The 2008 Nora And Edward Ryerson Lecture

Martha C. Nussbaum
“Equal Respect for Conscience: The Roots of a Moral and Legal Tradition"
May 14, 2008

Sixthly, it is the will and command of God that (since the coming of his Sonne the Lord Jesus) a permission of the most paganish, Jewish, Turkish, or antichristian consciences and worships, bee granted to all men in all Nations and Countries. —Roger Williams, The Bloudy Tenent of Persecution (1644)1

Your Selvs praetend libertie of Conscience, but alas, it is but selfe (the great God Selfe) only to Your Selves. —Roger Williams, letter to the governors of Massachusetts and Connecticut (1670)

Life was tough for the settlers of seventeenth century New England. They responded to hardship by trying to gain God’s favor for their colonies—which required, as they saw it, establishing and sternly enforcing a religious orthodoxy. By punishing, or banishing, those who disobeyed in word or deed, they hoped to cast impurity from their common life. The idea that a good community would be one that allowed all people to seek God in their own way took root only gradually and with great struggle. This lecture traces that struggle, focusing on the life and ideas of Roger Williams, founder of the colony of Rhode Island and seminal philosophical thinker about religious liberty and fairness, whose ideas shaped our ethical and legal traditions.

Three aspects of Williams’s thought deserve our attention. First, he develops a distinctive, and highly emotional, view of conscience as a seat of emotion, imagination, and ethical choice through which each person seeks meaning in his or her own way. Conscience is the source of our equality, and it is worthy of equal respect wherever it is found. Political principles, he argues, must be based on that equal respect. Second, he argues that equal respect for conscience entails protecting an extensive sphere of freedom around the individual, and that this protection must be impartial, imposing no orthodoxy. To impose orthodoxy upon the striving conscience is nothing less than what Williams, in a memorable and repeated image, calls “Soule rape.” Third, Williams then argues that a civil peace among people who differ in religion requires a moral consensus that is itself impartial, giving the ascendancy to no creed more than any other; such a consensus is available because there is a part of the moral sphere that we can share while differing in ultimate religious commitments. Williams dramatizes this idea by making his major work a dialogue between two friends called Truth and Peace, in which Truth acknowledges the importance of reaching an ethically grounded accommodation, for political purposes, with people whom one believes to be in error.

I have chosen to focus on Roger Williams today both because his ideas played a formative role in our ethical and legal traditions and also because I believe them to be of great interest to contemplate today, as we face related problems of religious tension, both in our nation and in the larger world around us. If we think through his ideas, we learn not only where we have come from but also something about where we might go. Throughout my career I have turned to major texts in the history of philosophy in this way: both as sources of illumination about history and, often at least, as sources of ethical and political illumination. When we wrestle with difficult problems, we need conversation partners who are complex and deep; wrestling with ideas from the past is often more fruitful than reading journal articles written yesterday. This lecture is atypical of me only in that most of the conversations that inform my work in political philosophy have been with ancient Greek and Roman texts. Such ancient ideas, however, will end up playing a role here, since Stoicism was a major source for Williams, who began his career as a budding classical scholar.

This "wild and howling land"

Life in New England was fragile and exposed. The wind, the seas, the forests, the deep snows—all this was very strange to people accustomed to life in England, whether urban or rural. “But oh poore dust and Ashes,” Roger Williams wrote of himself and his fellows, “like stones once roling downe the Alpes, like the Indian Canoes or English Boats loose and adrift, where stop we until infinite mercy stop us.”2 In his remarkable Key into the Language of America, a study of Indian life and languages, Williams ponders the Indians’ ability to coexist with impermanence and constant vulnerability in “this wild and howling land.” Astonishingly, the Indians do not mind picking up and moving on to a new place, whenever climate, or insects, or sheer inclination moves them. “I once in travel lodged at a house, at which in my returne I hoped to have lodged againe there the next night, but the house was gone in that interim, and I was glad to lodge under a tree.”3

The Europeans of Massachusetts reacted to insecurity by enforcing orthodoxy of religious belief and practice. John Cotton, pastor of the First Church of Boston, one of Massachusetts’s most influential religious leaders and Roger Williams’s lifelong intellectual adversary, wrote copiously in defense of religious persecution, arguing that it was necessary for civil order. It was also God’s will, he said, in order to separate the diseased element of society from the healthy element. Heretics and dissidents are like Satan in our midst. Even if they behave peaceably, they are enticements to sin. He urged imprisonment, banishment, and other harsh penalties for the unorthodox. Such reactions to insecurity are sadly familiar in America’s history. In situations of insecurity, we are all too ready to project the causes of instability onto other people, grabbing hold of John Cotton’s seductive metaphor of a stain in our midst that must be removed if we are to resist corruption. What makes Roger Williams of particular interest today is not just the high quality of his philosophical work. It is also the way in which he offers an alternative to the paranoid response to uncertainty, urging on his readers attitudes of mercy, gentleness, reasonableness, and civility, words all of which recur with obsessive frequency throughout his two great two philosophical dialogues.

