Information

Was the concept of religious freedom in the early United States applied to native American faiths?


When the nascent United States was drafting and adopting its supreme laws, several references to religion were made. For example, in the Bill of Rights:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

- First Amendment to the Constitution of the United States

There are also documents such as treaties testifying to the secular nature of the United States:

[T]he Government of the United States of America is not, in any sense, founded on the Christian religion

- Treat of Tripoli

And many of the states de-established their churches (inherited form England?) in the colonial era or in early decades. But all these seem to have taken place within a context of Abrahamic religions. For instance, the Treaty of Tripoli above was clearly directed at the Muslim Eyalet of Tripolitania. This made me wonder whether contemporary Americans understood their concept of free of religion as being applicable to non-Abrahamic faiths too. For example, that of the Native Americans.

So my question is, did native religions come up at all when the United States was adopting religious freedom into its fundamental laws? Did America's Founding Fathers or their contemporaries consider Native Americans and their beliefs?

For instance, was native religions mentioned during:

  • Government documents or statements
  • By delegates during the Constitutional Convention in Philadelphia, or during ratification;
  • Federalist or Anti-Federalist campaigning materials, e.g. the Federalist Papers

Note that I'm looking for the legal concept of freedom of religions being actually applied for Native American beliefs; not whether the concept should have applied.


In theory, yes that would cover any religion. In practice, not just no but hell no.

Indian cultures, of which their religious beliefs were an integral part, were considered uncivilized and inferior. In the logic of time, this naturally meant the Indian "way of life" was an active harm to the Indians, as well as a standing threat to their neighbors.

As such there was a concerted effort to eradicate their culture, and convert the Indians to the European-American cultural package of English, Christianity, and agriculture*. Particularly in the 19th and early 20th century there was a philosophy among Americans and Western Europeans that along with the benefits of having a more powerful and advanced culture came a responsibility to bring those benefits to the rest of the world that was clearly saddled with inferior cultures. (Some would argue this attitude persists largely unchanged today).

Thus were born the American Indian boarding schools. The idea was that older Indians may be "set in their ways", but if you could take their kids away from them, you could raise them in the American culture instead, which always included Christianity. Generally at these schools (many run by the US government) children were forbidden to speak their native languages, wear their native dress, or practice their native religion. The schools were theoretically voluntary, but eventually the BIA started requiring education of all children to a western standard, which left many tribes with no other option.

Things are much better these days, but in many ways its too late now. The Native "churches" I'm aware of are all heavily influenced by Christianity. The original religions are all but lost.

* - It was (and often still is) actually a bit of a myth that Native Americans didn't practice agriculture. Most did, but it was generally considered women's work. So the main difference here was really cultural rather than practical.


I doubt native faiths were discussed much. The Founding Fathers would have considered American Indian's First Amendment rights to be a non-issue because Indians were not recognized as citizens unless they were of at least half European ancestry. In fact, judges could cite native religion as the reason why Indians were denied the rights and protections of American citizens. Justice Joseph Story wrote in 1823:

As infidels, heathens, and savages, they [the Indians] were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations… [Indians are] an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government.

Indians on American land were "domestic dependent nations," which in no way implied citizenship rights. In 1819, Congress passed the Civilization Fund Act, which funded "benevolent societies" to act as missionaries to the Indians. These societies were:

… for the purpose of guarding against the further decline and final extinction of the Indian tribes, adjoining the frontier settlements of the United States, [and] introducing among them the habits and arts of civilization.

In other words, the Federal government saw proselytization as an arm of foreign policy. That Indians were foreign concerns, not domestic ones, was made even clearer in 1824, when the Office of Indian Affairs was created within the War Department.

After the Civil War, reservations were often overseen by religious men nominated by churches. Unsurprisingly, there are many instances of native religions being discouraged and punished (as @T.E.D. discusses).

Indian citizenship rights were slowly expanded after the Civil War, culminating in the 1924 Indian Citizenship Act. Before this act, Indian heritage and native religious beliefs could disqualify one from citizenship rights, so it seems unlikely that Indians would ever have had the legal standing to claim First Amendment protections for their religion before the 20th century.


The ONLY legal consequence of the establishment clause is that the federal government can't force people to adopt a specific religion. Nothing more, nothing less. Of course over time it's been corrupted to where many think it means the government is not allowed to allow any religion, to not allow any of its employees to be openly religious, but this is blatantly false.

As such there is nothing in the establishment clause that would prevent the government from putting an end to a religion, as long as it doesn't force its (former) adherents from adopting a specific other religion. AFAIK though that never happened, though local leaders might have taken a different view and some of the individual states for a while did have a state religion and may have persecuted those who were not members (again, I don't know it happened, but the establishment clause did not prevent such. Later ammendments turned changed that and now it is the law for state governments as well that they can't force a specific religion on their citizens.

Remember that the US constitution declared freedom OF religion, not freedom FROM religion. As such it would not allow the federal government to persecute American Indians based on their religious beliefs, as long as those were recognised to be a religion rather than a quaint selection of rituals.

And why would they need to? There were enough reasons already to go after them, not in the least the repeated and deadly raids by American Indian groups on homesteaders and wagon trains.

I won't pass judgment on whether those were in any way "justified", it doesn't matter. Citizens were being killed by Indians, the army went out and dealt with those Indians. Same as SWAT now goes out and goes after gangs that attack people inner cities.

The sole reason they might have gone after the religious practices of the American Indians is if those were in violation of other laws. Human sacrifice for example, or the killing of protected animal species (though there was probably very little in the way of protected animal species at the time, and I've not heard of north American Indians performing human sacrifice. In later years Indians have complained that bans on hunting whales, seals, etc. violate their religious rights and they've gotten some dispensation because of that, allowing them to hunt limited numbers).


Vashti McCollum sits outside the Supreme Court building in 1947, while awaiting arguments before the court on her fight to ban religious education classes from an Illinois public school. Her case was one of the cases in which the Supreme Court began to interpret the First Amendment's religious establishment clause known as "separation of church and state." (AP Photo/Herbert K. White. Reprinted with permission of The Associated Press)

The first clause in the Bill of Rights states that &ldquoCongress shall make no law respecting an establishment of religion.&rdquo


From a city on a hill to the Great Awakening

The part played by religion in the shaping of the American mind, while sometimes overstated, remains crucial. Over the first century and a half of colonial life, the strong religious impulses present in the original settlements—particularly those in New England—were somewhat secularized and democratized but kept much of their original power.

When the Pilgrim Fathers signed the Mayflower Compact in 1620, resolving themselves into a “civil body politic,” they were explicitly making religious fellowship the basis of a political community. But even from the start, there were nonmembers of the Leiden Separatist congregation on the passenger list—the “strangers” among the “saints”—and they sought steady expansion of their rights in Plymouth colony until its absorption into Massachusetts in 1691.

The Puritans were even more determined that their community be, as John Winthrop called it in his founding sermon, “A Model of Christian Charity,” a “city on a hill,” to which all humankind should look for an example of heaven on earth. This theme, in various guises, resounds in every corner of American history. The traditional image of Massachusetts Puritanism is one of repressive authority, but what is overlooked is the consensus among Winthrop and his followers that they should be bound together by love and shared faith, an expectation that left them “free” to do voluntarily what they all agreed was right. It was a kind of elective theocracy for the insiders.

The theocratic model, however, did not apply to nonmembers of the church, to whom the franchise was not originally extended, and problems soon arose in maintaining membership. Only those who had undergone a personal experience of “conversion” reassuring them of their salvation could be full members of the church and baptize their children. As the first generation died off, however, many of those children could not themselves personally testify to such conversion and so bring their own offspring into the church. They were finally allowed to do so by the Half-Way Covenant of 1662 but did not enjoy all the rights of full membership. Such apparent theological hair-splitting illustrated the power of the colony’s expanding and dispersing population. As congregations hived off to different towns and immigration continued to bring in worshippers of other faiths, the rigidity of Puritan doctrine was forced to bend somewhat before the wind.

Nevertheless, in the first few years of Massachusetts’s history, Puritan disagreements over the proper interpretation of doctrine led to schisms, exilings, and the foundation of new colonies. Only in America could dissenters move into neighbouring “wilderness” and start anew, as they did in Rhode Island and Connecticut. So the American experience encouraged religious diversity from the start. Even the grim practice of punishing dissidents such as the Quakers (and “witches”) fell into disuse by the end of the 17th century.

Toleration was a slow-growing plant, but circumstances sowed its seeds early in the colonial experience. Maryland’s founders, the well-born Catholic Calvert family, extended liberty to their fellow parishioners and other non-Anglicans in the Toleration Act of 1649. Despite the fact that Anglicanism was later established in Maryland, it remained the first locus of American Catholicism, and the first “American” bishop named after the Revolution, John Carroll, was of English stock. Not until the 19th century would significant immigration from Germany, Ireland, Italy, and Poland provide U.S. Catholicism its own “melting pot.” Pennsylvania was not merely a refuge for the oppressed community who shared William Penn’s Quaker faith but by design a model “commonwealth” of brotherly love in general. And Georgia was founded by idealistic and religious gentlemen to provide a second chance in the New World for debtors in a setting where both rum and slavery were banned, though neither prohibition lasted long.

American Protestantism was also diversified by immigration. The arrival of thousands of Germans early in the 18th century brought, especially to western Pennsylvania, islands of German pietism as practiced by Mennonites, Moravians, Schwenkfelders, and others.

Anabaptists, also freshly arrived from the German states, broadened the foundations of the Baptist church in the new land. French Huguenots fleeing fresh persecutions after 1687 (they had already begun arriving in North America in the 1650s) added a Gallic brand of Calvinism to the patchwork quilt of American faith. Jews arrived in what was then Dutch New Amsterdam in 1654 and were granted asylum by the Dutch West India Company, to the dismay of Gov. Peter Stuyvesant, who gloomily foresaw that it would be a precedent for liberality toward Quakers, Lutherans, and “Papists.” By 1763, synagogues had been established in New York, Philadelphia, Newport (Rhode Island), Savannah (Georgia), and other seaport cities where small Jewish mercantile communities existed.

