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ON THE SOLELY JURISDICTIONAL READING OF NONESTABLISHMENT
Published online by Cambridge University Press: 14 July 2020
Abstract
On the solely jurisdictional reading, the nonestablishment clause in the US Constitution's First Amendment was designed to confirm that power over politics in relation to religion was assigned solely to the several states. This article first summarizes two presentations of that view (those of Steven D. Smith and Akhil Reed Amar), offers a critique of it, and then outlines an alternative. The critique is theoretical, seeking to show the incoherence of the solely jurisdictional reading, such that any theorist who assumes its internal consistency cancels her or his own interpretation of the First Amendment. This incoherence is present because that reading assumes the suprarational character of religious or comprehensive convictions, even while those citizens who hold any such conviction believe that justice depends on the ultimate terms of political evaluation they affirm. On the alternative outlined, religious freedom makes sense if and only if the ultimate terms of evaluation are given in common (adult) human experience, and thus the question about them is itself rational.
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- Copyright © The Author(s), 2020. Published by Cambridge University Press on behalf of the Center for the Study of Law and Religion at Emory University
References
1 Smith, Steven D., Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (New York: Oxford University Press, 1995)Google Scholar; Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998)Google Scholar. All citations to these two works are made parenthetically in the text.
2 Samuel Beer distinguishes “active consent” from consent by “deference.” The former means “that all members of the community have access by virtue or grace to the truth about the common good and . . . therefore, the ruled consent because they already agree with what their rulers require of them,” and consent by “deference” is defined as “the governed consent to government, not because they understand the truth and goodness of the law, but because they recognize the authority of the lawgiver. . . . Their consent is the passive consent of deference, not the active consent of self-government.” Beer, Samuel H., To Make a Nation: The Rediscovery of American Federalism (Cambridge, MA: Belknap Press of Harvard University Press, 1993), 53, 56Google Scholar. This difference, Beer holds, made the conflict between Great Britain and its American colonies intractable. See Beer, To Make a Nation, 146–53.
3 Smith distinguishes “essential federalism” from “federalism as a side constraint,” where the former means that “[f]ederalism . . . is the essence of national policy on this issue” (23, 24).
4 Justice Clarence Thomas, in a concurring opinion in Greece v. Galloway, agrees with Smith, at least in the following respect: the “lack of consensus [among the States] suggests that the First Amendment was simply agnostic on the subject of state establishments; the decision to establish or disestablish religion was reserved to the States.” Greece v. Galloway, 572 U.S. 565, 606 (2014) (Thomas, J., concurring). Hence, “the Establishment Clause is ‘best understood as a federalism provision,’” and “[a]pplying the Clause against the States eliminates their right to establish a religion free from federal interference, thereby ‘prohibit[ing] exactly what the Establishment Clause protected.’” Id. at 604, 606 (quoting Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 50–51). If Justice Thomas intends that “the text and history of the Clause ‘resis[t] incorporation’ against the States,” Id. at 604 (quoting Newdow at 45–46), I do not imply that Smith agrees with Thomas, that is, do not imply that, for Smith, so-called incorporation of the religion clauses is not what we might call “settled law.” In a later work, Smith says, “most scholars and judges today have concluded that the Fourteenth Amendment did extend the original rights (including those contained in the First Amendment's religion clauses) to the states. That is a convenient and congenial conclusion, obviously, but even so it may be correct”—meaning, I assume, that strong reasons for what “most scholars and judges today have concluded” are available. Smith, Steven D., The Rise and Decline of American Religious Freedom (Cambridge, MA: Harvard University Press, 2014), 68CrossRefGoogle Scholar (second emphasis added). In this later work, Smith repeats his reading of the original nonestablishment clause but nonetheless reviews the history leading to so-called incorporation. See especially chapter 2.
5 Although Smith, at least in his earlier book, speaks of both religion clauses as “purely jurisdictional,” I limit this discussion to the nonestablishment clause because Amar so limits his discussion. Also, I have previously written on “the free exercise of religion.” See Gamwell, Franklin I., “On Religious Freedom and Its Free Exercise,” Journal of Religion 97, no. 4 (2017): 500–23CrossRefGoogle Scholar.
