Foundation for the Common Law
by Herbert W. Titus
As noted in Section II above, Blackstone, in his Commentaries, defined municipal or civil law as those rules governing “civil” conduct, as contrasted with “moral” and “faith” conduct.142 In drawing this distinction between different kinds of conduct, Blackstone was simply following a well established common law rule that not all of man’s duties were enforceable by the civil ruler. That principle was well-established in those areas of life exclusively governed by the Biblical admonition to love one’s neighbor as oneself.143 Love, rightly understood, must be both unconditional and voluntary. This is clearly what Jesus taught in the parable of the Good Samaritan. The man who came to the aid of the man in need did so without condition, and the man in need had no power or authority to require the other to help him.144 Likewise, the common law did not sanction any human being for failing to rescue another nor authorize a person in need to sue another for having failed to rescue him.145
But this jurisdictional principle was not well-established in the common law when it came to matters of faith, i.e., in those duties owed to God. Thus, Blackstone devoted an entire chapter of his Commentaries to “offenses against God and religion.” In this chapter, Blackstone affirmed the common law crimes of apostasy, heresy, reviling the ordinances of the church, blasphemy, witchcraft, Sabbath breaking, and so forth.146 Blackstone’s endorsement of these duties as subject to civil sanction caused him some uneasiness as he acknowledged that certain acts of nonconformity with the rules of the established church of England could very well be matters of “private conscience.” Nevertheless, Blackstone allowed only that such non-conforming acts could be “tolerated” so long as they did not disturb the good order of the established church and of society.147 In short, Blackstone endorsed the principle of freedom of “faith conduct,” but he could not bring himself to the point of endorsing its practice.
It was not until the eve of the American Revolution that this common law principle of limited civil jurisdiction was applied to matters of religion by any political state. Adopted in 1776, the Virginia Declaration of Rights captured the essence of the principle with the following language:
That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are entitled to free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love and charity towards each other.148
An earlier draft, written by George Mason, had contained the typical language of religious toleration: “that all men should enjoy the fullest Toleration in the Exercise of Religion . . . unpunished and unrestrained . . . unless . . . any Man disturb the Peace, the Happiness or Safety of Society or of Individuals.”149 But this language was rejected and the absolute jurisdictional guarantee of free exercise of religion was inserted. Freedom of religion was to be determined by the nature of the duty, i.e., whether or not it was enforceable only by “reason and conviction” as dictated by the law of the Creator.150 It could not be balanced away or modified by any societal considerations.
It was James Madison who led his fellow Virginia statesmen to make this significant break with the past. Had he been more successful he would also have included language of disestablishment. That battle would have to be won on another day as it was on January 19, 1786, when the Virginia Assembly passed Thomas Jefferson’s Act for Establishing Religious Freedom.151 The operative section of this Act specifically prohibited the civil ruler from levying a tax to support Christian teachers. But Jefferson’s preamble to that section, also adopted by the Virginia Assembly, embraced a principle that went beyond that specific prohibition.
Beginning with the observation that Almighty God had created the mind free from all coercive sanctions, even in man’s relationship with Him, Jefferson concluded that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”152 It is sinful because it violates the law of God limiting the authority of the civil ruler: “Render unto Caesar what belongs to Caesar and to God what belongs to God.”153 And it is tyrannical because true liberty is found only when man’s law conforms to the law of God. This latter proposition was clearly derived from the teachings of Bracton, the Father of the Common Law, who claimed that there was no king “where will, not law, wields dominion.”154 The former proposition, likewise, stemmed from Bracton’s use of Christ as the supreme example of a man with all power and dominion but who nevertheless was committed to obey the law so that He might redeem those who were under the law.155
These common law antecedents found in Jefferson’s preamble are also evident in James Madison’s famous Memorial and Remonstrance, written in support of the Act which, in effect, disestablished religion in Virginia. If a man failed to pay his tithe, as he ought, Madison claimed that “it is an offence against God, not against man” for the payment of the tithe was a duty “precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”156 Here, Madison’s reliance upon Blackstone’s view of the law of nature, i.e., God’s will revealed in nature, limits the authority of the human law maker who cannot enact any rule into law contrary to natural revelation. To do so would not create “bad law,” but would create a rule that was not law at all.157
This philosophical premise enabled Madison to learn from his predecessors, but not to be bound by their practices. For example, John Locke provided a fertile seedbed for true freedom of religion with his arguments in A Letter Concerning Toleration. In that letter Locke defined civil authority as extending to the protection of life, health, liberty, and the possession of outward things, property. These interests were protectible by the use of force and coercion because the civil magistrate had been created by the consent of the governed for the very purpose of securing such rights. But the civil jurisdiction was not without limits:
Now that the whole jurisdiction of the magistrate reaches only to these civil concernments; and that all civil power, right, and dominion, is bounded and confined to the only care of promoting these things; and that it neither can nor ought in any manner to be extended to the salvation of souls ….158
Locke did not limit the civil religious immunity to only inward beliefs, but extended it to some acts as well. However, he never broke from the English practice of toleration.
