OCTOBER 18, 2020
AMERICAN RELIGION WAS a shock to Frances Trollope. The reform-minded English writer came to the United States in 1827 with hopes of revitalizing her family finances. But she left disappointed after four years. In her memoir of her American travels, Trollope commented on the dynamic but bewildering religious life of the young nation. The whole people appear to be divided into an almost endless variety of religious factions. She found it distressingly chaotic. Better, thought Trollope, to have a respectable established church as a home for the quiet, non-fractious Christians.
A generation earlier, James Madison had reached the opposite conclusion about American religion. The worst way to resolve the differences between religious sects, Madison argued, was legal establishment. That would force religious sects into a competition among themselves for dominance under the law. A just government will be best supported by protecting every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another. It is Madisons analysis, not Trollopes, that seems most natural to Americans today. Why this is so is a question historian Jack Rakove tackles in his new book, Beyond Belief, Beyond Conscience.
Madison and his collaborator, Thomas Jefferson, are pivotal characters in Rakoves elegant and engaging new study of religious liberty in America. Madison and Jefferson are familiar characters who appear in countless histories of free exercise, from professional historical scholarship to judicial opinions to popular history documentaries. Rakoves goal is not to radically upset a familiar narrative but to approach it in a more sophisticated way. Its a work that synthesizes the latest scholarship and is liberally sprinkled with Rakoves own insights, gleaned from years of study of the founding and particularly of Madisons thought about constitutional design.
The Problem of Faction
An organizing theme in the book is faction. Faction was central to Madisons political thought. Religious diversity captured in microcosm this problem and its solution.
Madison worried that the splintering of the American polity into factions could destroy the young nation. In Federalist numbers 10 and 51, two of the most famous essays in American political thought, Madison argued that democratic governments tend to break into self-interested factions. His solution was to harness rather than eliminate faction. As Rakove summarizes Madisons point, the best security for liberty would rely on the existence of a multiplicity of sects (or interests) that would cure the mischiefs of faction. Rather than design a perfect government, the goal was a government in which the conflict of faction would be productively channeled; ambition would counteract ambition and the government would be kept in balance.
Religious freedom presented an analogous problem, and Madison opted for a similar solution. Religious groups were factions with powerful claims on the loyalty of adherents. In a situation with establishment, one faction had power that others could only struggle to obtain. Mere toleration would not necessarily avoid serious conflict, as the sects that were tolerated but not established could still only wish to have the power and authority achieved by becoming established.
The solution was not just government toleration of religious diversity a concession (magnanimous or grudging) by a government that could decide to regulate religion more directly if it wished but rather recognizing religion as outside the scope of government regulation. As the Virginia Declaration of Rights declared, [R]eligion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.
Rakove argues that Madison and Jeffersons thought about religious freedom was at the cutting edge of constitutional thinking: No other right placed as great a value on the moral autonomy of individuals  or on their capacity to shield their beliefs and behavior from the scrutiny of the state.
Told this way, Rakoves history sounds like the story of an American enlightenment. But while Rakove does indeed cast Madison and Jefferson as intellectual visionaries, he doesnt reduce the story to one of intellectual genealogy.
A Culture of Religious Conflict
Factions mattered in theory because conflicts between religious groups were such a prominent part of Europeans lived experience for the two centuries preceding the American founding.
This conflict is Rakoves starting point. Wars of religion broke out almost immediately after the introduction of Protestantism in Germany in the early 16th century. England was late to the wars but had years of religious upheaval nonetheless. King Henry VIII broke with the Roman Catholic church and claimed the title of head of the church for himself in 1531; Parliament confirmed his position with the Act of Supremacy in 1534.
With every change of monarch came upheaval in English religion hardly a formula for national peace. Henrys heir Edward VI (only nine years old when crowned) sympathized with the far-reaching reform agenda of proto-Puritans, but his efforts to institute the reforms were cut short by his death at age 15. His half-sister took the throne and worked to restore Catholicism, earning the nickname Bloody Mary from her opponents by her zeal for executing Protestants. Elizabeth restored the moderate Protestantism of the Church of England; now Catholics were persecuted. Meanwhile, a growing group of hot Protestants, eventually known as Puritans, began agitating for more rigorous reform within the Church of England. The Puritan movement grew in strength during the reigns of James I and Charles I, even as it was constantly riven with internal disagreements and periodically persecuted by the leadership of the established church. The English Civil War was among other things a religious conflict; Puritans were victorious, but after the protectorship of Cromwell, the restoration of the monarchy brought with it a return to the moderate Anglican status quo.
