Vol. 7 No. 5 (May 1997) pp. 237-239.

ALL IMAGINABLE LIBERTY: THE RELIGIOUS LIBERTY CLAUSES OF THE FIRST AMENDMENT by Francis Graham Lee (Editor). Lanham, Maryland: University Press of America, 1995. 191 pp.

Reviewed by Richard A. Glenn, Department of Political Science, Millersville University, Pennsylvania.
 

Of all the liberties a person possesses, perhaps none are more important than those in the area of religion. A government that will coerce its citizens in this domain will hardly think twice about temporal coercion. Should government dictate to citizen in the most personal of all relationships--namely, the relationship between individual and Creator--it is not too much of a stretch to assume that government possesses the authority to mandate all other types of relationships, or, if taken to the extreme, to dictate the whole of life. To understand fully the religious freedom found in the United States today, some knowledge of history is required. ALL IMAGINABLE LIBERTY: THE RELIGIOUS LIBERTY CLAUSES OF THE FIRST AMENDMENT provides some of that history. Francis Graham Lee, professor of political science at St. Joseph’s University, has edited seven articles (written by historians, political scientists, and lawyers, and originally delivered as lectures in 1989 to celebrate the Bicentennial of the Constitution) that examine the extension and definition of religious freedom in the United States. The first four essays trace the development of religious liberty on the North American continent; the remaining three explore the impact of the religion clauses on contemporary America.

Securing religious freedom was a central purpose for the Puritan flight to the North American continent. This migration, however, cannot be explained fully in terms of a "quest for religious freedom." Indeed, the forces of intolerance and exclusivity were no less important in the religious life of colonial America. Many of those who came to the New World to escape religious persecution soon persecuted. Professor Jay Dolan of Notre Dame succinctly charts the rise of religious freedom in the colonies: from coercion to toleration to persuasion. In the "era of coercion" (seventeenth century), no distinction was drawn between the sacred and secular. Religious dissenters such as Roger Williams, Anne Hutchinson, and the Quakers challenged this orthodoxy. By 1700, toleration was accepted as a matter of principle. Toleration, however, did not include the right to unbelief (witness state constitutions during this period that provided freedom only to those religions within the "pantheon of Protestantism") and did not mean the separation of church and state. Persuasion eventually replaced toleration. The rising tide of immigrants, the intellectual currents of rationalism and pietism, the Great Awakening, and the Age of Reason promoted the conviction that, as regards religion, "persuasion, not coercion [was] the keystone of freedom." (See, for example, Jefferson’s "Bill for Establishing Religious Freedom" and Madison’s "Memorial and Remonstrance.")

Professor J. William Frost of Swarthmore College chronicles religious liberty in Pennsylvania from 1682 to the outbreak of the Civil War. (Unlike many states, Pennsylvania never did establish a state church, support clergy with taxes, mandate a tithe, dispense justice through ecclesiastical courts, or punish religious dissenters.) While this "holy experiment" did not result in absolute harmony, it did demonstrate to the rest of the nation that religious diversity did not lead to disaster.

Joseph Casino of the Saint Charles Borremeo Seminary and Patrick W. Carey of Marquette University detail the American Catholic experience with religious liberty. In even the most religiously tolerant colonies, anti-Papist fears persisted. (The Catholic Church had few conversions and many defections during the Colonial and Revolutionary periods.) Out of the struggles of an infant church in a hostile environment, and out of the supreme confidence in the superiority of their creed, American Catholics evolved an understanding of church-state relations nearly incomprehensible to the European mind. The irony is rich. Catholics could not support religious liberty, so the argument went, because they belonged to the church that not only favored the union of church and state, but in principle supported persecution for the sake of enforcing its own perception of the truth and justice in society. It was, after all, the church of the inquisition. Yet, the Catholic Church, perceived as the great threat to religious liberty, gave birth to a theory of religious liberty more embracing than that held by many of its religious opponents and at odds with Catholics on the European continent, including the Pope. (Once viewed with suspicion by Rome, this understanding became the foundation of Vatican II’s Declaration on Religious Liberty.) The Catholic Church, as much as any church, contributed to (and benefited from) the religious liberty espoused in both state and federal constitutions.

