Letter Concerning Toleration (1689)

Transcription

1 Review English legacy to American institutions can hardly be overstated (note English v. British) BUT ironically the threat that put constitutional principles at the core of modern American culture also came from Britain Turning points: Henry VIII and the Church of England Religious rivalries of 16 th and 17 th centuries Trial and execution of Charles I The Glorious Revolution and English Bill of Rights

2 Letter Concerning Toleration (1689) Key because religion permeated British and American culture Much of the wrestle about liberty came as a result of the religion question

3 Religious Freedom Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties. John Milton, Areopagitica, 1644

4 Religion and State Should we give a church power over an individual s life, liberty or property? Should we give the state power to dictate religious orthodoxy? Religious Freedom = The First Freedom Why?

5 Letter Concerning Toleration (1689) Magistrates (civil authorities) should have no power over a person s beliefs and religious practices Cannot force a person to believe Harmful religious practices (e.g., human sacrifice) are punishable as other crimes Churches should have no power over a person s natural rights to life, liberty or property. Exclusion is maximum penalty But believing magistrates have right to express beliefs

6 Rule of Law A set of principles that, if respected, ensures that laws protect natural rights and thus preserve freedom.

7 Principles of the Rule of Law Generality Prospectivity Publicity Consent Due Process 7 The English Legacy

8 Rule of Law: Generality Laws must not single people out for special treatment. If a law applies to a sub-group, it must apply only to people who voluntarily join the sub-group after the law is passed. If generality holds, people will not consent to unjust laws.

9 Prospectivity: Ex post facto Laws cannot criminalize specific acts that have already occurred.

10 Rule of Law: Publicity The people must know what the laws are and must know that they will be consistently enforced. Publicity includes prospectivity, since one cannot know of laws from the future.

11 Rule of Law: Consent People should be able to abolish laws that they do not want.

12 Rule of Law: Due Process Laws must be administered impartially. The determination of guilt and the imposition of the penalty must be done without bias.

13 Due Process (cont.) Impartially and faithfully enforced Independent Judiciary Habeas Corpus Defendant Rights A speedy, public, jury trial counsel confront accusers compel testimony avoid self-incrimination humane treatment

14 Principles of the Rule of Law Generality Prospectivity Publicity Consent Due Process 14 The English Legacy

15 Rule of Law Rule of law does not guarantee justice, but it does lead to predictability and freedom. People living under the rule of law can choose their own fate and thus are free.

16 Structure and Virtue

17 Structure: Checks and Balances Even after the Glorious Revolution, Whigs worried about corruption in high places. Aristotle convinced the Whigs that structure could be used to curtail the misuse of power. In particular, mixing power in a balanced way among rivals checks and balances could prevent any one group from getting too much power. Montesquieu wrote eloquently in praise of British structure and heavily influenced the American Founders.

18 Virtue At least some of the politicians must be virtuous, or power mixed with corruption can overcome both the rule of law and structure, and impose tyranny. Whigs looked to commonwealthmen rural gentry, away from the center of power to provide the needed virtue.

19 We believe that every man should be honored in his station, rulers and magistrates as such... And that to the laws all men show respect and deference, as without them peace and harmony would be supplanted by anarchy and terror. DC 134:6

20 English Legacy in Action Without fully realizing it, the colonists had set up a system that approached Lockean liberty. British abuses, though, threatened rights and fostered tyranny. The Founders strove to implant permanently Lockean liberty and the rule of law by using British structure plus an innovation: separation of powers. The Founders also strove to be the needed virtuous commonwealthmen.