Justice Joseph Story’s Commentaries on the Constitution of the United States (1833) (available for free!) is a lively, opinionated, and rangy discussion of the original understanding of the Constitution. Story was a Supreme Court justice from 1811-1845, and for much of that period he was also a professor at Harvard Law School (one could do both in those days). Professor Michael Paulsen once aptly called Story’s 3-volume tour de force “comprehensive and brilliant, but often tendentious” and listed it as among the top five books of all-time about the Constitution. Chief Justice William Rehnquist once used some of Story’s discussion of the Establishment Clause in his dissenting opinion in Wallace v. Jaffree (the moment of silence case). Here is a good chunk of Story — sections 1865-1871 of his treatise — to give you a sense of his views and style:
§ 1865. And first, the prohibition of any establishment of religion, and the freedom of religious opinion and worship. How far any government has a right to interfere in matters touching religion, has been a subject much discussed by writers upon public and political law. The right and the duty of the interference of government, in matters of religion, have been maintained by many distinguished authors, as well those, who were the warmest advocates of free governments, as those, who were attached to governments of a more arbitrary character. Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; — these never can be a matter of indifference in any well ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one’s conscience.
Alfred North Whitehead was an important philosopher of science and metaphysics writing primarily in the early twentieth century. Here is an interesting section from his book, Science and the Modern World (1925), dealing with the conflict between religion and science. We are sometimes deceived into believing that these disputes are only quite recent, but of course they are not. They are old tensions, and many writers have had provocative things to say about them. Here is a bit of Whitehead:
The conflict between religion and science is what naturally occurs to our minds when we think of this subject. It seems as though, during the last half-century, the results of science and the beliefs of religion had come into a position of frank disagreement, from which there can be no escape, except by abandoning either the clear teaching of science, or the clear teaching of religion. This conclusion has been urged by controversialists on either side . . . .
When we consider what religion is for mankind, and what science is, it is no exaggeration to say that the future course of history depends upon the decision of this generation as to the relations between them. We have here the two strongest general forces (apart from the mere impulse of the various senses) which influence men, and they seem to be set one against the other — the force of our religious intuitions, and the force of our impulse to accurate observation and logical deduction.
A great English statesman once advised his countrymen to use large-scale maps, as a preservative against alarms, panics, and general misunderstanding of the true relations between nations. In the same way in dealing with the clash between permanent elements of human nature, it is well to map our history on a large scale, and to disengage ourselves from our immediate absorption in the present conflicts. When we do this, we immediately discover two great facts. In the first place, there has always been a conflict between religion and science; and in the second place, both religion and science have always been in a state of continual development . . . .
[A]ll our ideas will be in a wrong perspective if we think that this recurring perplexity was confined to contradictions between religion and science; and that in these controversies religion was always wrong, and that science was always right. The true facts of the case are very much more complex, and refuse to be summarised in these simple terms.
Today’s classic revisited is one in the sociology and history of religion, Mircea Eliade’s The Sacred and the Profane: The Nature of Religion, first published in 1957 (the first edition pictured at right). The field of religious studies, unlike theology, is a comparatively new one — beginning in earnest in the 19th century and heating up only in the 20th. One connection to law is the ‘definition-of-religion’ issue: how can we find an essence or core of what religion is — and so what the scope is of the constitutional commitments against its establishment and to its free exercise. The issue appeared in some of the Supreme Court’s mid-twentieth century conscientious objection to military service opinions, which, while not strictly about the Constitution (they were statutory interpretation decisions), confronted the Court with the problems of how to distinguish a religious reason of conscience from a different sort of reason, and whether to do so at all. But there are other less obvious and so far unexplored connections to law, particularly constitutional law.
The eminent and supremely cultivated theorist and historian of religion Mircea Eliade, Romanian by birth, taught at the University of Chicago after a turbulent early life. Together with Joachim Wach and others, Eliade made Chicago the heart of the academic study of religion in the mid-late-20th century, and to this day it retains some of the preeminent figures in religious studies (J.Z. Smith, Martin Riesebrodt, and Jean Bethke Elshtain, among many others).
Though Eliade never had any particular influence on the Court (a treatise of his was cited in the majority opinion in the Lukumi Babalu decision, as well as in a handful of 2d and 3d circuit decisions), his ideas about the nature of religious experience are extremely interesting and possibly deserve further study by legal scholars and courts — including by those interested in the psychology of originalism. One of Eliade’s crucial ideas was that the conceptions of “sacred” and “profane” time differ fundamentally. In sacred time, every time that we engage in a ritual or a ceremony, it serves to reactualize the “mythic beginning” which is “indefinitely recoverable, indefinitely repeatable.” (69) Sacred time is therefore cyclical; while profane time is linear. That “beginning” is not to be found in a historical moment because no time can precede “the appearance of the reality narrated in the myth.” (72) It is in this way that sacred time (and, we might say, sacred legal time) creates fissures or what Eliade called moments of “hierophany” in the humdrum linearity of profane time, in which a (legal) “beginning” is recalled and reactualized in (legal) ritual.
