Martha Nussbaum on Roger Williams

Martha C. Nussbaum, “The First Founder” [review of On Religious Liberty: Selections From the Works of Roger Williams, ed. James Calvin Davis], New Republic, 9 Sept. 2008 https://newrepublic.com/article/61558/the-first-founder?fbclid=IwAR07-wz1bFDtyu3DaK-xt5yDLOoUyYo7s6Y5qjqTE-C69vNiNIk0nbv9WHI.

Verbatim excerpts:

… Williams wrote many books, including two lengthy philosophical treatises that are among the major works on religious toleration in the history of Western thought. Prolix, diffuse, and ill-organized, their thousand pages are hardly ever consulted, while Locke’s succinct A Letter Concerning Toleration is taught in countless college classrooms. Even Williams’s American contemporaries did not have much knowledge of his books, which were published in England.

Williams, who founded Rhode Island in 1636, was a political leader who translated his ideas into practice, through both law and policy, in a way that was initially seen as shocking but that gradually shaped what other colonies aspired to and permitted. This influence was enhanced through Williams’s voluminous public correspondence, which expressed his philosophical ideas in a compressed and available form. By the time of the American founding, virtually all state constitutions embodied ideas such as those Williams had instituted in the 1640s. James Madison, the chief architect of our Bill of Rights, had views that were remarkably similar to those of Williams, though he very likely did not read Williams’s books. It is not too much of a stretch to view Williams as one of the shapers of our constitutional tradition.

For us, Williams is important above all as a conversation partner whose humane insights can inform our own divisive debates. Three aspects of his thought deserve our attention. First, he developed a distinctive and impassioned view of conscience as a seat of emotion, imagination, and ethical choice through which each person seeks meaning in his or her own way. Conscience, for Williams, is the source of our equality, and it is worthy of equal respect wherever it is found. Political principles, he argued, must be based on that equal respect. Second, Williams believed that equal respect for conscience entails protecting an extensive sphere of freedom around the individual, and that this protection must be impartial, imposing no orthodoxy. To impose orthodoxy upon the striving conscience is nothing less than what Williams, in a memorable and repeated image, calls “Soule rape.” And third, Williams maintained that a civil peace among people who differ in religion requires a moral consensus that is itself impartial, giving the ascendancy to no creed more than any other. Such a consensus is available because there is a part of the moral sphere that we can share while differing in ultimate religious commitments.

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When Williams arrived [in 1635-36] as a refugee from Massachusetts, then, his dealings with the Indians had long prepared the way for a fruitful relationship. Chiefs Massasoit and Canonicus welcomed him as an old friend, because he had befriended them before he needed them. Throughout his life Williams kept up these friendships. One of the key provisions of the Charter of Rhode Island was that “itt shall not bee lawfull to or For the rest of the Collonies to invade or molest the native Indians,” a provision that Williams particularly sought and, when it was granted, applauded, noting that hostility to the Indians “hath hietherto bene … practiced to our Continuall and great grievance and disturbance.” As he wrote to the governor of Massachusetts Bay, explaining his refusal to return, “I feel safer down here among the Christian savages along Narragansett Bay than I do among the savage Christians of Massachusetts Bay Colony.”

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When the civil wars and the Restoration made it necessary to renegotiate the charter, Williams again went to England, and found in Charles II a ready ally for his experiment in religious liberty. The colony of Barbados already permitted religious liberty, by omission and by policy rather than by explicit royal guarantee. But the colony of Rhode Island was the first case of an official policy of religious liberty. Williams wrote with amusement of how shocked the king’s ministers were by the charter. “But fearing the Lyons roaring, they coucht agnst their Wills in Obedience to his Maties pleasure.”https://8116e2ddfa47364c5b05594e5e05512f.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html

The charter was shocking indeed–not only in its odd provision regarding the Indians, but above all in its clause regarding religious liberty:

Noe person within the sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted, or called in question, for any differences in opinione in matters of religion, and doe not actually disturb the civill peace of our sayd colony; but that all and everye person and persons may, from tyme to tyme, and at all tymes hereafter, freely and fully have and enjoye his and theire owne judgments and consciences, in matters of religious concernments, throughout the tract of lande hereafter mentioned; they behaving themselves peaceablie and quietlie, and not useing this libertie to lycentiousnesse and profanenesse, nor to the civill injurye or outward disturbance of others; any lawe, statute, or clause, therein contained, or to be contained, usage or custome of this realme, to the contrary hereof, in any wise, notwithstanding.

What does this clause protect? Belief and the expression of opinion in religious matters, clearly. But Williams throughout his writings was careful to insist that acts of worship also should enjoy protection. Indeed, in his own writings we rarely encounter the word “belief” without the word “worship” or “practice.”

