The Founders’ Gift and Its New American Enemies
During our nation’s 250th anniversary there will be, unfortunately, dozens of academic conferences focusing on the “flaws” of our founding and of its approach to natural rights. Some of these events are downright bizarre. A major conference in Philadelphia, for instance, will include sessions with titles like “I’m Pro-choice and I Shoot Back: Armed Abortion Clinic Defense after Roe.” This session associates the founding with the “right” to eliminate unwanted children. It would not be surprising if its participants argue that abortion is protected by the Second Amendment right to bear arms.
Our Founders would have considered such an idea grotesque. They considered the right to bear arms a natural right, part of the right to self-defense. Like all natural rights, this was given by God to protect life and to defend liberty ordered toward truth, not to erase human beings whose existence we’ve deemed inconvenient.
I was recently invited to speak at a conference on the Founders’ vision of natural rights—in this case, its impact on U.S. foreign policy. This is part of our history that is too little studied, and even less understood by the left than the purposes of the Second Amendment. The Founders believed that the natural right to self-defense plays a part in foreign policy, in particular, in the practice of just war. They also believed in the importance to foreign policy of religious freedom, articulated in the First Amendment as the natural right to the “free exercise” of religion.
For the conference, I was asked to discuss the Founders’ influence on America’s international religious freedom policy. I had worked on the issue for some time and written a book on religious freedom and national security. I am now sketching out another book that builds on those years of research and study. It will explore the Founders’ gift of the free exercise of religion for everyone, everywhere. In it, I will contend that this gift placed religious freedom at the center of who we are as a people, and that abandoning free exercise will not only eviscerate our foreign policy and the hope we have brought to scores of millions abroad, but transform the grand experiment begun 250 years ago into something radically un-American.
America’s Founders knew they lacked the authority to “grant” religious freedom to anyone outside our borders. But they knew who did: and they said so. In the Declaration of Independence, the Founders acknowledged God as creator of every person, and of the natural law and the natural, “unalienable” rights we all possess. In the First Amendment, they guaranteed the natural right of “free exercise” of religion for all Americans, to be practiced in private worship and in public life, alone or in community with others.
Free exercise thus became a source of our nation’s flourishing, strength, and unity, and of America’s native realism: a determination to live in boundaries set by the real world, including the natural law. The Catholic political theorist John Courtney Murray labeled this characteristic a “realist epistemology” grounded in natural law. The “self-evident” truths of the Declaration, he wrote, are “the basis and inspiration of the American project.” He went on to write that the “First Amendment right of religious freedom for all has been “good for religion, [and] for Catholicism.”
The Founders saw free exercise as the means of keeping religion in public life yet unencumbered by government control and regulation. Their goals were to protect the rights and duties of conscience and to keep before the public eye the “self-evident” religious truths, laid out in the Declaration, about God, the natural world, human nature, and freedom.
The resulting impact on American democracy and national unity has been profound. It includes the formation of religious institutions of compassion and care (Think, for example, of the Little Sisters of the Poor.). It includes religiously motivated social and political reforms (Think of the Episcopalian pastor A. J. McKelway and child labor laws, or Baptist pastor Martin Luther King, Jr., and his Letter from a Birmingham Jail.). Such reforms are examples of what the great American jurist Michael McConnell calls “religious arguing” in public life.
The impact also includes educational innovation, such as modern orthodox Jewish and Christian schools led by people like Rabbi Meir Soloveichik and Monsignor James Shea, building faith-based business enterprises like Hobby Lobby, and strengthening defense and foreign policy. The latter includes explaining and defending just war principles in wartime (for example, Father Richard John Neuhaus, George Weigel and Robert Royal) and a commitment to realism in the pursuit of truth, moral action, and the public good.
Nevertheless, free exercise opponents have emerged in many guises over the past two centuries. By far the most dangerous to the nation has been the political left’s turn to an ideology of radical human autonomy untethered to the Founders’ claims of religious truth and natural law.
The contemporary rallying cry of human autonomy was sounded by Justice Anthony Kennedy in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In this and later decisions, Justice Kennedy expanded this radical view of human freedom beyond abortion to construct a modern “right” to sexual relations with a person of the same sex, and a Court-ordered “right” to same-sex marriage (Lawrence in 2003, Windsor in 2013, and Obergefell in 2015).
In other words, according to Kennedy, freedom is what one wills it to be, and—though Kennedy denied it—the state must command acquiescence to the new standard of freedom. Justice Antonin Scalia wrote that the court’s decisions on abortion and same-sex marriage represent the unconstitutional will of “a select, patrician, highly unrepresentative committee of nine [which is] … willing to say that any citizen who … adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”
The concept of radical autonomy soon triggered attacks on the idea of natural, inalienable rights, especially the right of traditional religious believers to the free exercise of religion. The Democratic Party has recently taken up this sacred cause: in 2016, President Obama’s Chairman of the Commission on Civil Rights, Martin Castro, wrote in a formal report: “The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.”