Eliade’s writing (laced in part with the writing of Freud and Jung) has not penetrated the constitutional discourse, but it has something worthwhile to offer.
For some work I am now doing, I recently read a wonderful book by Steven H. Shiffrin (Cornell), The First Amendment, Democracy, and Romance (Harvard UP 1990) and thought it would be a very good choice as a classic revisited. Though the book focuses primarily on free speech rather than the religion clauses (Steve of course is deeply learned in both and has more recently written about the religion clauses extensively), and while I enjoyed (and agreed with!) much of the book, there is one portion which resonated especially deeply with me. It is Chapter 4: “The First Amendment and Method.” And Steve’s “romantic” pluralistic preferences, which shine through in this and later chapters, represent an original, provocative, and deeply appealing approach to constitutional interpretation. Here’s a bit from Chapter 4 (110-112), in which Steve contrasts “eclecticism” and (what he calls) “Kantianism” in First Amendment methodology:
A first amendment case cannot be resolved without a method to resolve it. Many commentators insist, however, that the method to resolve first amendment cases has been ad hoc and subjective. The implication is that an improvement of method could significantly improve not only the decision-making process, but also the quality of decisions produced . . . . By contrast, I maintain that the problem with first amendment decision-making is for the most part not with the method employed but with the values held by decision-makers . . . .
The method employed in first amendment decision-making, however, has importance that transcends its capacity to determine results in individual cases . . . . If the first amendment is to serve as an important cultural symbol, the modes of justification we use to persuade ourselves and others of its value and importance are themselves of special importance. Our modes of justification themselves exhibit features of our character and appeal to features of our personality . . . .
Indeed, my view is that the commitment to a particular type of method can be a major part of an individual’s intellectual identity.
Today’s classic revisited is not so old, but it is already worthy of being designated a classic: John Witte’s God’s Joust, God’s Justice: Law and Religion in the Western Tradition (Eerdmans 2006). CLR Forum readers will greatly enjoy this learned historical treatment; indeed, I cannot think of a book more at the heart of the study of law and religion than Witte’s extraordinary book. The publisher’s description follows. — MOD
There are three things that people will die for — their faith, their freedom, and their family. This volume focuses on all three, including the interactions among them, in the Western tradition and today. Retrieving and reconstructing a wealth of material from the earliest Hebrew and Greek texts of the West to the latest machinations of the Supreme Court, John Witte explores the legal and theological foundations of authority and liberty, equality and dignity, rights and duties, marriage and family, crime and punishment, and similar topics. God’s Joust, God’s Justice is a lucid scholarly introduction to the burgeoning field of law and religion and a learned historical inquiry into the weightier matters of the law.
Today’s classic revisited is Akhil Reed Amar’s The Bill of Rights: Creation and Reconstruction (1998). Obviously the book contains more than simply a discussion of the religion clauses, but I’ll focus on one of the book’s virtues in respect of that specific subject: Amar’s explanation of the Establishment Clause’s incorporation through the Reconstruction Amendments. There is a near-universal consensus that the Establishment Clause as originally adopted did not apply to the states: states were free to retain their establishments (or, indeed, to create new ones). The very purpose of the Establishment Clause was, according to Amar, to leave this issue to the states. That underlying assumption, if accepted, fits extremely awkwardly with the issue of incorporation. Moreover, unlike many of the other provisions of the Bill of Rights, which announce restrictions on the exercise of federal power (“prohibiting” free exercise; “abridging” the freedom of speech; “violating” the security of persons against unreasonable searches and seizures, and so on), the Establishment Clause uses the more passive phrase “respecting” an establishment. That language is far less clear about the sense in which establishments were thought to be problematic per se. How then, to argue that incorporation as to the Establishment Clause was appropriate?
Amar does not just assume the viability of incorporation, as did the Everson Court (with, somewhat suprisingly, not a single dissenting Justice). Instead, he crafts an argument based in part on the approach of the national government to the federal territories, many of which were eventually to become states. As an initial matter, the Establishment Clause was to apply to the territories (though Article IV grants Congress plenary power over the territories). And what Congress could not do, the territorial agent could not do. But, as Amar says, “to say that, for example, the Iowa territorial legislature ‘shall make no law respecting an establishment of religion’ was rhetorically to say something rather different than that Congress should make no such law.” (249) With time, as some of the territories became states, what had begun as a federalism provision took on more substantive content as a general anti-establishment principle applicable to all of government. — MOD
It can sometimes seem as if we in the 21st century are in a state of greater confusion — greater uncertainty and greater disagreement — than prior generations about the nature of our constitutional commitments. And yet often this is not so at all. One example involves the perennial academic contestation about the meaning of the Establishment Clause, which has a rich history all its own.
