RELIGIOUS FREEDOM DISCUSSION SERIES:
INTERNATIONAL CENTER FOR LAW AND RELIGION STUDIES
Freedom of Conscience and
the American Identity
David M. Kirkham*
Senior Fellow for Comparative Law and International Policy,
International Center for Law and Religion Studies
Professor of Political Science, Brigham Young University
July 10, 2013
*I am indebted to faculty of the BYU American Heritage Program for their thoughts
and contribution of slides to this presentation.
With the
German
Luftwaffe
At the United Nations
UN in Africa
QUESTIONS FOR THE AGES
 What
duties do we owe each other as
human beings?
 How can law and government,
conscience and religion, be helpful
towards those ends? How can they be
destructive?
AMERICAN RESPONSES
RAISES OTHER QUESTIONS
 What
is it to be an American?
 Has the answer fundamentally changed over
time?
 How do we perceive ourselves historically
and now? Are these perceptions healthy?
 How have law, religion, and conscience
complemented each other in forming our
identity?
 How do modern issues in freedom of
conscience affect who we are and who is the
voice of conscience?
RECURRING THEMES
 Higher
law
 American character
 Conscience and religion
FREEDOM OF CONSCIENCE AND THE
IDEA OF AMERICA





Americans are traditionally religious
Civic religion and conscience have been
conspicuous in the public square.
Sense of “higher law” comes through open
debate combined with unique American
circumstances.
Every turning point in American history has a
strong conscientious element.
Has the meaning of America changed with
time?
HOW DO AMERICANS PERCEIVE
THEMSELVES HISTORICALLY?
GOOD GUYS WITH THE WHITE HATS?
Shane
John Wayne
Ronald Reagan and George W. Bush
AMERICAN CONSCIENCE
AND THE HIGHER LAW

Conscience has played a part in every watershed
moment in American history
 The
Puritans and the City on a Hill
 Revolution
 Constitutionalism
 Abolitionism
 Manifest destiny
 Progressivism
 Women’s suffrage
 World War I and the world safe for democracy
 World War II – legacy of international law and human rights
 Civil Rights Movement
 New frontiers: space, stop communism, terrorism
*STARTING POINTS
Columbus
 Early English Settlements

Corporate Communities
 Covenant Communities

City upon a Hill
 Land of Opportunity
 Groundwork for a Good Society

*I wish to thank my colleagues in the BYU American Heritage program for their
contributions to a number of the slides that follow.
COLUMBUS: HERO OR VILLAIN
COLUMBUS

15th century Europe was tired.




Corruption, dishonor, violence.
Writers and artists dreamed of mythic utopias beyond the sunset.
Columbus discovered a new land that actually appeared
utopia-like.
Columbus believed that God was guiding him.

Had miraculous “luck” in getting to the New World and back.
“Our Lord unlocked my
mind, sent me upon the sea,
and gave me fire for the
deed. Those who heard of
my enterprise called it
foolish, mocked me, and
laughed. But who can doubt
but that the Holy Ghost
inspired me?”
--Christopher Columbus
COLUMBUS DISCOVERS A UTOPIA?
Could a good society take root here?
 Its unspoiled nature increased the odds.
 Unspoiled in two senses:

 Physical—pristine
and abounding in untapped
resources.
 Social—free of powerful, entrenched institutions.
Conscience and the evolution of the notion
of American Exceptionalism:
A Divided Legacy:
New England or Virginia?
Puritanism or the Enlightenment?
(Do we imprison convicts to punish them
or to reform them?)
EARLIEST ENGLISH SETTLEMENTS

1607: Jamestown (John Smith)
 Corporate
community
 Church of England (Anglican)

1620: Plymouth (William Bradford)
 Covenant
community
 Separatist (Pilgrims)

1630: Massachusetts Bay (John Winthrop)
 Covenant
 Puritan
and corporate community
Colonial Influences
LEGACY OF JAMESTOWN



A corporate community
Individualism
Representative government



Royal governor but local House
of Burgesses.
Slavery
A good deal of local autonomy.


