Judges and lawyers, and to a large extent law professors as well, are moved to think about the Constitution in the context of cases and controversies– of current cases and controversies– and so it is natural for us to suppose that the Constitution must be speaking to our questions. Originalists as well as others may indulge this supposition. But what if our questions were not live ones for the enactors of a constitutional provision? What if they were addressing wholly different questions?
The establishment clause is a case in point. A live question for many in recent decades, broadly phrased, concerns the relation between government and religion (whatever that is). Is it proper for government to aid “religion”? To endorse “religion”? To act on “religious” grounds? To use “religion” to advance public goals? It has been natural to suppose that the First Amendment’s establishment clause speaks to questions like these. Not surprisingly, a whole body of jurisprudence and scholarship has developed, purporting to explain what the establishment clause says or entails in these matters.
There is good reason to think, though, that the founding generation was not addressing questions about the relation between government and religion, exactly. Instead, the founders confronted two different questions. The immediately pressing concern was jurisdictional: how was jurisdiction in matters of church and conscience to be allocated as between the states and the new national government? In the background, though, was an important and long-standing substantive question– a question not about the relation between government and religion, but rather about the relation between government and the church.
Here is a shamelessly simplified summary. Through much of Western history, princes and churchmen alike had often supposed that rulers had an important role in guiding and regulating the church. Emperors like Constantine and Charlemagne had acted boldly on that assumption. Pious rulers had sometimes stepped in to clean up a church polluted with family politics, corrupt clerics, or theological strife. Beginning in the late eleventh century, though, popes began to act forcefully to establish the principle of libertas ecclesiae– freedom of the church. Whether Radbod or Bernard gets to be bishop, the popes insisted, is something for the church to decide, not the king.
This struggle for freedom of the church produced its legendary confrontations (Henry IV standing ragged and barefoot for three days in the snow outside the castle at Canossa, pleading for papal forgiveness), and its martyrs (like Thomas Becket, murdered in Canterbury cathedral at the veiled behest of Henry II, and Thomas More, beheaded for resisting Henry VIII’s incursions into church affairs). Henry’s takeover of the English church in the 1530s reflected a severe Erastian setback for freedom of the church. Nonetheless, the principle and, importantly, the question remained. So the place of the church still presented a momentous question at the time of the American founding.
I have argued at length elsewhere, on both originalist and non-originalist grounds, that as applied to the national government, the establishment clause is best understood as speaking to the question of the church, and as effectively embracing the classical principle of “freedom of the church.” See here and here. I say “as applied to the national government” because the primary purpose of the clause, I believe, was to affirm that matters of church and conscience remained within the jurisdiction of the states, not the national government. But in the process of allocating and denying jurisdiction, the clause necessarily defined the national government’s role vis-a-vis the church. And that role was, basically, . . . none. The national government had no power over an “establishment of religion”– which in context amounted to saying “no power over the church.”
This is not the place to rehearse the full argument. But here is one quick observation: it turns out that Jefferson got it just about right in his famous Danbury Baptist letter. Alas, this should not be happy news for people who habitually invoke Jefferson without paying close attention to what he actually wrote– David Souter, for example. The establishment clause, Jefferson said, created a “wall of separation” not between religion and government, but between “church and state.”
The founders’ embrace of the classic commitment to freedom of the church has been missed by most modern judges and scholars, in part because they have supposed that the religion clauses were and are about something more amorphous– namely, “religion.” If religious institutions, or churches, are covered by the clauses at all, that is because they are one item that fits with the general category of “religion.” This reasoning, I would argue, gets things backwards. What the clauses were primarily designed to protect was not “religion,” exactly, but rather the church (including the “inner church” of conscience, but that is a different and more complicated story).
Perhaps the most important and encouraging aspect of the Supreme Court’s recent decision in the Hosanna-Tabor case is that the Court understood, and argued for on originalist and other grounds, this church-centered purpose of the religion clauses. The religion clauses together squarely protect religious institutions as a primary commitment, the Court explained, and not as some derivative or lesser included implication.
In some respects, Hosanna-Tabor was a cautiously narrow decision. There is much in the decision that lawyers and scholars will need to argue about, and that will require future elaboration. Still, it is encouraging that after, lo, these many years, the Court seems to have acknowledged the right question.
Posted at 4:29 AM