A Jew and a Christian on the Religion Clauses

My good friend and a thinker I admire greatly, Pejman Yousefzadeh, has read my book The End of Secularism and commented on it.  I am very happy to have him read it because he is one of the few non-Christians of whom I am aware who have read the book.

Because I value his opinion so highly, I feel I must take a moment to correct what I think is a misperception on his part.  In his short review of the book over at The New Ledger , he essentially defends First Amendment religion clause jurisprudence from my historical attack.  At the root, because I argue the clause did not mean at the founding what it has come to mean today, he thinks I am saying the current construction has no basis.   I want to be clear that I am not going that far.

Instead, I simply argue that the debate over whether the founding was Christian, deist, secular, or whatever is not relevant to the interpretation of the religion clauses because  they do not set forth a substantive theory of religious freedom.  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.   Steven D. Smith has written more and better than me on that point.  And he is simply correct.  I don’t think there is much getting around it.

Certainly, you can argue that there is another way to read the constitution to reach the result we currently have, but it does not rise directly from the text of the First Amendment if you have any interest in original intent at all.