“To ship my selfe all alone in a poore Canow”: Williams’s Rhode Island

My aim is to study Williams’s ideas. But since he was a political leader as well as a thinker, his work must be assessed in the context of his career.

Williams was born in England in 1603, to a prosperous merchant family. He grew up in London, near the Smithfield plain, where religious dissenters were sometimes burned at the stake. As a young man, he attracted the attention of the eminent jurist Sir Edward Coke, Chief Justice of the King’s Bench. Coke arranged for the young man’s education at Sutton’s Hospital, the future Charterhouse School, and then at Pembroke Hall in Cambridge University, where Williams received his A.B. in 1627, after a classical education that focused on natural law theories based on ancient Greek and Roman Stoicism, which suffuse Coke’s work, and which were much in vogue at the time. Williams quickly impressed by his remarkable flair for languages, mastering Latin, Greek, Hebrew, French, and Dutch. In this way he made John Milton’s friendship: teaching Milton Dutch in exchange for Hebrew lessons. On graduation, Williams took orders in the Church of England and, in 1629, accepted a chaplaincy at Otes in Essex, the manor house of Sir William Masham—grandfather of the Sir Francis Masham who was Locke’s host at Otes in the 1690s.4

In 1630, a leading Puritan reformer was placed in the pillory. One of his ears was cut off, one side of his nose was split, and he was branded on the face with the letters SS, for “Sower of Sedition.” Later the other side of his nose was split and his other ear was cut off. For good measure, the man was then imprisoned for the rest of his life. Williams, who witnessed these events, and who was already very critical of the Anglican orthodoxy, decided that he could not remain in England. He set sail for Massachusetts.

At first, Williams was warmly welcomed by the leaders of Massachusetts Bay Colony.5Although Boston found his views about the individual conscience too radical, he was welcomed by the congregation at Salem. But he soon published a pamphlet attacking the colonists’ claims to the Indians’ property. He added the sarcastic comment, “Christian kings (so calld) are invested with Right by virtue of their christianitie to take and give away the Lands and Countries of other men.” The officials of Massachusetts Bay called him into court, but took no action when Williams agreed to withdraw the pamphlet. He continued, however, to teach the falsity of the colonists’ property claim. He also urged resistance to a proposed oath of loyalty to be taken by all colonists. During this period Williams spent some peaceful months at Plymouth, where he pursued his study of Indian life and languages.

By 1635–36, the authorities saw that Williams was bent on continuing his divisive teaching. They ordered his arrest. Tipped off in advance, he fled. Looking back on the incident from Providence in 1670, he describes it this way:< br/>

. . . I was unkindly and unchristianly (as I believe) driven from my howse and land, and wife and children (in the midst of N. Engl. Winter now, about 35 years past) . . . I steerd my course from Salem (though in Winter snow wch I feele yet) untl these parts, whrein I may say as Jacob, Peniel, that is I have seene the Face of God . . .6< br/>

In keeping with his sense of deliverance, Williams named the new settlement Providence.

A key part of the life of the new settlement was respectful friendship with the Indians. Williams had always treated them as human beings, not beasts. He respected their dignity. When the great Narragansett chief Canonicus (who spoke no English) broke a stick ten times to demonstrate ten instances of broken English promises, Williams understood his meaning and took his part. When the colonists objected that the Indians could not own land because they were nomadic, Williams described their regular seasonal hunting practices, arguing that these practices were sufficient to establish property claims—a legal argument that strikingly anticipates very recent litigation over aboriginal land claims in Australia. Linguist that he was, he reports having, at this period, a “Constant Zealous desire to dive into the Natives Language,” and he learned several of the languages by actually living with Indians for long periods of time.

When Williams arrived as a refugee, then, his dealings with the Indians had long prepared the way for a fruitful relationship. Chiefs Massasoit and Canonicus welcomed him like an old friend, because he had befriended them before he needed them. He continued to do so. One of the key provisions of the Charter of Rhode Island was that “itt shall not bee lawfull to or For the rest of the Collonies to invade or molest the native Indians . . .”, a provision that Williams particularly sought and, when granted, applauded, noting that hostility to the Indians “hath hietherto bene . . . practiced to our Continuall and great grievance and disturbance.”7 Throughout his life, Williams continued these friendships. As he wrote to the Governor of Massachusetts Bay, explaining his refusal to return, “I feel safer down here among the Christian savages along Narragansett Bay than I do among the savage Christians of Massachusetts Bay Colony.” Williams was not speaking of conversion: he never tried to convert the Indians. He was speaking of moral decency. He is fond of noting examples of Indian decency and honesty, contrasting their behavior with that of his white neighbors. This experience of finding integrity and goodness outside the parameters of orthodoxy surely shaped his evolving views of political principles. And there was already something antinomian about Williams, something that led him to those friendships in the first place, a respectful curiosity about the varieties of humanity that is the paradigm of something valuable in our history as a nation of strangers and immigrants, though this value is now under great stress.

