Religion

The Best Argument for Religious Liberty You'll See This Week

Not all laws are just.

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Children at prayer
rana ossama / Flickr

I've said before that it's important to engage with your opponent's strongest argument (as opposed to the one you find easiest to counter), which is why I was glad to hear from a liberal legal scholar at the Federalist Society last fall.

In the spirit of making life easier for those who don't already agree with me, I wanted to share a beautifully articulated defense of religious liberty, natural rights, and the idea that just because something is "the law" doesn't necessarily make it right. (That, by the way, is a fallacy people on both sides of the aisle have been known to succumb to—from conservatives who think immigrants who came to the U.S. illegally should always be treated as criminals to progressives who think Christian-owned pharmacies should be forced to stock the morning-after pill). Without further throat-clearing, I present for your consideration these excellent recent remarks from Becket Fund founder Seamus Hasson:

The Massachusetts Bay colony in the 1650s is the site of our story, and it features the Puritans at the time puzzling about what to do about these nasty Quakers that they had heard tell of. Before there were any Quakers in the Massachusetts Bay colony at all they decided to outlaw them. So they passed a law saying any Quaker that turned up in the colony was to be banished immediately, and if he returned, was to be flogged and then banished again.

Well, the Quakers had a very robust idea of conscience. In fact, it was even more than conscience. They claimed it to be the inner light of God's presence in themselves and us all. And darned if the inner light didn't tell the Quakers to come back. So the Quakers, being flogged and sent off, returned.

So in 1657 they passed another law saying that banished Quakers who were flogged and returned, for a first offense would have one of their ears cut off. For a second offense would have their other ears cut off. And for a third offense would have their tongues bored through with a hot iron. And they enforced this. We have the names and dates of people who lost their ears to this law in Massachusetts. But the inner light was a very stubborn thing and told them to return. And so earless, and with holes in their tongues, the Quakers returned to preach against this manifest injustice.

So the Massachusetts Bay colony passed another statute, saying that for a third offense the punishment was death. Now, Mary Dyer was a very free-spirited woman. She returned four times to the colony of Massachusetts Bay to preach against the Puritans there, not counting the two trips she took to New Haven to preach against the Puritans there as well. So on June 1 of 1660 she was solemnly, lawfully hanged on Boston Common for the crime of preaching in Massachusetts.

There's the story. Here's the question it poses: Why shouldn't she die? After all, she had notices of the law. She willingly broke the law. She was duly arrested, properly tried, and properly hanged. What's wrong with that?

That's a monstrous question, of course. You can't kill people for preaching in Massachusetts. But the question is, why can't you? It wasn't illegal; it was legally required. It wasn't unconstitutional; there wasn't a Constitution yet.

While you're pondering that, an even briefer story: Vermont in 1870, in its Constitution, provisioned that all office holders had to hold and preach the Protestant religion, thereby excluding Catholics and Jews. There's the brief story. Here's the brief question: If the law requires you to be anti-Semitic, may you be? To repeat, this wasn't illegal. This was legally required. And it wasn't unconstitutional, because although there was a Constitution, it didn't apply to the states in 1870. So the question is, if the law requires you to be anti-Semitic, may you be?

And the third story takes place in the 19[9]0s in China, where a 6-year-old boy named Gedhun Choekyi Nyima was arrested, and if he's still alive is still being held today, for the crime of being thought by others to be the Panchen Lama's reincarnation. Every time the State Department says to China, "This is an outrage. Release the little boy," China responds the same way: "You're interfering in our internal affairs. Get lost."

Here's the question: Why aren't they right? Why isn't the question of whether you can arrest and imprison a 6-year-old boy for the religious beliefs of others—why isn't that just a question of Chinese law?

All three of those questions posed are different versions of the same master question: Where does religious liberty come from? If you think that religious liberty comes from the Constitution—not that the Constitution codifies religious liberty, but that it actually comes from the Constitution in the first place—then you must think that Mary Dyer was properly executed, that in 1870 anti-Semitism was OK, and that the Chinese are right. Because in none of those cases was there a Constitution that applied.

