Conscience, Consent, and a Multiplicity of Factions: Disestablishment and Free Exercise in Colonial American Constitutionalism

Abstract Taking seriously Tocqueville’s admonition that colonial experience is the proper “point of departure” for understanding the American regime and its constitution, this essay examines the development of free exercise protections and disestablishment of religion in the foundational laws of the American colonies. Like other studies of church-state relations, this examination largely bears out Madison’s pithy analysis in The Federalist. “In a free government, the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects.” Growing religious diversity was a harbinger of religious liberty in early American constitutionalism. Yet the extension of free exercise protections and the curtailment of church establishments also depended on patterns of thought endemic to the theology of seventeenth- and eighteenth-century Americans, shared principles that predated the proliferation of enlightenment liberalism in America. This narrative cautions against grounding religious liberty entirely in modern liberalism; colonial Americans did not adopt religious liberty as a result of secularization, but to protect their communities of faith from political threats. A conception of church-state relations that exudes hostility to faith is not likely to be durable. A robust religious liberty must thus be grounded in, or at minimum consonant with, the convictions the devoutly religious.