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 190s 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.