Back to the Sources? What’s Clear and Not So Clear About the Original Intent of the First Amendment

This Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V reviews the state ratification debates about the 1787 Constitution and introduces the religious freedom amendments that they proposed to the First Congress tasked with drafting new federal rights language. Part VI combs through all the surviving records of the First Congress’ drafts and debates on what became the First Amendment. Part VII parses the final sixteen words of the religion clauses and sifts through what’s clear and not so clear about the final words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Conclusion distills my main findings about the original understanding of the First Amendment and their implications for originalists today

The Metaphorical Bridge Between Law and Religion

This Article explores the role of metaphors in shaping our thought and language in general, and in the fields of law and religion in particular. Drawing on modern cognitive theorists like George Lakoff and Mark Johnson, the Article distinguishes and illustrates the roles of “orientation,” “structural,” and “ontological” metaphors in everyday life and language. Drawing on jurists like Robert Cover and Steven Winter, it shows how metaphors work both in describing the law in terms like “the body,” and in prescribing the foundational beliefs and values on which the legal system depends. Finally, the Article explores the ample use of the number three in the law and speculates tentatively whether this legal appetite for “triads” might provide traction for the development of a Trinitarian jurisprudence. This Article is dedicated to Robert Cochran, one of the pioneers of law and religion and Christian legal thought in the United States, whose own writings make ample use of metaphors

The Integration of Religious Liberty

A Review of A Nation Dedicated to Religious Liberty: The constitutional Heritage of the Religion Clauses by Arlin M. Adams and Charles J. Emmeric

“The Glorious Liberty of the Children of God”: Toward a Christian Defense of Human Rights

It will come as a surprise to some human rights lawyers to learn that Christianity was a deep and enduring source of human rights and liberties in the Western legal tradition. Our elementary textbooks have long taught us that the history of human rights began in the later seventeenth and eighteenth centuries. Human rights, many of us were taught, were products of the Western Enlightenment—creations of Grotius and Pufendorf, Locke and Rousseau, Montesquieu and Voltaire, Hume and Smith, Jefferson and Madison. Rights were the mighty new weapons forged by American and French revolutionaries who fought in the name of political democracy, personal autonomy, and religious freedom against outmoded Christian conceptions of absolute monarchy, aristocratic privilege, and religious establishment. Rights were the keys forged by Western liberals to unchain society from the shackles of a millennium of the church’s oppression of society and domination of the state, and centuries of religious warfare. Human rights were the core ingredients of the new democratic constitutional experiments of the later eighteenth century forward. The only Christians to have much influence on the development of human rights, the conventional story goes, were a few early Church Fathers who decried pagan Roman persecution, a few brave medieval writers who defied papal tyranny, and a few early modern Anabaptists who debunked Catholic and Protestant persecution. But these exceptions prove the rule, according to many human rights scholars: Christianity as a whole, they argue, was an impediment to the development and expansion of human rights—doubly so in our day when religious freedom and other fundamental rights are often counterposed

Prophets, Priests, and Kings: John Milton and the Reformation of Rights and Liberties in England

In this Article, I focus on the development of rights talk in the pre-Enlightenment Protestant tradition. More particularly, I show how early modem Calvinists-those Protestants inspired by the teachings of Genevan reformer John Calvin (1509-1564)-developed a theory of fundamental rights as part and product of a broader constitutional theory of resistance and military revolt against tyranny. With unlimited space, I would document how various Calvinist groups from 1550 to 1700 helped to define and defend each and every one of the rights that would later appear in the American Bill of Rights and how these Calvinists condoned armed revolution to vindicate these fundamental rights when they were chronically and pervasively breached by a tyrant. As an illustration of this broader story, this Article focuses on the reformation of rights and liberties led by the great English poet and philosopher, John Milton (1604-1674). Writing in the throes of the English Revolution (1640-1660), Milton formulated a revolutionary account of law, religion, and human rights, grounded in a Calvinist theory of human nature and human society. Following Calvinist conventions, Milton believed that each person is created in the image of God with a perennial craving to love God, neighbor, and self

Lift High the Cross? Lautsi v. Italy in American Perspective

The European Court of Human Rights has just upheld Italy’s policy of displaying crucifixes in its public school classrooms. In Lautsi v. Italy, an atheistic mother of two public school children challenged this policy, in place since 1924. After losing in the Italian courts, she appealed to the European Court of Human Rights, arguing that the presence of these crucifixes in public schools violated her and her children’s rights to religious freedom and to a secular education guaranteed by the European Convention on Human Rights. On November 3, 2009, an unanimous seven-judge chamber of the European Court held for Ms. Lautsi. On March 18, 2011, the Grand Chamber reversed, and held 15-2 in favor of Italy

A Dickensian Era of Religious Rights: An Update on Religious Human Rights in Global Perspective

This Article was written at a time when international discussions of religion, human rights, and religious freedom were just beginning to blossom. The Article documents the paradox that the modern human rights revolution has catalyzed a new religious awakening around the globe but has also triggered sharp new interreligious conflicts. This has led many to argue that religion should be excluded from the human rights paradigm. This Article argues that religion and human rights need each other. Not only were Christianity and other faith traditions essential historical sources of many modern rights ideas, but all faith traditions today provide essential resources for a human rights culture to flourish. The Article thus calls for a new human rights hermeneutic that respects religious contributions to human rights, that induces religions to confess their rights violations, and that encourages reconciliation between religions that are fighting over issues of proselytism, blasphemy, and more

\u27\u27Fairer Still the Woodlands Mapping the Free Exercise Forest. Book Review Of: Religion and the Constitution: Free Exercise and Fairness. by Kent Greenawalt.

Book review: Religion and the Constitution: Free Exercise and Fairness. By Kent Greenawalt. Princeton University Press. 2006. Pp. xi+ 455. Reviewed by: John Witte, Jr