Intellectuals and ministers debated the meaning of religious liberty throughout the Early Republic. Almost every observer and writer vigorously supported religious liberty, but there was not significant agreement on what the term meant or entailed. Religious liberty was not treated as a specific set of laws or policies but was an almost organic aspect of the American republic’s constitutional practice. At least among New England Congregationalists—who in the 1820s and 1830s used their region’s superior publishing prowess to expert their ideas throughout the Union and make themselves the representative national literati—religious liberty remained a corporate and negative liberty, not a positive individual liberty.
In an 1828 fast day service William Cogswell, a Massachusetts Congregationalist cleric, told his congregation in Dedham that citizens had a right to regulate their involvement with religion, but stopped short of acceding to a right to irreligiosity or amoral citizenship. Cogswell felt “bound to condemn ‘evil surmisings’ but he argued the state could not “compel any man to believe or act on this subject as we do. Equal rights of conscience are the natural and legitimate inheritance of all.” He granted “the liberty to others, which we claim to ourselves, believing that all are alike responsible, and must stand or fall to their own Master, who is Christ, and to no earthly tribunal.” Even those who exercised a right to conscience nonetheless, he argued, should “exercise themselves to have always a conscience void of offence, toward God, and toward man.” Cogswell believed that religious liberty still meant that “important principle” of recognizing the conscience’s duty to God “should ever be maintained.” He declared that “no person should be disfranchised for his belief and conduct in things religious, unless he so use his liberty, as to impair the liberty of others, or corrupt the public morals.” Cogswell’s religious liberty had a preexisting and non-negotiable social and moral foundation and was predicated on a theistic civil and intellectual order. [1]
Cogswell’s preached his sermon to a state that still maintained an established church. Even after Massachusetts disestablished the Congregationalist church in 1833, ministers remained committed to a corporatist reading of the Constitution’s religious liberty language. Interestingly, conservative Massachusetts Calvinists and their Unitarian neighbors both denied individual religious liberty. Samuel Kirkland Lothrop, the minister of the Brattle Square Unitarian Church in Cambridge, Massachusetts, stated to his parishioners that civil and religious liberty was “to be defined as of a negative rather than a positive quality, if I may use such expressions.” Religious liberty “consists in what cannot be done to the individual, rather than in an unrestrained license given to the individual to do and say what he chooses.” Civil and religious liberty were represented in a “free community in regard to civil rights, not where every man can do what he likes, and say of, or to, his neighbor, whatever his passions or prejudices may prompt him to say.”
A free community by Lothrop’s definition was “where no man, even the humblest, can be injured in person, property, or character, by any other man, even the highest, without ample redress, and sure protection from the laws.” A freeman was someone “who cannot be wronged, not he who can do wrong if he is so disposed.” A free community in regard to religious rights was “not where religion and irreligion are alike protected and cherished by the laws,” and “not where the free investigation of truth, and licentious speculations in morals are confounded,” but instead where there were “no test-oaths and acts of conformity enforced, no Star-chamber, or Inquisition, with power to summon, whenever it chooses, any and every individual to lay bare the secrets of his heart and conscience, and to punish him by fine, torture or imprisonment, for his private opinions, however honestly, meekly, and quietly, he may hold them.” A citizen enjoyed religious freedom where they could not “be arbitrarily questioned as to his religious faith,” and where they were not compelled to profess, uphold, and conform to what he does not believe, but is at liberty to form, and hold for himself, whatever opinions he chooses to adopt.”
Even Lothrop’s expansive reading of religious liberty relied similarly on the Early Republic’s preexisting and non-negotiable social and moral foundation and theistic civil and intellectual order. A free citizen was “permitted to inculcate and teach” their religious views only “whenever it is not obvious that the purpose of such teaching is, and the effect of it will be, to overturn those great fundamental principles of moral truth, upon the private and public recognition of which, the very existence of civil government and social order and security depend.”[2]
Religious liberty in the Early Republic was often treated as a negative corporate right. This definition is significantly different than the modern definitions of religious liberty articulated by political progressives and conservatives, so it bears asking when the shift from reading the first amendment as a corporate to a private liberty occurred and more importantly, what as the reasoning behind the shift.
[1] William Cogswell, Religious Liberty: A Sermon, Preached on the Day of the Annual Fast in Massachusetts, April 3, 1828 (Boston: Pierce and Williams, 1828), 6.
[2] Samuel Kirlkand Lothrop, The Nature and Extent of Religious Liberty. A Sermon (Boston: I.R. Butts, 1838), 5-6.