Today’s classic revisited is Robert Cord’s Separation of Church and State: Historical Fact and Current Fiction, first published thirty-odd years ago in 1982 (unfortunately, I cannot find an image for the book cover). Cord argued that the strict separationism championed by scholars like Leo Pfeffer a generation before (who was himself engaged in a protracted debate with James O’Neill) simply did not represent a sound understanding of the original meaning of the Establishment Clause. Cord’s was a strike for the “non-preferentialist” interpretation, and it is an account well-worth reading not only for the evidence that Cord marshals, but also for its historiographic importance — as a scholarly moment in the perpetual conflict over the proper relationship between church and state. Take a look at Cord! — MOD
Today’s classic revisited is Mark DeWolfe Howe’s The Garden and the Wilderness: Religion and Government in American Constitutional History (U. Chicago Press 1965). Howe — who wrote in an era when separationism was the dominant outlook in both the courts and the academy with respect to constitutional religious liberty — was one of the first to emphasize that the primary motivation for “separation” in early America was to protect church from state rather than the other way round. Howe frames his book in terms of a dichotomy between the perspectives of Roger Williams and Thomas Jefferson with respect to the meaning of separation, favoring the former’s view and criticizing, in the last few pages of the book, the Supreme Court for overemphasis of Jefferson’s position.
Later, when the famous wall metaphor began to show cracks, separation gradually ceased to become the exclusive mode in which the Supreme Court understood religious liberty — though the idea of separation as the independence of church and state remains a crucial idea of constitutional religious liberty. But Howe’s book is an important piece of the puzzle — one which introduced nuance about the meaning of separation and which, in turn and in time, contributed to the development of alternative understandings of the First Amendment. — MOD
Today’s classic revisited is a wonderful work by a master of intellectual history, Louis Dupré (Yale), The Enlightenment & The Intellectual Foundations of Modern Culture (YUP 2004). Those wishing for a history of Enlightenment ideas — ranging through most of the major French and German figures and including some lesser-known names as well — will greatly enjoy it. Here’s a passage about a favorite Italian philosopher of mine, Giambattista Vico, which is, I think, nicely done. — MOD
Vico’s presence in this story requires some justification. He firmly belongs to what Isaiah Berlin has called the anti-Enlightenment. Working and thinking within the older Italian rhetorical tradition, he appears to be more a late humanist than an early Enlightenment thinker . . . . Vico understood the significance of the issues raised by Enlightenment thought and he shared Descartes’ epistemological concerns. Yet he saw the unsatisfactory conclusions to which a rationalist philosophy would lead. He accepted the modern axiom that truth originates in the mind. Yet he denied that the mind operates exclusively by rational categories. For him, truth is not primarily to be attained through a deduction process patterned on the model of mathematical reasoning, but through reflection on what humans have actually done in history. Despite their erratic behavior, history follows a regular, recurrent pattern. A true science of history, then, must be more than a chronicle of facts and events. It must account for these returning movements and include a justification of their implied universal cycles. Unlike the universals of rationalist philosophy, however, the historical ones are based on observation. In his cyclical theory of history Vico attempted to fill the gap that separated universalist rationalism from historical empiricism . . . .
The Roman concept of sensus communis, well known to Vico through his sutdies of rhetoric and Roman law, justified the authority of those beliefs that theory alone cannot prove but that are indispensable for practical life. Vico’s rejection of the need for indubitable foundations places him, together with Pascal, at the head of a line of critics of Descartes that stretches all the way to the present. Modern epistemology, in his view, arbitrarily dismisses millennia of conscious life as if they were no more than a prolonged state of error and ignorance. Yet to those early, prerational ages the human race owes all that made modern reflection possible: language, religion, and civilization. (190-91)
Studies of the constitutional law and history of the religion clauses often seem to be largely a late twentieth century phenomenon (this is not too surprising, since things began to heat up in earnest in the mid-’40s), but there are many notable predecessors. One of these is Anson Phelps Stokes’s gargantuan effort, Church and State in the United States, first published in 1950 in three volumes. It contains many historical details that are well worth savoring and which don’t seem to have made it to subsequent treatments (particularly church/state episodes in early America). The three volumes were later condensed into one volume by the brilliant Leo Pfeffer, with some slightly polemical editing by Pfeffer as well (as committed a 1960s-70s-style separationist as one could find).
As I could not find an image of the original Stokes volumes, I’ve attached an image of the 1964 Pfeffer abridgement. But a few years back I looked through Volume I of the original — if you can get your hands on it, it’s well worth it. — MOD