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Published online by Cambridge University Press: 24 April 2015
What sort of relation between religion and government does the Constitution of the United States affirm? As anyone even remotely familiar with the subject will know, this question is large as well as enormously complex and invites reflection on a host of subsidiary problems: What are the precise meanings of the religion clauses of the Constitution's first amendment, clauses which proscribe congressional legislation “respecting an establishment of religion, or prohibiting the free exercise, thereof”? How broadly is the notion of “religion” to be construed here? Does the implied right of free exercise attach to any commitment or action conscientiously embraced (e.g., conscientious objection to participation in warfare)? Or are we to interpret the guaranteed religious freedom in narrower terms? What precisely is the relationship between the “no establishment” and “free exercise” provisions? Might there not be circumstances in which conditions necessary to ensure genuinely free exercise require the sort of “excessive entanglement” that suggests governmental establishment of religion (e.g., state support for parochial schools)? Or is such a worry founded on mistaken understandings of the “free exercise” and “no establishment” provisions? Are the amendment's anti-establishment restrictions limited to federal legislation or do the restrictions apply also to state governments via “incorporation” provisions of the fourteenth amendment? Is the primary purpose of the religion clauses to protect government from religion or religion from government, and if the latter, does the Constitution then permit governmental support of religion so long as no particular religions are preferred? Would such support destroy a “wall of separation” erected by the first amendment? Or is the idea of a “wall of separation,” in this understanding at least, foreign to the sense of the constitutional text? In what respect is knowing the original intentions of the first amendment's framers or ratifiers relevant to interpreting the meaning of the amendment's provisions? How are these intentions to be discovered? And so forth.
1. Richards, D.A.J., Toleration and the Constitution 3–162 (1986)Google Scholar.
2. Cf. Gamwell, , Religion and Reason in American Politics, in Religion and American Public Life: Interpretations and Explorations 88 (1986)Google Scholar.
3. Howe, M., The Garden and the Wilderness: Religion and Government in Constitutional History 1–31 (1965)Google Scholar.
4. Id. at 151-52; cf. D.A.J. Richards, supra note 1, at 117-18.
5. “In light of traditional establishments, the Founders conceived of religious equality primarily in terms of a government neither endorsing nor preferring any religious group over any other; in principle, all religions stood on an equal footing legally.” Adams, A. & Emmerich, C., A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses 65 (1990)CrossRefGoogle Scholar. See also Cord, R., Separation of Church and State: Historical Fact and Current Fiction 3–15 (1982)Google Scholar; Malbin, M., Religion and Politics: The Intentions of the Authors of the First Amendment (1978)Google Scholar. Cf. D.A.J. Richards, supra note 1, at 116-17.
6. Bradley, G., Church-State Relationships in America 19–83, 111–20 (1987)Google Scholar. Bradley does hold that the framers, as well as the ratifiers, regarded the first amendment as consistent with governmental support of religion. Id. at 85-110.
7. See M. Howe, supra note 3, at 11-31; see also R. Cord, supra note 5, at 17-82. Cf. Mooney, C., Public Virtue: Law and the Social Character of Religion 21–54 (1986)Google Scholar.
8. See Little, , Roger Williams and the Separation of Church and State, in Religion and the State: Essays in Honor of Leo Pfeffer 3–23 (1984)Google Scholar, Religion and Civil Virtue in America: Jefferson's Statute Reconsidered, in The Virginia Statute for Religious Freedom 237–55 (1982)Google Scholar, Conscience, Theology and the First Amendment, in Soundings 357–78 (1989)Google Scholar. Cf. D.A.J. Richards, supra note 1, at 118-21.
9. Levy, L., The Establishment Clause: Religion and the First Amendment (1986)Google Scholar.
10. Curry, T., The First Freedoms: Church and State in America to the Passage of the First Amendment 193–222 (1986)Google Scholar.
