First Amendment Folly: An Evaluation of Carl H. Esbeck’s “Protestant Dissent and the Virginia Disestablishment 1776-1786” (Introduction)

Several months ago I posted a blog on the abuse of history in constitutional law (“The Politics of Deception”), and this is the first of the promised evaluations exposing this abuse.

In the last several decades the Religious Right has cleverly repackaged itself as the champion of religious liberty. They have established law firms and organizations such as the Becket Fund for Religious Liberty that prominently display their religious liberty goals. (1) In 2009 numerous conservative religious and political leaders signed the Manhattan Declaration, which lists religious liberty among its other commitments to “human life,” marriage, and unjust laws. Among the victories of the phalanx of religious advocacy groups and their lawyers are state statutes modeled on the 1993 federal Religious Freedom Restoration Act (R.F.R.A.), which essentially allow businesses to discriminate in the name of religion. (2) As Linda Greenhouse rightly points out, this is a betrayal of the original mission of RFRA. It had been “embraced across the religious and political spectrum as a shield against the thoughtless oppression of religious minorities,” she asserts, “not [as] a sword in the hands of those who would invoke religion to carve a gaping hole in the fabric of civil society.” (3) This expansion of the free exercise of religion that benefits some at the expense of others has occurred at the same time that the powers of the Establishment Clause (EC) have been eroded. As a corrective, Greenhouse proposes a new piece of legislation: The Establishment Clause Restoration Act. Her suggestion is unlikely to go anywhere anytime soon, but it points to an often-overlooked aspect in the debates over the new religious liberty laws: the role of the EC. The combination of a strengthened Free Exercise Clause along with a weakened EC has gone a long way in tearing down Jefferson’s wall of separation. Under the guise of “religious liberty” the Religious Right has found a way to establish their religion in law, even if only partially.

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The EC has been a target of the Religious Right since the Supreme Court handed down its 1947 decision in Everson v. Board of Education, which declared that the EC created “a wall of separation between church and state.” To those opposed to this ruling originalism seemed to provide the solution to challenging the interpretation. One of the most influential of the early originalist challenges to Everson came from “nonpreferentialists,” those who maintain that the EC allows government support of religion as long as all religions were treated equally. (4) This “nonpreferentialist” interpretation has recently declined in influence after several prominent scholars exposed its flawed reading of history. (5) Currently, the main “accommodationist” challenge comes from what today is known as the jurisdictional or federalist interpretation. The “federalists” argue that the intent of the framers was to prevent the federal government from interfering in the establishments in the states, while at the same time preventing the federal government from setting up an establishment. (6) Carl H. Esbeck makes a similar argument. (7) However, in “Protestant Dissent and the Virginia Disestablishment, 1776-1786,” Esbeck forgoes this interpretation in favor of a different originalist interpretation. (8) Accepting the Everson case and its reliance on Virginia, he argues that its guiding principle is what he calls “voluntaryism,” a concept which he insists expresses the religious dissenters’ thinking on church-state relations in eighteenth-century Virginia. In other words, he accepts an Everson decision that has been refashioned to suit his purposes.

Esbeck defines “voluntaryism” as “the active support of religion must be voluntary and thus at the behest of the private sector, which is to say, not by the government.” (9) While it may appear to be a simple claim that religion is voluntary, implying “that there is an absence of government compulsion or coercion,” this is not what he means. To concede this would undermine his claim that the EC is not about rights. As a result, he relegates this right of non-coercion to the realm of free exercise of religion. (p. 61) Questions concerning religious establishments are about fixing the nature and extent of the relationship between the state and “organized religion,” according to Esbeck. Voluntaryism, as expressed in eighteenth-century Virginia, was about banning state intervention in “organized religion,” but not the other way around. This goal was pursued by the dissenters, in Esbeck’s telling, “out of a common desire to protect the church from undue control by the government,” whereas, the rationalists took up the cause because they were concerned about “the unity of the body politic.” (p. 103)

It is a term, according to Esbeck, that “the new nation called (and) spelled voluntaryism.” (pp. 51-2) However, he gives no source(s) supporting this claim in either “Protestant Dissent” or “Dissent and Disestablishment.” After searching hundreds of petitions, pamphlets, letters, and newspaper articles written by rationalists and dissenters across the new nation I have been unable to locate the term. This does not necessarily mean that the concept itself did not exist. If it is true that both the rationalists and religious dissenters “embraced” this form of church-state arrangement, we should be able to find it in the historical record.

Why Esbeck’s “Protestant Dissent”?

Given the flood of originalist works challenging the Everson precedent it may seem surprising that I selected a work that narrowly focuses on Virginia. But given Virginia’s prominent place in the history of both religious liberty and the EC it seems appropriate to begin with Virginia. The history of disestablishment in this newly independent state offers a more revealing glimpse into the perspectives on religious liberty in eighteenth-century America, than do the brief and flawed records of the First Federal Congress.

