Vol. 29 No. 9 (October 2019) pp. 105-109THE FREE EXERCISE OF RELIGION IN AMERICA: ITS ORIGINAL CONSTITUTIONAL MEANING, by Ellis M. West. Palgrave Macmillan, 2019. 317 pp. Cloth $89.99. ISBN: 978-3-030-06051-0. E-book $69.99. ISBN: 978-3-030-06052-7.
Reviewed by Andrew R. Murphy, Department of Political Science, Virginia Commonwealth University. Email: amurphy5@vcu.edu.
First things first: THE FREE EXERCISE OF RELIGION IN AMERICA: ITS ORIGINAL CONSTITUTIONAL MEANING is a tour de force. It will surely become the book from which future debate over the historical origins of the religion clauses, particularly the Free Exercise clause, begins. Professor West seems to have read everything on this topic, and he manages to weave it all together – not only primary source materials but also historiographical, legal, philosophical, and political ones – into a thorough and comprehensive account. In the Preface, West describes the book as “a long time in the making” (p. v), with its origins reaching as far back as his 1971 doctoral dissertation; he was inspired to complete it, he adds, by unfinished business from his THE RELIGION CLAUSES OF THE FIRST AMENDMENT: GUARANTEES OF STATES’ RIGHTS? (West 2011). The book thus represents a summation, of sorts, of an entire career spent studying the nature, meaning, and limits of American religious liberty.
THE FREE EXERCISE OF RELIGION IN AMERICA is provocative, in the very best sense of that word. Indeed, its first provocation comes on its first page, where West writes that the book “explains the original meaning of the two religion clauses” (p. 1, emphasis added). He acknowledges that evidence about early Americans’ views can be difficult to come by, but justifies his use of the singular definite article by stressing that we have ample records of those groups that took an active role in debates at the time. He then advances the book’s central claim: that there was a shared view, endorsed by a “clear majority of Americans who advocated and defended the free exercise of religion” (p. 24), about its meaning during the crucial early years of the American republic. Yet his observation seems also meant to apply not only to those supporting this majority view but also to early Americans more generally. With the exception of New England elites, he writes, “Most other Americans understood the free exercise of religion guaranteed by the First Amendment in the same way that they understood the free exercise of religion guaranteed in their state constitutions, and most of those state guarantees quickly came to have the same meaning” (p. 24). It is an important move, from an argument about how the “majority of Americans who advocated …the free exercise of religion” defined that term to a more expansive one about “how the American people originally understood it” (p. 24); and it effectively transforms a claim about one side in a political debate to a far more ambitious one about a broadly-held early American consensus.
It is crucial to the book’s argument, of course, to know in legal and jurisprudential terms how elites behind the constitutional provisions understood the term “free exercise of religion,” and West provides an extraordinarily detailed and meticulously crafted presentation of the dominant view. That said, we should not assume that through this explanation we have therefore established what “early Americans” generally thought on the topic. There were always other views: most notably, Quaker pacifists, who – largely unsuccessfully – attempted to secure exemptions from militia service on conscience grounds. After all, “in most of the states there was widespread, vigorous, and continuing debate…over how the various provisions should be interpreted and applied, and thus over the meaning of the free exercise of religion,” even if by 1790 “one view of religious liberty became dominant” (p. 196).
In addition to these opening provocations about “the” understanding of free exercise, the book [*106] makes a series of broader claims as part of Chapter 3, “Setting the Stage.” “Early Americans did not have a Darwinian view of society,” nor did they believe in an invisible hand economic theory; to the contrary, they believed that “persons were morally free only to do that which is right” (p. 42). Such a view of morality and politics, as we shall see, had significant implications for the theory and practice of religious liberty. More controversially, West argues that “[e]arly Americans believed that by nature (as created by God) all persons are free and equal…” (pp. 36, 38). Perhaps they did. Then again, the persistence of slavery – to say nothing of widespread anti-Catholicism and gender, religious, ethnic, and political exclusion – might have led to more muted assertions about what early Americans believed. It is important to keep in mind that social and political reality frequently belied these claims, as social historians of American religion have frequently pointed out (see, e.g., the essays in Beneke and Grenda 2011; Corrigan and Neal 2010; Grasso 2018; and Sehat 2010).
On one issue especially, West is consistent in focus, detailed in argumentation, and wholly persuasive: the issue of religion-based exemptions to general laws. He admits that, with the exception of Pennsylvania, “the issue of whether the free exercise of religion entails a right to religion-based exemptions from at least some valid, civil laws was of little significance during the colonial period” (p. 47), and builds an impressive case that support for such rights lacked any real support among the dominant actors of the founding period. But what makes exemptions so deserving of attention? Why focus on them at all, if early Americans gave little attention to the issue, and they garnered no significant support among influential actors in ratification debates?