Williams immediately provided for wide religious liberty in the new colony. Rhode Island became a haven for people who were in trouble elsewhere. Baptists, Quakers, and other dissidents joined the Puritan dissenters. In 1658 fifteen Portuguese Jewish families arrived in Newport. They enjoyed the same religious liberty granted others—an astonishing fact, given that Jews in Britain gained full civil rights only in 1858.

In 1643 Williams set sail for England to secure a charter for the new colony. During the voyage he wrote his book about Indian languages. While in England, he wrote The Bloudy Tenent of Persecution. A democratic charter was obtained, and liberty of conscience made official. In 1652, Rhode Island passed the first law in North America making slavery illegal. Meanwhile, John Cotton’s angry reply to The Bloudy Tenent, published in 1647, led Williams to produce another work about a hundred pages longer than the first one, refuting all of Cotton’s arguments. Published in 1652 in London, it bears the unwieldy title, The bloody Tenent Yet More Bloody: By Mr Cottons endevour to wash it white in the Blood of the Lambe; of whose precious Blood, spilt in the Blood of his Servants; and Of the blood of Millions spilt in former and later Wars for Conscience sake, that Most Bloody Tenent of Persecution for cause of Conscience, upon a second Tryal, is found now more apparently and more notoriously guilty.

The civil wars and the Restoration made it necessary to renegotiate the Charter. Williams again went to England, and found in Charles II a ready ally for his experiment in religious liberty. The Barbados already permitted religious liberty, by omission and policy rather than by explicit royal guarantee. Rhode Island, however, was the first case of an official policy of religious liberty, and Williams writes with amusement of how shocked the King’s ministers were by the charter. “[B] ut fearing the Lyons roaring, they coucht agnst their Wills in Obedience to his Maties pleasure.”8

The charter was shocking indeed—not only in its odd provision regarding the Indians, but, above all, in its clause regarding religious liberty:

[N]oe person within the sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted, or call in question, for any differences in opinione in matters of religion, and doe not actually disturb the civill peace of sayd colony; but that all and everye person and persons may, from tyme to tyme, and at all tymes hereafter, freely and fully have and enjoye his and theire owne judgments and consciences, in matters of religious concernments, throughout the tract of lande hereafter mentioned; they behaving themselves peaceablie and quietlie, and not useinge this libertie to lycentiousnesse and profanenesse, nor to the civill injurye or outward disturbance of others; any lawe, statute, or clause, therein contained, or to be contained, usage or custome of this realme, to the contrary hereof, in any wise, notwithstanding.

What does the clause protect? Belief and the expression of opinion in religious matters, clearly. But Williams throughout his writings was very careful to insist that acts of worship also should enjoy protection. Indeed, in his own writings we rarely encounter the word “belief” without the word “worship” or “practice.” He introduces The Bloudy Tenent with the announcement that “consciences and worships” are all to be permitted. Elsewhere, he uses phrases such as “for either professing doctrine, or practicing worship,” “doctrine or practice,” “holdeth or practiseth,” “doctrines and worships,” “to subscribe to doctrines, or practise worships.” It is a bit unfortunate that the charter is less careful, but we can understand the latitude of its protection from the other direction, as stopping where civil disturbance begins. Williams was no John Stuart Mill: he thought that the business of civil government included not only protection of individuals from harm to their rights by others, but also the maintenance of public order and morality. Thus, like virtually everyone at this time, he favored laws against adultery and other so-called “morals laws.” Not, however, on religious grounds: his idea of public morality keeps it quite distinct from religious norms and justifications.

The final provision in the clause is very interesting: the charter guarantees liberty of religious belief and practice even when a law or custom forbids it. In other words, if law says that you have to swear an oath before God to hold public office, this law is nullified by the Charter. Moreover, it appears that the Charter nullifies the applicability of laws to individuals when such laws threaten their religious liberty. If a law says that people have to testify on Saturday, and your religion forbids this, then that law is non-applicable in your case. In other words, it would appear that Williams has forged the legal concept of “accommodation” on grounds of conscience. Laws of general applicability have force only up to the point where they threaten religious liberty (and public order and safety are not at stake). This policy was stated explicitly by Williams in a letter. Comparing the colony to a ship at sea, on which Christians, Jews, pagans, and Muslims have all embarked, he says that the captain of that ship is entitled to require anything that is connected to the ship’s safety and that of her passengers, but otherwise there is to be the widest possible religious liberty, alike for all passengers.