I also chose “Protestant Dissent” because Esbeck is a distinguished and well-connected constitutional scholar, who has been influential in shaping the interpretation of the First Amendment. According to his profile, he was “the progenitor” of the “Charitable Choice” initiatives, which were part of the 1996 welfare reform bill that allows religious social-service providers to contract with the government without having to compromise their religious identity. More significantly, he was part of George W. Bush’s task-force on faith-based initiatives. In this work, he had ties with the Center for Public Justice, a think tank that seeks “to equip citizens, develop leaders, and shape policy in pursuit of our purpose to serve God, advance justice, and transform public life.” Esbeck was also director of the Center for Law & Religious Freedom (CLRF) from 1999 to 2002. CLRF describes itself as “America’s oldest Christian advocacy ministry for religious freedom,” which “argues high impact cases and advises Congress on vital legislation to protect religious freedom.” On their website they boast that they “are blessed to serve as America’s RELIGIOUS LIBERTY ADVOCATES®.” In addition, he has written numerous articles on the meaning of the First Amendment’s Religion Clauses. (10) Currently, Esbeck is a professor of law at the University of Missouri, where he continues to advocate for his unique interpretation of the First Amendment.

Why does it matter?

We all have a stake in upholding our commitment to religious liberty, and thus in the meaning and interpretation of the EC. The stakes are much higher for those whose beliefs do not conform to the religious opinions of the majority. But those in the majority should care if for no other reason than the fact that they may someday find themselves in the minority. Of course, everyone claims to be devoted to religious liberty, but it is the very meaning of “religious liberty” itself which is at issue in the debates over the EC.  Esbeck claims to be advancing religious freedom as the founders and religious dissenters understood it. Based on this understanding, he argues that the EC “does not require a showing of coercion of religion-based conscience or other religious harm.” (pp. 61-2)

This interpretation opens the way for the accommodation of religion in the public square in ways that violate the rights of some. It does so by stripping the EC of two of its most basic functions: 1) preventing the privileging of a particular religion or religious denomination; and 2) protecting individual rights. In addition to allowing religious groups to shape public policy in accordance with their own religious dogma, Esbeck’s rendering of the EC has also opened the way for laws and policies that provide financial support for religious organizations as long as the support is for things “not specifically religious.” In accordance with his understanding of the EC, Esbeck supports equal access to public forums for religious individuals and organizations, including schools, to promote their religious beliefs and agendas (fn. 200, p. 99); government aid to religious organizations providing public services (p. 101); and the use of public funds for school vouchers that will be used at private religious institutions (fn. 210, p. 101).

Driving Esbeck’s quest for an accommodationist interpretation of the First Amendment is the belief that separating government “from all that is arguably religious (or arguably has a religious foundation) … is hostile rather than neutral to the influence of religion on society.” (11) This oft repeated mantra rings true only for those who are in the majority; few others would agree that a check on the power of the majority to impose itself on others is hostile. It is also contrary to the conception of religious liberty of those very religious dissenters that Esbeck claims he is representing. As members of the minority, the religious dissenters knew all too well the tyranny of the majority. Petitioning against laws privileging the Episcopal Church, Baptists in Virginia protested, “As Religious Oppression, or the interfering with the Rights’ of Conscience, which God has made accountable to none but himself, is of all Oppression the most inhuman and insupportable, and as Partiality to any Religious Denomination is its genuine Offspring, your Memorialists have with Grief observed that Religious Liberty has not made a single Advance, in this Commonwealth, without some opposition.” (12) It is not hostility to religion that necessitates separating all that is religious from government, it is hostility to religious tyranny that mandates such an arrangement.

In addition to the perception of hostility, Esbeck is motivated by the belief that “[w]ithout church autonomy, civil society will lose organized religion as a check and limit on the pretensions of Caesar. And that would surely lead to a more authoritarian state. Whether one is personally religious or not, we all have a liberty stake in that not happening.” (p. 103) It is this genuinely held believe that underlies Esbeck’s push to accommodate religion, and as a result to abuse history. He is not alone in producing ideologically motivated scholarship; however, this is no excuse for the distortions, misleading interpretations, and omissions of inconvenient evidence. By making claims to “original intent” Esbeck and others, have been able to present themselves as objective intermediaries of the original meaning of the First Amendment without having to defend the religiously derived assumptions upon which their interpretations rest. Originalism has become a mask for specious arguments.

