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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). 1243

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