While neither Jefferson nor Madison cited God’s revelation in the Holy Scripture, both clearly embraced the Genesis account of creation as the foundation for their views on freedom of religion. While they knew they were departing from the English practice of “toleration” and “establishment” of religion, they believed that by doing so they would be more true to the Common Law jurisdictional principle than those who had gone before them. But their reliance on God’s revelation in nature, unaccompanied by explicit justification based upon the Scriptures, meant that the full implications of this new experiment in church and state would not be realized either in their lifetimes or in the next 200 years.
As the great Lord Acton has so clearly stated it, the key to understanding true freedom of religion is found in the teachings and life of Jesus Christ.159 It was Christ who taught the basic principle: “Render therefore unto Caesar the things which be Caesar’s, and unto God the things which be God’s.”160 It was also Christ who embraced this principle at his own trial before Pilate when Pilate asked him if He was the King of the Jews. Pilate’s question was obviously directed to Jesus to determine if he was guilty of treason, for the Roman Emperor was the King of everyone in the Roman Empire, including the Jews. Jesus replied that He is the King of the Jews, but that His Kingdom “is not of this world;” rather His Kingdom is “truth.”161 In light of this response, Pilate could not and did not find Jesus guilty of treason: “I find in him no fault at all.”162 In effect, Pilate acknowledged that neither he nor the Roman Emperor as civil ruler had any authority over what is truth.
The significance of this jurisdictional limitation on the power of the civil ruler was soon revealed in the life of the early church. In Acts 4 and 5, it is recorded that the church was twice ordered by the ruling religious council of the Jews “not to speak at all nor teach in the name of Jesus.”163 The religious council backed their order with the exercise of civil power first by threatening to imprison the church leaders, Peter and John, and then by beating them.164 But led by the Holy Spirit to Psalm 2, Peter and John claimed that their authority to teach came from God, not Caesar, so that they could not help but teach what they had heard, for they must obey God, not men, in this matter.165
This Biblical heritage affirming the exclusive sovereignty of God over the work of the church is clearly the foundation of America’s early formative embracement of a constitutional guarantee of the free exercise of religion. At the heart of that guarantee is the right to choose one’s religious faith without fear of civil sanction. Madison put it this way in his Remonstrance: To use civil power as a “means of salvation …. is a contradiction to the Christian [r]eligion itself, for every page of it disavows a dependence upon the powers of this world.”166 Not only did Madison rest his case for freedom of religion on this explicitly Biblical base, he further observed that the Christian religion, not having been invented by men, was not in need of enforcement by men. Indeed, Madison reminded the reader
that this religion [Christianity] both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence.167
Finally, Madison returned to the creation theme struck by the text of Virginia’s constitutional guarantee, that religion is a duty owed to the Creator, enforceable only by reason and conviction: “[I]t is a contradiction in terms; for a [r]eligion not invented by human policy, must have pre-existed and been supported, before it was established by human policy.”168
But was Madison’s view of freedom of religion limited to religious matters, such as the “means of salvation?” Almost all legal and political scholars have assumed that Madison and Jefferson claimed protection only for man’s “religious opinions” under the constitutional guarantee of free exercise of religion. That assumption is clearly false and has given rise to one of the most pernicious infringements upon the rights of conscience in the history of mankind: the system of tax-supported public schools in America.
For nearly one hundred years American education has been dominated by a tax-supported and civilly supervised program. This system has been assumed to be consistent with constitutional guarantees of freedom of religion so long as religious activities are not conducted and religious opinions are n:ot inculcated in the public schools. Because citizens are taxed to support the system, they are inevitably forced to support the teaching of some ideas with which they disagree. As for Bible-believing Christians, they are forced to support a system of education that “constitutionally requires,” according to the U.S. Supreme Court, that their ideas be excluded from the classroom dialogue.169 No one in America would require an atheist or agnostic to pay taxes to support the church or the church school. Yet millions of American Christians are required to pay for an educational program that assumes that there is no God, or that, if He exists, He is irrelevant to history, science, and language. American school children study subjects as if the Author of these subjects does not even exist.
This was not what Jefferson and Madison had in mind when they endorsed freedom of religion. Jefferson put it most succinctly when he stated “[t]hat to compel a man to furnish contributions of money for the propagation of opinions with which he disbelieves, is sinful and tyrannical.”170 Religion, for Jefferson, embraced all opinions, not just religious ones. Madison agreed. He wrote that the civil magistrate could not be “a competent [j]udge of [r]eligious [truth” and that, therefore, he could not use religion as an engine of civil policy.171 What is tax-supported education but an “engine” of “civil policy” whereby the public school teacher “inculcates” the “fundamental values necessary to the maintenance of a democratic political system.”172 In fact, this is the very description that has been consistently attached to the role of the public school system by even the most liberal justices of the United States Supreme Court.
