The Blessings of Liberty
by John Witte
Reviewed by Nicholas Wolterstorff
In the course of his long and distinguished career as a legal historian, John Witte, Jr. – who holds a named professorship at Emory University and is director of the university’s Center for the Study of Law and Religion – has authored and co-authored a number of extensively researched books about human rights and religious freedom. He has written about the Lutheran Reformation, early modern Calvinism, the formation of the American constitution, and generally western Christian tradition. In this book he goes beyond such specific studies and employs his massive, career-long research to tell the full story of human rights and religious freedom in the West, from its origins in Hebrew and Christian scripture and Roman law up to the most recent decisions of the U.S. Supreme Court and two international courts: the European Court of Human Rights and the Court of Justice of the European Union.
Witte quotes a witticism by Oliver Wendell Holmes, Jr.: “A page of history is worth a volume of logic.” By “logic” Holmes meant philosophy, or theory generally. As a philosopher, I am understandably not ready to accept Holmes’ judgment concerning the relative worth of history and philosophy. What is the case, however, is that each makes its own distinct contribution to our intellectual culture. Witte writes, “Folks in my discipline operate closer to the ground than many high-flying human rights theorists at work today” (11). By operating close to the ground Witte offers what a philosophical discourse on human rights and religious liberty cannot offer; namely, a story of how our “rich latticework” – Witte’s phrase – of rights and liberties came about.
It is indeed a story that Witte tells – tells it masterfully, in prose that is always lucid, often elegant. The historical learning behind the story is impressive; it would have been easy to get bogged down in details with one thing after another. Witte’s narrative, on the contrary, has a story-line leading up to a denouement: the rich latticework of human rights and religious liberty that we in the West presently enjoy. As with any good story, there are sub-plots, twists and turns, fits and starts. There are high points – primus inter pares of the high points being the Magna Carta and the legislation and judicial decisions that it spawned – and low points, when rights and liberties were for a time contracted.
The story Witte tells is of the rich and complex interplay among constitutions, laws, and judicial decisions: the formulation and adoption of abstract principles in charters and constitutions, legislation putting those principles into practice, and judicial decisions interpreting those principles. What especially struck this reader was how fortuitous many of the episodes were that led up to our present rich latticework. Over and over, things might well have gone differently, inhibiting rather than advancing the cause of human rights and religious liberty: The charters and constitutions might never have been adopted, the legislative applications might have taken a different form, judges might have been presented with quite different cases, and might have decided them quite differently. Good fiction conveys a sense of inevitability; it was inevitable that things would turn out as they did. Not so for the story Witte tells: nothing inevitable here.
In the story, Witte describes six main components in the American version of the latticework: liberty of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no establishment of a national religion. He writes: “These six principles – some ancient, some new – appeared regularly in the debates over religious liberty and religion-state relations in the eighteenth century…. They remain at the heart of the American experiment today – as central commandments of the American constitutional order and as cardinal axioms of a distinct American logic of religious liberty” (139).
Paired with the bright story that Witte tells about the emergence of our rich latticework of rights and liberties is a dark story: a story of oppression, domination, prejudice, and discrimination. Religious liberty clauses appear in charters and constitutions only because, in the social context from which they emerge, there was a history of rights violations and liberty constrictions. Religion cases come before courts only because some person or some group feels aggrieved, they believe they have been deprived of what they have a right to. Among the many admirable features of Witte’s narrative is that the dark story receives full attention; it is never hurried past.
From the story he tells, Witte draws a thesis concerning the significance of the right to religious freedom for the recognition of human rights in general. He writes: “The right to religious freedom has long been a foundational part of the gradual development of human rights in the Western tradition, and today it is regarded as a cornerstone in the edifice of human rights.… [F]reedom of religion embraces… freedom of conscience, exercise, speech, association, worship, diet, dress, and evangelism;… freedom of religious and moral education, and freedom of religious travel, pilgrimage, and association with coreligionists abroad” (6). This is just the beginning of Witte’s list of the rights attendant on the right to freedom of religion.
On the basis of the story he tells, Witte also makes an important polemical point. A rather common claim of Christian theologians in recent years, especially Protestants, is that the idea of human rights was devised by secular thinkers of the Enlightenment as an expression of their philosophy of possessive individualism and that it should, for that reason, be rejected by Christians. Witte’s statement of the claim is elegant: “Some view human rights as a dangerous invention of the Enlightenment, predicated on a celebration of reason over revelation, of greed over charity, of nature over scripture, of the individual over the community, and of the pretended sovereignty of humanity over the absolute sovereignty of God” (76).
Witte pulls no punches in his response. “While such skepticism might make for good theology in some Protestant circles today, it is not good history. The reality is that early modern Protestant theologians and jurists on both sides of the Atlantic expounded complex theories of natural law and natural rights” (76). Summarizing his opening discussion of Roman and medieval jurisprudence, he writes, “For Western jurists and judges, rights talk was a common way to define and defend the law’s protection, support, limitations, and entitlements of persons and groups in society as well as the proper relationships between political and other authorities and their respective subjects. For Western lawyers, subjective rights were not a modern invention…. Lawyers since classical Roman and medieval times used rights ideas and terms…” (72). The Blessings of Liberty should put to rest, once and for all, the claim that natural rights was an invention of Enlightenment philosophers. Instead, it emerged from the seed-bed of Western Christendom.
About the discussions that led to the U.S. Bill of Rights, Witte writes: “One key to the enduring success of [the] American experiment in religious freedom lies in the eighteenth-century founders’ most elementary insight – that religion is special and needs special constitutional protection” (156). This claim, that religion is special and needs special protection, is being questioned nowadays by a considerable number of political philosophers and legal theorists. “[I]t has become obsolete in our post-establishment, postmodern, and post-religious age, these critics argue. Religion, they say, is too dangerous, divisive, and diverse in its demands to be accorded special constitutional protection” (163). In response, Witte points once again to the several studies which show “that the protection of religious freedom in a country is strongly associated with other freedoms” (167), and then, after acknowledging that has caused many evils, composes an eloquent articulation of the enduring fundamental importance of religion in the lives of individuals and groups.
The story Witte tells in The Blessings of Liberty is absorbing. His insistence, “that rights should remain part of Christian moral, legal, and political discourse” (296), is compelling. And his case against the position that religion no longer merits special attention is powerful.
Nicholas Wolterstorff is Noah Porter Professor Emeritus of Philosophical Theology, Yale University. Among the thirty books he has authored are Justice: Rights and Wrongs (Princeton) and Justice in Love (Eerdmans).
Wolterstorff, Nicholas. “Review of John Witte’s ‘The Blessings of Liberty’.” Canopy Forum, April 22, 2022. https://canopyforum.org/2022/04/22/review-of-john-wittes-the-blessings-of-liberty/.