This Conscience is found in allmankinde”9: Williams’s Defense of Religious Liberty

Behind this important political achievement is a body of thought as rich, on these issues, as that of John Locke, and considerably more perceptive concerning the psychology of both persecutor and victim. At its heart is an idea, or image, on which Williams focused with deep emotion and obsessional zeal: the idea of the preciousness and dignity of the individual human conscience. Conscience, for Williams, plays the role that the directive faculty of moral choice plays in the ancient Stoic authors whom he studied: it is basically a faculty of searching and choosing, although for Williams it includes imagination and emotion as well as ethical reasoning. It is, Williams holds, the main source of our identity as agents: It is “indeed the man.”10

Williams has his own intense religious beliefs, and they entail that most people around him are wrong. Error, however, does not mean that they do not have the precious faculty of conscience: “This Conscience is found in all mankinde . . . in Jewes, Turkes, Papists, Protestants, Pagans, etc.” And although truth is important, truth is not the basis of respect: what he reveres is the faculty itself, the capacity for searching and choosing. Like the ancient Stoics, he holds that this faculty exists in people of all religions. He is fond of lists, and usually includes Jews, Muslims, Catholics, pagans (prominently including the Indians), and even atheists, whom he calls Antichristians. He insists that all consciences deserve not just respect, but equal respect.

So: everyone has inside him or herself something infinitely precious, something that demands respect from us all, and something in regard to which we are all basically equal. Williams now argues that this precious something needs extensive space to unfold itself, to pursue its own way. To respect human beings is therefore to accord that sort of space to each and every one of them. He expresses indignation that someone “that speakes so tenderly for his owne, hath yet so little respect, mercie, or pitie to the like consciencious perswasions of other Men[.] Are all the Thousands of millions of millions of Consciences, at home and abroad, fuell onely for a prison, for a whip, for a stake, for a Gallowes? Are no Consciences to breath the Aire, but such as suit and sample his?”11

These images are revealing. They tell us that Williams thinks of consciences as delicate, vulnerable, living things, things that need to breathe and not to be imprisoned. Here, to my mind, Williams makes decisive progress beyond the Stoicism of his classical education. Stoic thinkers treat the moral faculties of a person as invulnerable, rock-hard; they cannot be damaged by worldly conditions. A slave, they say, is not less free internally for being a slave; so, it would appear, external coercion is not all that important. Stoics therefore have difficulty drawing political conclusions from their arguments about human dignity. Williams, by contrast, sees that the conscience is not invulnerable: it can be prevented from acting, and it can also, more deeply, be damaged or defiled by what happens to it. This insight is necessary, I think, for a workable doctrine of political liberty.

Williams has the keenest sensitivity to any damage to this precious thing, comparing persecution repeatedly to “spirituall and soul rape.” And it is “soule rape,” when any person is limited with respect to either belief or practice (so long as he is not violating civil laws or harming others): “I acknowledge that to molest any person, Jew or Gentile, for either professing doctrine, or practicing worship merely religious or spirituall, it is to persecute him, and such a person (whatever his doctrine or practice be true or false) suffereth persecution for conscience.”

To be more precise, Williams has two distinct images for persecution, rape and imprisonment, corresponding to different types of damage to conscience. Persecution is like imprisonment, in that people whose faculty of conscience is undamaged within still need breathing space to act on their conscience’s promptings, searching for meaning through whatever forms of prayer, worship, or speech they select. But persecution is also like rape: it goes into a person’s depths and does terrible damage. Williams thinks that being forced to affirm what you do not believe can harm the soul in its very capacity to strive, deforming and weakening it (though it never destroys the basis of equal respect, because it never extinguishes the capacity for striving).12 So what is needed is, first, protection for conscience so that it can grow undefiled, and, second, protection of a space around it so that it can venture out into the world and conduct its search.

Persecution is therefore a terrible error, one of the worst there can be. Williams explicitly says that it is a worse error than being a heretic. Indeed, persecution is a doctrine “which no Uncleannes, no Adulterie, Incest, Sodomie, or Beastialitie can equall, this ravishing and forcing (explicitly or implicitly) the very Soules and Consciences of all the Nations and Inhabitants of the World.” Williams does not believe that the offenses to which he compares persecution are trivial—indeed, he is inclined to favor the death penalty for adultery. So we can see how strong his objection to persecution is, if it is worse than these things. Most rulers in all ages, he concludes, have practiced “violence to the Souls of Men.” One of Williams’s reasons for hating persecution is instrumental: if you force someone, it hardens their opposition, preventing their voluntary conversion. He makes this point often when he is in ad hominem debate with Cotton, and it was a common Protestant argument, one that Locke later makes central to his own case. One cannot read Williams, however, and doubt that he also thinks damage to conscience an intrinsic wrong, a desecration of what is most precious about human beings.

Williams has insisted that this precious something is in us all, and is worthy of equal respect. Therefore it is a heinous wrong to give it freedom for some (the orthodox) and to deny this same freedom to others. Again and again, he hammers home the charge of partiality and unfairness. Magistrates “give Libertie with a partiall hand and unequall balance.” How “will this appear to be equall in the very eye of Common peace and righteousnesse?” His own marginal summaries of his argument, particularly in the later work, keep recurring to this theme, saying “Unchristian partiality,” “Gross partiality to private interests,” “Gross partiality the bloody doctrine of persecution.”