11. D.A.J. Richards, supra note 1, at 158-62.
12. L. Levy, supra note 9, at 175.
13. D.A.J. Richards, supra note 1.
14. Rawls, J., A Theory of Justice (1971)Google Scholar; Dworkin, R., Law's Empire (1986)Google Scholar, A Matter of Principle (1985), Taking Rights Seriously (1977).
15. J. Rawls, supra note 14, at 201-21.
16. D.A.J. Richards, supra note 1, at 11-14, 98-102. On “background rights” Richards cites R. Dworkin, supra note 14, at 81-130.
17. D.A.J. Richards, supra note 1, at 30; see generally id. at 11-64.
18. Id. at 58.
19. Id. at 69, 72, 85.
20. Id at 84.
21. As is well-known, the conditions of impartial deliberation are ensured by Rawls's stipulation that the rational contractors in this hypothetical “original position” are covered by a “veil of ignorance,” which guarantees fairness in the proceedings. More particularly, the contractors are presumed to know nothing about their places in society, their natural abilities, their conceptions of the good (including their religious beliefs), their locations in history or their society's idiosyncratic economic, political and cultural circumstances. J. Rawls, supra note 14, at 37. Thus, a certain kind of special pleading in the choice of principles of justice is ruled out by the conditions of deliberation in the original position. At the same time, the contractors are presumed to know certain facts about societies in general (e.g., principles of political and economic association, sociological and psychological theory) as well as the fact that their own particular society will be subject to the “circumstances of justice”-those conditions that make human cooperation both possible and necessary. Id. at 126-30. According to Rawls, self-interested, rational contractors, deliberating under these constraints, would choose distinctive principles of justice connected with political liberty and economic distribution (including the principle of liberty of conscience) and so it is these same principles that ought to govern the basic institutions of society.
22. Richards' historical account is directed explicitly to critics of his earlier work. See D.A.J. Richards, supra note 1, at 57. These critics contend there is no historical evidence that the founders constitutionalized contractarian justice in the Rawlsian sense. Thus Michael Perry writes:
Recently a number of constitutional theorists have argued contractarian moral and political philosophy is an appropriate, indeed the appropriate source of decisional norms for human rights cases. The historical version of the argument holds that the framers of the 1789 Constitution and the Bill of Rights adhered to contractarian philosophy and that such philosophy therefore constitutes the political-moral foundation of the Constitution.… In fact, the principal proponent of the claim, David Richards, has never attempted to adduce evidentiary support, beyond noticing that contractarian philosophy had its adherents during the preconstitutional period. … And in any event it is extravagant to suggest that contractarian philosophy—least of all in anything like its contemporary Rawlsian form, which is the principal form in which such philosophy is typically urged on the Court—was constitutionalized by the framers of the 1789 Constitution and thus constitutes the exclusive, authoritative political-moral canon for American government (with respect to human rights). … “The social contract theory in which the framers believed [was not anything like Rawls's or Richards' theory]. The Lockean natural rights in which they believed are indeed in severe tension with [the Rawls-Richards sort of theory]. Even if Rawls's and Richards' theory is the best social contract theory, it is not part of the theory of our Constitution.” To be taken at all seriously, Richards' historical claim must be proved, and thus far neither he nor anyone else has even tried. Moreover, such evidence as does exist strongly suggests that any effort to prove the claim would be quixotic.
Perry, M., The Constitution, the Courts and Human Rights 107–08 (1982)Google Scholar. The passage's quoted remarks are from Greenawalt, , The Enduring Significance of Neutral Principles, 78 Colum. L. Rev. 1019 (1978)CrossRefGoogle Scholar. For a similar criticism, which is more recent than Perry's but which does not consider Richards' argument in Toleration, see Bork, R., The Tempting of America: The Political Seduction of the Law 210–13 (1990)Google Scholar.