Religious life in the American colonies already had a distinctive stamp in the 1740s. Some of its original zeal had cooled as material prosperity increased and the hardships of the founding era faded in memory. But then came a shake-up.

A series of religious revivals known collectively as the Great Awakening swept over the colonies in the 1730s and ’40s. Its impact was first felt in the middle colonies, where Theodore J. Frelinghuysen, a minister of the Dutch Reformed Church, began preaching in the 1720s. In New England in the early 1730s, men such as Jonathan Edwards, perhaps the most learned theologian of the 18th century, were responsible for a reawakening of religious fervour. By the late 1740s the movement had extended into the Southern colonies, where itinerant preachers such as Samuel Davies and George Whitefield exerted considerable influence, particularly in the backcountry.

The Great Awakening represented a reaction against the increasing secularization of society and against the corporate and materialistic nature of the principal churches of American society. By making conversion the initial step on the road to salvation and by opening up the conversion experience to all who recognized their own sinfulness, the ministers of the Great Awakening, some intentionally and others unwittingly, democratized Calvinist theology. The technique of many of the preachers of the Great Awakening was to inspire in their listeners a fear of the consequences of their sinful lives and a respect for the omnipotence of God. This sense of the ferocity of God was often tempered by the implied promise that a rejection of worldliness and a return to faith would result in a return to grace and an avoidance of the horrible punishments of an angry God. There was a certain contradictory quality about these two strains of Great Awakening theology, however. Predestination, one of the principal tenets of the Calvinist theology of most of the ministers of the Great Awakening, was ultimately incompatible with the promise that man could, by a voluntary act of faith, achieve salvation by his own efforts. Furthermore, the call for a return to complete faith and the emphasis on the omnipotence of God was the very antithesis of Enlightenment thought, which called for a greater questioning of faith and a diminishing role for God in the daily affairs of man. On the other hand, Edwards, one of the principal figures of the Great Awakening in America, explicitly drew on the thought of men such as John Locke and Isaac Newton in an attempt to make religion rational. Perhaps most important, the evangelical styles of religious worship promoted by the Great Awakening helped make the religious doctrines of many of the insurgent church denominations—particularly those of the Baptists and the Methodists—more accessible to a wider cross section of the American population. This expansion in church membership extended to Blacks as well as to those of European descent, and the ritual forms of Evangelical Protestantism possessed features that facilitated the syncretism of African and American forms of religious worship.


The Five Conceptions of American Liberty

I n American civic and political life, nearly everyone is a champion of liberty, but not everyone means the same thing by that term. We hold several conflicting ideas about liberty, though we are usually unaware of that fact. This lack of awareness means that, whenever a conflict between these conceptions leads to a political dispute, people on all sides of the dispute are apt to be shocked and to regard their opponents either as enemies of liberty or as lacking any understanding of what it really means.

This adds to both the bitterness and the confusion of our most prominent political and cultural battles. To better understand our common life, therefore, we need to step back and examine the different meanings of liberty and how they have played out in our history and continue to shape our contemporary debates.

When we carefully consider the idea of liberty through the lens of the American political tradition, we find that Americans have held, and continue to hold, five interlocking but distinct understandings of the term. First and foremost, liberty has been regarded as the protection of natural rights &mdash a notion of liberty we might simply call &ldquonatural-rights liberty.&rdquo Second, we have taken liberty to refer to the self-governance of a local community or group, a conception we might call &ldquoclassical-communitarian liberty.&rdquo Third, we have taken the term to refer to economic individualism, or what we might call &ldquoeconomic-autonomy liberty.&rdquo Fourth, we have understood it to refer to the social justice of the national community, or what might be called &ldquoprogressive liberty.&rdquo And fifth, we have understood liberty to refer to moral individualism, which we can call &ldquopersonal-autonomy liberty.&rdquo

Each of these has a claim to being the correct conception of political liberty, as well as the most genuinely American one. Over the course of America&rsquos political history, these conceptions have been posed against one another in various ways, and several have also cooperated with or been combined with one another. But they are theoretically distinct and fundamentally in tension in ways that have shaped our history and will certainly shape our future as well.

CONCEIVED IN LIBERTY

The first two conceptions of liberty can be plainly discerned in the political thought and action of the founding era and the early republic. The core principles of natural-rights liberty are those expressed in the opening of the Declaration of Independence, and they are correctly regarded as reflecting the teachings of John Locke, as well as other early-modern liberal thinkers. The core practice of classical-communitarian liberty, meanwhile, is given most vivid display by Alexis de Tocqueville in his descriptions of the participatory townships he observed in 1830s New England. That the principles and practice of early-American politics tended to answer to two different understandings of liberty is one key reason why the political teaching of the American founding is no simple matter.

In contending with some political questions, such as breaking away from Britain, these two conceptions complemented one another. But regarding other questions, such as the ratification of the Constitution, they tended to oppose one another. Many of the Anti-Federalists &mdash the writers and activists who opposed ratification &mdash insisted that the key political unit for the fostering of liberty would have to remain the small polis-like republic, whereas the authors of the Federalist Papers famously made a case for the superior ability of the extended republic to secure natural rights.

Of course, certain Lockean understandings of politics permeated the thought of many of the Anti-Federalists as well. Their most eloquent 20th-century scholarly champion, Wilson Carey McWilliams, stressed that, although they seldom spoke about &ldquoprivate rights,&rdquo they &ldquocharacteristically spoke of a state of nature.&rdquo Similarly, aspects of the classical-communitarian conception permeated the thinking of the founders most consistently associated with the natural-rights tradition. Thomas Jefferson had an appreciation for the wisdom of communitarian republicanism &mdash he urged Virginia to imitate New England&rsquos township pattern of local government and encouraged all Americans to maintain an agrarian way of life. James Madison and Alexander Hamilton not only adopted the Roman republican pen name &ldquoPublius&rdquo when writing the essays that composed the Federalist Papers but made examinations of ancient confederacies, founders, and constitutions key parts of their argument. Still, it is easy to show that Jefferson was more Lockean than classical republican when it came to the fundamentals of politics, and it is easy to recall several famous passages from the Federalist Papers that warn that small republics foster, among other rights-endangering maladies, majority faction and continual war-making.

Natural-rights doctrine did a great deal to light the fire of American independence: We can trace its influence upon key figures like James Otis, John Dickinson, John Adams, Thomas Paine, and others, and we can work out the way it supplied key doctrines of the revolution. (It is visible, for instance, in the maxim &ldquono taxation without representation.&rdquo) What is not as widely understood is that the classical-communitarian conception of liberty was at least as critical to American political life in that era.

This point is well illustrated by an anecdote from the 1840s about a conversation between an elderly veteran of the Battle of Concord, Levi Preston, and a young historian, Mellon Chamberlain. When Chamberlain asked Preston whether he and his fellows had been influenced by James Harrington, Algernon Sidney, and Locke, Preston said he had &ldquonever heard of &rsquoem. We only read the Bible, the Catechism, Watts&rsquos Psalms and Hymns, and the Almanack.&rdquo When asked why he and his fellows had fought the British, he said, &ldquo[W]e had always governed ourselves, and we always meant to. They didn&rsquot mean we should.&rdquo As Tocqueville and many historians have suggested, the experience of a comparatively high degree of community self-rule which had developed among the Americans, colony by colony and town by town, was a primary cause of their vigorous resistance to Britain&rsquos effort to increase its control of colonial affairs after 1763. That experience had significant influence in key respects prior to their widespread adoption of natural-rights doctrine.

Over time, the hold that the classical-communitarian conception of liberty had exercised over our thought and sentiment ebbed, particularly as the prominence of the town in American life diminished. Still, it has remained an important, albeit lesser, part of the American political tradition, providing sustenance to groups like the Populists and the Southern agrarian writers, and to all sorts of theorists wanting to promote fraternity or &ldquoparticipatory democracy.&rdquo Its common identification with the practice of Christian brotherly love extends back to its colonial Puritan and Quaker articulations, and, while that identification is not emphasized by all of its contemporary proponents, it remains important.

The natural-rights doctrine, of course, retained a central place in American political thought and most notably was re-emphasized by Abraham Lincoln&rsquos statesmanship. The embarrassing fact of America&rsquos initial toleration of slavery reminds us, however, of an important self-limiting aspect of natural-rights liberty. The Declaration&rsquos third sentence begins with the word &ldquoprudence,&rdquo and goes on to explain that revolutions for the sake of securing natural rights should occur only when a pattern of serious violations against them has become evident and indicates a trend toward tyranny. A similar spirit of prudence pervades the Federalist Papers, which is one long reflection about what kind of union and government is necessary to preserve liberty given what experience teaches us about human nature, political dynamics, and geostrategic realities. Though the leading founders regarded slavery as a basic violation of natural rights, they evidently made the judgment that they could not get the Constitution ratified if they were to first insist upon slavery&rsquos dismantling this was another instance of prudence at work, as they understood it.

The founders were not for a come-what-may insistence upon perfectly securing all natural rights, nor were they for following out every implication of natural-rights thought. Such radicalism would likely result in the inability to establish or maintain effective government, and thus in the inability to secure any rights at all. Instead, the founders (and perhaps adherents of natural-rights liberty in America more generally) understood liberty as the prudential protection of natural rights.

FREE MARKETS AND FREE PEOPLE

The third American conception of liberty &mdash economic-autonomy liberty &mdash grew directly out of natural-rights liberty. But it took on a life of its own by the late 19th century, supporting the needs of those industrializing the economy and demanding the Constitution&rsquos protection not simply for private property but for arguably newer rights such as the liberty-of-contract right made famous by cases like Allgeyer v. Louisiana and Lochner v. New York.