Williams has a keen nose for special pleading and unfairness, and he sees it everywhere restrictions on religious liberty are found. He suggests that the error of the persecutor is a kind of anxiety-ridden greed, which is hypocritically disguised as virtue. Each, anxious and insecure, aims to carve out special protections and privileges for himself by attacking in others what he most values in his own life. In his letter to the governors of Massachusetts and Connecticut he indicts them for a hypocritical and unfair set of principles— for worshipping, in effect, only the “great God Selfe.”

If persecution is the worst of errors, liberty of conscience is, as Williams repeatedly states, a “most precious and invaluable Jewel.” The proponent of liberty does not indulge in special pleading. Even though he believes he is right, he has an even-handed spirit of love and civility to all men, grounded in respect for their freedom.

In one remarkable passage Williams states that persecution is not only “to take the being of Christianity out of the World, but to take away all civility, and the world out of the world, and to lay all upon heapes of confusion.” What does he mean by saying that persecution takes “the world out of the world”? I think he is expressing the view that the spirit of love and gentleness, combined with the spirit of fair play, are at the heart of our worldly lives with one another. Take these things away, and you despoil the world itself. You make it nothing but a heap of confusion.

Williams is an emotional writer. His style is deeply subjective and passionate. Nonetheless, it is not implausible to find themes in his writings that anticipate some central ideas of Immanuel Kant a century later. At the heart of the thought of both men are two ideas: the duty to respect humanity as an end wherever we find it, and the duty to be fair, not to make an exception for one’s own case. Indeed, respecting humanity entails not making an exception of oneself. Just as Kant asks a person to test the principle of his or her conduct by asking whether it could without contradiction be made a universal law for all human beings, so Williams’s critique of the leaders of Massachusetts and Connecticut is that their idea cannot pass a test of that sort: they love freedom—but only for themselves. They could not will persecution as a universal law, and their selfishness prevents them from willing freedom of conscience (which could pass the Kantian test) as a universal law. Kant’s second test for our ethical principles is one that he calls the Formula of Humanity: he asks us to test our principle by seeing whether it treats humanity as an end: we are to ask whether we are really showing respect to human beings, or whether we are just using them as objects in the pursuit of our own selfish ends. This complaint, too, is a constant theme in Williams’s writing: the conscience is precious, but people use other people’s consciences to serve their own anxious and greedy ends. Kant’s third way of testing principles invokes the idea of autonomy. We are to ask ourselves whether we can view our principle as a law that we could give to ourselves. There is no precise echo of this in Williams, but his insistence on the quest of the individual conscience, and the priceless value of freedom in this quest, is in great sympathy with Kant’s way of thinking. For both, the source of moral principles, and of all moral worth, is ultimately in our own freedom, and that freedom must be respected. For both, doing the right thing because of obedience to a law imposed from outside has no moral worth at all. Finally, Kant speaks of good principles as constituting a “realm of ends,” a virtual society of free beings who respect one another as equals. I believe this is what Williams is after when he says that persecution takes “the world out of the world”: it destroys the basis of human fellowship in respect, freedom, and civility.

Williams, then, lies at the beginning of a tradition of thought about religious fairness that resonates to the present day (in John Rawls’s work on liberty and respect). And Williams has an extra measure of psychological insight, helping us see why persecution is so attractive and what emotional attitudes might be required to resist it.

A “Model of Church and Civil Power”13

If Williams had offered only an account of conscience and its fair, impartial treatment, he would already have made a large contribution to our understanding of religious liberty. He accomplished, however, much more, developing an elaborate account of the proper jurisdictions of religious and civil authority that anticipates Locke’s more famous account and that still offers helpful guidance. In this part of his work, Williams is replying to a “model” of church and state proposed by John Cotton. Truth asks Peace what (book) she has there. Peace produces the Cotton manuscript, and reads from it the claim that the Church must hold high authority in the civil realm, and should be superior to all civil magistrates, if the peace is to be preserved. The two hundred pages that follow contain Williams’s alternative “model.”

According to Williams, there are two separate sets of ends and activities in human life; corresponding to these are two sorts of authority. Civil authority concerns “the bodies and goods of subjects” (exactly the account that Locke later gives). Civil authority must protect people’s property and bodily security, and it may use force to do so. Its foundation lies in the people, and it is they who choose civil magistrates. The other sphere of human life is that of the soul and its safety. Churches have this sphere as their jurisdiction, with the proviso that their only proper means of addressing the soul is persuasion. The two sorts of authority, civil and spiritual, can coexist peaceably together. Peace is in jeopardy only to the extent that churches overstep their boundaries and start making civil law, or interfering with people’s property and liberty.

Williams now tells us that there is, of course, a way in which the civil state needs to make laws “respecting religion”: namely, it has to make laws protecting it, saying, for example, “that no persons Papists, Jewes, Turkes, or Indians be disturbed at their worship (a thing which the very Indians abhor to practice toward any).” Such protective laws are not only permitted, they are extremely important, “the Magna Charta of highest liberties.” There is, he continues, another type of law “respecting religion” that is very different: the sort of law that establishes, or forbids, acts of worship, says who can and cannot be a minister, and so on. To say that these should be civil laws “is as far from Reason, as that the Commandments of Paul . . . were civil and earthly constitutions.”