 

The examination of Esbeck’s claims will appear in four separate blog posts, following the main phases of disestablishment in Virginia. The first post will examine the creation of the religious liberty clause (Article 16) in the Virginia Declaration of Rights, which was enacted in 1776 after declaring independence from Great Britain. It was in the creation of this article that James Madison made his first significant contribution to the struggle for religious liberty. The significance of this contribution will become clear in the next post reviewing the petitions calling for an end to all establishments of religion. With the help of Thomas Jefferson, who was serving in the House of Delegates, the dissenters succeeded in freeing themselves from the burden of financially supported the still established Church of England, newly named the Episcopal Church. This victory was significant, but not enough for the dissenters who sought to end all unequal privileging based on religious opinions. Sharing the dissenters’ ultimate goal of religious liberty Thomas Jefferson introduced his Bill for Establishing Religious Freedom in 1779. This effort will be the subject of the third post. The bill failed, leaving the issue of disestablishment unsettled as Virginians dealt with the pressing concerns of war. The fourth, and most significant, phase, which began as the Revolutionary War came to a close, will be the subject of the fourth post. In the final showdown between the conservatives and the rationalist/dissenter coalition, a bill for a general assessment in support of the Christian religion was soundly defeated. It was during this phase that Madison wrote his celebrated Memorial and Remonstrance Against Religious Assessments. He also capitalized on the momentum and secured the passage of Jefferson’s religious freedom bill. The final post will summarize the results and declare the final verdict on Esbeck’s use of history.

  1. Gustav Niebuhr, “Conservatives’ New Frontier: Religious Liberty Law Firms,” The New York Times (July 8, 1995).
  2. David Cole, “The Angry New Frontier: Gay Rights vs. Religious Liberty,” The New York Review of Books (May 7, 2015).
  3. Linda Greenhouse, “Church, State, and the Supreme Court’s Moment of Truth,” The New York Times (Oct. 29, 2015).
  4. See Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (The American Enterprise Institute for Public Policy Research) 1978.
  5. See Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (Chapel Hill: The University of North Carolina Press), 1994.
  6. Steven D. Smith, Foreordained Failure 1995. For an extensive critic of this interpretation see Ellis West in The Religion Clauses of the First Amendment: Guarantees of States’ Rights? Lanham, Maryland: Lexington Books, 2011.
  7. Based on the debates from the First Federal Congress, Esbeck argues that the EC was designed to impose two limits on the powers of the federal government. First, it was meant to prevent the federal government from intervening in states’ church-state settlements. Second, it denied Congress only the power to legislate “respecting an establishment of religion,” thus leaving it free to legislate “respecting religion.” Esbeck, “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review (2004), 1576-7. There are many reasons why his argument is wrong, but here I will only briefly address the flaws in his claims. A more robust counter to this argument will have to wait until later. The first problem is with the primary sources from the First Federal Congress. James H. Hutson, in his study of the documentary evidence, warns that most of the documents are defective. He determined that many of them “have been compromised – perhaps fatally – by the editorial interventions of hirelings and partisans.” Therefore, he concludes that “[t]o recover original intent from these records may be an impossible hermeneutic assignment.” [“The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review 65 (1986): 2.] To get to what he calls a “structuralist” interpretation of the Establishment Clause (EC), Esbeck misconstrues and misinterprets the little evidence there is. In a future post I’ll more adequately address the flaws in his argument. Esbeck’s argument shares a lot in common with the “federalists” who argue that the EC was meant to prevent the federal government from intervening in the state establishments of religion. Ellis M. West in The Religion Clauses of the First Amendment: Guarantees of State’s Rights? (2011) exposes the flaws in this interpretation.
  8. Carl H. Esbeck, “Protestant Dissent and the Virginia Disestablishment, 1776-1786,” The Georgetown Journal of Law & Public Policy 7 (2009) 51-103.
  9. Esbeck, “Protestant Dissent,” 53 and 98. Esbeck makes the same claim in “Dissent and Disestablishment,” where he examines the history of disestablishment in the original thirteen colonies plus Vermont. (“Dissent and Disestablishment,” 1590-1)
  10. Some of Esbeck’s works on the First Amendment: “The First Federal Congress and the Formation of the Establishment Clause of the First Amendment,” in No Establishment of Religion: America’s original Contribution to Religious Liberty, edited by Jeremy T. Gunn & John Witte, Jr., 208-251. New York: Oxford University Press, 2012; “Protestant Dissent and the Virginia Disestablishment, 1776-1786,” The Georgetown Journal of Law & Public Policy 7 (2009): 51 – 103; “When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court’s Analysis,” West Virginia Law Review 110 (2007); “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review (2004): 1385-1592; “Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause,” Notre Dame Journal of Law, Ethics & Public Policy 13 (1999): 285-319; and “Five Views of Church-State Relations in Contemporary American Thought,” Brigham Young University Law Review (1986): 371-404.
  11. Esbeck, “Myths, Miscues and Misconceptions,” 309-10.
  12. “Baptist Association: Petition” (November 8, 1780) at the Library of Virginia: Digital Collection.