The Lochner era of American jurisprudence, which ran roughly from 1890 to 1937, saw state courts and the Supreme Court strike down laws that, for instance, regulated wages and work hours because such laws violated a right to contract as one chose. This right to contract was not only held to be philosophically central to liberty in this conception, but was purportedly protected by the Constitution itself under the Fifth and Fourteenth Amendments&rsquo guarantee that no American government could deprive any person of liberty without due process of law. Many, in that time and ours, have said this was a novel and illegitimate interpretation of the terms &ldquodue process&rdquo and &ldquoliberty.&rdquo Most of today&rsquos originalist constitutional-law scholars are among such critics.

But regardless of how one comes down on the question of constitutional interpretation, one might still find the overall conception of liberty here compelling. It holds that in protecting natural rights, government&rsquos main aim is to get out of the way of the individual&rsquos own shaping of his economic well-being. This will occur through whatever property he obtains by the sweat of his own brow, to use one of Lincoln&rsquos favorite Biblical (and Locke-evocative) images, and through his buying, selling, and contracting with others. Such economic self-reliance does not necessarily translate into social atomization. Tocqueville, ever attuned to the general danger of individualism, observed that the focus upon commercial success often made the typical American solicitous of his community&rsquos needs and careful to cultivate a reputation for fair dealing.

Still, the basic idea here can be captured by a rather individualistic image: To metaphorically expand the meaning of the old legal maxim that &ldquoa man&rsquos home is his castle,&rdquo we should think of the main &ldquocastle&rdquo of the individual&rsquos right to liberty as including his property and contracts. This is the primary content of liberty, and what its defense mainly requires, once the two necessary conditions of liberty &mdash law-bound government and the removal of the threat of enslavement &mdash have been achieved. Likewise, while the free individual&rsquos basic liberties of movement, association, free-speech, religion, marrying, and raising children are important aspects of liberty, in this conception they are not seen as potential weak-points always in need of vigilant protection in the way the economic liberties of property and contract are. Moreover, it is the successful use of these economic liberties that is seen as the key to giving the other aspects of liberty their vigor.

We still commonly hear libertarians and conservatives say that we can know whether liberty is increasing or diminishing simply by gauging whether there is increasing or diminishing freedom for the operation of private enterprise. The goal is a market system made as free as is practicable, so as to allow the individual to achieve real self-reliance. Good politics protects the free operation of the economic arena by discouraging, through regular legislative politics and through constitutional restrictions of government powers, the temptation of poorer majorities to take from the more prosperous.

Good politics also protects such liberty by resisting the operation of monopolies in business or labor markets and by generally opposing laws that grant subsidies, protect collective-bargaining agreements, set up market-entry barriers, fix prices, and the like. The claim underlying this understanding of liberty is that it is not just a prudent theory of political economy that opposes such laws but the demands of liberty itself, and thus of the Constitution as well.

LIBERTY AS SOCIAL JUSTICE

The fourth conception, progressive liberty, was formulated in the late 19th and early 20th centuries in response to the ascendance of economic-autonomy liberty. But as the term &ldquoprogressive&rdquo suggests, it also reflected a new confidence in the constructive possibilities of modern civilization. The early Progressives believed that, as advances in the natural sciences (and economics) were transforming people&rsquos lives, advances in the social sciences, if applied by political leaders, could progressively improve society. This hope was coupled, however, with a fear that if political advances did not keep up with and regulate the advances in other fields, democracy would suffer severe degradation, including a loss of effectual individual liberty. For a correct understanding of liberty would see that the very possibility of the free individual, namely a person free to speak and believe as he would and free to develop his unique set of talents, depended on the collective development of that person&rsquos society.

If society did not provide protections against individuals&rsquo impoverishment by industrial contractual arrangements, individual freedom might eventually cease to exist in any effectual way, even if it might exist &ldquoformally&rdquo in the legal guarantee of natural rights. Yes, for the industrial wage-laborer, this formal liberty would mean he could not be made a slave, but how would this really matter if his family was likely to suffer life-threatening penury the moment he left or lost his job? Not only would he live a life shorn of opportunities for self-development, but he would probably be pressured to conform to the behavior, perhaps even the political and religious behavior, approved of by his employer. &ldquoNecessitous men,&rdquo Franklin Roosevelt liked to say, &ldquoare not free men.&rdquo This was both a description of their condition and a warning about its ultimate political implication. Such men would be drawn to creeds dedicated to the overthrow of liberal-democratic government.

So the proper goal of society, according to this view, is &ldquosocial justice,&rdquo which would not permit such necessitous straights but would seek the most broadly equal opportunity possible for self-development. Liberty is not separable from such justice, nor can it be understood by focusing on the individual alone, since it is only the socially just society that makes truly free individuals possible.

What the Progressives and the New Deal liberals feared, however, was that older American dogmas would keep the nation&rsquos democracy from directing its own social development as they envisioned. They found two dogmas particularly regrettable. The first was what they broadly denounced as &ldquoindividualism,&rdquo by which they basically meant economic-autonomy liberty. Progressives traced the roots of this individualism to the founding itself, but many of them put more of the blame upon economic theories of later origin. Either way, while such individualism had been a useful creed for pioneer farmers and small-town merchants to hold, the modern economy was increasingly coming to be divided into corporations and wage-earners. There was no longer a frontier where one could carve out property by mixing one&rsquos labor into the land in the manner extolled by Lockean theory. Thus, belief in inviolable individual rights, and particularly the rights to contract and use property freely, actually served to further entrench the power of corporations against that of individuals.

The second dogma was that of old-fashioned American federalism, which held that the power granted the national government by the Constitution to regulate interstate commerce mainly applied to commercial exchanges between the states. The regulation of an economic activity occurring within one state could only be undertaken by that state, even if the product of it affected the entire nation. This dogma was in denial about the truly national nature of the American economy, the Progressives asserted. At their best, the ties earlier Americans had to their towns and localities fostered patterns of fraternal care for their fellow citizens but now such instincts had to be given means of being exercised through the emerging national community if they were to exist at all. The old interpretation of federalism had become an artificial barrier to the exercise of the real political community&rsquos responsibility.

In sum, justice could not be limited to the honoring of individual rights it had to be social justice, and the proper political arena for its pursuit was the nation. Correctly understood, liberty was nothing but another way of speaking about the mutual enjoyment of such justice.

LIBERTY AS AUTONOMY

The fifth conception of liberty has been in the American air for a long time, as evident in certain pronouncements from Thomas Jefferson, Ralph Waldo Emerson, and Walt Whitman. Aspects of it had been affirmed by the Supreme Court in a number of landmark First Amendment decisions since the 1920s regarding political expression, the regulation of obscenity, and the non-establishment and free-exercise of religion. But it awaited the cultural (and sexual) revolution of the 1960s and &rsquo70s for its full practical implications to become evident and for it to become jurisprudentially enshrined in the Constitution, initially as the &ldquoright to privacy,&rdquo by decisions like Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas.

The core idea of personal-autonomy liberty is the notion that the individual should be allowed to do whatever he wishes, so long as he does not harm others or violate their rights. The French Revolution&rsquos &ldquoDeclaration of the Rights of Man and Citizen&rdquo came close to capturing the idea when it said that &ldquoLiberty consists in the ability to do whatever does not harm another hence the exercise of the natural rights of each man has no other limits than those which assure to other members of society the enjoyment of the same rights.&rdquo This formulation is nearly identical to ones stated by Thomas Paine and Thomas Jefferson.

The French declaration did go on to say that &ldquo[t]hese limits can only be determined by the law,&rdquo and that &ldquo[t]he law only has the right to prohibit those actions which are injurious to society,&rdquo whereby it logically opened up a wide scope of human activities to democratic regulation, including those involving health, education, morals, and religion. Indeed, all modern democratic nations have witnessed, and will continue to see, some majorities becoming convinced that society will be harmed by permitting certain lifestyles &mdash such as those of the overweight or uncleanly, the uneducated, the drug-addicted or otherwise vice-besotted, the sexually deviant or promiscuous, or those publicly adhering to a false religion or atheism.

Personal-autonomy liberty pushes against societal regulation of all these aspects of life and flatly rejects it with respect to consensual sex and religious opinion. Of course, the natural-rights understanding of liberty always fought for a similar policy with respect to the latter, at the state level best represented by Jefferson&rsquos Virginia Bill for Establishing Religious Freedom, and at the federal level by the First Amendment. But this understanding was not embraced by all or even most of the founders. In the Virginia debates about whether to fund religious instruction, for example, Jefferson and Madison&rsquos main opponent was none other than Patrick Henry. In Massachusetts, John and Abigail Adams spoke approvingly of laws that penalized a failure to attend church regularly, and the 1780 Massachusetts constitution directed the legislature to force towns to make provision for &ldquopublic Protestant teachers of piety, religion, and morality.&rdquo

Many states went on enacting laws, or even constitutional provisions, that expressly promoted Christianity well into the late 19th century. And with respect to sexuality, the record of state legislation was even more repugnant to the personal-autonomy idea of liberty. Thus, however prominent names like Emerson&rsquos and Whitman&rsquos may be, we have to recognize that the overt advocacy and practice of personal-autonomy liberty remained a minority bohemian phenomenon in America prior to the cultural revolution of the 1960s and &rsquo70s.

We could turn to various political theorists to more fully understand personal-autonomy liberty, but simpler articulations of it may be found in the public declarations of two of our Supreme Court justices: the liberal justice William Brennan and the swing-vote justice Anthony Kennedy. The former, in a 1985 address at Georgetown University that stands as one of one the most important defenses of a &ldquoliving constitutionalist&rdquo interpretation, said this:

The Constitution on its face is. a blueprint for government. When one reflects upon the text&rsquos preoccupation with the scope of government as well as its shape, however, one comes to understand that what this text is about is the relationship of the individual and the state. The text marks the metes and bounds of official authority and individual autonomy. When one studies the boundary. one gets a sense of the vision of the individual embodied in the Constitution. a sparkling vision of the supremacy of the human dignity of every individual.