Moderate, Rakove makes clear, does not mean tolerant. It meant avoiding extremes of behavior, but also an effort to limit the growth of rival sects through a vigorous projection of the power of the state. This was the basic policy embraced by Elizabeth and the Stuart monarchs, from James I until Charles II. James II, a convert to Catholicism, complicated the issue with a fairly radical move toward toleration. However one assesses Jamess intentions, whether one sees him as a potentially enlightened architect of a religious Magna Carta or an artful absolutist seeking to co-opt his political opposition, his bid for religious toleration could never outweigh his Catholic and Francophile commitments, Rakove writes. This doomed his efforts and his monarchy; he was ousted in the Glorious Revolution of 1688. John Lockes famous letter on toleration synthesized some of the newer ideas about toleration. But in its own day, it was overshadowed by the political issues in the Glorious Revolution.
An American Culture of Religious Liberty
The divergence was not merely religious conflict versus Enlightenment. In Rakoves telling, it was old world versus new. Rakove argues that Americans became habituated to religious diversity and dropped the instinct toward establishment in a way that Europe had not been able to do. Indeed, Rakove explains, [B]y the middle of the eighteenth century before Jefferson and Madison entered the scene Americans were already accepting the norms of free exercise.
To explain why this happened, Rakove takes readers on a whirlwind tour of colonial Americas cultural history. New England Puritans developed a strict and intensely spiritual culture. Despite its strong communal aspect centered around local churches, Rakove identifies an individualist strand in Calvinistic Puritan thought: constant introspection, attention to ones conscience and ones understanding of Scripture. In this society, no one could afford to abandon the exercise of conscience. Before long, the dream of a religiously homogeneous colony was in jeopardy, as Quakers, Baptists, and antinomians assaulted the Puritan sensibilities in New England. Further south, the middle colonies of New York, East and West Jersey, and above all Pennsylvania became increasingly tolerant of diversity. In the early 18th century, religious awakenings punctuated the usual rhythms of religious life with heightened emotion, controversy, and fragmentation.
Its not that the American colonies had an epiphany and abandoned coerced religious belief. Rather, Rakove says, the idea of a sharp divide between establishment and dissent fizzled away by the middle of the 18th century. Dissent became an increasingly meaningless category as it became ever more difficult to say where orthodoxy resided.
Turning Culture into Law
If so much of the practical reality of religious liberty emerged through a highly contingent cultural evolution, whats left for folks like Madison and Jefferson to do? Basically, Rakove presents them as completing the paradigm shift from European-style establishment, well beyond toleration, to the modern American regime of free exercise. The Revolution was the catalyst, and Madison and Jefferson are Rakoves case studies to understand the revolutionary moments potential. In using them and the Virginia experience somewhat more broadly as case studies, Rakove has the opportunity to delve into the political theory underlying their project. (This comes with a risk of over-emphasizing the importance of Madison and Jefferson, whose theories especially about religion were sometimes outside the mainstream of then-current American political thought.) The ultimate result of the revolutionary project in Virginia was full and formal disestablishment. With this came several iterations of the principle of religious liberty, in legal documents like the Virginia Declaration of Rights (1776) and the Statute for Religious Freedom (1786) as well as in the political discourse, including Madisons Memorial and Remonstrance against Religious Assessments (1785). These experiences in turn informed Madisons approach at the national level when the principle of non-establishment and free exercise was embodied in the Bill of Rights.
Disestablishment in Virginia cast a long shadow, and its story is the most frequently told, but it wasnt the only state that mattered. Rakove finds that in the early years of the young American republic, the most influential statement of religious freedom was not the handiwork of the Virginians but of the Pennsylvanians. The language in the Pennsylvania Constitution of 1790 was copied with only slight variations by Kentucky (1792), Tennessee (1796), Ohio (1803), Indiana (1816), Illinois (1818), Missouri (1820), Arkansas (1836), Texas (1845), and Wisconsin (1848). It described free exercise of conscience as a natural right: no one could be compelled to support any religious institution nor be subjected to coercion by any religious institution.
Disestablishment ushered in an era of intense ferment in American religion. Religious sects formed, divided, competed, and sometimes litigated. The results largely vindicated the Madisonian approach, Rakove argues. Different religious groups guarded against the dominance of any one particular sect over the others.
It did not, however, prevent a broad Protestant consensus from shaping law and government policy. This led to trouble as American religion continued to diversify. Catholics complained about the Protestantism of American public education. Mormons got into trouble for practicing polygamy, leading to the Supreme Courts first case interpreting the Free Exercise Clause.
Judicial doctrine interpreting the Constitutions free exercise guarantee didnt really grow until the 1940s. The Jehovahs Witnesses were the catalyst then. Other key cases featured Seventh-day Adventists, Amish, and Santeria adherents, among others.
Private Religion and the Balance of Power
Reflecting on the cases in the latter half of the 20th century, Rakove is troubled by the rise of religious exemptions. Starting with Sherbert v. Verner (1963), the Supreme Court interpreted the First Amendments Free Exercise Clause as requiring religious exemptions unless the government has narrowly tailored its law to further a compelling government interest. After the Court walked this back in Employment Division v. Smith (1990), Congress legislatively recreated the exemptions system through the Religious Freedom Restoration Act (1993).
