The Dobbs Fraud by SCOTUS's Fake Originalists (Part IV)

The First Amendment was not the Constitution's first protection of freedom of conscience

If you think you don’t need to care about what SCOTUS did in Dobbs, please think again. If you care about your own (or anyone else’s) freedom of religion or freedom of conscience, then you care about how the SCOTUS majority used Dobbs and its sequel, Alexander. In Alexander, Justice Alito and his adherents decreed that gerrymandering for “partisan” political purposes was perfectly fine even if discrimination for “partisan” political purposes looked exactly like discrimination based on anything protected by the Constitution. Such gerrymandering could be used for “political apartheid,” including by creating “partisan” political ghettoes. Alexander was intimately related to and supported Dobbs.

Justice Alito and his adherents in Dobbs deceitfully pretended that they could not see that the freedom of conscience at issue in Dobbs was “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” The Dobbs majority knew that the right to choose what to believe and how to live one’s own life was encompassed in Americans’ freedom of conscience.

It is well-known that such right enjoyed longstanding protection explicitly in the First Amendment. Less known today is an aspect of the Constitution that was very well known when the Constitution was written and ratified. Americans’ freedom of conscience was protected even by the plain language of the original Constitution. Article VI emphasized that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

This particular provision engendered copious vigorous opposition to and discussion of the Constitution. This protection of the freedom of conscience was highly controversial for two reasons relevant to the pretense of the Dobbs majority. First, this provision clearly did not merely protect a variety of denominations of Christianity. Second, it emphatically was divorced from any form of anything conceived of as religion.

Article VI supported “no [particular kind of] religious” belief and it protected having “no religious” belief at all. Many considering the Constitution knew this clause supported freedom of conscience even to the point of protecting atheism or deism. Many people objected vigorously on all the foregoing grounds.

James Iredell (a leading Federalist and judge in North Carolina, and later a SCOTUS justice who issued an opinion emphasizing the sovereignty of the people) was one of the many who addressed Americans’ liberty of religion. He delivered a speech at the North Carolina ratifying convention defending the protection for freedom of conscience in Article VI:

I consider the clause under consideration as one of the strongest proofs that could be adduced, that it was the intention of [the Framers of our Constitution], to establish a general religious liberty in America. . . . [But] it is objected, that [clause permits] the people of America [to choose] Representatives who have no religion at all, and that Pagans and Mahometans may be admitted into [federal] offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for? This is the foundation on which persecution has been raised in every part of the world. The people in power were always in the right, and every body else wrong. If you admit the least difference, the door to persecution is opened. . . . It would be happy for mankind if religion was permitted to take its own course, and maintain itself by the excellence of its own doctrines. The divine author of our religion never wished for its support by worldly authority.

Iredell further emphasized that “[t]his article is calculated to secure universal religious liberty” because such liberty is “the only way to prevent persecution” (including of the type of persecution at issue in Dobbs). Iredell emphasized the reason:¹

Every person in the least conversant in the history of mankind, knows what dreadful mischiefs have been committed by religious persecutions. . . . Those in power have generally considered all wisdom centered in themselves, that they alone had a right to dictate to the rest of mankind, and that all opposition to their tenets was profane and impious. The consequence of this intolerant spirit has been, that each church has in turn set itself up against every other, and persecutions and wars of the most implacable and bloody nature have taken place in every part of the world. America has set an example to mankind to think more modestly and reasonably; that a man may be of different religious sentiments from our own, without being a bad member of society.

Oliver Ellsworth (another leading Federalist who helped create the Constitution and who served as the third chief justice of SCOTUS) expressed similar thoughts in his published writing in A Landholder VII in 1787:

The business of civil government is to protect the citizen in his rights, to defend the community from hostile powers, and to promote the general welfare. Civil government has no business to meddle with the private opinions of the people. If I demean myself as a good citizen, I am accountable, not to man, but to God, for the religious opinions which I embrace, and the manner in which I worship the supreme being. If such had been the universal sentiments of mankind, and they had acted accordingly, persecution, the bane of truth and nurse of error, with her bloody axe and flaming hand, would never have turned so great a part of the world into a field of blood.