The main teaching of the Constitution, Brennan suggests, is this vision of personal autonomy, which he also calls one of &ldquolibertarian dignity.&rdquo

Justice Anthony Kennedy, in his majority opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, the decision that reaffirmed the core holding of Roe v. Wade, spoke of the same vision:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one&rsquos own concept of existence, of meaning, of the universe, and of the mystery of human life.

It is now clear that, so long as the Court remains dedicated to this understanding, it will eventually overturn laws that prohibit same-sex marriage. What is more controversial is the argument that, if it is to be consistent on this point, it will also have to overturn laws that prohibit polygamy and polyamory, and really all laws grounded in what Justice Scalia, in his dissent in Lawrence, called a &ldquopromotion of majoritarian sexual morality.&rdquo

It has also become clear that many Americans now regard this individual-autonomy notion of liberty as the central feature of our democratic heritage. This fifth conception of liberty is clearly ascendant in our time. On the right, this has meant the rise of a libertarian social ethic rather than a communitarian conservatism. And on the left, it has meant a de-emphasis of the progressive ideal of liberty even as progressivism has appeared resurgent in the Obama years. As recently as the 1980s, there were large numbers of pro-life Democrats who, like the social-gospel Progressives or New Deal Catholics of old, mainly cleaved to the progressive notion of liberty and certainly did not accept the overall personal-autonomy conception. But they are a dying breed now, and typically in those instances when the progressive ideal of liberty comes into conflict with personal autonomy on the left, it is the progressive ideal that must make way.

The classical-communitarian conception of liberty, meanwhile, is the least championed one today in American politics. Certain liberals who remain attracted to slogans such as &ldquosmall is beautiful&rdquo and certain conservatives who are particularly focused on federalism give partial voice to it, but its praises are today are only whole-heartedly sung by what is best called the &ldquonew agrarianism,&rdquo a loose movement associated with the promotion of local foods, the author Wendell Berry, and the web site Front Porch Republic. It tends to oppose itself to both the Democratic and Republican coalitions, and thus far its political impact has been negligible.

THE COMPLEXITY OF LIBERTY

While each of these five conceptions of liberty has had its specific historical origin and heyday, all of them are alive in our time. Liberals today emphasize and to some degree combine conceptions four and five, conservatives one and three, and libertarians three and five, although all tend to assume they hold only a single and straightforward conception of liberty. In fact, one benefit of the five-fold framework offered here is that it leads us away from the dichotomous frameworks typically used to analyze liberty, and it allows us to see not only that liberty means different things to different people, but that it can mean multiple things to each of us.

Conservatives and libertarians have been particularly susceptible to Manichean descriptions of battles over liberty, sometimes presenting the founders&rsquo vision of liberty as a completely unified one while ignoring the tensions and outright divisions between the natural-rights and classical-communitarian conceptions. They then pit their unified version of the &ldquofounders&rsquo liberty&rdquo against the progressives&rsquo vision, which they consider essentially statist and implicitly directed to liberty&rsquos very opposite, tyranny. Many on the right also tend to blend this already-simplified view of the founders&rsquo understanding of liberty with the economic-individualist view that had its heyday in the late 19th century. The same people similarly make no distinction between the progressive and personal-autonomy conceptions of liberty. Everything is reduced to two opposing sides.

The typical liberal view of the matter is also dichotomous, if in a somewhat more complicated (or confused) way, pitting the progressive social-justice understanding of liberty against the economic-autonomy one in one arena, and personal-autonomy liberty against what amounts to a theocratic and &ldquoauthoritarian personality&rdquo bogeyman in another. All of these dichotomies are too simplistic for making fair judgments or adequate accounts of history.

The five-fold framework offered here avoids such reduction. It thus allows the examination of liberty to become dialogic and dynamic, shedding light on American history and on our misunderstandings or misrepresentations of it. In fact, both liberals and conservatives form their ideas of liberty through the lens of their understanding of history &mdash and the ways they do so are instructive.

Why did our conceptions of liberty develop as they did? American liberals or progressives would suggest that through a kind of trial and error process we were led to today&rsquos proper stance, in which progressive liberty and personal-autonomy liberty are combined. By this account, our journey from the founding to the present has involved two key corrective steps. First, the progressive conception was formulated in response to the way the natural-rights conception developed over time into an economic-autonomy ideal of liberty. This response involved something of an overreaction, however, for the progressive conception was too negligent of civil liberties, as these were associated with the natural-rights tradition, and too complacent about the potential for government expansion into all areas of life. So a second corrective step was taken, involving both a re-appreciation of inviolable individual liberties tied to the Bill of Rights and a further carving out, particularly through the right-to-privacy cases, of a much larger sphere of personal autonomy in non-economic matters.

Legal historian David Rabban has demonstrated that the cavalier attitude toward freedom of speech displayed by Wilson-era governance, especially during World War I, &ldquotransformed many progressives into civil libertarians.&rdquo It is no accident that the ACLU was founded in 1920. And regarding the trend illustrated by the right-to-privacy cases, the following from Justice Brennan is similarly revealing:

Until the end of the nineteenth century, freedom and dignity in our country found meaningful protection in the institution of real property. [A] piece of land provided men not just with sustenance but with the means of economic independence, a necessary precondition of political independence and expression. But [those] days. are past. To a growing extent economic existence now depends on less certain relationships with government. the possibilities for collision between government activity and individual rights will increase as the power and authority of government itself expands, and this growth, in turn, heightens the need for constant vigilance at the collision points.

In the old days, the dignified sphere of individual liberty was economic, but now, given the growing power that progressives had given (and think they ought to continue to give) to government, a new approach was needed. Originalist constitutional scholars harp on the inconsistency of a liberal court that, after emphatically rejecting economic substantive due process in the late 1930s, turned to what was essentially non-economic substantive due process from the 1960s forward. But if it was not a move that made perfect sense as an interpretation of the 14th Amendment, it is easily understood as being motivated by a need to guarantee the individual some arena for autonomous action. And it also helps explain the mix of progressive liberty and autonomous-individual liberty that now defines the left.

This development of American progressivism and liberalism is certainly an important part of the story of our conceptions of liberty. But two alternative conservative explanations give us reason to think it is not the whole story. The first, which in its popularized mode is essentially the liberty/statism dichotomy discussed above, was in some respects only recently articulated by conservatives. It derives from the teaching of some &ldquoWest Coast Straussian&rdquo scholars, such as Harry Jaffa, Thomas West, Ronald Pestritto, and Charles Kesler, and particularly from their trenchant critique of the original Progressives.

Up to the time of the Progressives, these scholars hold, America largely maintained the key elements of the founders&rsquo vision of politics &mdash the separation of the fundamental powers of government, the enumeration of national legislative powers, robust federalism, rejection of direct democracy, and, finally, a conviction that certain rights were natural and that it was the primary end of government to secure them. The Progressives rejected these elements and began to shape the government in a manner, later taken much further by New Deal and Great Society liberals, which undermined each of them.

It is crucial to understand how novel this interpretation of Progressivism has been. Prior to the work of these scholars, the dominant academic understanding was that Progressivism had been an obviously necessary response to growing corporate power in America, and that, in comparison with more fundamental critiques of capitalism, it was in many ways quite tepid. But the newer scholarship has called that account into question and most importantly has shown that the Progressive departure really was a radical one. It was deeply influenced by historicist ideas propounded by German philosophers like Hegel, and these ideas prove to be incompatible with natural rights. Key Progressive thinkers openly declared that there was no fundamental truth to those rights, and mocked the supposed wisdom of key features of American constitutionalism. Woodrow Wilson, for example, advised Americans not to study the opening paragraphs of the Declaration of Independence.

Americans of all ideological stripes can benefit from this advancement in our understanding of the original Progressives, and it is appropriate to demand of contemporary liberals a candid discussion of whether that sort of philosophical rejection of natural rights and that kind of hostility toward reverence for the Constitution are parts of their heritage they still endorse. The problem is that the framing of these newer findings, especially by conservative pundits (as opposed to scholars) has over-emphasized the idea of betrayal. This makes the case for American liberty, as it is generally understood on the right, as one of staying true to the natural-rights scriptures: Southern leaders directed an abandonment of our original principles that had to be rebuked and repented of, and Progressives, over a longer period of time and in a less overt way, have also fallen away from the founding ideals, and it remains to be seen if conservatism can bring the nation to repent. By such an account, natural-rights philosophy and its understanding of liberty are regarded as fully adequate, and the Progressive reaction against them has nothing to teach us about their limitations.

The fuller account of America&rsquos five conceptions of liberty suggests instead that, as natural-rights thinking about liberty became more divorced over time from classical and Christian inheritances and more subject to rigid judicial articulation and elaboration, it became less moderated by prudence and gradually morphed into the economic-autonomy conception and later on into the personal-autonomy conception. Additionally, as Americans found the local community and its exercise of liberty less meaningful and relevant, they were prepared to embrace a progressive vision of collective liberty practiced mainly at the national level.

Progressivism became attractive because it seemed as if it might fill the gap left by an ebbing tradition of classical-communitarian liberty, a gap more felt than understood. Progressivism&rsquos appeal to those eager for a theory in harmony with the purported 19th-century advances in philosophy and social thought was vital to its success, but easily as important was its appeal to the more typical Americans who did not grasp its departure from the founding or its skepticism toward any non-historicist grounding of political principle. In sum, the turning of so many Americans to progressive politics would seem to be both a story of their being led by innovators into foolishly abandoning their tradition and one of their being provoked into doing so by that tradition&rsquos own deficiencies.