Rakove explains that the exemptions regime would have been foreign to the founders. Moreover, he argues that it threatens a key assumption of the Madisonian approach to religious liberty: religion is protected when it is kept private and voluntary. Once it steps out into the public, as it were, things change: no longer should religion be exempt from the regulatory authority of the state. The corollary, Rakove believes, is that the less private religion is, the more it becomes just one more interest in the unseemly competition of politics.
Rakove is a historian, not a legal theorist. He is diffident, as historians usually are in print, about moving from historical analysis to normative analysis. So he doesnt claim to have all the answers. Still, one might wonder if the public-private distinction that Rakove emphasizes really has as much to offer as he thinks it does.
First, the sharp divide between public and private that is, between interior belief and external conduct is not exactly clear-cut historically. Even if one thinks with Rakove that Madison and Jefferson tended in this direction, such views were of limited public influence historically. Public funding for religious schools and even funding for mission efforts to native peoples were regular parts of public practice in the early republic. Religious exemptions from general laws were legislatively enacted and occasionally required by courts. Again, to be fair to Rakove, he doesnt claim that American law and culture neatly reflect the Madisonian theory he finds attractive. But its worth emphasizing the distinction between the theory and the history. The heavy emphasis on the public-private distinction is a theoretical point that glosses the most Enlightenment-influenced elements of Jefferson and Madisons thought. But things were never this neat in practice.
Second, theres reason to question whether what Rakove calls the Madisonian theory really solves many problems in the real world. Privatizing religion might be a neat solution if it were possible. But is it? What does a really private religion look like? Has one ever existed? (There is good reason that the public-private distinction was an easy, and early, target for critical legal scholars.) Taken to its logical extreme, a privatization paradigm doesnt seem to leave much in the way of protection for free exercise. To say that one can believe whatever one wishes in the most private of all domains, the beliefs of the heart and commitments of the conscience, is such a minimal commitment as to be banal. Interior conscience isnt the same as religion, with its commitment to some kinds of practice and which might not always be based on conscience (religious commitment could, for instance, be based on tradition, a sense of cultural fidelity, or something else). The moment a commitment to religious liberty involves something more than just conscience, the difficulty of defining the public-private distinction comes back. Prayer is conduct; how publicly can it be done? What about scripture reading? What takes place inside a church is arguably private (within a somewhat more capacious framework) but what if its a church that wants to meet during a pandemic?
The point is not that all of these practices would or should be protected by any particular conception of free exercise of religion. But it is to point out that the public-private distinction that Rakove emphasizes doesnt get us very far in answering the hard questions.
One could imagine a different way of putting the pieces of the puzzle together. Take as the starting point the link (so insightfully noted by Rakove) between Madisons theory of faction and his thought about religious liberty. Then consider the fact that (as Rakove points out) the religious groups kept outside the mainstream were the ones who caused trouble: Catholics agitating against the Protestant dominance of public education in the 19th century; unpopular Jehovahs Witnesses litigating for their rights to proselytize; Sabbatarians seeking exemptions from Saturday work requirements. If the point is to have ambition counteract ambition, then this seems to be working quite right. Could we say that the minority groups are fulfilling an important function every time they seek to push back in the name of religious liberty against majoritarian assumptions and policies? This raises some intriguing possibilities about contemporary religious liberty litigation, which, more than in the past, seems to feature religious groups in the mainstream of American religion: evangelical protestants, mainstream Catholics. Perhaps they are subverting religious liberty by making it into a tool for the majority. Or perhaps the Madisonian system is working just fine, forcing necessary conversations (in law and politics) about how these groups live out their religious commitments in a complicated world where important policies on contraception, for instance impinge on some traditions religious beliefs. Either way, though, I think the more interesting conversation is the one that builds on Rakoves points about faction rather than about the public-private divide.
The Value in a Historical Perspective
Frances Trollope would doubtless be no happier with American religion today than she was when observing its chaotic energy in the Jacksonian era. The religious field is only more diverse. The problems of religious exercise are only more pervasive in an era with a much larger regulatory state than anyone dreamed of in the early republic. Historical perspective helps us to think beyond our contemporary moment to the larger questions about how we got here and whats at stake. Rakoves book provides perspective in a form that is accessible even as it communicates insights from some of the best recent historical scholarship on the subject. It arguably overemphasizes Jefferson and Madison, and there are reasons to question whether the points of political theory that Rakove emphasizes are the most helpful or persuasive for sorting out religious liberty as a normative matter. Still,the writing is clear and crisp; the subject matter compelling; Rakoves analysis is consistently thought-provoking.
Lael Weinberger is the Olin-Searle-Smith Fellow in Law at Harvard Law School. Follow him athttps://twitter.com/LaelWeinberger.
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