As the state legislature prepares to meet this month, I thought we might consider just how consequential state legislation can be for the realization of our cherished liberties.
Because of its importance in their early history, Latter-day Saints are quite familiar with the competition between congregations in Upstate New York for converts at the beginning of the 19th century. They may also be aware that New York, at that time, was a fertile home to many new American religious movements, including Shakers, Millerites and the Oneida Community.
What is underappreciated is the source of the unique legal framework in New York that allowed this unprecedented competition among religious organizations.
Our common understanding is that it was the First Amendment to the U.S. Constitution that provided the freedom of religion experienced in New York. As a matter of constitutional law, however, the First Amendment's protection of the free exercise of religion did not apply to the states until long after the adoption of the 14th Amendment.
So what empowered the religious freedom in early New York state? State constitutional law and state corporate law.
First, New York adopted a state constitution in 1777 (drafted primarily by John Jay) that eloquently forbade the establishment of a state religion and provided for "the free exercise and enjoyment of religious profession and worship."
But perhaps more important was how the New York legislature gave direct practical legal meaning to these ideals through an unprecedented innovation in corporate law.
After British troops left New York in late 1783, the state legislature convened in New York City in early 1784. For its very first peacetime act, the New York legislature passed an act that allowed any religious society, once it met certain procedural requirements, to enjoy the benefits of perpetual legal existence and property ownership through incorporation.
It is hard to overstate how important this act was in the history of freedom.
Until that time, corporate charters that allowed an organization to own property in its own name and accept bequests, were provided only through special legislative acts (sometimes by the crown, sometimes by parliament or the appropriate colonial assembly).
Ecclesiastical charters in particular had been tightly controlled. Prior to the American Revolution there were only 21 ecclesiastical charters in all of New York. But in revolutionary New York, the legislature stunningly relinquished this powerful political tool for dispensing favors and privileges. It created for the first time ever what we now understand as a general incorporation statute.
Many other social and historical factors contributed to the competition for religious adherents in Upstate New York in the early 19th century — but the freedom provided by the state legislature for any small group of believers to organize as an incorporated church provided the underlying legal framework for that spiritual ferment.
In the book Violence and Social Orders, Nobel-prize winner Douglass North and his co-authors John Wallis and Barry Weingast argue that a hallmark of a truly free society is its willingness to make forms of legally-protected organizations — like corporations — available to anyone as an impersonal right rather than as an act of political favoritism. They argue: "A rich and varied network of groups and organizations both provides a check on the activities of government and an environment in which individual values of tolerance, participation, and civic virtue can be nurtured."2 comments on this story
This hallmark of freedom, the freedom for any group of citizens to use the tools of organization to increase their productivity and facilitate the accumulation of resources, was later extended to churches in other states and to business and charitable associations.
This kind of innovative legislation that enables individuals to organize their affairs for greater freedom and productivity is rarely the work of the federal government. The painstakingly detailed work of enabling liberty through laws of property, contract and association is typically the thankless work of state legislatures.
I have tried unsuccessfully to identify who penned New York's 1784 statute for the free incorporation of churches. But that extraordinary statute reminds me that the freedom and prosperity I enjoy rests on an institutional foundation laid by many dedicated, but often nameless, elected representatives to state office who have crafted excellent laws. As our legislature convenes this month, may they remember how consequential their work is for enabling people of goodwill to pursue freedom and order their own affairs.
Paul Edwards is editor of the Deseret News editorial page. E-mail: email@example.com