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I would maintain that th sa homoy by the courts is one major reason for the utter confusion we see in public discourse about the proper relationship between law, liberty, and religion. But I would 80 one

tep further in my comments about the courts. I would maintain that the courts have been forced into a set of ad hoc judyments because they have failed either to understand or to apply the principles of the Constitution that they are charged with expounding

What I would like to do here with the rest of my time today is this. I would like to lay out the basic principles of the American founding with respect to lavo, liberty, and religion as I understand them. That will take up most of the rest of the time we have available. In the course of doing so, I hope I shall be shedding light on at least a few contemporary First Amendment issues, such as school prayer, aid to private schools, and conscientious objection.

In laying out the basic principles, it seems to me we ought to start with the Declaration of Independence, the most basic statement of the nation's principles. The Declaration will help us understand the relationship between law and liberty. To get to the role of religion, we then will have to move beyond the Declaration to the Constitution and Bill of Right::.

I would like to start di: cussion of the Declaration by reading its most famous sentence, the second sentence:

We hold these Truths to be self-evident, that all Men are
created equal, that they are endowed by their Creator with
certain unalienable Righ:s, that among these are Life, Lib-
erty, and the Pursuit of Happiness-that to secure these
Rights, Governments ar? instituted among Men, deriving
their just Powers from the Consent of the Governed, that
whenever any Form of (overnment becomes destructive of
these Ends, it is the Rght of the People to alter or to
abolish it, and to instiute new Government, laying its
Foundation on such Prin iples, and organizing its Powers in
such Form, as to them shall seem most likely to effect their

Safety and Happiness. Now let us go back to the fourth of the self-evident truths: "To secure these rights Governments are instituted.” Why governments? To answer this we have to tack up a step. Why does the right to life, liberty, and the pursuit of happiness require government? For the clearest answer, we shculd look to the source of Jefferson's phrase, namely, John Locke's Second Treatise of Government.

Jefferson spoke of life, liberty, and the pursuit of happiness. Locke spoke of life, liberty, and property. With this slight change we can say- -Carry Wills notwithstanding---Jefferson's thought and the Declaration are essentially Lockean. We know this from Jefferson's notes. Jelterson took extensive notes on Locke, and the Declaration very closely follows the Second Trentise', especially the chapter in the treatise on the dissolution of government.

Why are governments necessary? Locke's answer, essentially similar to one given decades earlier by Thomas Hobbes, turns upon his distinction between the state of nature and civil society. For Locke, the state of nature refers not to a historical, prepolitical human condition but to a condition that is always possible and to some extent always present. People are in a civil society, according to Locke, when they accept a common magistrate or authority above them. They are in a state of nature with respect to each other when they accept no such common magistrate. (Foreign leaders, in the absence of international law, are thus in a Lockean state of nature.) Without a common magistrate, men are free, independent, and equal. They want to preserve their life, liberty, and property, and they have a natural right to do so. The right to preserve life carries with it the right to enhance life by mixing one's labor with the scarce goods provided by nature and then to acquire or own the resulting product. However, according to Locke, it is all but impossible to use labor effectively in a purely natural state. Improving upon nature presupposes time and security. Without common magistrates, however, the person who improves upon nature should not be surprised to find someone else stealing the fruits of his labor. While people are not said to have a natural right to steal, they do have a natural right to take what they may need to survive. Since the absence of a common magistrate means that everyone must judge for himself what he needs for his own survival, and since nature cannot provide enough for human survival without improvement and labor, scarcity and conflict will inevitably result in the state of nature from the desire to preserve life. Therefore, governments are instituted to prevent conflict, to preserve the peace and security needed to permit people to improve upon nature, and thus to help preserve and enhance their lives.

So, for Locke, liberty is natural, the desire to preserve life is natural, and war is the all but inevitable consequence of nature. For Locke and for the Declaration of Independence the purpose of civil society is to preserve the peace that lets people enjoy life, liberty, and the ability to pursue property. Civil society secures the right to liberty because civil society is essential for peace. To put this another way, liberty may be enjoyed only in civil society; the fruits of liberty may be obtained only in vivil society. Therefore, while the purpose of civil society has to do with liberty, the notion of liberty within civil society necessarily is self-limiting. Liberty cannot be protected without government. Therefore, liberty cannot be enjoyed without low. And, therefore, libe ty must be confined within bounds that permit government and the rule of law to exist.

This creates a seeming paradox. How can you cquate freedom with obedience to law? The answer is that law abidingness and freedom are not simply cuated. Let us remember, the Declaration of Independence is a revolutionary document. The protection of liberty requires law, but for a law to deserve such unquestioned obedience, it must come rom a government to which the citizens have given their consent. And consent, Locke argues, will be given freely only to a governmint that limits its activities to protecting rights that exist, but cannot be enjoyed, in a state of nature. Such governments are rare, as we all know.

Now let us go back to the sentence I just read from the Declaration, and reread another part of it. "Whenever any form of government becomes destructive of these ends (life, liberty, and the pursuit of happiness), it is the right of the people to alter or to abolish it, and to institute new government." What does this mean? Why is the word "form" in there? The Declaration of Independence does not say that whenever the government restricts liberty, rebellion is justified. All governments necessarily restrict liberty, and liberty cannot be enjoyed without government.

