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-HE Southern Israelite
Page 13
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['he Background of Constitutional Liberty As It Was Established by the Founders of the Nation
By HON. IRVING LEHMAN
Associate Justice of the Court of Appeals of New York
When t lu* Congressional representa-
(1V)> . ;in* thirteen colonies issued the
Iitrhiniti*in of Independence, they be-
{!„.[)• (‘Xplanation of the causes
impelled the people of the eolo-
t,, separate from tin* mother coim-
, the words now so familiar
, "We hold these truths to be
M .|f..evident— that all men are created
that they are endowed by their
i i.ir u ith certain inalienable rights;
:imi<>nthese are lift*, liberty, and
tin* pursuit of happiness. That to se-
,urr the-e rights governments are in
itiat'd among men, deriving their just
power* from the consent of the gov
erned." Not always had such doctrines been
•anled as “self-evident truths”. Their gen
eral acceptance was, indeed, the triumph of the
political thought and philosophy of the eight
eenth century. Like other political dogma, they
had influenced tin* minds of individual states
men, hut governments had been asserted and
exercised, without regard to moral political
theories. Rights were secured by governments
when those who claimed the rights had power
or influence sufficient to direct governmental
action.
When the colonies asserted their freedom
they were called upon to form new govern
ment'. Political dogma which was accepted as
't*If evident truth naturally to a great extent
-aided the deliberations of the bodies chosen
to create the machinery of the new govern
ment*. On May (5, 177(5, almost two months
before tin* Declaration of Independence was
adopted, a constitutional convention assembled
hi \\ illiamsburg, Va., to frame a form of gov
ernment for the new State. Representatives of
da people met to confer delegated power upon
the trustees of the people, to displace a charter
-ranted at least theoretically by royal grace.
(, n -Iline 12, 177(5, the Constitutional Conven
tion adopted a bill of rights under the title
'd A Declaration of Rights made by the Rep-
rc'entatives of the good people of Virginia
t"enihied in full and free convention, which
' do pertain to them and their posterity
!| e basis and foundation of government”,
’'tit utes a statement in dogmatic form of
md theories so much discussed during the
'iiith century concerning the Rights of
-Wit and Man’s Relation to the State, but
mli that statement these theories were
‘'luted into the fundamental law, the basis
'■ government of the new State.
“ the Declaration of Independ-
begins with the assertion “That
11 ui'e by nature equally free and
'“lent and have certain inherent
ot which as they enter into a
°t society, they cannot by any
" t deprive or divest their pos-
• namely, the enjoyment of life
»erty, with the means of aequir-
operty and pursuing happiness
■' !e fy”. It then continues with
ords: “That all power is vested
consequently derived from, the
;e: that the Magistrates are their
trustees and servants, and at all times
amenable to them. That government
is, or ought to be. instituted for the
common benefit, protection, and se
curity of the people, nation, or com
munity.” After a recital of the gen
eral principles which should determine
the form of government most suitable
for this purpose, the Bill of Bights
enumerates those rights which are “in
herent” or “inalienable”. Included in
those rights is the right to religious
freedom. In accordance with the Bill
of Rights, the government of the new
State was formed by the adoption of
according to Anglo-Saxon traditions,
rights which by the same traditions
were protected by the courts. For the
tirst time, however, religious liberty
is included in an enumeration of po
litical rights; for the first time in all
history has the Stall* recognized and
provided by organic law that even the
State might not interfere with reli
gious liberty.
Students of our history have fre
quently noted that, although the colo
nic* were in large part settled by men
who sought here the opportunity to
worship according to their own con-
Jutticc Irving Lehman, member of the Permanent Com
mission on Better Understanding, has here eloquently
discussed the constitutional establishments of religious
liberties in the thirteen original colonies. A draft of this
ha her uvs read by hint at the April meeting of the
Judaeans. Justice Lehman is a revered member of the
Nezv York bench.
«»t
rii;
the “Constitution or Form of Govern
ment” on the fifth day of July, 1776.
The Constitution and Bill of Rights
of the Virginia convention is prob-
ablv the first written instrument cre
ating a government which in terms
emanates from the People, and which
at the same time as it creates the
government protects the fundamental
rights of the People from encroaching
by the State. As might he expected,
the enumeration of such fundamental
rights embraces those rights which con
stitute the essence of political h ier \
science, for the most part where the
adherents of any sect constituted a
considerable majority of the popula
tion, they were tolerant of difference
of religious opinion. They had made
sacrifices to maintain the truth as they
saw it. They could not recognize the
right of others to maintain the con
trary. They regarded as ordained the
perdition in the world to come of
those who differed with them here;
they felt justified in persecuting or
at least in placing disabilities upon
those who, in their opinion, were in
verse and stubbon in the wrong.
Here and there, it is true, a high
measure of religious freedom was
achieved. Roger Williams, in advance
of his time, perceived that the State
should not interfere in matters of con
science. The settlers of Providence
were required to sign a covenant: “We
whose names are hereunder written,
being desirous of to inhabit in the
town of Providence do promise to
submit ourselves in active and passive
obedience to all such orders or agree
ments as shall he made for public
good of the body in an orderly way
by the major consent of the present
inhabitants, masters of families incorporated
together into a township, and such others as
they shall admit into the same onlg in civil
things." He succeeded in obtaining a charter
for Rhode Island and Providence Plantations
with the provision that "No person within the
said colony at any time hereafter shall he in any
wise molested, punished, or disquited or railed
in question for any differences in opinion
in matters of religion who do not actually
disturb the civil pence of our said colony,” and
in 1 <547 the first General Assembly adopted
a code of laws which concluded with the words,
“All men may walk as their consciences per
suade them, every one in the name of God.”
The charters of Maryland and Pennsylvania,
too, contained provisions safeguarding liberty
of conscience, though not in all respects ns
comprehensive.
Even in these colonies, however, old religious
prejudices and religious convictions that were
too strong to admit of difference of opinion to
some extent thwarted the intentions of the
founders, and liberal provisions of laws and
charters were at times applied in grudging
and narrow spirit. In general, it may lie said
that where the adherents of a particular reli
gion acquired religion, they established a church
and placed disabilities upon and persecuted
those who refused to accept the tenets of that
church.
Even so, the eighteenth century marked a
great growth of toleration in the American
colonies. Not only change in political phi
losophy but other circumstances contributed to
this result. Cong legations lists might establish
their church in some of the States of New
England, but they knew that in other colonies
and in the mother country they were only tol
erated. Where there was an estali-
lished church there were yet substan
tial minorities of inhabitants who re
fused to conform. The spirit of pio
neers, the conditions of a new country,
tended to render oppression of min
orities inconvenient if not im
possible.
Moreover, a strong community of
interest in any group naturally tends
to diminish the emphasis placed upon
differences of opinion in regard to
other matters, and intercourse tends
to reduce misunderstanding and to
destroy tolerence (font, on page 20)