If you’re looking for strange juxtapositions, you had a whopper this weekend. On January 16, 1919, the Eighteenth Amendment to the United States Constitution was ratified. In case you’re a bit fuzzy on the amendment numbers, that was the one prohibiting the “manufacture, sale, or transportation of intoxicating liquors for beverage purposes.” In other words, the one that put in place Prohibition as a great moral enterprise, albeit one paradoxically coerced by federal enforcement and destined to become an icon for the sort of unintended consequences that usually plague government’s best intentions. When Prohibition went into effect on January 16, 1920, law abiding folks obeyed the law, but throughout the 1920s the demand for booze boosted organized crime and made icons of unsavory characters, men such as Al Capone. For this and other reasons, the 18th Amendment didn’t work and didn’t last. It was repealed in 1933.
On the other hand, January 16 is also the anniversary of another government measure. It is one diametrically opposed to the idea that propelled Prohibition and remarkable for never promoting a single unintended consequence. On January 16, 1786, the Virginia legislature enacted the Statute on Religious Freedom. It is quite simply one of the finest pieces of legislation ever conceived and ever passed, an idea so shining that it ranks with Magna Carta as a great pivot point in the affairs of mankind.
We might wonder then why its anniversary always goes unheralded and often doesn’t even appear on “today in history” lists. Perhaps it’s because the measure’s name is misleading. True, the statute’s main object was to remove the special privileges of the Established Anglican Church in Virginia, which included mandatory contributions of money to the Church and obedience to Anglican doctrine as a qualification for public office. Yet by achieving this goal, the statute laid down a marker for intellectual liberty. With soaring words almost never found in legislative writs, it established freedom of speech and thought as core rights in the American political and cultural tradition.
It wasn’t easily achieved, and the arduous path of the measure to enactment featured angry debates and charges of heresy that unfairly branded the statute’s author, Thomas Jefferson, as an atheist. The charges endured for the rest of Jefferson’s life and even survived him to blemish his reputation among the credulous as a godless heathen. Jefferson wasn’t surprised by the charges. He recognized the battle over religious freedom as the hardest fought of his public life, but he was not godless, and his reasons for advancing his cause had nothing to do with an attempt to undermine religion. He believed that a person’s faith was a private matter, and he consequently didn’t think his or anyone else’s should have anything to do with public policy. “It does me no injury,” he said, “for my neighbor to say that there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
Jefferson saw as a more sacred obligation the protection of dissent, and he vehemently dissented from the claim that outlawing traditions grounded in harsh intolerance was sacrilegious. In colonial Virginia, brazen heretics could be put to death, and people who didn’t embrace the Trinity or submit to the literal authority of Scripture could be jailed. Jefferson thought such medieval punishments unlikely in 1776, but he judged the spirit behind them an appalling assault on individual conscience.
At the outset of the American Revolution, he saw a golden chance to do something about it. As a member of the Virginia Assembly, he served on a reform committee to recommend changes in Virginia’s colonial laws. The idea was to divorce the newly minted Commonwealth’s legal practices from the obnoxious ones of Parliament and King, which Jefferson saw as a way to replace the purpose of government from maintaining privilege. Government could best preserve the happiness of the people, he thought, by leaving them the hell alone. Most of the changes urged by Jefferson and his fellow “revisors” were popular, but his intention to remove Anglican prerogatives raised a storm. The Assembly rejected the law he drafted out of hand as heretical and corrosive. Without the mutually supporting bulwarks of Church and State, opponents declared darkly, the result would be moral anarchy and social chaos. By the time these debates took place, Jefferson was governor, and the Revolutionary War was about to come to Virginia in a violent way. The issue seemingly vanished from political discourse.
But it didn’t vanish from the sensibilities of thoughtful men. After the peace with Britain, the Congress appointed Jefferson minister to France, but his idea still had champions in Richmond, particularly James Madison. In 1785 the Virginia legislature considered a tax for the support of teachers of the Christian religion. It was on its face a benign measure since its sponsor, Patrick Henry, an avowed apostle of liberty explained that “the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society.”
Well, who could object to this? Well, Thomas Jefferson and James Madison to name two in what turned out be a growing chorus of opposition. For them, real religious liberty compelled the government to restrain its impulses to do good by whatever means, in this case the coercion of man’s conscience. No matter how noble the impulse, the means of achieving it were treacherous, for they relied on the compulsory force of law. A government taking up such a power for a good cause would have it at hand for a bad one, or worse, for one the people found distasteful. It was always the way government slipped off the garments of a servant to clothe itself in the robes of a master.
Enough of Madison’s colleagues agreed to join him in defeating the assessment bill, and he used this swelling sentiment to revive Jefferson’s long moribund Statute on Religious Freedom. Debate and caution toned down the broad philosophical sweep of Jefferson’s original wording, but its final form still took wing to open with the declaration: Almighty God hath created the mind free. It condemned “the impious presumption of legislators and rulers” who were just as “fallible and uninspired” as anyone else but sought to set up “their own opinions and modes of thinking as the only true and infallible” with the aim of imposing “them on others.” Furthermore, “to compel a man to furnish contributions of money for the propagation of opinions, which he disbelieves[,] is sinful and tyrannical.”
These ringing words made the men who made them a reality justly proud of their achievement at the time, and as much as anything can endure, the frame of the abstract argument with the Statute on Religious Freedom has for many years been given tangible force by American law and tradition, both in the First Amendment to the United States Constitution and in resisting the countless challenges to it as a marker for the sanctity of individual liberty and conscience. James Madison was optimistic 230 years ago that they had “in this country extinguished forever the ambitious hope of making laws for the human mind.”
And yet . . . and yet, perhaps there are other reasons the anniversary of this grand accomplishment now goes unheralded. In an irony beyond the credibility of fiction, we can now survey in America a political, cultural, and legal landscape that is casually forsaking this fundamental facet of a free and healthy society. “Truth is great and will prevail if left to herself,” Jefferson had written to form the penultimate paragraph of the statute, the one that makes the sentiment broad and timeless. Truth, after all, is “the proper and sufficient antagonist to error and has nothing to fear from the conflict.” But Jefferson also warned that the strength of Truth could be weakened “by human interposition” that disarms Truth “of her natural weapons.” Those weapons were “free argument and debate.”
In our own time, what do we see happening? A recent poll showed that almost 40 percent of Americans said the First Amendment “goes too far.” Mock petitions to repeal it garner scores of signatures on college campuses where students demand “safe zones” that prohibit free argument and debate. Measures have been seriously discussed in the United States Congress to make illegal certain species of free argument and debate under the guise of preventing “hate speech.” Jefferson was never surprised by the charge that he was an irreligious heathen, and Madison knew how to gauge the turning of the tide in his time that allowed them to extinguish the ambitious hope of making laws for the human mind. Both, however, would be surprised that “forever” was merely a couple of centuries before the ambitions would reappear, and laws for the human mind would again be on the agenda.
The Eighteenth Amendment is the only one in the Constitution that has been repealed. So far.