How Does the Constitution Protect Religious Freedom?

Harvey C. Mansfield, Jr.

The religious issue was deeply and hotly contested at the origin of modern constitutionalism in the seventeenth century. To see this, one has only to note that the three great founders of constitutionalism to be considered here—Hobbes, Spinoza, and Locke—devoted much of their studies and large portions of their most famous political works to the Bible and its political implications. Two of the four parts of Hobbes's Leviathan ( 1651) concern the Christian theology required for or compatible with his notion of sovereignty. Spinoza's Theologico- Political Treatise ( 1670) is entirely an analysis of Scripture with a view to the consequences for free inquiry and free government. And the first of Locke's Two Treatises of Government ( 1690), together with his Letter Concerning Toleration ( 1690), reveals the same interest in repelling the claims of divine right. For the "religious issue," or the "theologicopolitical" problem (to use Spinoza's term), is whether men are ruled by God or gods, hence by divine right, or by themselves on principles they discern without necessarily referring to the word of God in Scripture. If rule derives from divinity, all government is theocracy, more or less, since even if priests are not rulers, rulers are required by the principles of divine right to serve, in some sense, as priests. If rule is made by men, government is constituted by human choice out of human nature, and "constitutional government" so understood, though it may seek or accept the support of religion, is not based on— is indeed constituted against—divine right.

To see the continuing importance of the religious issue, however, is not so easy as to recognize its original importance. In our day, the "social issue" appears to be dominant. The social issue dates, perhaps, from the end of the eighteenth century, and, through the nineteenth century, as socialism gained force, it increasingly preoc

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