Perceived insignificance
Distance from rulers in England.
20
ENGLISH PURITANS AND THE “CITY
ON A HILL”
“For we must consider that we shall be as a City
upon a hill. The eyes of all people are upon us. Soe
that if we shall deal falsely with our God in this work
we have undertaken, and so cause him to withdraw
his present help from us, we shall be made a story
and a byword throughout the world.”
- John Winthrop, 1630
PLYMOUTH: COVENANT COMMUNITY
 MOSTLY PUBLIC VIRTUE



Separatists.
Motivated by desire for
religious freedom and
to create kingdom of
God on earth.
Harsh conditions, barely
survived.
PLYMOUTH: COVENANT COMMUNITY
 MOSTLY PUBLIC VIRTUE


Established a social
compact while still at sea;
a move toward democracy
and self-government.
Established a two-fold
covenant community.


Covenant with God: His
chosen do His work.
Covenant with each other:
self-government.
MASSACHUSETTS BAY: COVENANT AND
CORPORATE COMMUNITY
Combined business with religion.
 Puritan towns, like Plymouth, were democratic
and self-governing.
 Calvinists

CALVINIST THOUGHT

The republic is formed as a covenant between
the rulers and the people of God.
 State
does not dominate nor do the people of God
withdraw.
 Calvinists stress the mutually supporting relationship
between government and religion.
CITY ON A HILL
“A troubled and afflicted mankind looks to us,
pleading for us to keep our rendezvous with destiny;
that we will uphold the principles of self-reliance,
self-discipline, morality, and, above all, responsible
liberty for every individual that we will become that
shining city on a hill.”
- Ronald Reagan, 1984
CITY ON A HILL
“During the last 60 days I have been engaged in the task of
constructing an administration…. I have been guided by the
standard John Winthrop set before his shipmates on the
flagship Arabella [sic] 331 years ago, as they, too, faced the
task of building a government on a new and perilous frontier.
‘We must always consider,’ he said, ‘that we shall be as a city
upon a hill—the eyes of all people are upon us.’ Today the
eyes of all people are truly upon us—and our governments, in
every branch, at every level, national, State, and local, must be
as a city upon a hill—constructed and inhabited by men aware
of their grave trust and their great responsibilities.”
– John F. Kennedy, 1961
“America has tended to think of itself as special, like a
city on a hill. We want to go in and help other nations;
but we don’t understand what we are getting in to.”
--Walter Mondale, 2007
CITY UPON A HILL:
WINTHROP

Winthrop’s new society:



Built on holy principles.
A Good Society with order, prosperity,
a vibrant culture, peace, common goals, and liberty.
Civil liberty in place of natural liberty.
Natural liberty: men do whatever they want, eventually becoming
worse than beasts.
 Civil liberty: men are free to do what is “good, just and honest”. 
Moral self-governance.



An example for the rest of the world.
As close to perfection as is possible in a sinful world.
THE PURITAN FOUNDING AND
DEMOCRACY
Its virtues made liberal democracy possible and
its vices made liberal democracy necessary.
 What are the virtues?

 Increased
emphasis on individuality.
 Cherish liberty from corrupt institutions.
 Devote labors to building a heavenly kingdom on
earth.
THE PURITAN FOUNDING AND DEMOCRACY

What are the vices?
 Communities

could generate a spirit of intolerance.
 No systematic way to separate church obligations
from civil obligations.
“Let us thank God for having given us such ancestors; and let
each successive generation thank him, not less fervently, for being
one step further from them in the march of ages.” Nathaniel
Hawthorne (“Mainstreet”)
ENLIGHTENMENT LEGACY




Seeking to ground a notion of individual liberty and
consent in Reason through Nature and not in religious
doctrine.
 Legacy for the American revolution
Reasonable motives and for the good of the people.
Certain rights, considered fundamental, could never
be abolished.
Many of the ideas come from the English Puritans, without
the deeply religious component that we saw in the Puritan
community.
BREAK WITH ENGLAND
THOMAS PAINE’S COMMON SENSE




“[Government by kings] was the most prosperous
invention the Devil ever set on foot for the promotion
of idolatry.”
“[M]onarchy and succession have laid…the world in
blood and ashes.”
“…[T]he Almighty, as declared by Gideon and the
prophet Samuel, expressly disapproves of government
by kings.”
“Of more worth is one honest man to society and in
the sight of God than all the crowned ruffians that ever
lived.”
HIGHER LAW IN THE DECLARATION