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Williams introduces The Bloudy Tenent with the announcement that “consciences and worships” are all to be permitted. Elsewhere he uses phrases such as “for either professing doctrine, or practicing worship,” “doctrine or practice,” “holdeth or practiseth,” “doctrines and worships,” “to subscribe to doctrines, or practise worships.” It is a bit unfortunate that the charter is less careful, but we can understand the latitude of its protection from the other direction, as stopping where civil disturbance begins. Williams was no John Stuart Mill: he thought that the business of civil government included not only the protection of individuals from harm to their rights by others, but also the maintenance of public order and morality. Thus, like virtually everyone in his time, he favored laws against adultery and other so-called “morals laws.” But not on religious grounds: Williams’s conception of public morality keeps it quite distinct from religious norms and justifications.

The final provision in the clause is very interesting. The charter guarantees liberty of religious belief and practice even when a law or custom forbids it. In other words, if the law says that you have to swear an oath before God to hold public office, this law is nullified by the charter. Moreover, it appears that the charter nullifies the applicability of laws to individuals when such laws threaten their religious liberty. If a law says that people have to testify on Saturday, and your religion forbids this, then that law is not applicable in your case. It would appear, in other words, that Williams had forged something like the modern legal concept of “accommodation” on grounds of conscience. Laws of general applicability have force only up to the point where they threaten religious liberty (and where public order and safety are not at stake). This policy was stated explicitly by Williams in a letter. Comparing the colony to a ship at sea on which Christians, Jews, pagans, and Muslims have all embarked, he remarked that the captain of that ship is entitled to require anything that is connected to the ship’s safety and that of her passengers, but otherwise there is to be the widest possible religious liberty for all passengers alike.

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Williams had his own intense religious beliefs, which entailed that most people around him were wrong. Their error, however, does not mean that they do not have the precious faculty of conscience. Consider this remarkable sentence: “This Conscience is found in all mankinde … in Jewes, Turkes, Papists, Protestants, Pagans, etc.” And although truth is important in Williams’s universe, truth is not the basis of respect. What he reveres is the faculty for finding truth, the capacity for searching and choosing. Like the ancient Stoics, he holds that this faculty exists in people of all religions. He is fond of lists, and usually includes Jews, Muslims, Catholics, pagans (prominently including the Indians), and even atheists, whom he calls Antichristians. He insists that all consciences deserve not just respect, but equal respect. The remarkable sentence at the opening of The Bloudy Tenent is typical: “It is the will and command of God that (since the coming of his Sonne the Lord Jesus) a permission of the most paganish, Jewish, Turkish, or antichristian consciences and worships, bee granted to all men in all Nations and Countries.”

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Williams has a keen nose for special pleading and preferential treatment, and he sees it everywhere that restrictions on religious liberty are found. He suggests that the error of the persecutor is a kind of anxiety-ridden greed, which is hypocritically disguised as virtue. Anxious and insecure, each individual aims to carve out special protections and privileges for himself by attacking in others what he most values in his own life. In 1670, in a letter to the governors of Massachusetts and Connecticut, he indicts them for a hypocritical and unfair set of principles: “Your Selvs praetend libertie of Conscience, but alas, it is but selfe (the great God Selfe) only to yourselves.”

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Williams is a very emotional writer. His style is deeply subjective and passionate. Still, it is not implausible to find themes in his writings that anticipate some central ideas of Kant a century later. At the heart of both men’s thought are two notions: the duty to respect humanity as an end wherever we find it; and the duty to be fair, not to make an exception for one’s own case. Indeed, respecting humanity entails not making an exception of oneself. Just as Kant asks a person to test the principle of his or her conduct by asking whether it could without contradiction be made a universal law for all human beings, so Williams’s critique of the leaders of Massachusetts and Connecticut is that their idea cannot pass a test of that sort: they love freedom–but only for themselves. They could not will persecution as a universal law, and their selfishness prevents them from willing freedom of conscience (which could pass the Kantian test) as a universal law.

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According to Williams, there are two separate sets of ends and activities in human life, and corresponding to these are two sorts of authority. Civil authority concerns “the bodies and goods of subjects” (exactly the account that Locke later gives). Civil authority must protect people’s property and bodily security, and it may use force to do so. Its foundation lies in the people, and it is they who choose civil magistrates. The other sphere of human life is that of the soul and its safety. Churches have this sphere as their jurisdiction, with the proviso that their only proper means of addressing the soul is persuasion. The two sorts of authority, civil and spiritual, can coexist peaceably together. Peace is in jeopardy only to the extent that churches overstep their boundaries and start making civil law or interfering with people’s property and liberty.

Williams now tells us that there is, of course, a way in which the civil state needs to make laws “respecting religion”: namely, it has to make laws protecting it, proclaiming, for example, “that no persons Papists, Jewes, Turkes, or Indians be disturbed at their worship (a thing which the very Indians abhor to practice toward any).” Such protective laws are not only permitted, they are also extremely important, “the Magna Charta of highest liberties.” There is, he continues, another type of law “respecting religion” that is very different: the sort of law that establishes, or forbids, acts of worship, and says who can and cannot be a minister, and so on. To say that these should be civil laws “is as far from Reason, as that the Commandments of Paul … were civil and earthly constitutions.”

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Martha C. Nussbaum is a professor of law and philosophy at the University of Chicago. Her most recent book is Liberty of Conscience: In Defense of America’s Tradition Of Religious Equality (Basic Books).