Here we move from constitutional history – the overt claim of the book’s opening pages and contained in its subtitle – to contemporary church-state jurisprudence. West’s attention to the language of “exemptions from otherwise valid laws” is driven by more recent developments, particularly cases like SMITH V. OHIO (1990) and BURWELL V. HOBBY LOBBY (2014) and the 1993 Religious Freedom Restoration Act (RFRA). In the book’s opening chapter, West describes RFRA as granting “persons and groups a statutory right to be exempt from obeying a valid law that they do not want to obey” (p. 11, emphasis in original). But using the language of desire – that such citizens “do not want to obey” the law – arguably misrepresents the phenomenon in profound ways, and makes it impossible to understand such citizens as they see themselves. For those who face crises of conscience in the face of state power, the problem is not about what they “want” to do. Rather, it is about what they understand themselves to be obligated to do (or prohibited from doing) if they are to live lives of conscientious integrity. Without weighing in on the substantive merits of any case, I would suggest that using such language – West softens slightly later in the same page, describing individuals who want to be exempt from “perfectly constitutional [laws] if they have sincere religious reasons for not wanting to obey the laws” (p. 11) – stacks the deck, framing these citizens as willful troublemakers instead of individuals facing sincere conscientious conflicts. Further, posing the book’s historical findings as answering the different and more complex realities facing twenty-first century Americans in a dichotomous way (“would early American defenders of religious liberty have sided with the Supreme Court or Congress’ interpretation of the free exercise of religion?” [p. 12]) surely overstates the degree to which early modern texts provide clear solutions to late modern problems.
Part of what drives many of the disputes that West takes up (in their historical as well as their contemporary versions) is an argument that goes to the very notion of religion itself. The early modern tolerationist tradition epitomized by Locke, which gave rise to the American movement for religious liberty built many of its arguments on a distinction between temporal and spiritual concerns, acknowledging that governments were empowered to deal with the former but forbidding them from interfering with the latter. Such theorists argued that the essence of religion lay in internal concerns about [*107] salvation, acted out primarily in worship settings and achieved through the voluntary financial support of congregations of the faithful. But this was a political definition, deployed in political struggle (a remarkably successful political struggle, we might add). To pretend that it offers a clear and unproblematic definition of religion, or that the characteristics and qualities it ascribes to “religion” are somehow inherent in the phenomenon itself, oversimplifies a much more complex reality. In fact, the distinction between “religious” or “spiritual” on the one hand, and “temporal” or “worldly” – or, as we might say in the twenty-first century, “secular” – on the other, was itself a deeply political and contested one during the Enlightenment (see Lincoln 2009.) It is true, as West writes in the conclusion, that the dominant understanding of religious freedom “assumes that it is possible to distinguish between laws dealing primarily with religion, which are not allowed and do not have to be obeyed, and laws dealing with earthly and worldly affairs, which are not only allowed but must be obeyed” (p. 300).
To be fair, West is explicit that his focus is on explicating the dominant view and (implicitly) highlighting the way that it supports one side in today’s church-state debates, rather than critically engaging with its strengths and weaknesses. That said, such an approach can understate the degree to which the very notion of a “valid civil law” itself was precisely what was at stake in early American political disputes over free exercise. To offer just a few examples of these conceptual and political challenges: According to West, James Madison argued “against all laws, without exception, that are essentially religious in nature” (p. 86, emphasis in original). But what makes a law “essentially” religious in nature? Marylanders, he points out, held that religious freedom meant “freedom from all laws whose primary purpose or effect is to hinder or promote religion per se” (p. 108). Here again, we should not underestimate the difficulty in defining “primary” and “per se.” Most Pennsylvanians believed that there was no right “to be exempt from obeying valid, secular laws that incidentally and unintentionally interfere with the exercise of their religion” (p. 136). But surely the restriction of religious exercise by such laws was hardly incidental to the individuals or groups affected, and “unintentional” seems to imply that identifying the salient intentions behind a given piece of legislation is a relatively straightforward undertaking (or, to invoke debates over constitutional interpretation, that it carries dispositive weight in assessing legislation’s acceptability).