“When in the course of human events, it becomes
necessary for one people to dissolve the political
bands which have connected them with another,
and to assume among the powers of the earth, the
separate and equal station to which the laws of
nature and of nature's God entitle them . . . We
hold these truths to be self-evident, that all men
are created equal, that they are endowed by their
Creator with certain unalienable Rights….
HIGHER LAW AND THE FOUNDING


John Adams: “A Republic can only be supported by pure
religion or austere morals.”
George Washington: “Reason and experience both forbid us to
expect that national morality can prevail in exclusion of
religious principles.”
ENLIGHTENMENT MEETS PURITAN
LEGACY IN VIRGINIA IN 1785
Patrick Henry: proposes a public tax to
support Christian teacher
 James Madison: opposes, writes
Memorial and Remonstrance
 Thomas Jefferson: opposes, crafts
Virginia Statute for Religious
Freedom

EXPANSION AND MANIFEST DESTINY:
FROM WESTERN FRONTIERS TO
SPACE
AN AMERICAN CHARACTER?
 Did
westward expansion and the
democratization of politics create an American
character?
 Self
Reliance.
 Individualistic pursuit of happiness.
 Upward Mobility.
 Democracy.
 Continues notion of country with a mission.
CIVIL WAR AND THE END OF
SLAVERY:
- TEST
- REINFORCEMENT
“American abolitionists and secessionists both
admitted a higher principle than the maintenance of
the Union. [Both would have] sacrificed the national
government to higher purpose.”
-Lord Acton, British Historian
Lincoln’s speeches and actions refound America
with a “new birth” of freedom and charity
AT GETTYSBURG,
LINCOLN REWORKS JEFFERSON



“ Fourscore and seven years ago our fathers
brought forth on this continent a new nation,
conceived in liberty and dedicated to the
proposition that all men are created equal.”
“to be dedicated here to the unfinished work
which they who fought here have thus far so nobly
advanced”
“that this nation under God shall have a new
birth of freedom, and that government of the
people, by the people, for the people shall not
perish from the earth.”
“I have a dream that one day this
nation will rise up and live out the
true meaning of its creed: "We hold
these truths to be self-evident: that
all men are created equal.”
LINCOLN’S SECOND INAUGURAL, APRIL 1865
With malice toward none, with charity for all, with
firmness in the right as God gives us to see the right, let
us strive on to finish the work we are in, to bind up the
nation's wounds, to care for him who shall have borne
the battle and for his widow and his orphan, to do all
which may achieve and cherish a just and lasting peace
among ourselves and with all nations.
PROGRESSIVISM, 1880-1920
PROGRESSIVE REFORM

Dehumanization
 labor

unions/reg. of working conditions
Imperfect Information
 FDA

Monopolies
 Break
them up: Sherman Anti-trust Act
 Regulate them: FTC
PROGRESSIVES REACTED TO:
 Industrialization
 Immigration
concerns
 Urbanization
 Government corruption
Muckrakes and crusaders:
e.g., Carrie Nation
FIRST WORLD WAR:
WILSON - MAKING THE WORLD SAFE
FOR DEMOCRACY
SECOND WORLD WAR

Nuremberg
“The privilege of opening the first trial in history for
crimes against the peace of the world imposes a grave
responsibility. The wrongs which we seek to condemn
and punish have been so calculated, so malignant, and so
devastating, that civilization cannot tolerate their being
ignored, because it cannot survive their being repeated.
That four great nations, flushed with victory and stung
with injury stay the hand of vengeance and voluntarily
submit their captive enemies to the judgment of the law is
one of the most significant tributes that Power has ever
paid to Reason.”
– Robert Jackson, chief prosecutor and US Supreme
Court Justice
POST-WAR: GOOD GUY SYNDROME AND
AMERICAN EXCEPTIONALISM
CONTINUE
Defeating communism
 Defeating terrorism

THE VOICE OF CONSCIENCE: THE
COURTS OR THE PEOPLE
JUDICIAL REVIEW
“My, how you have grown!”
"Do you ever have
one of those days
when everything
seems
unconstitutional?"
WHEN IS IT ACCEPTABLE FOR THE
COURTS TO OVERRULE THE VOICE OF
THE MAJORITY?
TENSIONS WHEN CULTURE, POLICY,
AND JUDICIARY MEET

Slavery:


Civil Rights:



Dred Scott v. Sanford (1857): slaves as property
Plessy v. Ferguson (1896): Separate but equal
Brown v. Topeka Board of Education (1954): Separate
is inherently unequal
Abortion:

Roe v. Wade (1973): right of privacy
PROTECTING INALIENABLE RIGHTS

“The very purpose of a Bill of Rights was to
withdraw certain subjects from the vicissitudes
of political controversy, to place them beyond
the reach of majorities and officials and to
establish them as legal principles to be applied
by the courts. One’s right to life, liberty, and
property, to free speech, a free press, freedom
of worship and assembly and other
fundamental rights may not be submitted to
vote. They depend on the outcome of no
elections.”

