I recently interviewed Steven D. Smith about his new Harvard University Press book, The Rise and Decline of American Religious Freedom. Smith is Warren Distinguished Professor of Law at the University of San Diego and Co-Executive Director of the USD Institute for Law and Religion.
[Kidd] Thanks for taking the time for an interview, Professor Smith! You open your book by discussing the “standard story” of American religious freedom, and then offer a “revised version” of that story. Give us an example of one of the biggest misconceptions Americans have about religious liberty, and how your book seeks to correct that misconception.
[Smith] The “revised version” attempts to correct or supplement the “standard story” (as I’m calling it) at every stage: the pre-Constitution stage, the period between the First Amendment and the intervention of the modern Supreme Court, and the modern period. But one of most consequential misconceptions in the standard story, I think, is its depiction of the modern Supreme Court as acting to revive and implement commitments that ostensibly had been adopted in the First Amendment but then largely forgotten or disregarded over the next century-and-a-half.
The revised version suggests, on the contrary, that the modern doctrines devised by the Court (such as doctrines requiring government to be “secular”– in the sense of “not religious”– and to be religiously “neutral”) were not grounded in the original purpose and meaning of the First Amendment. Even more unfortunately, the modern Court effectively repudiated what I call “the American settlement” as a response to the challenge of religious pluralism.
What was the American settlement? Well, rounding off a bit, we might say that from the beginning of the Republic, some Americans (including not insubstantial figures like Washington, John Adams, Joseph Story, and Abraham Lincoln) have adopted, expressed, and acted on a “providentialist” interpretation of the nation, while others (including notables such as Jefferson, Madison, and Jackson) have embraced a more “secularist” understanding. The genius of the American settlement was that at least as a matter of hard constitutional law, it did not prefer either of these interpretations; instead, it maintained a policy of open contestation in which both providentialists and secularists would have an assured place at the constitutional table.
By contrast, beginning with the school prayer decisions of the 1960s, the modern Supreme Court has effectively elevated the “secularist” position to the status of constitutional orthodoxy. And it has consigned the providentialist interpretation (at least for public or governmental purposes) to the position of constitutional heresy. In doing this the Court has in effect committed a contemporary version of the same error that had led to the wars of religion in early modern Europe. And we see the effects of that misstep in the increasingly bitter “culture wars” of today.
[Kidd] You emphasize that religious liberty finds its origins in the Christian tradition, and that even separation of church and state “had its roots in the earliest Christian teaching.” How so?
[Smith] The “standard story” depicts American religious freedom as a bold and innovative departure from centuries of Christendom. By contrast, the revised version interprets American religious freedom as a retrieval and implementation under American circumstances of mainly Christian themes, mediated in part by Enlightenment thinkers such as Locke and Jefferson, and with a smidgen of humane paganism mixed in for good measure.
Very roughly, we might say that “separation of church and state” (and notice that Jefferson talked about a “separation of church and state,” not a separation of religion from government) amounted to an American recovery of the classical commitment to libertas ecclesiae, or “freedom of the church,” which itself was a manifestation of the dualism famously expressed in Jesus’s injunction to “render unto Caesar the things that are Caesar’s and unto God the things that are God’s.” The commitment to free exercise of religion can be understood as an American version of the classic Christian belief that faith is not efficacious unless it is sincere and voluntary, and of the mainly Protestant commitment to freedom of the “inner church” of conscience.
[Kidd] You argue that Americans have overemphasized the First Amendment as a decisive turning point in the history of religious liberty. You even call it the “Accidental First Amendment.” What do you mean by that phrase?
[Smith] When the proposed new Constitution was being debated in the state ratifying conventions, virtually all Americans agreed that essential questions of religion– whether or not to establish a church, for example– should remain within the jurisdiction of the states; the new national government should have no jurisdiction over these matters. The Constitution’s proponents insisted that the Constitution implicitly preserved that jurisdictional arrangement by not listing religion among Congress’s enumerated powers, but opponents were skeptical. So proponents– James Madison in particular– eventually agreed to the put the understanding in writing, so to speak. That’s what the First Amendment religion clauses were intended to do; they were not intended to adopt any grand new principles of church-state separation, religious neutrality, governmental secularism, or anything of the sort.
That’s why the clauses could be adopted so casually, with virtually no discussion: the clauses weren’t intended to do anything much, or anything new. Far from being novel, radical, or visionary, they were calculated simply to ratify the (jurisdictional) status quo. It was only later that the clauses came to be (mis)interpreted as containing more momentous principles or prohibitions.
[Kidd] Just recently, the Supreme Court’s Town of Greece prayer case saw a narrow 5-4 decision in which the majority affirmed that local government meetings could open with prayer. What do you think that decision tells us about the current state of church-state jurisprudence, and the relative health or malaise of religious liberty in America?
[Smith] Very tentatively, I would say that the Town of Greece decision manifests at least some inclination by the Justices– by all of the Justices, surprisingly– to be more respectful of the country’s traditions rather than to deduce conclusions from any abstract principle or doctrine, like “neutrality” or governmental “secularism” or “no endorsement” of religion. I think our constitutional traditions are often wiser than our abstract doctrines and deductions. So the Court’s deference to our constitutional traditions in the Town of Greece case seems to me at least a small step in the right direction.
See also John Turner’s review of Smith’s book, at the Anxious Bench.
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