Susan Hanssen*
Twentieth-century religious liberty jurisprudence developed on the far side of a great historic chasm that separates us from the traditional definition of religion. Between Americans in 2012 and the American founders in 1776 stand William James and the beginnings of the "science of comparative religions." If we are to grasp the founders' idea of a natural right to religious liberty, we must perform a labor of historical imagination and recover the longstanding definition of religion that has been lost to us.
The classic book that launched the social scientific approach to the study of religion was James's The Varieties of Religious Experience (1903). The book was initially his series of lectures at the University of Edinburgh-the prestigious Gifford Lectures. James deliberately refused to accept the usual title "Gifford Lectures in Natural Theology" for his series of talks and chose instead to call them lectures in "Natural Religion." He assumed that religion was not, as the word "theology" implied, subject to any rational justification. Rather, he saw religion as essentially experiential and the study of religion as essentially empirical-the collection of a variety of accounts of wildly divergent spiritual experiences.
In the very first lecture James laid out a new definition of religion that cut us off from the traditional notion-for James, religion was "the spiritual experience of man in his solitude." All organized religious associations, worship, theology, creeds, or moral practices were for James utterly secondary to the nature of religion. Religion, according to James, was and always remained fundamentally an interior and incommunicable experience of man "in his solitude."
This definition had of course a long history, but it was by no means the established and widely accepted definition even in the English-speaking world when William James made it the foundation of "religious studies" programs at the beginning of the twentieth century. James's definition, which had a powerful effect on Progressive-era jurisprudence on religious liberty issues, would have shocked the American founders, who were steeped in an older and more comprehensive understanding of religion.
According to George Washington, religion involved a public affirmation and was a matter of grave public concern. He would have been mystified to hear it discussed as a solitary spiritual experience, a personal feeling, opinion, or preference-something akin to a "high" or a "hobby." In his Farewell Address, Washington referred to "Religion and morality" (Religion with a capital "R") as the "indispensable supports" of the country's political prosperity.
For Washington, patriotism, that is to say civic virtue itself, could not be maintained without reliance on the "great Pillars" of "Religion and morality." Morality, he argued, cannot "be maintained without religion." A "sense of religious obligation" was the very foundation of the adjudication and enforcement of public justice.
It takes some real intellectual labor for us in the third millennium to grasp the definition of religion as essentially one of the res-publica, the public things, that ought to concern patriotic men. But it was certainly nothing new for Washington. It was as old as Aristotle or Cicero.
Washington had in his library at Mount Vernon an English translation of Cicero's great work On Duties, originally written in Latin (De Officis) in 44 BC. In the introduction, Cicero made two things clear: Rights derive from duties, and duties derive from some "doctrine of the supreme good." What we call rights, Cicero said, are obligations. And he said this not on his own authority as an inventor of the idea, but based on the ideas of the Greeks: "Absolute duty we may, I presume, call 'right,' for the Greeks call it katorthoma, while the ordinary duty they call kathekon."
Much has been written on the "invention" of the notion of natural or human rights in the eighteenth century, but certainly the American founders did not think of themselves as inventors but rather as defenders of the idea of the "Laws of Nature and Nature's God." For them, as for Cicero, if we have an obligation to do something, derived from some doctrine of the supreme good, then we can claim a "right" to do it. "Right" is a secondary concept deriving its force from some prior conception of absolute moral obligation, duty, or "office."
For example, if I have an obligation to care for my aging parents, then I can claim a "right" to care for them. If I have an obligation to educate my children, then I can claim a "right" to educate them. It is my "office," proper to who I am-as child or as parent-and I claim sovereignty over the fulfillment of the rights and duties pertaining to that identity. The definition also acts as a limit on rights claims: If I do not have a moral obligation to trash your property, then I cannot claim a "right" to trash your property.
These ideas were not rocket science, esoteric philosophy, or novelties for Cicero or the American founders. Only our obliviousness to the historic natural law tradition can make us imagine that "rights," including rights to religious liberty, are a modern invention. The bizarre belief in rights ungrounded in any prior notion of duties or the supreme good of the human person-an idea that Alasdair MacIntyre likens to belief in witches and unicorns-is, on the other hand, indeed a very modern invention.
The man who fulfilled his "officiis" or duties was the just man. Justice was the goal of all civic education. Justice meant, in the Aristotelian formula, "to give to each his due." A just man paid a just price and a just wage. He repaid his debts.