Any scholarly reading of the debates during the summer of 1787 reveals that most of the framers approached their task with an eye to the secular, creating a document that provided for noninvolvement in matters of religion. (The single reference to religion in the Constitution is Article VI, Section III: "No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.") The first guarantee in the Bill of Rights, however, was religious freedom: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." Judge John T. Noonan of the Ninth Circuit Court of Appeals concludes that the purpose of the Religion Clauses was to secure the rights of conscience: to guarantee that government would not enter the sphere of human life that transcended government. Yet because these clauses were "neither a legal code nor a fully operative set of directions," their development was slow and the protection of conscience partial. (At no time before 1940 were the religion clauses enforced by the Supreme Court against any branch of the federal government.)

Philip B. Kurland of the University of Chicago speaks to the Establishment Clause. Constitutional history has accepted, with occasional backsliding, the principles of toleration and separation advanced by Jefferson. Unfortunately, the modern Supreme Court has attempted to improve on those principles by offering new and different rationalizations, frequently tailored to the facts of the case before it and cut on a bias to achieve a result. When sophistry supplants reason and principle, the result is an accumulation of contradictory precedents. The problem, according to Professor Kurland, is that the justices are not addressing the right question: "The problem is not, as they tend to see it in so many cases, whether government may aid or support religion, whether by way of subvention or imprimatur. That question is answered in the negative by the Constitution. The issue usually raised by the cases is whether the government action or inaction is in fact aid to religion." (That question, however, is a difficult one to answer. In modern society religious organizations play a multiplicity of roles.)

In the final selection, Henry J. Abraham of the University of Virginia chronicles the efforts of Congress and the Supreme Court to define "religion." This definition has been most often tested when dealing with military exemptions and conscientious objectors. The Court’s definition has developed gradually (in the best of the common law tradition), case-by-case, and has been tailored to accommodate the specific goals of society. Professor Abraham, perhaps more importantly, makes the case that the judiciary (and not the Congress) is responsible for this definition. Through an analysis of Supreme Court cases, the lecture correctly concludes that traditional notions of a deity are no longer required under the obligations and assurances of the First Amendment’s religion clauses.

ALL IMAGINABLE LIBERTY: THE RELIGIOUS LIBERTY CLAUSES OF THE FIRST AMENDMENT differs from other publications in this field in one respect: it suggests no action. While it reaffirms the principles advanced by Jefferson, Madison, William Penn, and others, it does not tell us why (or how) we should incorporate those principles into both our public and private lives, thus making them a political reality. The only truly impassioned plea for religious liberty comes from Professor Kurland:

"The forces of the anti-Jeffersonians ... are gaining political strength as the fundamentalist churches become the most potent Political Action Committees in the Nation.... [A]s the religious differences among American religions and sects continue to diminish, the prime protection for individual freedom ..., multiplicity of religious organizations, is disappearing…. [A]bsent the protections of the Constitution, majority rule will destroy minority rights.... What is at issue is nothing less than the freedom of the individual mind." By failing to suggest action, however, ALL IMAGINABLE LIBERTY successfully avoids the questions that so plague the religious liberty debate today: How does the Constitution accommodate all beliefs, including non-belief, without advocating any? How does it avoid theocratic tendencies and hostility toward religion?

ALL IMAGINABLE LIBERTY is a celebration of the development of religious freedom. And two centuries of relative religious liberty are much to celebrate. Lee and others remind us that nothing can be trivial that concerns the freedom of religion. Perhaps no person since Jefferson has so majestically stated the Constitution’s commitment to "freedom of the individual mind" than Mr. Justice Robert H. Jackson did in the second Flag Salute Case, West Virginia Board of Education v. Barnette (1943): "[I]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." It is quite ironic that one essay omits the word "religion" when quoting Jackson’s opinion.


Copyright 1997