Supreme Court Justice Robert Jackson, 1943
PRESERVING THE VOICE OF THE
PEOPLE
“I do not forget the position assumed by some that
constitutional questions are to be decided by the
Supreme Court. . . . At the same time, the candid
citizen must confess that if the policy of the
Government upon vital questions affecting the
whole people is to be irrevocably fixed by decisions
of the Supreme Court, the instant they are made in
ordinary litigation between parties in personal
actions the people will have ceased to be their own
rulers, having to that extent practically resigned
their Government into the hands of that eminent
tribunal.”

Abraham Lincoln, First Inaugural Address
LIMITS ON COURT POWER

Independence of judiciary from the political
branches is a two-edged sword
 Allows
Court to rule free from outside political
influence
 Also limits political accountability
BACK TO THE AMERICAN EXPERIMENT
The Founders used structure to constrain self
interest and mobilize virtue.
 At the same time conscience must inform
structure

Men are qualified for civil liberty in exact proportion to their
disposition to put moral chains upon their own appetites.…
Society cannot exist, unless a controlling power upon will and
appetite be placed somewhere; and the less of it there is
within, the more there must be without. It is ordained in the
eternal constitution of things, that men of intemperate minds
cannot be free. Their passions forge their fetters.
Edmund Burke, Letter to a Member of the National
Assembly (1791)
FOUNDING IDEALS TODAY?
Elder Jeffrey R. Holland:
“With this understanding, a critically important realization came to
bear on the minds and hearts of the founding fathers. Success in
their endeavors depended not only upon virtue in the people at
that time, but it also depended on the continuation of those
virtues in every successive generation to come.”
Elder Dallin H. Oaks: “The citizens who founded this nation
understood the relationship between self-government and citizen
responsibilities. Their writings are replete with references to
public or civic virtue – meaning the willingness of individual
citizens to sacrifice their private interests for the well-being of the
nation. The founders obviously considered this virtue a
prerequisite to the maintenance of freedom and self-government.”
"I sought for the greatness and genius of America in
her commodious harbors and in her ample rivers, but
it was not there. I sought for it in her fertile fields and
boundless prairies, and it was not there. I sought it in
her rich mines and vast world commerce, and it was
not there. Not until I went into the churches of
America and heard her pulpits aflame with
righteousness did I understand the greatness and the
genius of her power. America is great because she is
good. And if America ceases to be good, she will cease
to be great."
Alexis de Tocqueville
SO ARE WE GOOD GUYS WITH THE
WHITE HATS?
DO WE WANT TO BE? IS THIS A
HEALTHY VIEW OF OURSELVES?
AMERICAN CONSCIENCE
AND THE HIGHER LAW

Conscience has played a part in every watershed
moment in American history
 The
Puritans and the City on a Hill
 Revolution
 Constitutionalism
 Abolitionism
 Manifest destiny
 Progressivism
 Women’s suffrage
 World War I and the world safe for democracy
 World War II – legacy of international law and human rights
 Civil Rights Movement
 New frontiers: space, stop communism, terrorism
“The moral choice that confronts man tragically has never
been the stark antithesis between wholly good and purely evil,
but rather the obligation to distinguish the mostly good from
the mostly bad. The demand for perfection as a prerequisite
for any action at all is not only utopian and unworkable, but in
our present crisis fatal for millions who depend on the United
States to back its moral vision with real power to thwart killers
and protect the weak and innocent. . . . [W]e should never
allow our occasional disappointments as mere humans to
change or subvert America—the nature of its laws, the spirit
of its constitution, the telling of its past or the culture of its
people—which history proves has offered man his last and
greatest hope.”
--Victor Davis Hanson