John Cotton makes two claims that Williams must answer, if he is to defend his radical position well. First, he makes a claim about peace and stability: people simply cannot live at peace with one another unless some religious orthodoxy is established. In response, Williams invokes both reason and experience on his side. People with false religious views, he says, may be perfectly decent citizens. We can see this all the time: that people do live together peacefully, so long as they respect one another’s conscience-space. (Life with the Indians provides an illustration.) What really breaks the peace is persecution: “Such persons onely breake the Cities or Kingdomes peace, who cry out for prison and swords against such who crosse their judgement or practice in Religion.”

Cotton’s second argument concerns competence. He claims that being a good citizen and being a good civil magistrate are inseparable from having the right religion. We simply do not want our public life to be run by sinners, because they are making very important decisions, and if they are sinners they will do so sinfully and badly. Here Williams makes one of his most interesting and novel arguments. God has created different sorts of things in the world, he says, and there are “divers sorts of goodness” corresponding to these different sorts of thing. He illustrates this point at length, talking about the goodness of artifacts, plants, animals, and so on. One of the ways God created diversity in the world was to create a type of “civill or morall goodness” that is “commendable and beautifull” in its own right, and that is distinct from spiritual goodness. It can be there in its full form, and be beautiful, even if the person is religiously in error, even “though Godlines which is infinitely more beautifull, be wanting.” What is needed to be a good subject in a civil state is the moral sort of goodness, and it is that sort, as well, that we need in our civil magistrates. Later, returning to the point, he insists that the foundation of the magistrate’s authority “is not Religious, Christian, &c. but naturall, humane and civill.” For many activities in human life, a worldly foundation is sufficient: “a Christian Captaine, Christian Merchant, Physician, Lawyer, Pilot, Father, Master, and (so consequently) Magistrate, &c. is no more a Captaine, Merchant, Physician, Lawyer, Pilot, Father, Master, Magistrate, &c. then a Captaine, Marchant, &c. of any other Conscience or Religion.” Particularly surprising is his casual mention of “father” as a role whose duties can be fully executed independently of spiritual enlightenment.

In short, for Williams the civil state has a moral foundation, but a moral foundation need not be, and must not be, a religious foundation. The necessary moral virtues (honesty is one to which Williams devotes special emphasis) can be agreed on and practiced by people from many different doctrines. To be sure, he adds, a person’s religion will connect these moral virtues to higher ends, but so far as the moral sphere itself goes, orthodox and dissenter, religious and non-religious, can agree.

It is not fanciful to see here an adumbration of John Rawls’s idea of civil society as involving a set of moral principles concerning which people from different “comprehensive doctrines” can join in an “overlapping consensus.” Like Williams, Rawls stresses that political society has a moral foundation. But he holds that this is a “module” that can be linked to different religious doctrines in a variety of different ways. Although religious people will certainly feel that their religion provides the moral principles with their highest ends or deepest sources (here again he agrees with Williams), they can nonetheless agree about the moral terrain in a way that is, for practical purposes, “free-standing,” that is, not requiring the acceptance of a religious orthodoxy. So we don’t have, exactly, a “wall of separation,” between people’s religions and their political principles. (Williams uses that phrase only once, and in a letter, not at all in his major writings.) We do have separation of jurisdictions between church and state, but where people are concerned, they will rightly see the morality of public life as one part of their “comprehensive doctrine”—a part, nonetheless, that they can share with others without converting them to what they take to be the true religion.

This idea is a much more helpful idea to think with than the bare idea of “separation,” which might suggest that the state doesn’t have anything to do with the deep ethical matters that are so central to the religions. The state needs to be built on moral principles, and it would be weird and tyrannical to ask religious people to accept the idea that moral principles are utterly “separate” from their religious principles. The idea of an overlapping consensus, or, to put it Williams’s way, the idea of a moral goodness that we can share while differing on ultimate religious ends, is an idea that helps us think about our shared life much better than the unclear idea of separation. We must respect one another’s freedom and equality, the deep sources of conscience that lead us through life. We will only do this if we keep religious orthodoxy out of our common political life. But we can, and must, base that life on ethical principles that, for many of us, also have a religious meaning and justification. All we need do, when we join with others in a common political life, is to acknowledge that someone might have those virtues, in the way that is relevant for politics, while not sharing our own view of life’s ultimate meaning. If we once grant that, then Williams’s other argument concerning impartiality will lead us to want a state that has no religious orthodoxy, that is, just in that sense, “separate” from religion.

Looking back at the history we ought to agree with Williams. In fact, I believe we do by and large agree with him. We usually are ready to separate a person’s religion from the kind of goodness we look for in a doctor, a lawyer, a teacher, even an adoptive parent. That we so obsessively focus on the religions of political candidates, as contrasted with moral virtues that we all can share, is a fact of American political life that we should regret and attempt to change.