6 Again, I do not imply that Amar disputes whether the so-called incorporation of the nonestablishment clause is what we might call “settled law.” See Amar, The Bill of Rights, 246–54.
7 Cf. Wills, Garry, Under God: Religion and American Politics (New York: Simon and Schuster, 1990), 374Google Scholar—arguing that Madison could “accomplish in his lifetime” only “disestablishment at the federal level.”
8 To be sure, the solely jurisdictional reading purports to have no need for this definition because there is, as Smith has it, no “first-order” meaning to the nonestablishment clause; it is agnostic about the relation of government to religion. But this very reading has this consequence: the First Amendment stipulates that national politics is consistent with indeterminate religious diversity, whereby the requirement for a definition reappears.
9 Rawls, John, Political Liberalism, expanded edition (New York: Columbia University Press, 2005), 12, 13Google Scholar.
10 Dworkin, Ronald, Religion without God (Cambridge, MA: Harvard University Press: 2013), 23, 25Google Scholar.
11 Habermas, Jürgen, Between Naturalism and Religion: Philosophical Essays, trans. Cronin, Ciaran (Malden: Polity Press, 2008), 127Google Scholar.
12 To the best of my reading, Amar does not offer a definition of religion.
13 At least typically, religions also include other beliefs. For instance, a religion may include belief in some event or events within history that mark the beginning of the religion in question and are taken by its adherents to disclose the truth about human life in relation to the entirety in which we are set—and which are, therefore, authoritative for the meaning and mediation of the religion's comprehensive commitment.
14 See Smith, Foreordained Failure, 19; Mead, Sidney E., The Lively Experiment: The Shaping of Christianity in America (New York: Harper & Row, 1963), 63Google Scholar.
15 I recognize that, in the eighteenth and early nineteenth centuries, some states practiced a kind of toleration, such that an established religion in the state coexisted with so-called dissenting religions. As a theory of politics in relation to religion, however, such toleration can be practiced only if the dissenting religion does not include ultimate terms of evaluation in conflict with those of the establishment. Any conflict between a dissenting and the established religion over those terms could only be resolved consistent with establishment by legitimizing for citizens only the establishment. In the eighteenth and early nineteenth centuries, perhaps, virtually all religions with significantly numerous membership in states practicing toleration were forms of Christianity, and the conflicts between those forms (excluding the differences about slavery because the Constitution recognized, in its own way, “Persons . . . bound to Service”) were mainly ecclesiastical. Hence, something like the absence of conflict with respect to ultimate terms of evaluation was present. At the least, the plurality of comprehensive convictions now present, especially secularistic convictions, means that establishment with toleration is no longer possible.
16 To be sure, one might explain this limitation by appeal to US history, but doing so does not provide a theoretical explanation.
17 I surely do not deny that adherents of a religion many today will call suprarational may evidence substantial reasoning. But this reasoning, we are told, is from convictions about a transcendent reality and its disclosure in human history that is itself beyond validation or invalidation by reasoning. For instance, few can approach the rationality we inherit from Thomas Aquinas, but his reasoning nonetheless affirmed a divine reality and its disclosure in the witness to Jesus of the New Testament that many will today call suprarational. This is the burden of my term “finally a suprarational belief” or conviction. Henceforth, however, I speak of the suprarational understanding of religious beliefs without mentioning “finally”—and, thereby, will assume that substantial reasoning may be credited to adherents of any given religion, notwithstanding how it is said to be based on suprarational convictions.
18 More often than not, this is because a religion in the conventional sense is said to affirm the historical event or events authoritative for its meaning and mediation as also authoritative with respect to truth. See above, footnote 13.
19 See Habermas, “Religion in the Public Sphere: Cognitive Presuppositions for the ‘Public Use of Reason’ by Religious and Secular Citizens,” chapter 5 in Naturalism and Religion.