To skip ahead, if you don't think that Mary Dyer was properly executed, and if you think that anti-Semitism is always and everywhere illegal, and if you think the Chinese are wrong, then you must think, along with Madison [and others], that religious liberty has a foundation elsewhere, prior to and higher than the Constitution.

Hasson's comments were part of an event last week at the American Enterprise Institute called "Catholic thought and human flourishing: Culture and policy." You can see video of the whole thing here.

NEXT: How Hillary Clinton and the Democratic Party Are 'against…free speech'

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  1. I am over this contingent freedom crap.

    Fuck you- I’ll associate (or not) JUST BECAUSE.

  2. There’s a difference between the law and legislation. Parts of the law might well be unjust depending on how it’s interpreted on the day, but legislation is always unjust as it’s being forced onto people by elites and special interests looking to grab power from others.

    1. YES! I’ll be taking part in a protest this weekend, demanding repeal of all the fascist laws in my state against, murder theft and fraud, laws which exist solely to empower the elites and special interests.

      Every one of those damn laws was enacted by legislation.

  3. OT.

    YOU LIE! (maybe not today, maybe not tomorrow, but soon, and for the rest of our lives)

    “Under a bill signed Friday by Gov. Jerry Brown, California will become the first state to ask federal officials to allow immigrants here illegally to buy insurance through its state health exchange.”

    http://touch.latimes.com/#sect…..-87526352/

    1. “It quite clearly states here in your policy that because you are an illegal immigrant no claim you make will be paid.”

      How else you gonna get the money without jeopardizing the risk pool? You could tax citizens, but once in a while they have a nasty habit of voting against the whims of elites. But an illegal immigrant? You can let them buy indulgences.

  4. “And so earless, and with holes in their tongues, the Quakers returned to preach against this manifest injustice.”

    You mean thith manifetht injuthtith.

    1. Damn Quathers!

    2. Wha?

      1. holes in their tongues.

  5. Seriously, I see that Reason is covering SoCon events now, I guess I’ll have to drop that piece of snark from my repertoire…for now…

  6. There’s the story. Here’s the question it poses: Why shouldn’t she die? After all, she had notices of the law. She willingly broke the law. She was duly arrested, properly tried, and properly hanged. What’s wrong with that?

    And if a group of Rhode Islanders had banded together in order to bring an end to these crimes against humanity by chaining the doors of the Massachusetts Bay colony’s largest church and setting it alight, burning alive the savages within? What’s wrong with that?

    1. Not enough Puritans could fit inside? 🙂 Damned Roundheads, same sort of bastards as that murderin’ Cromwell.

      Kevin R

  7. More of this, please.

    Gotta run, but this article had more meat on its bones than almost anything else I’ve seen here in quite awhile.

    The issue he’s getting at, of course, is that if you treat the law/legislation as the only source of authority, and the state as the ultimate arbiter of what is good and just and right, then you are essentially a nihilist, with no basis for objecting to any law or any state action.

    So begins the search for something else that you can plant your feet on to object to laws or state action.

  8. Tell the first story to a Trump supporter.and see what they say. Then ask them to replace the word “Quaker” with the word “Muslim” and watch the rationalization begin.

    1. I get what you’re saying. Puritans in Puritan areas murdered people for being Quakers, with the intent of completely eliminating the heretics from their land. So the Puritans in this example are clearly the Muslims and the Quakers are obviously the Christians. So, if the Puritans came to a Quaker town, would the Quakers be justifed in expelling them with no more violence than absolutely necessary to enforce the law? Or should they let the Puritans in and risk being murdered in their own towns as well? An interesting question.

      1. An interesting question

        Indeed, since both Quakers and Muslims were victims of aggression.
        Oops, your analogy is bass ackwards.

    2. Let’s do that. Let’s replace ‘Quaker’ with ‘Muslim’

      The Massachusetts Bay colony in the 1650s is the site of our story, and it features the Puritans at the time puzzling about what to do about these nasty Muslims that they had heard tell of. Before there were any Muslims in the Massachusetts Bay colony at all they decided to outlaw them. So they passed a law saying any Muslims that turned up in the colony was to be banished immediately, and if he returned, was to be flogged and then banished again.