23. D.A.J. Richards, supra note 1, at 111-16.
24. Id. at 113.
25. Id. at 114, 116.
26. Everson v. Bd. of Educ., 330 U.S. 1 (1947).
27. Richards does suggest at one point that Everson's commitment to contractarian logic is not as explicit as it might be. See D.A.J. Richards, supra note 1, at 122, note 90 and corresponding text.
28. Id. at 146-58. See, e.g., Lemon v. Kurtzman 403 U.S. 602 (1971)(aid to parochial schools); Engel v. Vitale, 370 U.S. 421 (1962), Wallace v. Jaffree, 472 U.S. 38 (1985)(prayer in public schools); McCollum v. Bd. of Educ. 333 U.S. 203 (1948) (religion classes during school hours on public school premises).
29. D.A.J. Richards, supra note 1, at 130-31, 141-46. See, e.g., United States v. Ballard, 322 U.S. 78 (1944); Torcaso v. Watkins, 367 U.S. 488 (1961); United States v. Seeger 380 U.S. 163 (1965). Richards admits the Court in Wisconsin v. Yoder, 406 U.S. 205 (1972) has backed away from a reading of the free exercise clause that extends constitutional protection to conscience simpliciter. But he regards the Court's retreat as mistaken.
30. D.A.J. Richards, supra note 1, at 131. In that case, the Court judged unconstitutional Maryland's requirement that a state office holder declare belief in the existence of God because the requirement infringes on an individual's “freedom of belief and religion.” Torcaso, 367 U.S. at 496.
31. Locke, J., A Letter Concerning Toleration (1686)Google Scholar, excerpted in The Believer and the Powers That Are 80, 84, 89 (Noonan, J. ed. 1987)Google Scholar. See D.A.J. Richards, supra note 1, at 89-98.
32. M. Malbin, supra note 5; R. Cord, supra note 5; G. Bradley, supra note 6.
33. D.A.J. Richards, supra note 1, at 114.
34. Annals of Congress, excerpted in The Believer and the Powers That Are, supra note 31, at 123-25.
35. A. Adams & C. Emmerich, supra note 5, at 19. See also M. Malbin, supra note 5, at 14-15; R. Cord, supra note 5, at 12, 49-62; G. Bradley, supra note 6, at 97-104.
36. See G. Bradley, supra note 6, at 19-57, 111-18.
37. D.A.J. Richards, supra note 1, at 37-38.
38. Zorach v. Clauson, 343 U.S. 306 (1952).
39. Walz v. Tax Commission of New York, 397 U.S. 664 (1970).
40. Marsh v. Chambers, 463 U.S. 783 (1983).
41. Lynch v. Donnelly, 465 U.S. 668 (1984).
42. Zorach, 343 U.S. at 313-14, excerpted in The Believer and the Powers That Are, supra note 31, at 400.
43. D.A.J. Richards, supra note 1, at 151-52, 158, 162.
44. Id. at 121-28, 158-62.
45. Id. at 160.
46. Id. at 123-28.
47. Surely Rawls's philosophy has not settled the matter, as anyone familiar with critical discussions of his position will know. More particularly, Rawls's claim that certain principles of justice commend themselves to reason because they would be decided on by hypothetical rational contractors choosing under impartial conditions begs at least two questions: (1) Why are impartial conditions of choice privileged from the point of view of reason? (2) Why are the decisions of hypothetical contractors rationally binding on the choices of actual agents choosing in history? For these and related criticisms see generally Reading Rawls: Critical Studies of A Theory of Justice (N. Daniels ed. n.d.).
To be sure, and as Richards notes, current deontological, utilitarian and intuitionist theories typically assume or propose that moral truth is available to reason as such. D.A.J. Richards, supra note 1, at 125. Yet this common belief is made uncertain by the very fact that the theories in question disagree about which moral principles reason apprehends. Indeed, Alasdair MacIntyre has seized on disagreements of this very sort as evidence for his claiming that there is no moral truth accessible to reason in itself and that all moral knowledge depends on the discursive practices and canonical traditions of historical communities. See MacIntyre, A., After Virtue (1981)Google Scholar. If nothing else, the widespread influence of MacIntyre's theory attests to the unsettled character of contemporary moral epistemology and the controversial nature of the claim that reason and reason alone suffices to apprehend moral truth. Thus, the claim hardly serves as an indisputable basis for rejecting the founders' view that public morality stands in need of religion.