20 See, for example, Rawls, Political Liberalism, 11–15.
21 See Rawls, 48–54.
22 Rawls, 173–74.
23 Rawls, 13.
24 To be sure, one might hold that a separation of justice from comprehensive doctrines should not itself be constitutionally stipulated but, to the contrary, is the truth that should be convincing in a full and free political discourse. In other words, the comprehensive doctrine implied by entirely contextual terms for evaluation is true. But this view thereby asserts that comprehensive convictions are rational, such that public reason aims at discerning this truth, and, thereby, all comprehensive convictions should be themselves included within the political discourse—the very circumstance that is denied in excluding them from public reason because they answer a suprarational question.
25 Dworkin, Ronald, Is Democracy Possible Here? Principles for a New Political Debate (Princeton: Princeton University Press, 2006), 9–10CrossRefGoogle Scholar.
26 See Dworkin, Ronald, Justice for Hedgehogs (Cambridge, MA: Belknap Press of Harvard University Press, 2011), 13–15, 264–70CrossRefGoogle Scholar.
27 Habermas, Jürgen, Moral Consciousness and Communicative Action, trans. Lenhardt, Christian and Nicholsen, Shierry Weber (Cambridge, MA: MIT Press, 1990), 104Google Scholar.
28 Habermas, Naturalism and Religion, 130.
29 Habermas, 137.
30 Again, Dworkin and Habermas may assert that a separation of justice from ethics or encompassing values need not be constitutionally separated because this separation is itself authorized by the ultimate terms of evaluation that should be convincing within public reason. In other words, each may assert a kind of Kantian moral theory, on which the moral law is nonteleological rather than a conception of the good. I welcome this claim into the public discourse. But placing the separation within that discourse renders the position self-contradictory: doing so affirms the rational character of the comprehensive question and contradicts the supposed suprarational character of comprehensive convictions from which, therefore, justice should be independent. Moreover, nonteleology is itself self-contradictory because it is, to the best of my reasoning, a kind of relativism; that is, nonteleology asserts that moral and immoral are relative to certain universal aspects of human activity—for instance, human activity insofar as it affects the freedom or freedom and well-being (for the latter, see Gewirth, Alan, The Community of Rights [Chicago: University of Chicago Press, 1996], chapter 1Google Scholar) of other human individuals. As a kind of relativism, nonteleology also presupposes some ultimate terms of evaluation or terms applicable to human activity as such. Otherwise some human activity in some aspects is said to be morally indifferent, and moral indifference is a conclusion dependent on a moral comparison. In other words, certain universal aspects of human activity as such become the context dependent on a comparison of all contexts.
31 I borrow this term from Cass R. Sunstein. See his book Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996)Google Scholar.
32 That separation is also advocated by Murray, John Courtney, We Hold These Truths: Catholic Reflections on the American Proposition (New York: Sheed and Ward, 1960)Google Scholar; see especially the introduction and chapters 1 and 2.
33 In sum, the argument against that denial turns on the fact that subjects make decisions with understanding. This understanding includes the decision, that is, alternatives are compared not merely in the various respects whereby they are descriptively similar and different but also with respect to choosing—and a comparison with respect to choosing is an evaluation that purports to be valid. Among others, David Hume argues that alternatives, once they have been described, cannot be understood with respect to choosing: “the understanding has no further room to operate, nor any object on which it could employ itself. The approbation . . . which then ensues cannot be the work of judgment, but of the heart.” Hume, David, Enquiries Concerning Human Understanding and Concerning the Principles of Morals (Oxford: Clarendon Press, 1975), 290CrossRefGoogle Scholar. But this very statement is not itself a further description of the alternatives; it is, rather, an understanding and thus a comparison with respect to choosing of alternatives as such—so that all of the alternatives are said to be equally good. Something similar is the case whenever a theorist asserts that choice is completely arbitrary or emotive or amoral.