We can make our account more precise if we compare Williams’s thought to that of John Locke. Locke probably knew Williams’s work, and he wrote his Letter Concerning Toleration, published in 1685, at Otes in Essex, the same noble house where Williams was employed. His arguments bear a close resemblance to Williams’s in the general nature of their conclusions about the role of the state, and in their focus on “equal and impartial liberty,” as Locke puts it. Nonetheless, there are six significant differences, all of which, I believe, should make us prefer Williams’s approach.

First, Locke seems to think that equal liberty is compatible with a religious establishment. Williams is keenly aware of the danger of religious establishments as threats to both liberty and equality: to liberty, because a dominant sect will easily slip into curbing the conscience space of minorities; to equality, because the very existence of an orthodoxy makes a statement that citizens are not fully equal. Here Williams anticipates Madison’s argument: establishment means that we do not all enter the public square “on equal conditions.” At the time of the founding, the central argument against establishments was an equality argument; directly or not, it was Williams’s argument.

Second, Williams gives us, in his discussions of conscience, an account of the moral basis of the political doctrine, telling us what equal respect is all about and why it is so important. There is nothing like this in Locke, at least not in the Letter.

Third, Locke and Williams have subtly different positions on “accommodation,” that is, on the question whether laws applicable to all should contain exceptions for people with special religious requirements. Locke is in favor of the exceptionless rule of law, provided that the laws themselves are neutral. Some laws maliciously target minorities, and those laws must go. For example, if it is legal to speak Latin in a school, it must be legal to speak Latin in a church. If it is legal to bathe in water for the sake of health, it must be legal to bathe in water for the sake of baptism. But there Locke draws the line. If there is any non-malicious law that has the incidental effect of burdening minorities, then the person whose conscience poses an obstacle to his obeying that law had better follow conscience, says Locke, because eternal salvation is more important than jail, but he will have to go to jail or pay the fine.

Williams, as we have seen, is subtly different: he allows exceptions to general laws for conscience’s sake, up to the point where the person’s conduct would threaten peace and public safety. In so holding, he anticipates a norm that became general by the time of the Founding: all the state constitutions had free exercise clauses with similar “peace and safety” overrides. (Madison actually favored an even more protective standard: no burden to conscience unless the constitution itself is in jeopardy.) The practices of the colonies involved granting such conscience-based exemptions without legal penalty: Jews did not have to testify on Saturday; sects that objected to oaths did not have to swear; Quakers and Mennonites were exempt from military conscription. Most remarkably, and only in Rhode Island, Jews were exempted from the incest law if they wanted to contract uncle-niece marriages on religious grounds. The laws remained valid; religious minorities did not have to obey them. In the early days of the Republic, George Washington writes a letter to the Quakers explaining his stance as its first President, concerning their conscientious refusal of military service: “I assure you very explicitly, that in my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness: and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit.” This is pure Williams, and it is far from what Locke’s stricter notion of the rule of law would permit.

The contrast between Williams and Locke is still with us, in the form of divergent standards that have played a role in recent Supreme Court debates. The Williams idea was long a hallmark of free exercise jurisprudence, in the form of what has come to be known as the “Sherbert test,” after an important 1963 case involving a woman who was fired because her Seventh-day Adventist beliefs forbade her to work on Saturday, and was then denied unemployment compensation on the grounds that she had refused “suitable work.” The Court, finding in her favor, said that government may not impose a “substantial burden” on a person’s free exercise of religion without a “compelling state interest.” The case had an important equality aspect: the fact that Saturday and not Sunday was the required day put unfair pressure on this minority woman, pressure that the majority did not have to face. This was our legal standard for some years, but in 1990 the Lockean position took control, with Justice Antonin Scalia’s controversial opinion in a case involving Native American peyote use. Scalia said that laws must rule exceptionlessly, so long as they were neutral and not discriminatory. Scalia, like Locke, is very interested in legal neutrality: thus, when a Florida community passed an ordinance forbidding ritual animal sacrifice he struck it down, holding that the fact that they allowed animals to be slaughtered in all sorts of other ways showed that they were simply targeting Santeria worshippers. But he does not believe that courts should go beyond this to insist on the protection of conscience against laws that are not hostile—although he is willing to allow the legislature to pass such exemptions if it wants.

What this conflict over accommodation is really about is the equality of minorities in a majority world. Rules about workdays, drugs, and a host of other matters favor the majority: so alcohol is legal and peyote is not, Sunday is the usual day of rest and Saturday is not. Williams understood the vulnerability of minority conscience in a world of majority rule, and his more protective standard should, I believe, be restored.

Fourth, Locke argues from Protestant premises most of the time. He seems uninterested in finding arguments for toleration that all citizens can share. Williams alludes to Christian norms at times, but he tries hard to develop an independent ethical argument for his political principles, based on the dignity and vulnerability of conscience, the equal worth of all consciences, and the needs of consciences for ample space. Williams was used to arguing with people who did not share his religious views; so he finds ways of arguing that do not presuppose the correctness of his position.