Madison’s and Jefferson’s view of civil immunity for all of the opinions of mankind rests squarely upon Christ’s claim that He is the King of truth and that His Kingdom encompasses all of truth, not just matters of salvation. The apostle Paul summarized this foundational principle in his letter to the Colossians: In Christ “are hid all the treasures of wisdom and knowledge.”173 And Paul practiced what he preached as is evidenced by his sermon on Mars Hill in Athens, the intellectual capitol of the Roman Empire. In that brief message Paul spoke of history, philosophy, and the natural sciences, of politics, anthropology, and psychology, and of gerontology, futurology, and theology.174 All disciplines, all truth, are subject to God’s Holy Spirit, immune from the sanctions of human tyrants pretending to exercise civil power.
Jefferson’s preamble to his Statute on Religious Freedom echoes Paul’s comprehensive understanding of the nature of religion as embodying all of truth. He wrote that the opinions of men are not the “object” of civil government because “our civil rights have no dependence on our religious opinions, anymore than our opinions in physics or geometry.”175 Jefferson claimed that truth would prevail only in an arena free from civil regulation or subsidy. He, therefore, concluded that the civil magistrate could exercise power only after the breaking out of “overt acts against peace and good order.”176 All of this followed from Jefferson’s having embraced the same principle of liberty as had Jesus Christ and the early Church, and in words that are unmistakably Biblical:
Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who, being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in His Almighty power to do.177
As evidenced by this opening statement in Jefferson’s preamble to his 1786 Statute for Religious Freedom, America’s founding fathers embraced a philosophy of law and government explicitly based upon God’s revelation in nature and in the Holy Scriptures. This philosophy was deeply rooted in the English common law heritage to which America’s founders clung even as they sought independence from the Mother Country. It is a philosophy that served America well in the beginning by establishing both economic liberty upon the common law of private property and political liberty upon a constitutional guarantee of freedom of religion.
These liberties have been put in jeopardy in America in the last 100 years because the nation’s leaders and her people have drifted from a Godly heritage of a created order with fixed, uniform and universal rules to a scientific future of a changing technological order with an evolving set of values. This shift in philosophy has ushered America into an age of uncertainty and of escalating costs as legal, political, and economic norms break down. God’s revelation offers to the nation a set of “self-evident truths” that, if embraced, will insure to all mankind God-given rights of life, liberty, and the pursuit of happiness.
142. See supra notes 50-56 and accompanying text.
143. Matthew 22:39.
144. Luke 10:25-37.
145. See, e.g., Buch v. Amory Mfg. Co., 44 A. 809, 811 (N.H. 1898).
146. 4 Blackstone, supra note 46, at *41-65.
147. Id. at *51-53.
148. Va. Const. art. I, §16.
149. George Mason’s Proposal for the Virginia Declaration of Rights (June 12, 1776), in James Madison on Religious Liberty, at 51 (Robert S. Alley ed, 1985).
150. James Madison, Memorial and Remonstrance Against Religious Assessments (circa June 20, 1785), in James Madison on Religious Liberty, supra note 149, at 56.
151. Thomas Jefferson, An Act for Establishing Religious Freedom in 12 Hening 84 (1786).
153. Luke 20:25.
154. Bracton, supra note 3, at 39.
155. See supra text accompanying note 3.
156. Madison, supra note 150, at 56-57.
157. 1 Blackstone, supra note 12, at *70.
158. John Locke, A Letter Concerning Toleration (1689), in John W. Yolton, The Locke Reader, at 246 (1977).
159. John Emerich Edward Dalberg Acton, Essays on Freedom and Power 81 (1956); see also Herbert W. Titus, Education, Caesar’s or God’s: A Constitutional Question of Jurisdiction, 3 J. Christian Jurisprudence 101 (1982).
160. Luke 20:25.
161. John 18:36-37.
162. John 18:33-38.
163. Acts 4:17; 5:28.
164. Acts 4:3, 21; 4:40.
165. Acts 4:19-31; 5:29.
166. Madison, supra note 150, at 57.
169. See Edwards v. Aguillard, 482 U.S. 578, 584, 597 (1987).
170. Jefferson, supra note 151, at 84 (emphasis added).
171. See Madison, supra note 150, at 57.
172. The words are from Ambach v. Norwick, 441 U.S. 68, 77 (1979), an opinion written by moderately conservative Justice Lewis Powell, Jr., and they were quoted with approval and without reservation by former Justice William J. Brennan, Jr., in Board of Education v. Pico, 457 U.S. 853, 864 (1982).
173. Colossians 2:3.
174. Acts 17:22-31.
175. Jefferson, supra note 151, at 84.