34 Jefferson, Thomas, Political Writings (New York: Cambridge University Press: 1999), 391CrossRefGoogle Scholar. I am not clear that Jefferson consistently asserted the way of reason, inclusive of discourse about competing comprehensive convictions, as the proper meaning of republican government. Sometimes he affirmed moral sense in a manner that divorced it from beliefs, and sometimes he considered the commonality of all religions to be sufficient to politics. On the latter, see Mead, Lively Experiment, chapter 4. Still, Jefferson's commitment to the “tribunal” of reason (Jefferson, Political Writings, 394) is, as far as I can see, essential to popular sovereignty. See Gamwell, Franklin I., Religion among We the People: Conversations on Democracy and the Divine Good (Albany: State University of New York Press), chapter 1Google Scholar.
35 Wilson, James, Collected Works of James Wilson, ed. Hall, Kermit L. and Hall, Mark David, 2 vols. (Indianapolis: Liberty Fund, 2007), 1:286Google Scholar.
36 I mean by a “substantive political evaluation” an evaluation that takes sides in some or other political disagreement. See the contrast with “formative” below in footnote 38.
37 For instance, the government can never proscribe criticism of Congress, as in the US Sedition Act of 1798, or criticism of the government during war, as in the US Sedition Act of 1918.
38 Given a democratic constitution, there may seem to be a contradiction between the assertions (1) that political participation is bound by, or ought to conform to, the constitution, and (2) that constitutional provisions ought to be open to popular assessment. But the contradiction is only apparent—because, in truth, these two assertions limit what can be constitutionally stipulated consistent with popular sovereignty. Political participation is indeed bound by (or ought to conform to) the constitution; this follows because a constitution constitutes political participation. Hence, a democratic constitution that stipulates the terms, ultimate or more specific, of some substantive political evaluation contradicts itself—binding political participants to its stipulation even while also stipulating that it may be called into question. I seek to capture this difference by saying that a democratic constitution should be solely formative, inclusive of no substantive provisions, where a formative provision does not take sides in any political disagreement; the one commitment neutral to all political disagreements is the commitment to validate and invalidate by argument political claims that disagree. In contrast, a substantive statutory law does takes sides in some or other political disagreement. As I say in the text below, a formative constitution stipulates only (a) the rights inherent in being a member of “we the people,” and (b) a decision-making procedure maximally informed by the discourse and through which governmental activities are effected. That discourse includes assessment of the constitution itself: if “we the people” are to be truly the final ruling power, they must be the constituent sovereign in order to ensure that a democratic constitution is not self-contradictory but, rather, truly formative; the constitution should be self-democratizing.
39 Jefferson, Political Writings, 174. In saying this, Jefferson expressed his conviction that republican government and thus popular sovereignty were indeed authorized by, as he said in the Declaration of Independence, “the laws of nature and of nature's God.” But the more important point is Jefferson's commitment to reason.
40 For instance, some in the history of Western thought argue that reason can establish its own limits with respect to the question about the true comprehensive conviction and show, thereby, that reason can invalidate false answers but cannot validate the true answer. To the best of my reasoning, however, this answer is unsuccessful. To establish such limits means to establish that something stands beyond them; a limit beyond which there is nothing is not a limit. Accordingly, if reason were able to establish its own limits in this respect, it follows that all suprarational answers to that question cannot be true—because some such answers, given that virtually anything can be asserted as suprarational, are incompatible with others. Hence, reason cannot establish its own limits without validating a criterion in terms of which true and false (supposedly suprarational) answers to that question can be distinguished. But any such criterion established by reason implies a rational question.
41 See Eberle, Christopher, Religious Convictions in Liberal Politics (New York: Cambridge University Press, 2002)Google Scholar; Murray, We Hold These Truths; Perry, Michael J., Religion in Politics: Constitutional and Moral Perspectives (New York: Oxford University Press, 1997)Google Scholar; Stout, Jeffrey, Democracy and Tradition (Princeton: Princeton University Press, 2004)Google Scholar.
42 As far as I can see, moreover, the stipulation of a full and free political discourse is the beginning of an argument for the moral validity of popular sovereignty, at least wherever its preconditions (if there are any) are present, because the way of reason is most likely to determine governmental activities that are consistent with the ultimate terms of evaluation. But the argument cannot be completed without a metaphysics, inclusive of its ultimate terms of evaluation, by which popular sovereignty is authorized.