Beyond Belief, Beyond Conscience

The argument of Beyond Belief, Beyond Conscience rests on two claims about the importance of religious liberty to our broader constitutional tradition. First, of all the rights we possess, the commitment to “the free exercise of religion” is the one that places the greatest emphasis on the moral autonomy of individuals. Most other constitutional rights set standards that government has to meet when it regulates our behavior. The free exercise of religion, by contrast, assumes that in the realm of belief and conscience, government has no right to act at all, unless individuals commit overt acts that infringe the rights of others.

Second, the idea that religion should be disestablished best illustrates the fundamental constitutional principle that government exercises only the power that the people delegate to it. Most other societies assume that religion deserves public support and regulation because it is so essential to maintaining public order and morality. The American position assumes instead that religion will flourish when all religious associations are wholly voluntary and self-sufficient, and that freeing government from a direct connection to religion would prevent its own corruption.

Together these two points identify what I call “the radical significance” of religious liberty. Ordinarily when we discuss this question, we think primarily about how courts resolve the conflicts that still inevitably arise. We are at one such moment today, when we are actively disputing whether state and local governments can restrict and regulate religious services as a necessary measure to combat the Covid-19 pandemic.

Though this book examines leading legal conflicts over the free exercise of religion, its focus is primarily historical in nature. My major concern is to explain why American ideas of religious freedom went further than the comparable efforts of Europeans to develop new modes of religious tolerance to replace the bloody conflicts that accompanied the Reformation. This is not a simple story of how American colonists were always committed to broad principles of religious liberty.

The liberty they initially sought was meant for their own particular denominations, not for dissident groups like the Quakers and Baptists (or later, Mormons and Jehovah’s Witnesses) whom mainstream Protestants found so offensive.

Yet by the eighteenth century, freedom of conscience was perceived as a universal right that everyone (men and women alike) possessed. And a commitment to that right was fundamental to the thinking of such leading revolutionaries and constitutionalists as Thomas Jefferson and James Madison, whose thoughts on religious liberty still influence us today. The movement to disestablish religion that Jefferson and Madison pioneered created the thriving marketplace of denominational competition that sets the United States apart from other societies.