Religion and the American Constitutional Experiment: Essential Rights and Liberties

John Witte’s book on religious freedom is a work of impressive erudition and formidable complacency. Witte capably surveys the historical developments preceding the First Amendment and supplies a helpful overview of the often neglected period from the adoption of that amendment through the 1940s, when the Supreme Court invaded the field. Later chapters give interesting details on the history of tax exemptions for church property and also furnish a comparative perspective with a quick look at international human rights law. The book contains a wealth of information about, for example, state constitutional provisions and Supreme Court decisions, much of it accessibly presented in appendices. And the chapters summarizing modern establishment and free exercise clause decisions discuss the central cases, accurately on the whole. If the overall presentation here is a bit convoluted, the problem results in part from the fact that it is hard to present in an orderly and sensible way material that is the opposite of orderly and sensible.

Taken as a sort of primer/reference work, in short, this is a useful book to have on the shelf. But the book promises to be more than that. In his introduction, Witte notes that modern developments in religious freedom “have bred not only frustration about the vast inconsistencies of the American experiment but doubts about its very efficacy.” Later he describes our situation as one of “acute crisis.” Witte proposes to address this crisis by “return[ing] to first principles” in order to reassess those principles in light of the American experience.

This preview raised my hopes, but I misunderstood what Witte had in mind. I thought that by reassessing first principles, Witte meant something like reexamining the basic assumptions that underlie the modern discourse and decisions concerning religious freedom. That sort of reexamination is sorely needed. Instead, Witte vigorously and uncritically acquiesces in the same old assumptions. He gives us more of what we already have too much of.

The modern discourse of religious freedom coalesces around three central assumptions. What we might call the consensus assumption claims that despite the fierce debates and disparate practices that prevailed in this country in the late eighteenth century”varied and contested patterns of state“supported religious establishments, blasphemy prosecutions, and Sabbath laws, for example”Americans of that period had reached, or were on the verge of reaching, a consensus concerning some substantive “principle” (or a few core principles) of religious freedom. The legalization assumption asserts that the founders of the Republic gave that consensus force of law by adopting it into the First Amendment. (Lately, finding this assumption too implausible to maintain, a few scholars have begun ascribing the decisive legalization to the Fourteenth Amendment.) The implementation assumption holds that it is constitutionally imperative for the courts today to extract the pure constitutional principle or principles from the mass of ostensibly incompatible practices and constructions into which earlier Americans repeatedly lapsed, and then to enforce the pure principle or principles by striking down laws and sweeping away traditions and practices that are inconsistent with “the Constitution.”

Implicit in each of these assumptions is the notion that there is such a thing as a “principle” of religious freedom that has some sort of intrinsic or objective solidity and meaning, such that a political community could constitutionally bind itself to “the principle” despite having only a dim and significantly mistaken understanding of what the principle actually entails. The notion of a “principle” does all the crucial work: it permits us to find consensus in a historical situation that outwardly looks chaotic and hotly contested; it allows us to ascribe portentous significance to a few words that were treated casually by their enactors as a sort of diplomatic but trivial afterthought; and it authorizes the courts today to intervene aggressively into public life in ways that the Founders never contemplated.

In reality, each of these assumptions is, if not simply false, at least in desperate need of reexamination. And the very notion of a constitutional “principle” is richly deserving of skeptical scrutiny. What sort of entity is such a “principle,” exactly? A mental state? A partially charted chunk of moral reality? Or merely a verbal, honorific label that allows judges and scholars to do all sorts of creative or mischievous things in the name of “the Constitution”?

It seems not unfair to expect some reflection on such matters from a study that acknowledges a “crisis” and promises a reassessment of “first principles.” In fact, though, Witte is largely uncritical regarding the dominant assumptions, and he invokes constitutional “principles” over and over again with an almost childlike faith. Indeed, that is his remedy for our crisis” more principles. Our current predicament, he thinks, results from “reductionist approaches” that try to understand religious freedom in terms of one or two principles, such as “neutrality” or “separation”; in response, Witte advocates a “multi principled” reading.

More precisely, he thinks the First Amendment contains six principles of religious freedom: liberty of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and disestablishment of religion. Just why this should be the list is never made clear. Surely some of these elements could be collapsed into others; or, conversely, the items could be further broken down to make a longer and more imposing list, as in the international law conventions that Witte approvingly describes. Witte claims that founding“era Americans understood these to be discrete and generally accepted principles but produces no persuasive evidence for the claim. The list’s unwieldiness is a detriment at some points because Witte tries to use the six principles to organize his presentation of modern establishment and free exercise decisions. Since the principles are overlapping and indistinct and the decisions themselves do not draw the lines in the way Witte does, the presentation becomes at times needlessly confusing.

Perhaps these are quibbles. And I hasten to applaud one of Witte’s purposes in proliferating principles”his effort, that is, to resist the obsession manifest in some scholars (and Justices) with “separation” as an end in itself. But the weakness in Witte’s multiprincipled approach is glaring with respect to two key claims”that the framers meant to incorporate these six principles into the First Amendment, and that more determined recognition of these principles would contribute to making modern law more sound and coherent.