The fifth difference between Locke and Williams lies in the way in which they conceive the space of the political. Locke speaks in terms of separation of jurisdictions. For him, religion and politics don’t overlap at all. For Williams the different religious doctrines meet, and overlap, in a shared moral space. Each religious person will connect this moral space to his own higher religious goals and ends; but within that space, we are all able to speak a common language and share moral principles. As I have argued, this idea of overlap is ultimately more fruitful than the idea of separation. Williams does not ask religious people to give up ways in which their religion links politics with faith. He simply asks people to live and talk together in the shared space, without compromising equality by introducing religious doctrines into the institutions they create and sustain.

Sixth and last, Locke is not distinguished as a moral psychologist, and he has nothing to say about why people persecute others. Williams does, tracing persecution to anxious insecurity and the accompanying desire to create security by lording it over others. He has a keen sense both of the inner life of the persecutor and of the inner vulnerability of the persecuted to something that is very like rape, an inner shattering of the soul’s integrity and peace. He also understands clearly how people engage in special pleading to favor their own case, while appearing to defend morality itself.

On balance, then, I would give Locke the prize for succinct clear writing, but Williams the prize for philosophical insight.

“Truth and Peace, Their Meetings Seldome and Short”14

Williams’s work and career construct the basis for a politics based on equal respect for conscience. But he was too shrewd to expect that this goal would be attained easily or quickly. At the end of The Bloudy Tenent, Truth and Peace remark that they don’t actually spend much time together. So often (they observe) they meet up lovingly, but are then abruptly parted by hypocrisy and selfish partiality. They have, however, a surprise ally. At the very end of the work, a third character makes her appearance.

“But loe!” says Peace. “Who’s here?”
Truth replies, “Our Sister Patience, whose desired company is as needful as delightfull.”

Patience utters not a word, but she is clearly there. In his book on Indian language, Williams wrote eloquently of the patience of the Indians, who can sit silently for ages, waiting for what they want. “Every man hath his pipe of their Tobacco, and a deepe silence they make, and attention give to him that speaketh . . .”15 To his impatient world, Williams commended this example. Now, at the close of his great dialogue, he represents Patience as, in effect, an Indian, silent after the prolixity of her sisters, waiting for a time that may be very long in coming, a time of equal respect for people who differ.

Notice the psychological insight in Williams’s choice of words: “whose desired company is both needful and delightful.” For the anxious self-focused people Williams describes, bent on control, Patience may possibly be attainable, but it’s a painful virtue. What the anxious person really wants is for others to do what the anxious person has already decided they should do; so waiting for them to be themselves and live the way they choose to live is stressful. To view, and experience, Patience as not only “needful” but also “delightful” is the attitude of someone who actually enjoys the other person’s freedom, finding lack of control over the other person’s choices and actions not an inconvenience to be endured, but a source of exhilaration and even joy. Given human weakness, such an attitude—which we might aptly call political love—is a complex and delicate achievement, a virtue manifested, here, only in an open-ended silence. In that silence, after the close of so much speech, rests Williams’s hope for the future.

Notes

  1. Throughout I reproduce Williams’s spellings, which are not terribly distracting, but not his frequent use of italics, which seem intrusive to readers unaccustomed to seventeenth-century style.
  2. . Roger Williams, The Correspondence of Roger Williams [C], ed. Glenn La Fantasie (Providence: Brown University Press, 1988), vol. I, p. 345.
  3. Citations from Williams, A Key into the Language of America, in Andrew Delbanco, The Puritan Ideal (Cambridge, MA: Harvard University Press, 1989), p. 166
  4. I am grateful to Mark Goldie and Quentin Skinner for correspondence on this point.
  5. See the detailed account in C I.12–23, “Editorial Note.”
  6. C II.610.
  7. C II, 535, 541.
  8. C II.617.
  9. C I.348.
  10. Ibid.
  11. C I.338.
  12. . For a similar reworking of the Stoic position, see my “The Worth of Human Dignity: Two Tensions in Stoic Cosmopolitanism,” in Philosophy and Power in the Graeco-Roman World: Essays in Honour of Miriam Griffin, ed. G. Clark and T. Rajak (Oxford: Clarendon Press, 2002), 31–49.
  13. Williams, Bloudy Tenent of Persecution (1644), in Complete Writings of Roger Williams [CW] (New York: Russell and Russell, 1963), vol. IV, p. 221.
  14. Williams,
  15. The Bloudy Tenent Yet More Bloudy (1647), in CW, vol. IV, p. 501
  16. Key, p. 134, cited in Delbanco, p. 166.

Martha C. Nussbaum is the Ernst Freund Distinguished Service Professor in the Law School, Department of Philosophy, Divinity School, and the College.

This Ryerson Lecture was based on chapter 2 of Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008) by Martha C. Nussbaum. More extensive citations can be found there. A video of the lecture can be viewed at www-news.uchicago.edu/ releases/08/video/080514.ryerson.mov.