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11/03/2020

Vincent Munoz on Religious Liberty
Michael Ramsey

At Law & Liberty, Vincent Munoz: The Founders’ Religious Liberty, Beyond Rakove (reviewing Beyond Belief, Beyond Conscience by Jack Rakove).  From the introduction:

In Beyond Belief, Beyond Conscience, Pulitzer-Prize-winning historian Jack N. Rakove returns to the American Founding, this time to explore the “radical significance” of the free exercise of religion. Rakove sets forth his task as “to explain how the quandaries of Religion Clause doctrine are not merely functions of differences in judicial thinking or ideological commitments, but rather reflect conditions and tensions embodied in our historical experience.” The slim volume elegantly and informatively addresses the historical contexts in which religious freedom emerged in Europe in the 16th and 17th centuries, became a constitutional right in late 18th-century America, and then developed in modern American Supreme Court jurisprudence. Insofar as it sets forth the various historical circumstances that allowed religious freedom to become a constitutional right, it offers a nice introduction to the subject. The book, however, does not quite articulate the Founders’ understanding of religious freedom correctly, which limits the work’s merit as an intellectual history and its usefulness to evaluate contemporary originalist church-state jurisprudence. 

And in conclusion:

Rakove’s most significant omission relates to how anti-Catholicism shaped modern Establishment Clause jurisprudence, which in turn has affected contemporary notions of religious free exercise. The book is curiously silent on the subject, lacking references to excellent works by Philip Hamburger or Donald Drakeman. A more thorough account would have explored how Justice Black and Rutledge’s dislike of Catholics motivated their “wall of separation” opinions in Everson v. Board of Education (1947). That case and its progeny have fostered the idea that religious freedom primarily means freedom from the influence of others’ religious beliefs and practices. This idea manifests today in those who say Amy Coney Barrett should be ineligible for the Supreme Court on account of being a faithful Catholic. It also is present in a more sophisticated way in scholarship advocating against “third-party harms,” an idea that Rakove endorses at the end of his book. The concept, which lacks much precedential support but nevertheless gained steam as a result of activist scholarship attempting to derail religious liberty exemptions from Obamacare’s “HHS Mandate,” holds that “third parties” should not be impacted on account of other individuals’ religious beliefs and practices. In practice, it means that religious believers should keep their religious beliefs and practices within the confines of their own private homes.

While Rakove all but endorses the “naked public square,” to borrow Richard John Neuhaus’ term, he says that historians in their capacity as historians cannot say which church-state “doctrinal developments are correct [and] which [are] flawed.” Like many of Rakove’s arguments, that is true in one sense and not true in another. It is true that historians are not judges, and it is refreshing to see a bit of academic humility, especially from such a distinguished historian. At the same time, originalist judges contend that they are applying the original meaning of the Constitution. It would seem that those versed in our founding history should be able to render judgment about the historical accuracy of originalist judicial doctrines. With due respect to the difficulties and complications of doing good history, why write a book about the Founders’ understanding of religious liberty if one can’t say who has appropriated that understanding correctly?

Making these judgments would require a precise understanding of the Founders’ political philosophy of religious freedom. Beyond Belief, Beyond Conscience is nicely written and often informative, but it does not offer that depth of understanding. As such, it fails to fully explain the “radical significance” of the Founders’ constitutionalism when it comes to the free exercise of religion.