Regarding the first claim about “original intent,” the supporting evidence can be easily summarized: Witte offers none. His chapter devoted to original meaning is curious. He begins by reciting some of the events and understandings that would suggest that the First Amendment was meant to be a purely federalist measure; it was calculated simply to confirm in writing what both Federalists and Antifederalists agreed on”that the Constitution was not intended to upset the jurisdictional arrangement that left religion entirely to the states.

But for Witte this is merely background; it does not seem to occur to him here that he might have stumbled upon the original meaning and purpose of the provision. In a few pages, Witte then rehearses the entire record of the terse, desultory congressional discussions of what became the religion clauses (though like virtually all modern scholars and Justices, he fails to draw the natural inference from the framers’ supremely nonchalant attitude regarding what, on our assumptions, should have been a monumental decision).

These casual exchanges offer little clarification, so Witte next turns to the text and is immediately confronted with an intriguing possibility, which he then promptly obliterates:

One plausible reading is that the final text is a compromise agreement only on the outer boundaries of appropriate congressional action on religion. Congress may not prescribe religion. Congress may not proscribe religion. Nothing more”and to try to impute more to the text is to overread the unreliable record of debates in the First Congress.

This is a potentially trenchant insight but, sadly, the “nothing more” is summarily retracted. Witte immediately goes on to infer, inexplicably, that this interpretation leaves it to “later discussion and development what governmental bodies, besides Congress, might be bound” and “what conduct short of prescribing or proscribing religion is outlawed.” In short, if the First Amendment had minimal content, as its terms suggest, then someone else”lawyers, judges”would just have to give it more. The reason for this expansionist imperative is not explained; Witte seems to regard it as self“evident. Then, having produced no evidence for his position, Witte declares in the chapter’s “Summary and Conclusion” that the provision’s “pregnant language . . . can be read ” to incorporate all of the “principles” he has listed; the passive voice, which I have emphasized, substitutes for any evidence that the language was meant by its enactors to incorporate those principles.

Later in the book, with the historical context and evidence now comfortably in the distance, Witte affirms with greater assurance: “The Founders viewed the disestablishment clause as both a source and a summary of religious freedom.” In this respect, Witte’s treatment is entirely typical of the modern judicial and scholarly approach to the subject. We know that the First Amendment religion clauses were intended to be a rich, far“reaching, judicially enforceable embodiment of religious freedom. We know this because . . . because . . . well, we just know.

Witte’s other major claim”that recognition of his six principles would improve modern decisions and contribute to the development of a “coherent framework” for resolving issues of religious freedom”can be considered more briefly. It seems sufficient to say that if Witte were right in supposing that terms like “religious pluralism” and “religious equality” referred to discrete “principles,” each with its own meaning and implications, and if he were also right in asserting that modern judges and scholars have neglected some of these “principles” in favor of one or a couple of them, then bringing the other principles back into play might improve the content of the law in some respects; but it almost surely would not aid in achieving a “coherent framework” for decision“making. On the contrary, by multiplying the independent factors to be “judiciously balanc[ed],” Witte’s approach would make the law even more subjective and unpredictable than it already is.

In reality, there is little cause to worry. In practice (both now and in colonial times), Witte’s “principles” have functioned more like highly malleable, substantially interchangeable rhetorical themes; virtually any result in the various controversies that have arisen could be (and usually has been) reached and explained in terms of any of those themes. And though rhetorical preferences differ somewhat from advocate to advocate and from period to period”the “separation” theme drops on the charts as the “equality” theme gains popularity”in fact all of the themes have been available, and in active use, throughout our history. So in the end, the “multiprincipled” approach effectively ratifies what we have been doing all along.

The unfortunate consequence of Witte’s entanglement in the standard discourse of “principle” is that the book’s considerable promise goes largely unfulfilled. Few legal scholars in this area have Witte’s depth of learning. Moreover, his motives and instincts seem sound. For my part, I often agree with his “bottom line” on particular cases and issues (though there is little beyond his say“so to indicate that a “judicious balance” of the sundry principles would support his preferred outcomes over the leading alternatives). Witte wisely urges due deference to tradition. And his intriguing final paragraph (for which little in the book prepares us) suggests that he perceives the harm in excessive judicial interference in religious freedom concerns.

But these prudent counsels have an awkward, gratuitous quality; they are detached from, and at odds with, Witte’s overall insistence on viewing the First Amendment as a repository of multiple, sweeping, judicially enforceable principles. The logic of that position demands, if anything, more judicial intervention, not less. In this spirit, Witte asserts that “a strong reading of the principle of separation of church and state . . . remains essential””though not, he adds, in “unessentials””and “the Court must be at least as zealous in protecting religious conscience from secular coercion.”

It seems that like the rest of us, and despite his better instincts, John Witte is a prisoner of principles.

Steven D. Smith is the Robert and Marion Short Professor, Notre Dame Law School, and author of Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995).