The second sort of conservative explanation of the story of American liberty takes these deficiencies seriously. It is, compared to the first, strikingly critical of natural-rights thinking. This view is more common among some conservative-leaning political theorists than among activists or the rank and file. It suggests that the main path of American development has been toward greater and greater liberation of the individual, that this is not a good thing, and that it all goes back to natural-rights thinking itself. As the social-conservative theorist Peter Lawler put it in his 2005 essay &ldquoPutting Locke in the Locke Box&rdquo:

The real goal of Locke and the other old liberals was aggressive and comprehensively transformational, to change all of human life with the abstract or autonomous individual in mind. The contemporary Supreme Court interprets the Constitution as progressively and thoroughly Lockean.

Lawler explains this mainly in terms of Justice Kennedy&rsquos statements in Lawrence about our conception of personal liberty expanding over time, but he eventually notes that contemporary libertarian constitutional-law scholars such as Randy Barnett basically agree with Kennedy. These scholars want the Court to be consistent by endorsing both kinds of autonomy-securing substantive due-process interpretations.

By this account, the respective developments of the economic-autonomy and personal-autonomy conceptions of liberty out of the natural-rights doctrine make perfect sense. These conceptions will always be with us as long as there is an America, for their advocates are correct that they are simply following through the logic of Locke &mdash or we might say, simply purifying natural-rights liberty of its founding-era cultural incidentals. Despite the way the founders moderated natural-rights liberty, especially by assuming the continued validity and practice of certain classical-communitarian inheritances, its radical core was inevitably going to make itself felt and attempt to remake society in its own image.

It is true that one cannot understand the liberationist revolution of the 1960s without considering the peculiar influences that Progressives, Marxists, Freudians, and existentialists had upon it, but those influences are not the heart of the story. For what the revolution really did was further entrench the psycho-sociological condition referred to as &ldquoindividualism&rdquo by Alexis de Tocqueville, and this condition has its most vital root in modern philosophical talk about a state of nature. It is no accident that our social conditions and habits of the heart make us more and more like the unbelievably isolated individuals posited by the state of nature.

Lawler is hardly the only conservative theorist who understands the story of our liberty in this way. Those who share his view are usually influenced by Catholic thought, Edmund Burke, Alexis de Tocqueville, Leo Strauss, or some combination thereof. They often suggest that Lockeanism can be held partially responsible for the progressivism that later attacked it because, particularly if they follow Strauss, they regard the historicist &ldquosecond wave&rdquo of modern political philosophy as inevitably following from the state-of-nature focused &ldquofirst wave.&rdquo

Many of these theorists do hold that we still can moderate modernity or, to use Lawler&rsquos phrase, &ldquokeep Locke in the Locke box&rdquo the way the founders unknowingly did. It is difficult but not impossible, they assert, and Biblical religion, along with a grateful but not idolatrous reverence for the founders and their Constitution, are the key resources for such moderation. But there are also two important variants of this second conservative explanation of American liberty that are far more pessimistic.

The first, which can be described as a so-called &ldquoEast Coast Straussian&rdquo position, holds that what Tocqueville called &ldquodemocratic despotism&rdquo is the inevitable destiny of modern liberal democracy. He was correct about democracy&rsquos tendency toward such despotism but incorrect to hope that it could be indefinitely resisted. A decisive majority of modern Americans, led by many of our elites, have put their faith in the ideas described above as the progressive and personal-autonomy notions of liberty, and they will grant more and more power to a centralized government apparatus to guarantee the maximum calculable realization of both, heedless of all signs of the system&rsquos despotic drift. Resistance is futile, these theorists insist, since the call to &ldquoreturn to first principles&rdquo would simply return us to the Lockean beginning point. The only thing to be hoped for is the preservation of genuine philosophy in the face of the coming disaster.

The other variant, developed by Wilson Carey McWilliams and pushed a good deal further in an agrarian direction by his student Patrick Deneen (a professor of government at the University of Notre Dame), holds that we must return to the classical-communitarian notion of liberty. The only truly good aspects of the American heritage are those that have tried to resist the nationalizing and individualistic imperatives. An America largely purged of its Lockean inheritance and repentant about its technological hubris is our only real hope, but, as that hardly seems in the offing, the best we can realistically strive for is a countercultural preservation of agrarianism by scattered communities.

TOWARD A RICHER DEBATE

Carefully considered, the five-fold framework laid out above suggests that the somewhat more optimistic conservative critics of Locke are correct, and that they may offer the best prescription for averting the ruin of American democracy.

While natural-rights thinking bears a good deal of responsibility for what has gone wrong with America, most of all by having a role in fostering the development of the progressive and personal-autonomy notions of liberty, these semi-optimistic conservatives accept three things about natural-rights thinking: There is a very great deal of good that we owe to it, and it merits our patriotic gratitude moreover, there is no plausible way of getting Americans to abandon it even if we wanted to and, most important, there is much about it that is simply true. Classical thinking must be used to correct or fill in the blind spots of Locke, but Locke can do the same for classical thinking, most of all by articulating certain aspects of the initially Christian insight into the primacy of the person against the claims of the community. (On this last point, it is again the writings of Peter Lawler that are the most instructive.)

Thus, we must continue to dedicate ourselves to the natural-rights propositions, albeit with a greater understanding of the way the founders in fact balanced Lockean thought with pre-modern inheritances. The inheritance that directly concerns liberty is the classical-communitarian understanding of it. This is the most important insight that the five-fold framework can offer contemporary conservatism. It is not enough to moderate Locke with religion and constitutional reverence Americans have to advocate understandings and policies that seek to rebuild the power of local communities and the benefits of citizen participation in them, no matter how quixotic this may initially seem.

If Aristotle was to any significant degree correct that we are naturally political (or polis-focused) animals, and if Tocqueville was to any significant degree correct that township and associational participation were the most important schools of American liberty, then every step toward re-invigorating classical-communitarian liberty is precious and necessary in our time, no matter how small. If we resign ourselves to a world in which the collective practice of self-rule is no longer experienced in any tangible way, we will find the innate human desire for it expressing itself in debased and perhaps dangerous ways, including in wild crusades for amorphous &ldquochange.&rdquo

Contemporary conservatism combines economic-autonomy liberty with natural-rights liberty it would be healthier for it to combine classical-communitarian liberty with natural-rights liberty. What that ought to look like in terms of the ongoing necessity to maintain a coalitional alliance with economy-focused libertarians is of course a legitimate matter of debate. Such a conservatism would continue to take many of its economic-policy bearings from economists who favor economic-autonomy liberty, and it would certainly refuse to entertain the new agrarian suggestion that America can or should &ldquoget beyond&rdquo Lockean notions of property rights. But it would expect ongoing conflict between individual economic liberty and collective efforts to foster socioeconomic health, especially when these are conducted at the local level, to be a perennial and ultimately salutary feature of republican liberty.

Today&rsquos liberals and libertarians will of course have little inclination to embrace such an approach, and perhaps little more to accept the story about American liberty&rsquos development upon which it rests. But they would do well to consider that framework at least as a way of clarifying our national disagreements. Americans disagree about the very principles that make up the American creed, and we must bring ourselves to face this. We will only exacerbate the fratricidal tendencies gathering strength in our polity if we continue to speak about liberty in a manner that denies the seriousness of our disagreements.

To continue to speak of liberty simply in our various disputes is really to assume in advance that there is only one way to talk about it. All sides will only exasperate one another by assuming this, and worse, when constitutional disputes arise, the parties to them will assume and talk as if their conception of liberty must be protected by our founding documents. What purports to unite them, therefore, will turn out to divide them all the more.

The good news is that five is a much more promising number than two. It makes it less likely than either the liberal or the conservative party in our politics will completely carry the day, as a series of electoral victories by either coalition would expose it to the prospect of its own division along deep and serious fissures. Moreover, it makes the possibility of dialogic learning more likely. If liberty&rsquos future definition is not simply a matter of two sides, one of which is destined to lose, then the two main coalitions in our politics can each hope for various kinds of healthy reconsiderations by the other.

Conservatives can hope that some serious liberals will reconnect with elements of the political philosophy of the founders that are crucial to their own worldview, dial back their dogmatic and Constitution-altering insistence upon most every aspect of personal autonomy, and make more room for the cultivation of fraternity and active liberty at the local level. Liberals can hope that some serious conservatives can become far less dogmatic about questions of political economy by being more skeptical about the claims, especially the constitutional claims, of economic-autonomy liberty, and less inclined to associate calls for legislative amelioration of economic distress with Marxist socialism or Hegelian statism.

If such hopes seem extravagant at present, it is not too much to hope that admitting our divisions about liberty will allow us to conduct a more thorough civic education in common, for the sake of better cultivating in future generations an appreciation of the riches of the American political tradition and, of course, for the sake of their perpetuation of &ldquogovernment of the people, by the people, and for the people.&rdquo

Carl Eric Scott has taught political science and American studies at Hampden-Sydney College, Skidmore College, Washington and Lee University, and Christopher Newport University. He thanks the Center for American Studies at Christopher Newport University and the Alexander Hamilton Institute for the Study of Western Civilization for their support.


February 14, 2020

Announcing Penn Press's Spring 2020 catalog!

