The Constitution and Religious Liberty

On November 16, 2009, in Culture, History, Politics, by marc

Hunter Baker tackles the question of what religious liberty as enshrined in the First Amendment to the US Constitution actually entails. From his recently released book, The End of Secularism:

The End of Secularism by Hunter Baker

The End of Secularism by Hunter Baker

[Steven D.] Smith’s initial point is that the courts and scholars have approached the religion clauses from the wrong angle. More specifically, they have asked the wrong question, which is something like, “What is the meaning and scope of the principle of religious freedom embodied in the Constitution?” When we ask that question, we go off paging through the many different varieties of religious freedom that have been manifested in the development of the West. Certainly, at the time of the founding of the republic no single view of church-state relations was clearly dominant. And that is the first problem. If we were to answer the misconceived question, we would have to ask ourselves, “How do we know which among the various versions of religious freedom is ‘the Constitution’s Version’?” The answer to this knotty problem is not to ask what is the substance of the religious freedom or church-state schema announced in the religion clauses. Instead, the answer is to ask what was the “probable original meaning” of the religion clauses. When we do, we will discover “that the religion clauses have nothing of substance to say on questions of religious freedom.”

If the religion clauses do not address the substance of religious freedom, then what do they address? The answer is obvious in the first five words of the amendment. “Congress shall make no law…” The Religion clauses where merely jurisdictional. They kept control of religious matters in the hands of the states, which would maintain their own governments in a coordinated partnership with the new federal government. When one first hears or reads this claim, it sounds incredible. During the decade prior to encountering Smith’s work, I professionally promoted an understanding of the First Amendment that interpreted it as a statement on the substance of religious liberty and church-state affairs. I lobbied members of the Congress and their staffs utilizing that understanding. As a law student, virtually everything assumed that understanding of the religion clauses. Nevertheless, it takes very little examination to discover that Smith is almost surely correct.

A worthwhile point to remember: many of the colonies (Massachusetts included) had established churches at the time the federal Constitution was written.

Related posts:

  1. Rev. Israel Evans on American Religious Liberty – 1791
  2. Lord Acton on Liberty
  3. The Religious Philosophers of the American Founding
  4. Hayek on Exchanging Liberty for Security
  5. The Essential Foundation

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