As discussed in the previous article, the principles underlying the Declaration of Independence and the Constitution were built on ideas coming out of the Christian tradition, including Augustinian pessimism about government, the concept of unalienable rights, Protestant resistance theory, and Calvinist social contract theory. These ideas were frequently mediated by John Locke, who was himself part of this tradition, but in some ways the American Founders departed from Locke.

The Bill of Rights

In order for the Constitution to be ratified, the Founders had to append the Bill of Rights to the document as the first ten amendments to the Constitution. They were reluctant to do so, since they feared these would be interpreted as the only rights that we have, but some states insisted on their passage, and so they were drafted and then ratified along with the Constitution.

The amendments guaranteed the following:

1. Freedom of religion, freedom of speech and of the press, freedom of peaceable assembly, and right to petition the government for redress of grievances;
2. The right to bear arms;
3. Protection against involuntary quartering of soldiers in private homes;
4. Protection against unreasonable search and seizure;
5. Right to due process, including protection against double jeopardy, self-incrimination, and confiscation of property for public use without compensation;
6. Right to a speedy and fair trial;
7. Right to a jury trial in federal civil cases;
8. Protection against excessive bail, excessive fines, and cruel and unusual punishment;
9. A statement that our rights are not limited to those enumerated in the Bill of Rights;
10. A statement that powers not specifically delegated to the Federal government or prohibited to the states by the Constitution are to “reserved to the states . . . or the people.”

Several things are worth noting about this list. All the amendments involve restrictions on the government, especially at the federal level, in favor of the people. In other words, the amendments are designed to restrict what the government can do, not what people can do.

Most of the amendments flow from the unalienable rights identified by medieval theologians. They spell out some of the implications of the rights to liberty and property, while at the same time recognizing that these are not the only specific rights that liberty and property imply.

The Bill of Rights thus reflects a concern that government, especially the federal government, will seek to expand its power over the people and violate their rights as England did, and thus become tyrannical. Like the ideas of limited government, checks and balances, and separation of powers, the Bill of Rights reflects an Augustinian distrust of allowing government too much power.

The concern about potential federal overreach is most obvious in the Tenth Amendment, the most regularly ignored article in the Constitution. Since the states are closer to the people, the assumption is that they will be more responsive to the people’s interests and needs than the federal government. Further, the diversity of the states meant that each would have its own particular concerns that needed to be addressed, and so rather than federal solutions being found for all of these, most of the specifics of governance were to be left to the individual states to decide.

A careful reading of the First Amendment shows this concern at the very beginning of the Bill of Rights. The first clause of the First Amendment reads, “Congress shall pass no law respecting an establishment of religion or prohibiting the free exercise thereof.”

To understand the intention behind this amendment, we need first to define the term “an establishment of religion.” In the 1700s, the phrase meant establishing an official state church. The point of the amendment is thus that Congress cannot establish a church for the United States as a whole. The reason was in part practical: Given the diversity of denominations in the country, how could you decide which one to make the national church? The amendment did not prohibit the individual states from having established churches, however. Many of the original states did in fact have state churches, some of which remained established for many years after the Constitution and First Amendment were ratified. This points to the Founders’ intention to limit the powers of the federal government and instead to place most issues under the authority of the individual states.

Freedom of Religion

Since this series is about church history and politics, it is worth taking a closer look at the First Amendment here. To repeat an observation made earlier, the amendment limits the power of the government, not the people: Our free exercise of religion is guaranteed, and the amendment does not prohibit either private individuals or officeholders from advocating for laws and public policy based on their beliefs, with the exception of establishing a church at the federal level.

The intent of the amendment was not to restrict religious practice but to promote it. James Madison, who helped draft the amendment, believed that state churches weakened religious faith and practice, and that a free marketplace of ideas (and religions) would actually promote faith as different denominations competed for the allegiance of the population. This was in line with the concept of liberty discussed in the last article: people have an unalienable right to choose a path to a good life, a life of virtue, and thus freedom of religion is an essential human right.

This is why the amendment insists on the right to the free exercise of religion: If our faith determines what we understand to be a good life, then we must be free to practice it without interference. The alternative is the complete loss of liberty as understood by the Founders. The only restriction is that my practice of religion cannot take away another’s unalienable rights by, for example, interfering with another’s practice of religion (thus violating the right to liberty) or performing human sacrifice (violating the right to life).

Freedom of religion is called our “first freedom” for a reason beyond its position in the Bill of Rights. Without freedom of religion, there is no freedom of conscience, and without that, the rest of the freedoms listed in the First Amendment are meaningless. The Western political tradition, building on ideas of liberty derived from the Bible, had long held that conscience is beyond the reach of government; it is under the authority of God and God alone. When government oversteps that line, when it claims authority over conscience, it becomes tyrannical, tends toward totalitarianism, and turns into an antichrist.

The question arises, what do we do if the government moves in this direction? At what point is resistance to government justified, and what does that resistance look like? Protestant resistance theory would suggest that resistance, even violent resistance, led by the lesser magistrates might be justified if the situation was serious enough; some theorists would even argue that under such circumstances, the people apart from the lesser magistrates could legitimately resist and overthrow the government.

But there is another tradition within the church that suggests a different approach to resisting an unjust government and unjust laws: passive resistance and civil disobedience. We will look at those options in the next article.

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