Tuesday, July 22, 2014
What difference would it have made if "the First Amendment" included explicit textual protection for "conscience" as well as "religion"?
One interesting question that came up during the Q&As following the first set of papers at this year's Annual Law & Religion Roundtable was something like the one set forth in this post's title. My rendition of it puts "the First Amendment" in scare quotes because a full answer to the question requires challenging the nomenclature of "First Amendment." (Indeed, I am not sure that we have properly understood the distorting effects on our understanding of what the first set of constitutional amendments intended to accomplish that result from the fateful decision to tack those amendments on to the end of the document rather than interpolating them into the particular provisions being amended. But that is a topic for some other days.)
To know what difference it might have made to include explicit conscience protection in the Constitution as initially amended, we have to know the form that conscience protection would have taken. Leading candidates would be those included in James Madison's proposals. And that plural is correct: Madison simultaneously proposed two different amendments that included explicit "conscience" protection.
One of these proposals protected against federal government action while the other protected against state government action. The first was intended for Article I, Section 9: "That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. . . .”). The second would have gone into Article I, Section 10: “Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”
Attention to the different wording and proposed locations of these provisions provokes a couple of thoughts. First, "religious belief" is a distinct concept from "equal rights of conscience." Second, there would be no establishment clause-type limit on accommodations for conscience at either the federal or state level. The reason for no such limit at the federal level is that there was no "establishment clause" other than the prohibition against establishing a "national religion." And the reason for no such limit at the state level is that there was no establishment clause at all for the states.
(Perhaps for the sake of completeness, it is worth noting another proposed amendment that protected a form of conscientious objection but did not use the word "conscience": "[N]o person religiously scrupulous of bearing arms shall be compelled to render military service in person.")