After reading Randy Barnett’s latest post on the ongoing debate between he and Stephen Bainbridge (and by proxy, between Jonathan Rowe, Tim Sandefur, Larry Solum and myself against Clayton Cramer and Owen Courreges), I was planning to finally write something in disagreement with a position he has taken. Alas, Rowe beat me to it, so I’ll keep this short and sweet. Barnett had written that the Establishment Clause of the first amendment did not describe either a natural liberty right nor a positive right, as opposed to the free exercise clause, which did. In this, I believe he is incorrect.
Rowe correctly points out that at least Jefferson and Madison clearly did believe that forbidding establishments of religion asserted a positive right – a right not to be forced to pay for the propogation of religious beliefs that one did not accept. The Virginia Act for Establishing Religious Freedom, written by Jefferson and defended by Madison, was the model for the first amendment and the beginning of the movement toward full separation of church and state. That document clearly asserts that church establishments are a matter of natural rights:
[W]e are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right.
The statute further states that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical” and that “to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own . This makes clear that forbidding establishments of religion is part and parcel with guaranteeing free exercise; one cannot exist without the other.