By Samuel Damren
This is the final commentary in a series on Liberty of Conscience. The previous commentary (Macomb County Legal News, August 19, 2022) focused on self-contradicting aspects and other criticisms of the judicial theory of originalism.
The Constitution did not mandate that the judiciary adopt a particular method of constitutional interpretation. If it had, our forward-thinking founders would never have selected originalism because of the rigidity of its tether to the past. In formulating the structure of government for the New World, the founders broke from the constraints and persecutions of the Old World.
This forward-thinking was reflective of the political time. One of our best and most stirring writers was Thomas Paine. Paine was the author of “Common Sense” and “The Crisis.” Those pamphlets were crucial in moving the colonists toward starting the Revolution (“We have it in our power to begin the world over again”) and convincing them to endure the hardships required to succeed (“These are the times that try men’s souls”).
In a later work, titled “The Rights of Man,” Paine observed:
“Every age and generation must be as free to act for itself, in all cases, as the ages and generations that preceded it. The vanity and presumption of governing beyond the grave, is the most ridiculous and insolent of all tyrannies.”
And:
“The circumstances of the world are continually changing, and the opinions of men change also; and as government is for the living, and not for the dead it is the living only that has any right in it. That which may be thought right and found convenient in one age, may be thought wrong and found inconvenient in another. In such cases, who is to decide, the living, or the dead?”
The Supreme Court’s originalist doctrine in Dobbs v. Jackson set aside a person’s reproductive rights under the U.S. Constitution and sent the abortion issue decided 49 years ago to the states to each address anew. However, state judges are not bound by originalist theory.
Moreover, based on the differing wording in state constitutions and their own common law tradition, various state constitutions may contain a right to abortion or be interpreted to provide one based on a person’s right to bodily integrity, privacy, and other reproductive protections. States also may confirm and expand such rights through voter initiatives or legislation.
As seen from the comments of lawmakers, politicians and religious partisans in numerous states, the decision in Dobbs v. Jackson was inspired by the religious doctrine of only certain Christian sects. It is not a majority view of Americans or one that is shared by other denominations and religions.
The mix of religious doctrine and law is the Old World model of government where rulers selected a religion for their subjects. It prescribed a “persecuting society,” where “unity” and “identity” of the body politic was defined by stigma, violence and censure of “others,” including persons holding different beliefs, ethnic minorities, and immigrants.
The New World model and basis for the Constitution is founded on Freedom of Conscience, where individual choice of religious and other beliefs is normative. The model does not limit a sect’s freedom to preach its values, but members of competing sects are required to accept peace between religions instead of practicing persecution, coercion and violence as a show of faith.
“In the Rights of Man,” Paine recognized the insoluble conflict of differing religious beliefs.
“With respect to what are called denominations of religion, if every one is left to judge of his own religion, there is no such thing as a religion that is wrong; but if they are to judge each other’s religion, there is no such thing as a religion that is right; and therefore all the world is right, or all the world is wrong.”
The difference between these two models of government in their interplay with religion was quickly recognized across the political landscape as either an expectancy or a threat. Playing his part, Paine dedicated the “Rights of Man” to “George Washington, President of the United States” with the hope that its “principles of freedom” ... “become as universal as your benevolence can wish, and that you may enjoy the happiness of seeing the New World regenerate the Old.”
Some 230 years after the signing of the Constitution, in some states, we are seeing the “New” degenerate to the “Old.”
This series of commentaries began with Roger Williams’ contribution to Freedom of Conscience through the separation of church and state. In closing, his reflection on a community that had no knowledge of the religious conflicts and hatreds that tormented the Old World is pertinent and one we would do well to reflect on in these times.
In 1643, Williams wrote a pamphlet titled, “A Key into the Language of America and Elsewhere.” It was intended to introduce the language and customs of native Americans to the Old World.
The “key” to which Williams referred had to do with the unity and diversity of humankind:
“Nature knows no difference between Europe and [Native] Americans in blood, birth, bodies [and else]. God having one blood made all mankind ... Boast not proud English, of thy birth and blood. Thy brother Indian is by birth as Good.”
Williams continued, noting the Indians “have a modest religious persuasion not to disturb any man, either English, Dutch or any in their conscience and worship and therefore say: Peace, hold your peace.”
Based on this way of life, the real Americans who first occupied our lands seem far more civilized than many of the current occupants.
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Samuel Damren is a retired Detroit lawyer and author of “What Justice Looks Like.”
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