The Bill of Rights, the first ten amendments to the Constitution, listed non-negotiable constitutionally guaranteed freedoms in specific order, unchanged since 1791. James Madison, its chief architect, listed freedom of religion first; then speech, press, assembly, petition, right to keep and bear arms, and freedom from forced quartering of military members in one’s home.
Freedom from civil government overreach and interference was essential to establishing sustainable civil order and a just rule of law; the first ten amendments — only 468 words — were added to protect what the founders considered “preexisting rights” from federal government “encroachment.”
Freedom of religion was un-mistakenly listed as the first freedom of the Bill of Rights. And the term “religion” was well understood from its original context derived from the State of Virginia’s Bill of Rights. In Article 1, Section 16, Virginia’s Bill of Rights defines “religion” as “the duty which we owe to our Creator… the manner of discharging… [of which] can be directed only by reason and conviction, not by force or violence.”
(Many significant words and phrases used to write the Bill of Rights to the U.S. Constitution were selected from preexisting documents and individual state constitutions’ declaration of rights, which provided more detailed definitions.)
Virginia’s Bill of Rights legally defined “religion” as a means to secure freedom from government coercion, which enabled a foundational protection for other freedoms.
The Bill of Rights, by defining religion, allows people to believe and act by “reason or conviction” without fear of being coerced to violate their “dictates of conscience.” In this way, religion is jurisdictional– the Bill of Rights ensures that the government cannot force a citizen to violate his/her conscience.
James Madison articulated in Memorial and Remonstrance:
“THE RELIGION … OF EVERY MAN MUST BE LEFT TO THE CONVICTION AND CONSCIENCE OF EVERY MAN; AND IT IS THE RIGHT OF EVERY MAN TO EXERCISE IT AS THEY MAY INDICATE. THIS RIGHT IN ITS NATURE IS AN UNALIENABLE RIGHT. IT IS UNALIENABLE; BECAUSE THE OPINIONS OF MEN … CANNOT FOLLOW THE DICTATES OF OTHER MEN: IT IS UNALIENABLE ALSO; BECAUSE WHAT IS HERE A RIGHT TOWARDS MEN, IS A DUTY TOWARDS THE CREATOR. … THIS DUTY IS PRECEDENT BOTH IN ORDER OF TIME AND DEGREE OF OBLIGATION, TO THE CLAIMS OF CIVIL SOCIETY.”
Madison believed that citizens were first “subject[s] of the Great Governor of the Universe,” who must first make his/her “allegiance to the Universal Sovereign” before they could consider being a “member of Civil Society.”
He considered religion first and foremost “immune” from any and all civil authorities. The wording used for the First Amendment’s two religion clauses were specifically straightforward: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” All matters of religion were exempted from civil authority.
“IN MATTERS OF RELIGION, NO MAN’S RIGHT IS ABRIDGED BY THE INSTITUTION OF CIVIL SOCIETY, AND THAT RELIGION IS WHOLLY EXEMPT FROM ITS COGNIZANCE.”
As a legal and jurisdictional matter, Madison asserted that all men are first subject to God as an immutable fact based on the Christian worldview (Mark 12:17, Psalm 24:1). It was imperative to specify that no government could ever have authority over one’s relationship with God. Understanding that even governmental authority itself originates from God (Romans 13:1) — moral standards could not be mutually exclusive from rule of law.
Furthermore, freedom of conscience, under the jurisdiction of freedom of religion, established the next four freedoms guaranteed by the First Amendment. They include freedom of speech, freedom of the press, freedom to peacefully assemble, and freedom to petition the government for a redress of grievances. These four freedoms granted constitutional security for “residual sovereignty” of the people, not the government.
The Bill of Rights ensured freedom of religion as the foundation for all other liberties. No other amendments were possible if freedom of religion had not first been guaranteed as an unalienable right.
This column was first published on Constitution.com.