Exciting new titles this season include:

  •  Bank Notes and Shinplasters by Joshua R. Greenberg, which shows how Americans accumulated and wielded monetary information in order to navigate the early republic's chaotic bank note system, before the shift to federally authorized paper money in the Civil War era.
  •  Remaking the Republic by Christopher James Bonner, which chronicles the various ways African Americans from a wide range of social positions throughout the North attempted to give meaning to American citizenship over the course of the nineteenth century.
  •  Cookbook Politics by Kennan Ferguson, which explores the sensual and political implications of cookbooks, demonstrating how they create nations, establish ideologies, shape international relations, and form communities.
  •  How To Be Depressed by George Scialabba, which collects decades of the author's own mental health records—along with an introduction, an interview, and a glossary of terms—to form an unusual, searching, and poignant hybrid of essay and memoir that strives to make sense of the baffling disease that is clinical depression.
  •  Major Decisions by Laurie Grobman and E. Michele Ramsey, which serves as an informative guide to students and parents, and argues that in order for our economy and democracy to thrive, we need more—not fewer—humanities majors.
  •  Selling Antislavery by Teresa A. Goddu, which offers a thorough case study of the role of reform movements in the rise of mass media and argues for abolition's central importance to the shaping of antebellum middle-class culture.

. and many more!

We also have new paperbacks of recent books coming soon, including Herman L. Bennett's African Kings and Black Slaves, Randy M. Browne's Surviving Slavery in the British Caribbean, Cary Cordova's The Heart of the Mission, Alastair Minnis's From Eden to Eternity, Barbara Newman's Making Love in the Twelfth Century, Kelly J. Shannon's U.S. Foreign Policy and Muslim Women’s Human Rights, and Jean-Christian Vinel's The Employee: A Political History.

Book reviewers: To request a press copy of a Penn Press book, send your name, shipping address, and the title of your publication to [email protected]

Educators: To request an exam copy for course use consideration, click here.


Was the concept of religious freedom in the early United States applied to native American faiths? - History

The American colonists had just fought a long and bitter war against a powerful centralized government they were wary of creating another. The Second Continental Congress, which continued to function as the government of the new United States following the Declaration of Independence, drafted the Articles of Confederation in 1777. They had organized themselves sufficiently to conduct the war, but even during the fighting, the states werejealous of their own prerogatives. For example, when Washington's army was marching from Boston to New York early in the campaign, a welcoming party from the government of Connecticut approached the advance units and inquired by whose permission this "foreign army" was being brought into Connecticut. United in the cause of war, they still were separate political units jealous of their independence. Preoccupied as Congress was with the conduct of the war, and occasionally having to move to avoid the British Army, they failed to find sufficient agreement on the Articles until they were ratified on March 1, 1781.

It is worth noting that the issue of state sovereignty did not disappear. When South Carolina seceded in 1860, it declared in its succession document that "the state of South Carolina has resumed her position among the nations of the world, as a separate and independent state."

Under the Articles of Confederation, the states saw the themselves as independent republics they had not yet created a nation. The American government under the Articles was, in effect, a "United Nations of North America," rather than the "United States" as a single nation. For decades the country was referred to in the plural: “The United States are preparing for an election.” Americans were in no hurry to create a powerful national government only after several years of experiment did they begin to realize that thirteen “sovereign and independent republics” could not function as a nation without a strong central authority. The Articles provided for no executive authority in a president, no executive agencies, no common judiciary, no way to fund an Army or Navy, and a week fragmented foreign and trade policy. Although the Confederation Congress had a presiding officer, he had very little power and was by no means a chief executive. The Congress also had very little authority over the thirteen states, not being able to tax them nor to make any significant moves without unanimous consent of all the the states. In foreign affairs, which will be discussed further below, they had little leverage in dealing with other nations, for the European powers didn't know whether they were dealing with a nation or a random collection of 13 states. As a result, diplomatic progress was stymied.(In otherwords, governmentunder the articles was no way to run a railroad, much less a nation.)

It was only after several years of experiment that the states began to realize that they needed to make changes in order to conduct themselves as a nation ready to take part in world affairs. Led by Washington, Hamilton, Madison and others, they began to search for ways to improve their lot, and they are finally agreed on a convention, whose original purpose was to amend and revise the articles of Confederation. Any amendments, however, would've required unanimous consent of all 13 states. That would take time. Instead, when they got the Philadelphia, they simply chucked the articles and began writing a new document. We will get to the Constitution in due course, but meanwhile let's examine developments in the 1780s.

Republican Government. The most radical idea to come out of the American Revolution was the idea of republican government. To be called a republican in Europe in 1780 was something like being called an anarchist in later times, or a political extremist in today's world. The radical idea of republican government—government by the people—promised to profoundly change the relationship between men and women and their government. Some of those changes were subtle, but over the years their force was felt. Perhaps most important was the idea of virtue: Where did virtue reside in the political structure, and how could virtue be cultivated? In a state run by an aristocracy, a monarchy such as England's, the virtue—the goodness or quality or character—of the state was determined by the ruling class. Ordinary people had no real civic responsibility except to obey the laws. In a republic, from the Latin res publica, the people are responsible for the virtue of the state.

Other significant changes that came into focus during and after the Revolution included a new and more highly developed sense of equality, the idea that people should be judged by their worth rather than by their birthright, that being highly born is not a requisite for achievement or recognition. Those ideas developed slowly and unevenly, but the Revolution made such radical thinking possible. Some of those changes in attitude were translated into new laws and practices, such as mFurthermore, voting restrictions were whittled away, eliminating the requirements of property ownership or religious qualifications for voting. Although in the case of voting for electors in the presidential election, it was not until the 1820s that the people got a greater share of the vote.ore equitable treatment among all regions of the states. That concept would evolve over time and eventually the Supreme Court ruled that representation in Congress should be based upon the principle of one person one vote. That would take time, but the groundwork was laid. More liberal laws of inheritance, and greater religious freedom, including the separation of church and state, were other issues that were part of this revolutionary change.

The young American nation also had the extraordinary luxury of having about six years between the end of the fighting in America and the next outbreak of violence in Europe—the French Revolution—to find a new way to govern itself. If the French Revolution with all its turmoil had started earlier, or if the Americans had taken longer in getting around to writing their Constitution, things would certainly have turned out differently, quite possibly for the worse. Few nations have had such a broad and untrammeled opportunity to form a government under so little pressure.

The States: Republicanism in Practice

Until independence was declared, the colonies continue to operate under their colonial charters. Massachusetts set an important precedent by drafting its constitution in a special convention called for that purpose in 1779. Soon thereafter constitution writing was going on in the rest of the states in special conventions, following the Massachusetts example, and by 1780, they all had adopted them. Those constitutions provided a practice arena for the writing of the United States Constitution. As John Adams, who drafted the Massachusetts Constitution, put it, "How glorious it was to be able to participate in the making of a government—few in history have had such an opportunity." The new state constitutions emphasized fundamental freedoms such as freedom of religion, speech, and the press. The office of governor was generally weak, and elected assemblies were given the most power. The state constitutions had to be ratified by a referendum of the people. Americans wanted written constitutions that would clearly define the rights of the people and the limits of government power. Their attitude reflected the American distrust of power, an American characteristic that continues to this day. While they incorporated parts of the British system into their new governments, being wise enough not to throw out the baby with the bath water, they still created radical new forms. (The state constitutions can all be viewed at Yale’s Avalon Project.)

In all of the states more of "the People's men" appeared in government. At the heart of the American experiment was the idea of equality. Ability, not birth, was what mattered. The new American aristocracy would be based on merit, not birth, men described as "stern and disinterested heroes." The theory of a born aristocracy was contradicted by what was called the surging individualism of American life. Americans were aware that the entire world was watching, with more than a little skepticism about whether this experiment in republican government could work. Many Europeans assumed that the American attempt to create a new form of government would fail and that America would become some sort of despotism or perhaps attach itself to one of the great nations of Europe.

Summary of Political Issues in the Early Federal Period

The Articles of Confederation were finally ratified in 1781: Maryland was slow to ratify, and unanimous consent was required. Until then the Second Continental Congress had been the de facto government. Congress had managed to win the Revolutionary War, but with difficulty and inefficiency. John Adams, for example, served on more than eighty committees. Wartime problems had been huge, and although much was accomplished, the confederation was cumbersome and inefficient. The colonies had never really gotten along very well, and now the states were jealous of federal power and of each other. Under the Articles, Congress had far less power than Parliament: There was no executive, and no courts were provided for. Government was operated by scores of committees. (Definition of a camel: a horse that was put together by a committee.)

In the 1780s, many Americans feared their Revolution could still fail if not grounded in a virtuous republican government, but ordinary folk, influenced by evangelicalism, expected progress founded on “goodness and not wealth.” They expected the Revolution to bring them greater liberty, a voice in government, and an end to special privilege. Others, fearing that too much liberty might lead to democratic excess, emphasized the need for order. In 1780, America might have been the most literate nation in the world, and if the citizens had not read John Locke, they were certainly aware in general of his principles. They understood that there was no such thing as absolute freedom of action, that to maintain liberty, freedom had to be circumscribed, but finding the balance between liberty and control by government was a difficult and delicate process. The bottom line issue was liberty versus order.

Republicanism—government by the people—was as radical for its time, as Marxism was later, although the concept had its origins in Greece and Rome. The concept spread throughout Europe in the 18th century. These ideas came together in revolutionary Americans to form one of the most coherent and powerful ideologies in the history of the world. Republicanism was a social as well as political construct, and the simplicity and plainness of American life were now seen as virtues. The evils of the Old World were seen as rooted in too much government, but in order for government to be minimized, the citizens had to be virtuous, patriotic, and willing to give to the mother country.

Property ownership was seen as requisite to participation in republican government because people needed to have a stake and be independent. Jefferson saw dependency as an evil—“it begets subservience and venality”—so he proposed that Virginia give fifty acres of land to every citizen who didn’t own that much. Because it was widely believed that the early state constitutions were flawed experiments in republican government, some Americans began to argue that a stronger central government was necessary.

As the need for a stronger central government became more apparent after 1783, the United States could easily have become a monarchy, with George Washington as George I of America. The American states first became independent republics, and the feeling was that viable republics were of necessity small.