When a multi-faith coalition of religious leaders asked Obama to repudiate the statement, their request was denied. The president would not acknowledge religious freedom as a valid reason to oppose LGBTQI+ rights in public life.
Clearly Mr. Castro was echoing Democratic views. But the words “religious freedom” are not “code” for anything. They represent the First Amendment guarantee of free exercise. As the letter to Obama put it, “no American citizen or institution should be labeled by their government as bigoted because of their religious views, and dismissed from the political life of our nation for holding those views.”
Things did not improve from there. In 2020, toward the end of the first Trump administration, 167 “human rights organizations, scholars, defenders and activists” wrote to the State Department to express their “grave concern” that a Report from Secretary Mike Pompeo’s Commission on Unalienable Rights had excluded abortion and LGBTQIA+ rights. The report had, they asserted, manufactured an illicit and un-American “hierarchy of human rights.” Congressional Democrats joined the chorus in condemning the report. But the real villain wasn’t “inalienable rights” per se, but the first of the unalienable rights. The Pompeo Commission had the temerity to point out that “Religious liberty enjoys … primacy in the American political tradition. … [It] is an unalienable right, an enduring limit on state power, and a protector of seedbeds of civic virtue.
The next year, Pompeo’s Democratic successor, Antony Blinken, condemned the very idea that there are unalienable rights that command “primacy” in America.
One of the core principles of human rights is that they are universal. All people are entitled to these rights, no matter where they’re born, what they believe, whom they love, or any other characteristic. Human rights are also co-equal; there is no hierarchy that makes some rights more important than others.
Past unbalanced statements that suggest such a hierarchy, including those offered by a recently disbanded State Department advisory committee [the Pompeo Commission], do not represent a guiding document for this administration. At my confirmation hearing, I promised that the Biden-Harris administration would repudiate those unbalanced views. We do so decisively today.
Both President Biden and Vice President Harris made the ideology of radical human autonomy a centerpiece of the Biden administration, supporting, for example, the ill-named “Equality Act,” which was designed to expose traditional opponents of same-sex marriage and transgender rights to ruinous lawsuits, and to exclude religious freedom as a defense. Passing the Equality Act remains a major legislative priority for every Democratic leader. For her part, Vice President Harris traveled to Africa to pressure traditional societies to accept the LGBTQIA+ rights that dominated human rights advocacy in foreign policy.
The ideology of radical autonomy has triggered a reversal in the American consensus over what is true, good, and real about God and human nature. It seeks to codify a series of sweeping revolutionary understandings of the meaning of human dignity, life and death, sexuality, marriage and the family, and the differences between male and female. In short, it rejects the self-evident truths of the Declaration of Independence, including the very existence of natural, unalienable rights.
This ideology has captured many of our cultural and political institutions. But it correctly sees its most significant remaining adversary as traditional religious believers and institutions that hold to the religious truths of the American Founding.
James Madison, the “Father of the Constitution,” reminds us why religious freedom was considered the first of our inalienable rights:
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 equally entitled to the free exercise of religion.
[Because] what is here a right towards men, is a duty towards the Creator. … This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe.
The various conferences and events commemorating America’s 250th should take a hard look at what religious freedom has given to America and the dangers posed by the widespread acceptance of radical human autonomy. Those who do not believe in God, or Madison’s notion of our duty to God, should recall that no American is coerced into religious belief, and that those who believe in radical autonomy are not coerced to abandon that belief.
But the reverse is not true. Traditional religious believers are accused of intolerance, discrimination, and bigotry. The Equality Act alone demonstrates that many of our political leaders are prepared to silence anyone who pleads religious freedom as a means of curbing the new rights of radical human autonomy, no matter how well-reasoned those pleas may be.
Our retrospectives on America at 250 should therefore include two central truths. First, everyone in America has a constitutional right to religious belief and a right to act on it. Second, for most of those 250 years, religious freedom in public life has been a core reason for our unity in overcoming historical crises, from slavery to the inequality of women to the failures of civil rights. Moreover, the free exercise of religion has created the most compassionate and effective civil society in history.
Without the American commitment to the religious freedom of everyone, including traditional religious believers, we will no longer be the America of our founding. We will continue our descent from unity into political and cultural fragmentation and chaos. Some of us will turn to authoritarianism and support an end to our great experiment in constitutional democracy.
If that happens, we will have abandoned the principle of unity on which our ancestors ended the Declaration of Independence, that is, “with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” We will have abandoned the ground on which, they proposed, all Americans might stand together and fight. It is, in fact, religious ground, on which we fight for the religious freedom of everyone.
That is a fight worth having.