his is compromise. The point of my post was to highlight how difficult that sometimes makes constitutional politics. Adams’s approach, I maintain, can teach us something about how to get the American people, and American government, to respect our rights better in the future than it does now. As I noted, by enshrining protection for liberty of conscience in Article II of the Declaration of Rights, Adams made, in time, Article III unworkable. Article II planted the seed from which full religious liberty bloomed in Massachusetts.
Sandefur writes that the Virginia Statute “proclaimed religious liberty as a fundamental natural right—and not a gift to be given to people by the state.” That’s the very same point that Articles I and II of the Massachusetts Declaration of Rights, taken together, make. Sandefur then notes that “It took ten years for Jefferson and Madison to get that Statute passed.” In those years before the Virginia Statute was enacted, the rights of conscience still existed, but they were not recognized or secured by law. Massachusetts was in the same situation, but for a longer period. The challenge was to get the people of Massachusetts to recognize, in law, the full rights of conscience, just as it was a challenge to get Virginians to recognize that slavery was a violation of the rights of men.
Before closing I should note a few other key points about Adams and religious liberty. Sandefur points to a comment from Adams’s Autobiography about liberty of conscience. (Sandefur asserts this passage was in Adams’s Diary. The error is probably because he relied on the old edition. Charles Francis Adams merged the two documents when he edited them for publication in the 1850s. Modern editors have separated them). Adams recollects that in 1774, in Congress, some Quakers from Pennsylvania challenged Adams, complaining about Massachusetts’s establishment. Adams reply did not, as Sandefur suggest, support mere toleration. Instead, it highlighted the very issue that was the topic of my original post:
That the People of Massachusetts were as religious and Consciencious as the People of Pennsylvania: that their Consciences dictated to them that it was their duty to support those Laws and therefore the very Liberty of Conscience which Mr. Pemberton invoked, would demand indulgence for the tender Consciences of the People of Massachusetts, and allow them to preserve their Laws.
Sandefur, like Bernard Bailyn, who calls it a “shabby performance” (Bailyn, Ideological Origins of the American Revolution, 269), neglects the context. Immediately, after making that comment, Adams noted that “it might be depended on, this was a Point that could not be carried: that I would not deceive them by insinuating the faintest hope, for I knew they might as well turn the heavenly Bodies out of their annual And diurnal Courses as the People of Massachusetts at the present day from their Meeting House and Sunday Laws.” Immediately before the comment about the beliefs of the people of Massachusetts, Adams noted that delegates to Congress “had no Authority to bind our Constituents to any such Proposals.” Adams knew that the people of Massachusetts, who he represented, would not consent to full liberty of conscience. He did not say he thought the people of Massachusetts had reason on their side. What he did realize was that if Pennsylvania demanded that Massachusetts repeal its establishment as a condition of Union, the Union would be doomed. And if Massachusetts had insisted that Virginia and South Carolina end slavery in 1787 as a condition of Union, the Union would have failed. Hence both Adams and Jefferson allowed criticisms of slavery as “cruel war against human nature itself,” to be deleted from the final version of the Declaration. Such is politics, even high politics.
In the 1774 exchange Adams was pointing to a paradox that is worth pondering. Liberty of conscience implies the right of people to believe as they choose. What happens when people, in good conscience, have a collective, rather than an individual, view of that right? Does it make sense to say, “you may believe whatever you want, but if you believe x you are wrong, and if a constitutional majority agrees with you, we will not let you vote your conscience.” Isn’t that a version of the very “toleration” that Sandefur criticizes–”your belief is contemptible, but you are free to maintain it. . . ” (It might be the reason why Jefferson called the Statute an “Establishment of Religious Liberty.”) As we noted, the trouble is particularly acute if one believes, with Adams, Jefferson, Madison and the rest of the gang, in the natural right of the people to consent to the laws under which they live. That right implies that our constitution must meet the people where they are. That being the case, the challenge is to help move opinion, and law, toward a better understanding of natural right. That is precisely what Adams did.
To be sure, Adams signed the Sedition act. But Jefferson and Madison were not so pure, particularly in Jefferson’s case. If one looks at Jefferson’s Second Inaugural address, or his approval of People v. Croswell, one sees that he was happy to support sedition prosecutions at the state level. President Jefferson, sounding like Justice Chase, even suggested that “a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses.”
Madison was better in this regard, but even he was willing to let mobs assault Federalist editors (link no longer available), and destroy their printing presses, during his Presidency.
The point here is that every statesman of that era had to deal with the reality that the people did not always support natural right, and/or had a different understanding of it, and each made a strong effort to move the ball down the field over time. If, as Sandefur writes, “No ‘compromise’ is appropriate when it comes to individual rights,” every one of the founders failed: Massachusetts still had a form of establishment when Adams died, and Virginia still had slavery. Adams was still paying a mandatory tax to the church of his choice and Jefferson still owned a couple hundred human beings.
This post has gone on rather too long. But I’ll make one final point. What are we to make of the fact that the Virginia Statute suggests that monotheism is the state religion? As it says near the start, “Well aware . . . that Almighty God hath created the mind free, and manifested his supreme will that free it shall remain.” Jefferson may have written, in the Notes on the State of Virginia, that “it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg,” but he also seemed to think that the idea of individual rights depended upon belief in a Creator who endows us with rights. As he wrote elsewhere in the Notes, “can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?” According to Jefferson, people were free to believe in as many or as few gods as they choose, but the establishment of religious liberty, and the rights of men which justified it, relied on the idea that there is a single Creator who endows men with rights. He would tolerate other religions, but nothing more.