Part of this definitional question hangs on the notoriously tricky relationship between religion and culture. In laying out the dominant view of religious liberty, West points out that laws based on a Protestant Christian view of human morality were not considered “essentially religious in nature” (p. 86), and thus their restrictions on individual actions did not violate religious liberty. “[M]ost, if not all, early Americans did not think that religious liberty precludes the government from enforcing the moral law, even on the belief that it comes from God” (p. 181). He goes further in the concluding chapter, writing that “advocates of religious freedom…simply did not think that [laws against e.g., drunkenness, gambling, and fornication] dealt with religion, even if they are justified on the basis of Scripture” (p. 208, emphasis added). Punishments for a long list of behaviors including “acting licentiously,” “speaking irreverently… of the government,” or “infringing the laws of morality” also were not considered violations of religious freedom because they were “justified on civil and not religious grounds” (p. 218). Laws against profanity and blasphemy are “more difficult to reconcile with the free exercise of religion, yet they remained on the books” (p. 211). Perhaps the issue here lies in the book’s focus on free exercise and not establishment, but it is difficult to see how a law explicitly justified by a dominant group’s sacred text does not implicate religious liberty in some fundamental way. The “civil and not religious” distinction was likely lost on those wishing to labor on Sunday, take in a stage show, or merely voice heterodox opinions about the Trinity. Invocations of “social order” and “public morality,” on the other hand, have long been used to silence all sorts of dissenters, and such nebulous justifications had long attracted the ire of [*108] marginalized religious groups (see, e.g., Shagan 2011).
It comes as a bit of a surprise to the reader that, in a society in which “most persons came to believe that the free exercise of religion requires not just the toleration of dissenters but also religious equality, that is, the elimination of all aspects of establishments of religion” (p. 54), only one state allowed the public celebration of the Catholic Mass at the time of the American Revolution (p. 130). Perhaps not coincidentally, that colony was Pennsylvania, whose founder had advanced a political theory of toleration that far outpaced Locke’s and who considered Catholics as deserving of liberty as Protestants (see Murphy 2016, chs. 4, 6). Penn dismissed anti-Catholic prejudice for what it was in his view: a desperate attempt by power-hungry Protestants keen to maintain their own positions of power. To be sure, excluding Catholics from tolerationist schemes had a long pedigree, but that does not make its justifications any less ham-handed or unconvincing, since very few eighteenth-century Catholics seriously considered themselves to owe political allegiance to the pope. (Then again, Pennsylvania prohibited horseracing, gambling, “disorderly sports and dissipation” [p. 141], and all theater and stage plays, so it was hardly the beacon of religious liberty that it often proclaimed itself to be.).
THE FREE EXERCISE OF RELIGION IN AMERICA lands in our scholarly midst at a time of continuing political and legal struggles over the meaning of religious liberty. Though one might have wished for West to say more directly how he sees the connections between the remarkable historical record he has fleshed out and our twenty-first century debates, his reticence seems rooted in a principled respect for contemporary Americans’ responsibility for their own political fate. If he tips his hand at all, it is in the book’s final paragraph: the issue of how contemporary Americans ought to understand religious liberty “can and should be addressed by contemporary Americans…for they have the right to decide for themselves the meaning of religious freedom” (p. 308). Yet, he continues, the historical record ought to hold some weight in these considerations: “Should [contemporary Americans] not at least understand and give a respectful hearing to the original meaning of the free exercise of religion…?” (p. 308) Indeed, they should. Whether or not they should defer to those historical understandings – and whether or not those historical understandings can make sense of the radically transformed political and religious landscape that twenty-first century citizens face – is another question entirely, raising complex questions of constitutional theory and interpretation. For his answer to those questions, we can only hope that Professor West has another book still to come.
CASES:
BURWELL V. HOBBY LOBBY, 573 U.S. _____ (2014).
SMITH V. OHIO, 494 U.S. 541 (1990).
REFERENCES:
Beneke, Chris, and Christopher Grenda (eds.) The First Prejudice: Religious Tolerance and Intolerance in Early America. Philadelphia: University of Pennsylvania Press, 2011.
Corrigan, John, and Lynn S. Neal (eds.) Religious Intolerance in America: A Documentary History. Chapel Hill: University of North Carolina Press, 2010.
Grasso, Christopher. Skepticism and American Faith: From the Revolution to the Civil War. New York: Oxford University Press, 2018.
Lincoln, Bruce. Holy Terrors: Thinking about Religion after 9/11. Chicago: University of Chicago Press, 2009.
Murphy, Andrew R. Liberty, Conscience, and Toleration: The Political Thought of William Penn. New York: Oxford, 2016. [*109]
Sehat, David. The Myth of American Religious Freedom. New York: Oxford, 2010.
Shagan, Ethan. The Rule of Moderation. Cambridge: Cambridge University Press, 2011.
West, Ellis M. The Religion Clauses of the First Amendment: Guarantees of States’ Rights? Lanham, MD: Lexington, 2011.
© Copyright 2019 by the author, Andrew R. Murphy.