With a successful war for independence behind them, the Americans still faced many difficulties in shaping a new republican government, having closed “but the first act of the great drama . . .” Much hard work remained to be done. Without the completion of the task of creating a viable government, the experiment still might have foundered.

A National Culture

The Cultural Declaration of Independence: By 1789 poems, plays, music, and art celebrated the Revolution and all things American. Noah Webster worked to produce the first American dictionary—the American language began to depart from English. American art stressed patriotic themes—portraits of Washington and other revolutionary dignitaries abounded, and artists began to develop new styles. A fledgling American literary movement began with plays such as The Contrast, whose characters represented American virtues and corrupt old European ideas. American literature did not become highly evolved—that would have to wait for the Romantic Age under Emerson, Hawthorne, Whitman, and others—but the seeds were sown.

Mercy Otis Warren (left) was an important figure in the development of a national culture. She was a poet, a dramatist, and an early advocate for rebellion against the British policies instituted by the British governor of Massachusetts. Her History of the Rise, Progress and Termination of the American Revolution was the first full history of the revolution, and it is still available in print today. The sister of James Otis, she was a close friend of Abigail Adams, whose letters to her husband and to Thomas Jefferson are an important cultural artifact deriving from the revolutionary era.

The qualities that make virtuous citizens and therefore a virtuous statedecency, honesty, consideration of others, respect for law and orderare qualities that are first learned at home, generally at the mother’s knee. So in a very subtle way the role of motherhood, the job of raising virtuous citizens, became a public good. The concept was known as republican motherhood, and although women were still treated as second-class citizens for decades, when they began to make their case for full equality, they could and did point to seeds sown during the Revolution.

Although it took time there were reasons to expand women's rights. For example, women made important contributions to the Revolution, including fighting. Deborah Sampson served as a man from 1781 to 1783. Others did much to support the American armies—making bandages, and so on. Martha Washington did much to assist soldiers at Valley Forge. Women also demanded natural right of equality and contributed to the creation of a new society by raising children in households where the republican values of freedom and equality were daily practice. Women were more assertive in divorcing undesirable mates and in opening their own businesses, but were still denied their political and legal rights. Although women made some gains in education and law, society still defined them exclusively as homemakers, wives, and mothers.

Abigail Adams had said “Remember the ladies”—or they would foment their own revolution, which they eventually did. But even in the republican fervor of the post-revolutionary period, women got few new rights. The next major step in women's rights would come in 1848 with the Seneca Falls Declaration, which will be discussed in a future chapter.

(See the works of Abigail Adams, Mercy Otis Warren, who wrote the first full history of the American Revolution in1805, and other notable women of that era.)

Foreign Affairs: Diplomatic Humiliation

Congress had little power over the states and therefore over foreign policy. The result was that other nations either ignored the young United States or ran roughshod over their interests with little fear of retaliation. The British ignored certain provisions of the Paris agreement and kept troops on American soil long after the peace treaty was signed. Both the British and Spanish were feared to be stirring up Indians on the western frontiers, but Congress was powerless to do anything about it. In addition, the Royal Navy remained in American waters, a threat to American independence of action. In addition, the British refused to abandon their forts in the Northwest territory. The British were so contemptuous of American concerns that they failed even to send an envoy to the United States.

When Spain closed the port of New Orleans to American commerce in 1784, Congress sent John Jay to Madrid to achieve terms to open the Mississippi to Americans. Instead, Jay signed the Jay-Gardoqui Treaty, an agreement that ignored the problem of the Mississippi in exchange for commercial advantages benefiting the Northeast. Congress rejected the treaty, largely because of opposition by James Madison and James Monroe, and the issue smoldered for ten more years. Congress also claimed lands in the West still occupied by the British and Spaniards but could not forcefully challenge those nations for control of the land.

The American armed forces, except for state militias, over which Congress had little control, were for all practical purposes disbanded after the war. The U.S. Army numbered fewer than one hundred men in 1784. For good or ill, foreign affairs would come to dominate American public life and politics between 1790 and 1815—as Europe became steeped in the wars of the French Revolution and Empire. But even in the immediate postwar years, America carried little weight in the world despite having won the Revolutionary War. The issue of unpaid debts persisted, though some thought they should be renounced. George Mason is supposed to have said, "If we still owe those debts, then what were we fighting for?"

These diplomatic issues were understood by nationalists like Hamilton, and they were part of the reason for the creation of a new strong central government under the Constitution. But that would take time.

Commercial Issues: Foreign Trade

After the Revolution the American balance of trade was very negative, which led to a serious recession from 1784 to 1786. As Americans had been unable to trade with Great Britain during the war but still had an appetite for British goods, British imports to the United States expanded after the war, so money and wealth were leaving the country. The young country also was critically short of hard currency, a situation exacerbated by the fact that cash was flowing overseas. Furthermore Congress had no taxing authority, and massive war debts, including promised pensions for soldiers, remained unpaid. It was clear that a strong central authority was needed to regulate trade—the Confederation government could not get a tariff bill through because of jealousy among the states. On the bright side—and there was not much there—new ports were now open and American ships could go anywhere they pleased, but without, of course, the protection of the Royal Navy. The vessel Empress of China sailed to the Far East in 1784–85, opening up trade with that part of the world for Americans.

The Free Trade Issue—The Downside:

The colonies enjoyed many benefits under the British when it came to trade. Their merchant vessels had been protected by the Royal Navy, and their trade with the mother country was lucrative. Now, however, the week American Navy had to protect its own merchants. American vessels were excluded from British imperial ports outside England, which meant the loss of an important trading partner. Further, Americans know longer benefited from British mercantilism. In addition, foreign nations were reluctant to enter trade agreements with the United States in fear of retaliation by the British. High duties were charged on imports to England, which hit American traders hard. The British orders in Council of 1783 barred certain goods as well as American ships from the Caribbean trade, which hit northern states especially hard. As a result of all that, shipbuilding interest were hurt, and America had find new ways to prosper in the world of trade.

The American Economy: “Anarchy and Confusion”

The financial problems of the new United States were huge. The U.S. treasury, such as it was, was empty. The national government and many other states had huge debts, and in order to have some currency so that business might be conducted, the wartime practice of issuing paper money continued the result was rampant inflation. American paper was practically worthless, and state paper money was worth even less, if that was possible. (In Rhode Island, legal tender paper was created, and it had so little value that people refused to accept it as payment for anything.)

With no power to tax, Congress could do little to ease the situation. Nationalists such as Alexander Hamilton and James Madison wanted Congress to have a taxing authority, but their efforts came to naught, as the states were jealous of federal power to tax, having just fought a war initiated in large part over unwanted taxation. In 1781 Robert Morris tried to set up a Bank of North America, thinking that that “the debt will bind us together.” He was given near dictatorial powers, but he resigned in frustration in 1784, having been unable to stabilize the economy.

The situation even held potential danger for the government itself, as war veterans threatened to march on Congress. Before leaving Newburgh, General George Washington had thwarted one such movement, but the seeds of discontent among the former soldiers and officers remained apparent. To make matters even more confusing, economic jealousy existed among the new states. Various tariffs were applied to goods that moved between the states, and state laws came into conflict with the treaty made with Great Britain in 1783.

During this time the national debt rose from $11 million to $28 million, which included foreign debt. Those debts were never brought under control during the Confederation period—it was not until Alexander Hamilton reformed American finances under the constitutional government that America’s economic house began to be put in order.

In January 1787 Daniel Shays led a rebellion of Massachusetts farmers who were frustrated because they were unable to pay their debts because of depressed crop prices, and mortgages were being foreclosed. They captured the arsenal in Springfield and threatened to advance on the Massachusetts Legislature. Americans from George Washington to Abigail Adams were horrified by the prospect Washington declared it “liberty gone mad,” and the situation reminded many that mob rule was sometimes seen as a natural outgrowth of too much democracy. Thomas Jefferson was less bothered by the uprising, believing that a little violence was necessary for the good health of liberty, but it was obvious that the federal government could not respond to the needs of the people.

All these events pointed up weaknesses in the American government and showed the need to revise the Articles of Confederation. Meanwhile other reforms were emerging from the fire of rebellion, such as religious freedom—the separation of church and state. Most states abandoned tax support for churches, and Jefferson’s Statute of Religious Freedom in Virginia set an important example. In the northern states of Massachusetts and New Hampshire, the Congregational Church still got some tax money. Despite their newly found liberalism, most Americans were nevertheless intolerant of views that were strongly anti-Christian.

Slavery and the Promise of Liberty

The American Revolution did not abolish slavery, although in some states the innate contradiction between the institution and the Declaration were apparent. During the Revolution, many African Americans fought for freedom in their own way—some on the British side, some on the American. Slavery was gradually abolished, but mostly where it was economically unimportant. At this stage of its history, slavery was not seen as morally defensible even southerners questioned the morality of slavery, and no one defended it as a “positive good.” That would come later.

Slavery was an important issue during the Revolutionary War. Governor Dinsmore of Virginia had promised freedom to all slaves who would fight against the American rebels. As a result, the British army emancipated many slaves—about twenty thousand escaped to the British, including some of Jefferson’s.

During the revolutionary period, provisions for emancipation were incorporated into most northern state constitutions. Even outsiders were struck by the contrast between American cries for freedom and its practice of slavery. Samuel Johnson asked, “How is it that we hear the loudest yelps for liberty from the drivers of Negroes?” Some Americans were equally outraged by the practice. As Abigail Adams put it, “It always appeared a most iniquitous scheme to me to fight ourselves for what we are daily robbing and plundering from those who have as good a right to freedom as we have.”

Meanwhile, slavery was dying elsewhere in the world. In England a slave owner could not exercise his property rights over a slave. In America, excuses were found not to use blacks to fight for independence. And yet, in the words of one historian, “For all its broken promises, the Revolution contained the roots of the black liberation movement.” For blacks had been at Lexington, had crossed the Delaware with Washington, and many had been recognized at Bunker Hill and during the surrender of the British at Saratoga. In fact, British soldiers mocked the American army because it contained so many blacks. All the same, in the South the sight of a black man with a gun evoked fear. The time for full emancipation was not yet at hand.