According to the Declaration, and Locke, particular actions taken by the government canrot legitimately be disobeyed selectively because they restrict liber y in this or that instance. The reason is that selective disobedienc? undermines the principles of law that are necessary to preserve the peace. In the absence of law, people become judges of their ow i cases and the situation returns to a state of nature. Of course, when the government as a whole, or the form of government, becomes (estructive of the ends of government, it is appropriate to change povernments. But as long as the form of government works toward securing the proper ends, the need for a government of some sort means that people must put up with some restriction on their liberty to act as judges of their own cases. The protection against government's arbitrarily restricting liberty lies not in selective obedience but in the requirement that government be based on consent.

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This is the theoretical basis for and backdrop to the Declaratio i of Independence. The presentation for has been entirel, grounded on nature and natural rights. That is, it has been entirel, secular. It leaves no room for selective disobedience to law, eve i if the motive for disobedience rests on religious conscience.

However, while Locke's basis for civil society did not rest on religion, he did not ignore the subject. Hobbes and Locke were both familiar with religious warfare, and both saw religious zealotry as a major threat to peace. Since preserving the peace was the first goal of civil society, one major aim of their writing was to weaken th: attractiveness of religion by transferring people's fears and concern i away from salvation and to this life. The Declaration retains thi: focus on the goods of this world.

Yet, this somehow does not seem an adequate description of th: role of religion in this country. It all seems so negative. We al know that religion was an important part of the Founding Fathers scheme of government. Far from wanting a purely secular nation their aim was to channel religion, to transform it, to preserve th. useful parts while putting the dangerous parts under the control o civil law. The idea was to retain a vital religious life, because religior was thought to be important to teaching virtue, and virtue was con sidered essential to good citizenship. Somehow, this had to be re tained without promoting the conditions that would cause religiou: civil war. To see how this was to be done, let us take our next step in this theoretical journey-to Federalist No. 10.

Many of you are familiar, I am sure, with the argument of Federalist No. 10. It is essentially the same as an argument Madisor presented at the 1787 Convention in Philadelphia. But for those who are not familiar with it, or who need to be reminded, let me go over the ground quickly. Federalist No. 10 is the paper in which Madison talked about the dangers of faction. He defined the term “faction" to refer to any number of citizens united by common impulse, passion, or interest, who act in a way that is adverse to the rights of other citizens or adverse to the permanent interests of the community. Factions, Madison said, are natural. As a result, it is futile to try to eliminate them or to remove their causes. So, if you want to control the dangers of factions, it becomes necessary to pay attention to their effects. Madison discussed the effects of minority factions, factions making up only a small portion of the nation in which they exist, and majority factions. Minorities sometimes are able to get their way over majorities, but the cure is easy to prescribe, Madison says. The cure of minority factions is democracy. No group can get its way against the will of a majority provided the

majority gets a chance to express its will. The particular danger of democracy is not what a minority might do to a majority but the opposite, what a majorit; might do to a minority. How can the dangers of majority factions be minimized? According to Madison, there is no way in a deinccracy to prevent a determined, long-lasting majority from working it; will. However, there are ways to make it more difficult for such a majority to form. The most effective way, he argued, is to extend the sphere of the republic. Make the nation larger, make it more complex through the development of commerce, and what will result will be a multiplicity of factions so complex that it will be unlikely for a majority to coalesce around a single factional issue. If no one faction makes up a majority on its own, it means that the majority necessary for democratic rule will have to be formed by coalitions of minorities who necessarily will have to compromise with each other before they can have their way,

The basic outlines o: this argument are probably familiar to most of you. It is present:d most often in discussions of the role of interest groups, particular y economic interest groups. In fact, the prominence Madison gave to commerce often leads people mistakenly to assume that he was thinking solely of economic interests. Nothing could be further from the truth. Madison made it clear that a faction could be a group of people held together by common interests, common passions, or common opinions. In fact, the two main sorts of divisions Madison specifically mentioned as being dangerous to the stability of democracy were the divisions between the rich and poor and the divisions among religious sects.

Thus, we can begin to see that there is a sense in which the Constitution, broadly, was meant as an answer to the problem of religion. Religious Opinions were seen as sources of factions, and factions as potential tyreats to civil peace. The solution seems almost paradoxical. Religious factions were to be encouraged to be fruitful and multiply. As tiey multiply, the odds of any one faction's gaining a majority decrea ie. Of course, authors of the Federalist hoped to tame religious passions in other ways as well. Remember that a multiplicity of factions was seen as being most likely to flourish in a nation friendly to commerce. But a commercial nation, a nation whose people are wedded to trade, manufacture, and the spirit of profit, is not likely to be a nation whose people would be willing to destroy the civil peace for the sake of their religion.

None of this is stated explicitly in the Constitution. However, it is implied by the very fabric of that document, and it is spelled out very clearly in the Fede: alist. The only place in the main body of

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