At the heart of justice there were, of course, those debts that could never be repaid-the debts to God, parents, and country. While most debts were of the minor sort payable in kind, the great moral tradition always acknowledged as the highest obligations of justice those irreparable debts. One could never repay God for everything-the cosmos-that surrounded one. Nor one's parents for the gift of life, or one's country for the sustenance that enabled one's flourishing. These obligations of justice were obligations in the truest sense of the word-ligaments, the ties that bind.
As the key elements of justice, religion, filial piety, and patriotism expressed the most important rational insights into the human condition. To be human is to be a person-to face a network of pre-existent, causal relations. Without the creative, procreative, supportive ligaments that have drawn us out of nothing into bodily and social existence, there could be no moral agent. Someone who refused to acknowledge these ligaments could not be relied upon to honor the multitude of lesser obligations in life.
Of this triune core at the heart of justice, religion stood pre-eminent. Religion was justice.
How far have we come from this definition of religion, when we imagine that religion is some highly personal and private, esoteric and incommunicable "experience" of man in his solitude?
One important consequence of the difference between the old definition of religion and the newfangled version is the role of religion in public life. As the founders understood things, religion was the result of a rational insight into the human condition and therefore religion was precisely a vital initiator of public rational discourse. It was not defined as an irrational feeling that had no place in public debate.
Religion was the essence of justice, the highest form of the virtue of giving to each its due. But the other two, filial piety and patriotism, shared the platform. They too were "absolute obligations" implying sovereignty, offices, rights. Because all virtues, as virtue, must be commensurate with each other, any conflict between filial piety, patriotism, religion, and the other obligations of justice signaled the need for serious thought to discover the source of confusion. It was inconceivable that these obligations, if they were true expressions of a rational insight into the human condition, would be incompatible.
In Washington's farewell to the nation at the end of his term as general of the Continental army, he lambasted the states for failing to tax themselves to repay the infant nation's foreign debt-but lambasted them far more for failing to take care of the widows and orphans of the truest "patri patriae," the soldiers who had given their lives that that nation might live. Failure to live up to such obligations filled Washington with religious horror:
Where is the Man to be found, who wishes to remain indebted, for the defence of his own person and property, to the exertions, the bravery, and the blood of others, without making one generous effort to repay the debt of honor and of gratitude? In what part of the Continent shall we find any Man, or body of Men, who would not blush to stand up and propose measures, purposely calculated to rob the Soldier of his Stipend, and the Public Creditor of his due? and were it possible that such a flagrant instance of Injustice could ever happen, would it not excite the general indignation, and tend to bring down, upon the Authors of such measures, the aggravated vengeance of Heaven?
The crescendo of questions ended with an apocalyptic fear. Religion was a public virtue-the public virtue, underwriting all the public ties that bind. It was in the interest of the three great sovereignties-religion, family, nation-to mutually recognize and reinforce the others. Cut one tie and the entire network unravels. The very ligaments of virtue, by which a society runs freely and naturally, would fall limp, leaving naked power-the force of numbers or the force of military might-the only possible mover.
Religious liberty is precisely a question of the sovereignty, offices, duties, and rights of public networks of association, not a question of the right to one's own private thoughts or practices. Religious liberty is more a question of the right to public association, public expression, and public activity than it is about private opinions or personal decisions.
A "republic" is precisely a regime in which "the public things"-churches, families, nations-mutually and publicly (i.e., in law) recognize the sovereignty, offices, duties, and rights proper to each. When any one ceases to acknowledge the sovereignty and rights of the others, the single imperial Leviathan state has appeared. The test of a republic's health and safety-indeed of its republican legitimacy, of its existence as a republic-is this mutual recognition. If no public agency but the state is recognized as sovereign, then the republic is at an end and an empire takes its place.
If the nation imagines that it alone is the official agent of all duties and rights, delegated at its will to families and churches that are its creatures and servants, this would be as monstrous as a church or a family that similarly claimed to possess such absolute sovereignty. Churches and families have indeed been tempted to these claims in the past, but it is the nation that is currently on the make. The American founders thought they had thrown up a bar to the imperial state's claims of absolute sovereignty in the American Constitution and the Bill of Rights, but the march of the modern nation-state has overtaken us. William James's iconic redefinition of religion as a private experience was merely one of the "drums from the deep" that signaled the rebirth of Leviathan on these shores.