      Well, the Muslims had a very robust idea of conscience. In fact, it was even more than conscience. They claimed it to be the will of Allah and that all must submit to Islam or die.. And darned if the will of Allah didn’t have the Muslims killing people who refused to submit.. So the Muslims quickly escalated beyond the worst the people of the Massachusetts Bay Colony had ever expected.

      Faced with Muslims murdering people, the Puritans closed off the colony to them and killed any that tried to get in and attack.

      Wow. That was a lot shorter that I thought it was going to be.

      Muslims aren’t Quakers.

  9. Not all Catholic politicos are SoCons. There’s actually a long thread of Catholic Social Thought friendly to libertarian ideas that ought to be cultivated, going back to the economics of the School of Salamanca.* Murray Rothbard has written about this. I used to have fun in a Jesuit-taught ethics class pointing out that radical libertarianism was more consistent with the gospels than was liberation theology. Jesus never told anybody to be Caesar, did he? It was Peter, put down your sword, too. I have long given up Catholicism, and haven’t taken up any competing faith, but you have to build coalitions somehow, so why not listen to what learned believers say and see if it can’t match up to (L)/libertarians’ political program? – Kevin R * https://en.wikipedia.org/wiki/School_of_Salamanca

    1. The modern counterparts are like Montalembert under Pius IX, or John Courtney Murray under Pius XII – under a cloud, but still developing their ideas.

    2. Just about all Roman Catholic clergymen are gay.

      /Roman Catholic Alter Boy

    3. Nancy Pelosi is Catholic. Definitely not a SoCon.

      1. Not just a Catholic, Pelosi is an Italian Catholic. She might be a bit a crusty now, we all get that way, but she was hot is her day.

  10. “To skip ahead, if you don’t think that Mary Dyer was properly executed, and if you think that anti-Semitism is always and everywhere illegal, and if you think the Chinese are wrong, then you must think, along with Madison [and others], that religious liberty has a foundation elsewhere, prior to and higher than the Constitution.”
    Wait, so because my morality doesn’t match the morality of people hundreds of years ago or halfway around the world, I’m supposed to conclude that morality is absolute?

    Sure, that makes sense.

    In shorter words: not all of us are arrogant enough to assume that our take on morality and what is “right” is, well, right.

    1. wHHHHOOOOOOSSSSHHHH.

      1. Hey, if they didn’t want to assert that you simply must believe in a higher power to find injustice in those cases, they probably shouldn’t have said as much.

    2. The “arrogance” comes less from what they believe. but from imposing that belief by force. And it doesn’t take a God for that. As Eric Hofffer noted in his seminal book on zealots and fanatics:

      “Mass movements do not need a god, but they do need a devil. Hatred unifies the True Believers.”
      -Eric Hoffer, The True Believer (1951)

      Throughout human history, the worst abuses have been committed by those manipulated into believing they were defending some “greater good” — the Collective, the State, the Master Race, the Party or a God. Zealots and fanatics. The militant self-righteous. (my translation, circa 1998)

  11. This historical anchoring will stop Islamists from throwing queers off of rooftops?

    Trump2016. I am gearing up for it, at least.

    1. Mentally gearing up for it, or just buying one of those goofy red hats?

  12. Another triumph for Stephanie.
    Rothbard’s American history described vicious anti-Catholic violence in colonial New England. The (un)Holy Inquisition was still committing moral atrocities in Europe, so some misplaced hatred may have been expected. But anti-Quaker?

  13. Good read. Is reason getting better?

  14. “…for a first offense would have one of their ears cut off. For a second offense would have their other ears cut off.”

    Just how many ears did those people have?

    1. Ear number is a social construct.

  15. This was CS Lewis’ appeal for the existence of a god. If your morality is not from a source higher than the laws of man…we have no authority to criticize the likes of Hitler for their atrocities that were legal within their own country and not subject to any international law.

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