View of the Constitution of the United States

Of the Right of Conscience; And of the Freedom of Speech and of the Press

371 Of the Right of Conscience; And of the Freedom of Speech and of the Press Here Tucker sets forth the basis of personal rights and individual liberty, that is, freedom from government oppression in matters of opinion, in the United States. This was one of the things that distinguished the governments of the people in the New World from those of unlimited authority in the Old World. The immediate context is the Sedition Act, an attempt of the Federalist majority in Congress to punish criticism of the government as long as they controlled it. Tucker’s response is that the federal government is not the judge of its own powers and may be restrained by the people of the states. This is the doctrine that Virginia and Kentucky had asserted in 1798–99 and South Carolina was to assert in 1832–33. The right of personal security in the United States comprehends, likewise, the uninterrupted enjoyment of a person’s conscience in all matters respecting religion; and of his opinions in all matters of a civil nature. The right of personal opinion is one of those absolute rights which man hath received from the immediate gift of his Creator, but which the policy of all governments, from the first institution of society to the foundation of the American republics, hath endeavoured to restrain, in some mode or other. The mind being created free by the author of our nature, in vain have the arts of man endeavoured to shackle it: it may indeed be imprisoned a while by ignorance, or restrained from a due exertion of its powers by tyranny and oppression; but let the rays of science , or the dawn of freedom, penetrate the dungeon, its faculties are ViewCnstn_371-394 10/17/07 7:13 AM Page 371 372 Of the Right of Conscience instantly rarified and burst their prison. This right of personal opinion, comprehends first, liberty of conscience in all matters relative to religion; and, secondly, liberty of speech and of discussion in all speculative matters , whether religious, philosophical, or political. 1. Liberty of conscience in matters of religion consists in the absolute and unrestrained exercise of our religious opinions, and duties, in that mode which our own reason and conviction dictate, without the control or intervention of any human power or authority whatsoever. This liberty though made a part of our constitution, and interwoven in the nature of man by his Creator, so far as the arts of fraud and terrors of violence have been capable of abridging it, hath been the subject of coercion by human laws in all ages and in all countries as far as the annals of mankind extend. The infallibility of the rulers of nations, in matters of religion, hath been a doctrine practically enforced from the earliest periods of history to the present moment among jews, pagans, mahometans, and christians, alike. The altars of Moloch and of Jehovah have been equally stained with the blood of victims, whose conscience did not receive conviction from the polluted doctrines of blood thirsty priests and tyrants. Even in countries where the crucifix, the rack, and the flames have ceased to be the engines of proselitism, civil incapacities have been invariably attached to a dissent from the national religion: the ceasing to persecute by more violent means, has in such nations obtained the name of toleration. In liberty of conscience says the elegant Dr. Price, I include much more than toleration. Jesus Christ has established a perfect equality among his followers. His command is, that they shall assume no jurisdiction over one another, and acknowledge no master besides himself. It is, therefore, presumption in any of them to claim a right to any superiority or pre-eminence over their bretheren. Such a claim is implied, whenever any of them pretend to tolerate the rest. Not only all christians, but all men of all religions, ought to be considered by a state as equally entitled to its protection, as far as they demean themselves honestly and peaceably. Toleration can take place only where there is a civil establishment of a particular mode of religion; that is, where a predominant sect enjoys exclusive advantages, and makes the encourageViewCnstn_371 -394 10/17/07 7:13 AM Page 372 Selected Writings 373 ment of it’s own mode of faith and worship a part of the constitution of the state; but at the...