In the course of a discussion The End of Secularism (a review of which book by myself will appear in the forthcoming number of Touchstone), the author Hunter Baker and Pejman Yousefzadeh, both friends of mine, ferret out a disagreement between them concerning the Constitutional stature and dimension of religious freedom. As Pejman summarizes,
Hunter made the argument in our colloquy that he believes the Establishment and Free Exercise Clauses in the First Amendment are [jurisdictional] in nature, and that they do not establish a substantive theory of rights. If it weren’t for the Incorporation Doctrine, I might be inclined to agree with that analysis. But at the end of the day, via the construction of the Establishment and Free Exercise Clauses, as written, and via the Privileges and Immunities Clause, it should be found that the states cannot make a law respecting the establishment of religion, or prohibiting the free exercise thereof. The states may be found to have certain jurisdictional prerogatives when it comes to religion, and for the sake of this discussion, we can assume that they do. But per the Fourteenth Amendment’s incorporation, they cannot offer less than the First Amendment’s guarantees.
Pejman accepts the constitutional doctrine of Incorporation (though, interestingly, he suggests that a better means for it is the Privileges and Immunities Clause rather than the Due Process Clause); Hunter is skeptical of it. He thinks that whatever route you take to “incorporate” the Constitution’s religious liberty doctrine against the states, the difficulty lies in discerning the Constitution’s religious liberty doctrine. “My point is that we have so much trouble divining a substantive theory from the clauses because they were not written to accomplish what they use them to achieve.”
Suppose we agree, arguendo, with Pejman’s view that “it should be found that the states cannot make a law respecting the establishment of religion, or prohibiting the free exercise thereof,” still the primary puzzle remains to be solved — what does this mean? The question of what should be our substantive constitutional theory of religious liberty is still staring us in the face, mute and attentive. What does it mean to forbid a government to make law “respecting” an establishment of religion, while at the same time also forbidding it to prohibit free exercise of religion? What, in other words (for, let’s face it, some of these Madisonian phrasings are rather inartful), is the proper relationship between church and state? What balance between them will secure the best repose for liberty?
This is the real riddle. I won’t claim to have a perfect or final answer. I will say that a vital part of informing ourselves before we deliver even a provisional answer, is to inquire into what the Founders thought about these matters. What was their substantive theory of religious liberty? More precisely, what was James Madison’s theory when he (fulfilling a promise to Virginia constituents) offered in the 1st Congress the amendments which would soon comprise the Bill of Rights?
(There are, incidentally, a number of fine collections concerning this historical record. There is the excellent A Second Federalist, arranged by Charles Hyneman and George Carey; and there are at least two applicable texts of documents from Liberty Fund: Liberty and Order and The American Republic. No doubt many others are available elsewhere.)
But that can hardly be the end of the matter. Here I tend toward Pejman’s view. We must go beyond the Founders, beyond Madison and the 1st Congress. At the very least we should look in on the thoughts of the framers of the Fourteenth Amendment, which (whether by Due Process or by Privileges and Immunities) takes us down the Incorporation road. And we certainly cannot neglect the reasoning of the later men, mostly learned Justices of the Supreme Court, who took us the last divisive steps on that road.
Still, it is doubtful that even the most searching examination of American history and our political tradition will prove sufficient to settle the question of religious liberty. There are instances when we will find that “no law respecting an establishment” and “free exercise” stand in some tension. We have found a faction of a major religion that proposes iron laws of war and subjugation which, respecting their establishment, amounts to, precisely, the free exercise of religion. We may, indeed, find that when it comes to these matters of faith and law, there is no perfect pattern to be discovered in the world, that this question has not been answered with any finality because it cannot be. It is a permanent problem.
And this gets us back to Hunter’s book. Therein he demonstrates pretty conclusively that, whatever else the theory known as secularism is, it is very emphatically a substantive theory of religion and man. It is not a mere neutral framework for adjudicating disputes. It has a dog in the race. It is a partisan position.
It is, moreover, a fairly recent partisan position. The theory cannot be attributed to James Madison because it had not been invented yet. One may plausibly argue that Madison was tending toward an early version of what would in time become known as secularism; but it is sheer brassbound anarchronism to project modern liberal theory on role of religion in the state backward into the mind of Mr. Madison.
My own provisional answer to the problem of pluralism (which problem secularism pretends to have answered for good) would begin with the recognition that, while liberty ought to loom very large with us, there is a paradox because much of the activity of religion is concerned with discipline, self-denial, prescription, forbearance. It is difficult for me to accept a free exercise of the Christian religion that forbids Christians to make public and even binding their very public morality. Recall that the secularists no less than the Christians have a public morality that they would make binding. Secularists no less than believers have an orthodoxy to which they are loyal, or aspire to be loyal. Our fathers understood how much liberty was wrapped up in self-government. Can a community that is prevented from binding its members on matters of public morality still be said to be self-governing?
Finally, my own provisional answer would endeavor to give full breadth to the federal structure of the Philadelphia Constitution, which structure, in point of fact, was provided by the Framers with a clear eye toward the maintenance and preservation of liberty. It disturbs me how facilely folks dismiss the importance of the federal structure, treating it as some leftover from a bygone era, rather than the integral part of the Constitution that the Framers and Publius so clearly understood it to be. Only from Washington, DC, does it look reasonable to establish by Court fiat the same legal standard of public morality in Texas as in New York City.