American Constitutionalism in Historical Perspective (packet)

History: only history w/ free speech is anti-licensing (20^th C phenomenon) but w/ religion it’s robust. By 1830 no established churches. Reconstruction Amendment requires incorporation of Bill of Rts also incorporates free exercise and anti-establishment clauses

1. 
   European wars of religion, largely intra-Christian. After wars, Spinoza (Judaism) Erasmus (Catholic) Locke/Bayle (Protestant) all plea for religious toleration. In US, Locke is central figure of American conception of religious toleration.
   
2. 
   Locke: “Letter Concerning Toleration” played integral part in formation of Bill of Rts
   
   1. 
      Distinction b/w religious interests (impt but deeply personal) and secular interests (equal pursuit of life, liberty, and property). Only have legit state power if limited to secular interests
      
   2. 
      Religious liberty can be abridged if compelling secular state purpose. Ex: state can forbid human sacrifice but c/n forbid animal sacrifice (City of Hialeah)
      
3. 
   Jefferson/Madison
   
   1. 
      US must move beyond Locke and free exercise. Jefferson demands Anti-Establishment clause. Not just protect religious liberty but also cut knot of tax support by state of religious institution. Disestablishes Virginia Anglican church.
      
   2. 
      Central rt we have is rt to conscience subject to a clear of present danger of a harm to a secular interest. (clear and present danger idea starts here w/ religious liberty) C/n be heresy law b/c atheistic claims d/n pick his pocket nor break his bones (harm principle). Can say what they want including that god d/n exist.
      
   3. 
      Madison Remonstrance where he argues to VA legislature to pass anti-est clause and it’s passed. First time we have disestablishment. Madison then extends these principles at fed level
      
4. 
   What drove Madison and Jefferson?
   
   1. 
      Religion is corrupted at its core if it allies itself w/ political power. Ex: Christian Roman empire under Constantine and Theodosius—inquisitorial, violent, and anti-Semitic—this could happen to any religion
      
   2. 
      Not as fearful of corruption of state power as they were of corruption of religion
      
   3. 
      Religious liberty test: every person has equal respect subject to compelling state interest similar to test of free speech (every speaker should have equal respect subject to clear and present danger). Ex: Whitney concurrence.
      
   4. 
      Not utilitarian or about politics but about tolerance. Gives power to religiously conscientious protest movements. MLK: nonviolence and Sermon on the Mount.
      

3 big issues in interpreting religious clause

1. 
   Universal compulsory education in tension w/ anti-establishment clause
   
2. 
   Big battles of 19^th and 20^th C over science and religion –ex: Darwin’s view inconsistent w/ Genesis
   
3. 
   Tradnl public morality (secular) is no longer secular in modern times but sectarian (gay/lesbian issues)