Alexander Hamilton and James Madison, who were writing primarily to the people of New York, did not feel the need to address in The Federalist Papers such issues as directly as Iredell and Ellsworth did. Even so, they addressed related issues.

Hamilton emphasized in The Federalist No. 1, “in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.” He also highlighted that, too often, in politics and religion “passions and prejudices” have proved to be “little favorable to the discovery of truth.” Too often, a “torrent of angry and malignant passions will be let loose.” Too often, political or religious factions seek “to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives.”

Madison in The Federalist No. 10 addressed related issues. His thoughts coincide precisely with the phenomenon we see today in the SCOTUS majority’s conduct, including in Dobbs and Alexander:

a faction [means] a number of citizens . . . who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community. . . .

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, [pertaining to] speculation [or] practice [about what to think or do]; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.

Madison writing to Thomas Jefferson in October 1787 more directly revealed his fears about oppression based on religion: “When Indeed Religion is kindled into enthusiasm, its force like that of other passions is increased by the sympathy of a multitude,” and “it has been much oftener a motive to oppression than a restraint from it.” “If the same sect form a majority and have the power, other sects will be sure to be depressed.” Madison clearly meant something like “the more powerful, the meaner.” So “[t]he same security seems requisite for the civil as for the religious rights of individuals.” “The great desideratum in Government is” to ensure that it is “sufficiently neutral between different parts of the Society to controul one part from invading the rights of another, and at the same time sufficiently controuled itself, from setting up an interest adverse to that of the entire Society.”

Discussion such as the foregoing pertained to the original Constitution. So such discussions necessarily were a crucial part of the background for and understanding of the First Amendment (as well as SCOTUS precedent regarding the freedom of conscience). Additional related facts also are relevant.

First, many in Jefferson’s time thought or said Jefferson was an atheist. SCOTUS Justice Samuel Chase, for example, reportedly even publicly attacked Jefferson on those very grounds while Jefferson was the sitting vice president. James Monroe wrote to Jefferson in 1800 to inform him that Justice Chase reportedly even “harangued [a Grand] Jury in a speech” including “calumnies he intended for you,” and he “declared” that he would “not allow an atheist to give testimony in court.”

Another person wrote to Jefferson in March 1788 about a “book” that “has put all the minds in a fermentation. I have heard [even] more religion talked and discussed since the appearance of this book than in three years before” and “I may say also that I have heard more atheism.”

Second, two years before Madison started pressuring the Philadelphia convention to write our Constitution, he penned a powerful and well-known opposition to government interference in matters of conscience. Madison’s 1785 Memorial and Remonstrance against Religious Assessments (opposing a Virginia tax to support religion) has been read and even quoted by many SCOTUS justices. It began with the following:

we hold it for a fundamental and undeniable truth, “that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.” The Religion then 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 these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.

“We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.” “The preservation of a free Government requires” that no “department of power” be “suffered to overleap the great Barrier” (here, the Virginia Constitution, but equally applicable to the subsequent U.S. Constitution) “which defends the rights of the people.” Any public officials “who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.”

“[I]t is proper to take alarm at the first experiment” (government intrusion) “on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the [American] Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle.”

Madison emphasized that Virginia’s Declaration of Rights (June 1776) declared that “all men are by nature equally free and independent.” As a result, Madison continued:²

all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an “equal title to the free exercise of Religion according to the dictates of Conscience.” Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.

1. Jacob Mchangama’s 2022 book Free Speech: A History from Socrates to Social Media is an excellent source of information (and an extraordinarily good value) about the history of freedom of speech, freedom of conscience and political and religious persecution (in America and around the world). Mchangama’s podcast, Clear and Present Danger also is an outstanding resource.

2. Virginia’s Declaration of Rights was prepared primarily by George Mason, but James Madison assisted. Thomas Jefferson’s June 1776 Rough Draught (Rough Draft) of the Declaration of Independence essentially copied this language (although the final version of the Declaration was different). Both Virginia’s Declaration of Rights and Jefferson’s Rough Draft misspelled the word “independant.”