21 Cardozo L. Rev. 1243 (1999-2000)
Why Is Religious Liberty the First Freedom

handle is hein.journals/cdozo21 and id is 1257 raw text is: WHY IS RELIGIOUS LIBERTY THE FIRST
FREEDOM?
Michael W. McConnell*
Studies of religious liberty under the American Bill of Rights
often take inspiration from the fact that the Free Exercise Clause
and the Establishment Clause are the first clauses of our First
Amendment, making them       our first freedoms.'   Freedom    of
religion thus has pride of place in our hierarchy of constitutional
values. How appropriate! But how mysterious! Appropriate,
because religious freedom is one of the most cherished parts of our
constitutional tradition. But mysterious, because so many other
candidates for the first freedom might seem to have an equal
claim-freedom of speech, the right to vote in representative
elections, due process, equality. Why is freedom of religion
first?
As a historical proposition, the answer to this question is
simple: it was an accident. If Madison, the principal architect of
the Bill of Rights, had had his way, a Religion Clause would have
been tucked away somewhere between Clauses 3 and 4 of Article
I, Section 9.2 On this point, as on so many, Madison gave way to
his colleagues, who preferred a separate set of amendments. Even
so, what is now the First Amendment was originally placed
third-not first-on the list submitted to the ratifying states. If the
requisite number of states had ratified what the First Congress
proposed, the First Amendment would have been a provision
governing    the  number     of  members     of   the   House    of
* Presidential Professor, University of Utah College of Law. This lecture draws upon,
and incorporates material from, two other works in progress: Michael W. McConnell, Old
Liberalism, New Liberalism, and People of Faith, in CHRISTIAN PERSPECTIVES ON LEGAL
THOUGHT (Angela Carmella et. al. eds., forthcoming 2000), and Michael W. McConnell,
Education Disestablishment: Why Democratic Values Are Ill-Served By Democratic
Control Of Schooling, NOMOS (forthcoming 2000). I wish to thank the Faculty Summer
Research Fund of the University of Utah College of Law for support during the
preparation of this article.
I See, e.g., THOMAS J. CURRY, THE FIRST FREEDOMS: CHURCH AND STATE IN
AMERICA TO THE PASSAGE OF THE FIRST AMENDMENT (1986); WILLIAM MILLER, THE
FIRST LIBERTY (1986).
2 See THE COMPLETE BILL OF RIGHTS 1 (Neil H. Cogan ed., 1997) (quoting Madison
proposal on June 8, 1789).

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