Was the concept of religious freedom in the early United States applied to native American faiths? - History

The U.S. has a diverse society, and its history is marked by attempts to concentrate power, wealth, and privilege into the hands of whites.

Learning Objectives

Describe the history and current situation of at least three minorities in the U.S.

Key Takeaways

Key Points

  • The emphasis on racial distinctions often results in the failure to acknowledge the ethnic and national diversity that various racial groups encompass.
  • The negative effects of unequal race relations can be seen to this day, albeit to different degrees, amongst all non-European American groups.
  • A model minority is a stereotype of a minority group that is considered to have achieved educational, professional, and socioeconomic success without threatening the status quo.

Key Terms

  • Multi-Racial: When a person’s heritage comes from a variety of different races.
  • Model Minority: A minority group that is seen as reaching significant educational, professional, and socioeconomic levels without challenging the existing establishment.

The United States is a very diverse, multi-racial and multi-ethnic country people from around the world have been immigrating to the United States for several hundred years. While the first wave of immigrants came from Western Europe, the bulk of people entering North America were from Northern Europe, then Eastern Europe, followed by Latin America and Asia. There was also the forced immigration of African slaves. Native Americans, who did not immigrate but rather inhabited the land prior to immigration, experienced displacement as a result. Most of these groups also suffered a period of disenfranchisement and prejudice as they went through the process of assimilation.

Since its early history, Native Americans, African Americans, and European Americans were considered as different races in the United States. The differences attributed to each group, however, especially the differences used to designate European Americans as the superior race, had little to do with biology. Instead, these racial designations were a means to concentrate power, wealth, land, and privilege in the hands of the European Americans. Moreover, the emphasis on racial distinctions often led to the lack of acknowledgement or over-simplification of the great ethnic diversity of the country’s population. For example, the racial category of “white” or European American fails to reflect that members of this group hail from very different countries. Similarly, the racial category of “black” does not distinguish people from the Caribbean from those who were brought to North America from various parts of Africa.

Today, the U.S. continues to see a significant influx of immigrants from all over the world. Race relations in the U.S. remain problematic, marked by discrimination, persecution, violence, and an ongoing struggle for power and equality.

Native Americans

The brutal confrontation between the European colonists and the Native Americans, which resulted in the decimation of the latter’s population, is well known as an historical tragedy. Even after the establishment of the United States government, discrimination against Native Americans was codified and formalized in a series of laws intended to subjugate them and keep them from gaining any power. The eradication of Native American culture continued until the 1960s, when Native Americans were able to participate in, and benefit from, the civil rights movement. Native Americans still suffer the effects of centuries of degradation. Long-term poverty, inadequate education, cultural dislocation, and high rates of unemployment contribute to Native American populations falling to the bottom of the economic spectrum.

African Americans

African Americans arrived in North America under duress as slaves, and there is no starker illustration of the dominant- subordinate group relationship than that of slavery. Slaves were stripped of all their rights and privileges, and were at the absolute mercy of their owners. For African Americans, the civil rights movement was an indication that a subordinate group would no longer willingly submit to domination. The major blow to America’s formally institutionalized racism was the Civil Rights Act of 1964. This Act, which is still followed today, banned discrimination based on race, color, religion, sex, or national origin. Some sociologists, however, would argue that institutionalized racism persists, especially since African Americans still fair poorly in terms of employment, insurance coverage, and incarceration, as well as in the areas of economics, health, and education.

Asian Americans

Asian Americans come from a diversity of cultures, including Chinese, Japanese, and Vietnamese. They, too, have been subjected to racial prejudice. The Chinese Exclusion Act of 1882, for example, which was motivated by white workers blaming Chinese migrants for taking their jobs, resulted in the abrupt end of Chinese immigration and the segregation of Chinese already in America this segregation resulted in the Chinatowns found in large cities. Nevertheless, despite a difficult history, Asian Americans have earned the positive stereotype of the model minority. The model minority stereotype is applied to a minority group that is seen as reaching significant educational, professional, and socioeconomic levels without challenging the existing establishment.

Hispanic Americans

Hispanic Americans come from a wide range of backgrounds and nationalities. Mexican Americans form the largest Hispanic subgroup, and also the oldest. Mexican Americans, especially those who are here illegally, are at the center of a national debate about immigration. Mexican immigrants experience relatively low rates of economic and civil assimilation, which is most likely compounded by the fact that many of them are illegally in the country. By contrast, Cuban Americans are often seen as a model minority group within the larger Hispanic group. As with Asian Americans, however, being a model minority can mask the issue of powerlessness that these minority groups face in U.S. society.

Hispanic Population Distribution in the US: This map shows data gathered in the 2010 US Census of Spanish-speaking populations around the US.


The Western Frontier

As the nation expanded westward, settlers were motivated by opportunities to farm the land or “make it rich” through cattle or gold.

Learning Objectives

Describe the conditions common in western frontier towns

Key Takeaways

Key Points

  • While the motivation for private profit dominated much of the movement westward, the federal government played a supporting role in securing land and maintaining law and order.
  • The rigors of life in the West presented many challenges to homesteaders, such as dry and barren land, droughts, insect swarms, shortages of materials, and lost crops.
  • Although homestead farming was the primary goal of most western settlers in the latter half of the 19th century, a small minority sought to make fortunes quickly through other means, such as gold or cattle.
  • The American West became notorious for its hard mining towns, such as Deadwood, South Dakota and Tombstone, Arizona, and entrepreneurs in these and other towns set up stores and businesses to cater to the miners.

Key Terms

  • Homesteading: A lifestyle of self-sufficiency characterized by subsistence agriculture and home preservation of foodstuffs it may or may not also involve the small-scale production of textiles, clothing, and craftwork for household use or sale.

The Second Amendment

For such a highly charged political issue, the text of the Second Amendment is among the shortest:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The text’s relative simplicity has not spared it from controversy arguably, the Second Amendment has become controversial because of its text. Does it merely protect the right of the states to organize and arm a “well regulated militia” for civil defense, or is it a protection of a “right of the people” as a whole to individually bear arms?

Before the Civil War, this would have been a nearly meaningless distinction. In most states white males of military age were considered part of the militia, liable to be called for service to put down rebellions or invasions, and the right “to keep and bear Arms” was considered a common-law right inherited from English law predating the federal and state constitutions.

The beginning of selective incorporation after the Civil War fueled debates over the Second Amendment. In the meantime several southern states adopted laws that restricted the carrying and ownership of weapons by former slaves as part of their black codes. Despite acknowledging a common-law individual right to keep and bear arms, in 1876 the Supreme Court declined, in United States v. Cruickshank, to intervene to ensure the states would respect it. [28]

States gradually began to introduce laws to regulate gun ownership. Federal gun control laws were introduced in the 1930s in response to organized crime, and stricter laws regulating most gun commerce stemming from the street protests of the 1960s. Laws requiring background checks for prospective gun buyers were passed in the early 1980s following an assassination attempt on President Ronald Reagan. During this period, the Supreme Court’s decisions regarding the meaning of the Second Amendment were ambiguous at best. In United States v. Miller, the Supreme Court upheld the 1934 National Firearms Act’s prohibition of sawed-off shotguns, largely because such weapons did not support the goal of promoting a “well regulated militia.” [29]

This ruling was interpreted to support the view that the Second Amendment protected the right of the states to organize a militia, rather than an individual right. Consequently the lower courts ruled most firearm regulations—including some city and state laws virtually outlawing private ownership of firearms—to be constitutional.

In 2008, in a narrow 5–4 decision on District of Columbia v. Heller, the Supreme Court ruled that at least some gun control laws did violate the Second Amendment and that this amendment does protect an individual’s right to keep and bear arms, at least in some circumstances—in particular, “for traditionally lawful purposes, such as self-defense within the home.” [30]

Because the District of Columbia is not a state, this decision immediately confirmed the right only to the federal government and territorial governments. Two years later, in McDonald v. Chicago, the Supreme Court overturned the Cruickshank decision (5–4) and again ruled that the right to bear arms was a fundamental right incorporated against the states, meaning that state regulation of firearms might, in some circumstances, be unconstitutional. In 2015, however, the Supreme Court allowed several of San Francisco’s strict gun control laws to remain in place. This suggested that—as in the case of rights protected by the First Amendment—the courts will not treat gun rights as absolute. [31]

A “No Firearms” sign is posted at Binghamton Park in Memphis, Tennessee, demonstrating that the right to possess a gun is not absolute. (credit: modification of work by Thomas R Machnitzki)


What Are America's Founding Ideals, and Why Are They Important?

America's founding ideals are democracy, rights, liberty, opportunity and equality, according to The Founding Ideals of America website. While many of the finer points of American ideals are debated, it is generally agreed that the importance of these five ideals cannot be understated in terms of importance to American society.

America's founding ideals aren't set in stone. In both the Declaration of Independence and the Constitution, it is never explicitly stated what ideals are most important and what are least important. However, it is clear that the founders of the nation wanted to promote the five qualities listed above. Early colonial laws, the Articles of Confederation and the founding documents of the United States all strongly urge the government to ensure liberty, equality, rights, opportunity and democracy. America was founded on principles of liberty, individuality and freedom.

The founding ideals of America are vastly important. In the United States government, it's very important to obey the laws and principles set forth in the Constitution by the Founding Fathers. Unfortunately, they aren't around to clarify difficult or confusing issues, and modern times have made interpretation difficult. By determining the founding ideals of America, legislators can more easily interpret the will of the founders and the meaning behind the words that they wrote. Adhering to the founding ideals also means staying true to the founding principles of America, which have been defended since the country's inception.