48. Tocqueville, A. de, Democracy in America vol. 1, 310–18, vol. 2, 21-29 (Bradley, P. trans. 1945)Google Scholar; Bellah, R.et al., Habits of the Heart: Individualism and Commitment in American Life vi–vii, 219–49 (1986)Google Scholar.
49. Neuhaus, R., The Naked Public Square: Religion and Democracy in America (1984)Google Scholar. Gaffney, Jr., The Interaction of Biblical Religion and American Constitutional Law, in The Bible in American Law, Politics, and Political Rhetoric 99–101 (Johnson, J. ed. 1985)Google Scholar; Coleman, J., An American Strategic Theology 184–98 (1982)Google Scholar.
50. Virginia Declaration of Rights § 16, excerpted in A. Adams & C. Emmerich, supra note 5, at 115-16.
51. See A. Adams & C. Emmerich, supra note 5, at 115-21, for relevant excerpts from the state constitutions. For helpful analyses see id. at 3-31, and G. Bradley, supra note 6, at 19-68.
52. In his Memorial Madison quotes approvingly section 16 of the Virginia Declaration of Rights. Given this evidence of Madison's views, it might be argued that the founders' grounding of the right to religious freedom in a duty to worship God cannot explain their openness to government's accommodation of religion since Madison, after all, linked religious liberty and religious duty in this way and still opposed the general assessment bill as a violation of conscientious liberty. Yet that argument ignores, among other things, the degree to which Madison may have departed from his fellow Virginians in his understanding of the Declaration as well as the question of Madison's own consistency on these matters:
Madison started by staking a claim to section 16 of the Declaration of Rights, though he knew that its ratifiers never thought it inconsistent with the Anglican establishment or a general assessment. This interpretation of section 16 was certainly not the accepted one in Virginia and was later authoritatively rejected by the U.S. Supreme Court in litigation over the Anglican glebe lands, where the justices (Virginians Marshall and Bushrod Washington among them) conclusively decided the compatibility of section 16 and a general assessment. More curiously, just three years later Madison publicly proclaimed that section 16 would not even prevent compulsory contribution by all to one sect.
G. Bradley, supra note 6, at 39.
53. The philosophy of the Bill of Rights was also tributary to the tradition of natural law, to the idea that man has certain original responsibilities precisely as man, antecedent to his status as citizen. These responsibilities are creative of rights which inhere in man antecedent to any act of government; therefore they are not granted by government and they cannot be surrendered to government. They are as inalienable as they are inherent. Their proximate source is in nature, and in history insofar as history bears witness to the nature of man; their ultimate source, as the Declaration of Independence states, is in God, the Creator of nature and the Master of history.
Murray, J., We Hold These Truths: Catholic Reflections on the American Proposition 37 (1960)Google Scholar.
54. D.A.J. Richards, supra note 1, at 29-30.
55. A. Adams & C. Emmerich, supra note 5, at 63.
56. Cf. M. Howe, supra note 3, at 156-61; A. Adams & C. Emmerich, supra note 5, at 91.
57. G. Bradley, supra note 6, at 134.
58. M. Howe, supra note 3, at 157.
59. For a useful discussion of these and related issues, see A. Adams & C. Emmerich, supra note 5, at 88-93; see also M. Howe, supra note 3, at 161-67.
60. This paper was originally presented at the Third Annual Hamline Symposium on Law, Religion and Ethics in October, 1990. Since writing and delivering the paper I have learned that Michael McConnell has advanced similar criticisms of Richards. See McConnell, , The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1491–1500 (1990)CrossRefGoogle Scholar.