What is the freedom of Canadians and Americans based on? It is deeper and older than the ideas of John Locke and, though the troubles that got it articulated were troubles of religion, it is deeper than religion.

The idea of conscience is not primarily concerned with religious or moral scruples. Conscience is not primarily that sector within us that is conscious of guilt; it is the operation of the human soul, concerned about all that a human being can be concerned with (whether the soul receives religion or follows some other path of ultimate commitment).

Freedom of conscience is “Soul Libertie,” said Roger Williams in 1644. For this English Puritain (driven by unfreedom in Massachusetts into the wilderness, to found the new colony of Rhode Island) “soul Libertie” is room for the soul to move and breathe as it was made to do. Williams wrote that

the government of the civill Magistrate extendeth no further then over the bodies and goods of their subjects, not over their soules.

Freedom of conscience, then, defends a space in which to use the soul, the mind, the feelings of delight and pain delivered by experience, just as these gifts were made to be used, free of interference, each person assuming responsibility for the pivotal decisions of his or her life.

Here is how it shows up in the Virginia Declaration of Rights of 1776, penned by George Mason and James Madison, in which

All men are equally entitled to the free exercise of religion, according to the dictates of conscience;… it is the mutual duty of all to practise Christian forbearance, love, and charity, towards each other

– above all in the charity of acknowledging one’s neighbors (whatever they might come to believe) as human beings equipped with powers of mind, concerned with their own welfare, and vested with a responsibility for their own fate.

What ‘idea of a nation’ is implied in this? America was described in 1776 by Samuel Adams in the following way, writing of those who fled their native lands for liberty:

Driven from every corner of the earth, freedom of thought and the right of private judgment in matters of conscience direct their course to this happy country for their last asylum.

His cousin John Adams, in 1825, advocated “liberty of conscience on all subjects and … the right of free inquiry and private judgment in all cases,….”

The scope of “all subjects” and “all cases” is plain, and the word “private” here directs us to that place within every human being where our “judgments” about this range of belief are made (this term ‘judgment’, repeatedly used by these men, being the standard English term then employed for all determinations of true and false).

As free countries the United States and Canada are precisely states conceived to be rare places on this earth that would want and welcome a real human being, caring about his one life as he or she is moved by conscience (by the life of his soul) to do. The laws of such a land would allow these citizens to use the powers of judgment they possess as human beings, and will not obstruct them when those judgments fail to advance (or pointedly evade) the purposes of any ‘higher class’ of citizen (the majority, perhaps, or those ‘on the right side of history’) whose outlook has been confused with ‘our’ way.

When the figures in this tradition speak about freedom of conscience what they are saying is that only a human being can think human thoughts: the state (other than the one that ‘is’ these people) cannot think any thoughts, make any determinations, hold any opinions. This is the affair and the business of human beings alone, in their communities. That people be permitted to conduct their business and live as people, assuming those powers of mind and that responsibility that are theirs, and then be left to act, with integrity, in the world that they have freely recognized, is in fact to let them live as people were made to live. That is a free country: a land in which people can live as people, moved by conscience (not threats) to the full extent possible.

And with this view the idea that freedom is freedom to turn this country into the country we believe in – the idea that in circumstances like ours “one side prevails or the other prevails” –appear to be seriously out of step.

In cases of “conflicting liberties” – in the case of the law school charged with discrimination or of the parents versus the school board – the decision did not turn on determining whether rights were infringed and then deciding how to end this infringement. The decision turned on which of the two infringements was defensible, “reasonable.” It turned upon some form of weighing of the costs of denying some citizens the freedom they think theirs.

On what standpoint is that weighing done? Is it made from no particular standpoint, that is, from a universal position of human values, or from a national standpoint of Canadian or American values, from either of which ‘basic fairness’ can be seen? 

Is there such a thing as a ‘neutral’ weighing that would be simply fair, not fair from the standpoint of a person who believed some particular thing that would favour one party in the dispute, though we are free, in a free country, to reach quite different conclusions on that matter.

In 1825 John Adams affirmed the American tradition of “liberty of conscience on all subjects and … the right of free inquiry and private judgment in all cases,….” The scope of “all subjects” and “all cases” is plain.

The question as to that neutrality can be answered by looking at the arguments made by the justices who reached these decisions. At certain key points their arguments depend on claims that are not demonstrably true, that is, with a truth that is evident to every thinking person; rather, they are positions native to a particular outlook on the world, an outlook that it is perfectly reasonable to hold – but it has a rival. It is also reasonable to hold a quite different outlook, in which the truth of these claims is not at all evident. If, then, judges rely on these views in their ‘neutral weighing’ on occasions where public tensions have arisen over holding these very views, the result will be the denial of the freedom of people to reach free conclusions: that is, a violation of free thought, the most fundamental freedom of all.

Justice must come in two forms, according to the nature of the society. When we have a moral consensus (this was us, but is no longer), justice will be the determination of what is owed a person according to the terms of the prevailing outlook, which is shared. When we have no moral consensus – indeed, two worldviews vying for dominance – justice will not involve establishing what is due, since there are two rival views of what is due; justice will involve the maximal accommodation of two outlooks (which we are free to uphold and live by). 

The task of the judges will not be to decide which of these (fundamental) “conflicting liberties” will ‘win’ and which will be denied; it will be to see in what ways both can be accommodated: by what voluntary concessions could both sides accord each other the freedom they seek. It is this that is our tradition, not the zero-sum war. 

In “A Modell of Christian Charity” John Winthrop wrote, in 1630, aboard a ship ferrying the first Puritans to this continent, “We must entertain each other in brotherly affection. We must be willing to abridge ourselves of our superfluities for the supply of others’ necessities,” and one of these “necessities” – more primary than needs of the body – is freedom of conscience. 

Barack Obama complained that

culture wars are so nineties; their days are growing dark, it is time to turn the page. We want a new day here in America. We’re tired of arguing about the same ole’ stuff.

Over that same ole’ stuff, the issues at the heart of this conflict, are you seeing that new day?

Yet many people deny there are ‘deep divisions in the general population’. They reject as aggressive the zero-sum understanding of the country expressed by Pat Buchanan in 1992:

The United States has undergone a cultural, moral, and religious revolution. A militant secularism has arisen in this country [that] in the 1960s … captured the young in the universities … and we had this great battle – culture war – begin then, nationally.   

And so we are two countries now: we are two countries morally and socially and culturally and theologically. And cultural wars do not lend themselves to peaceful co-existence. One side prevails or the other prevails. 

But in rejecting this kind of rhetoric the liberal does not break free of the outlook it expresses, because the idea of the right side of history announces just such a conflict. If the natural process by which the people (the majority, say) are brought onto the right side of history should not be called a war, what should it be called? Presumably, progress – and progress is always a battle against an entrenched position. It is a common view that

The modern tradition is the tradition of revolt. The French Revolution is still our model today: history is violent change, and this change goes by the name of progress.

Well, the civil and kinder side of this “violent change” is surely the struggle between worldviews, which is the idea of the culture war. The culture war and the right side of history are two descriptions of the same thing, focused on two different things: on the struggle the process involves (a war withing culture: ideas and institutions) and on what the struggle is for (the advance of history, says the liberal, which is shifting seismically for both the benefit of the disadvantaged and to the disadvantage of their oppressors).

In progressing are we not moving away from the antiquated outlook; if we progress, is that outlook not in fact overcome, replaced? The liberal actually comes into existence to end something: take one order down and set up another, which replaces it.

What ought to be clarified is the actual nature of the unfolding historical divisions that we are seeing. …