 

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The Politics of Deception: History, Knowledge, and the First Amendment

 In a 1988 lecture Supreme Court Justice Antonin Scalia declared that originalism was “The Lesser Evil” over other methods of constitutional interpretation. (1) Born out of a resentment against what was perceived as an activist liberal Supreme Court, the movement to make originalism the way to interpret the Constitution did not begin with Scalia’s speech, but his appointment to the Supreme Court in 1986 was a watershed moment for it. In the 1970s conservatives began calling for a return to the Constitution and its “fixed” original meaning as a way to restrain Justices and “depoliticize the law.” (2) As the movement expanded, history, as a resource in which to discover the original meaning, was set to go from a side-show in constitutional law to the main event. A contested past was now required to yield certainties, and to do so without the appearance of ideological bias. Nonetheless, it soon became clear that the push for originalism was a political strategy to reshape constitutional law in favor of conservative principles. (3) But for this to happen, originalism had to yield the “correct” original meanings. This need to yield the “correct” history ensured that the well-known abuse of history in law would reach new heights. Despite their ideological underpinnings, the products of originalist jurisprudence are packaged in the language of certainty and impartiality. For this reason, as noted by Eric Berger, “Originalism is particularly worthy of criticism.” By “creat[ing] an especially misleading illusion of certainty” it operates by deception. (4) Contrary to Scalia’s assertion, originalism is not, in fact, the lesser of two evils, but by virtue of its pretense to objectivity the greater evil. It is politics disguised as legitimate scholarship.

Associate Justice Antonin Scalia during the group portrait of the U.S. Supreme Court at the Supreme Court Building in Washington, Friday, Oct. 8, 2010. (AP Photo/Pablo Martinez Monsivais)

Associate Justice Antonin Scalia during the group portrait of the U.S. Supreme Court at the Supreme Court Building in Washington, Friday, Oct. 8, 2010. (AP Photo/Pablo Martinez Monsivais)

Despite its many flaws, especially the very problematic historical record, originalism has gained in popularity and enjoyed broad application. (5) Given its popular appeal and the fact that so many legal scholars and organizations are dedicated to this method it is unlikely to disappear any time soon. Even if the jurisprudence of originalism faded into obscurity, there is no doubt that history will remain a crucial resource to bolster legal arguments. History is seen to confer legitimacy upon constitutional arguments and enjoys broad popular appeal. But the motives, sensibilities, and training of legal scholars diverge considerably from that of a historian. This makes it more likely that they will abuse history in order to bolster their arguments in favor a pre-determined conclusion.

In response to the frequent misuse of history in law some have recommended that its use by jurists be abandoned altogether, but others recognizing the implausibility of this solution have instead offered advice and/or rules to help them use history responsibly. (6) Regrettably, there is little evidence that lawyers, judges, justices or legal scholars have taken the advice of these well-meaning scholars. With busy schedules and no professional consequences, other than the occasional historian calling them out for their mischief, there is little incentive to change. There are two factors that work in tandem to encourage the abuse of history. The first comes from within the field itself. Lawyers are trained in the adversarial method in which the point is to make the best possible argument in favor of a particular claim. This methodology is well-suited in the service of ideological goals. This gets to the second factor, which gets at the incentives and motives driving the abuse of history, and in part explains why attempts to improve historical scholarship in law have failed. The desire to further one’s ideological agenda is encouraged and supported by the proliferation of partisan political organizations, funded by wealthy donors. To understand how these considerations contribute to the poor state of historical scholarship in the legal profession, it will be necessary to examine each in more detail. Continue reading

“‘Advice & Consent’? No One Really Knows What the Founders Had in Mind.” | History News Network

Ray Raphael briefly reviews the history of the “advice and consent” clause of the Constitution at the HNN.

Afterwards he notes that “[t]he current Senate is more than eager to question ‘the judgment of the Chief Magistrate,’ and the avowed aim of Republican senators is to undermine the administration, not provide ‘stability.’ Nor, in this age of unrelenting media buzz, is there much interest in ‘a silent operation.’ Ironically, those who call themselves Originalists, and who hang on the framers’ every word, loudly broadcast their intention to thwart the Chief Executive at this and at every turn.”

Source: History News Network | “Advice & Consent”? No One Really Knows What the Founders Had in Mind.

Why the Second Amendment is not an individual right

The false belief that the Second Amendment confers an (absolute) individual right continues to prevent us from regulating guns, with tragic consequences. Yes, Supreme Court Justice Antonin Scalia, writing for the majority (5), declared that it was an individual right based on an original intentist interpretation of the amendment. Therefore, we must abide by this interpretation as long as Heller is in force, but that does not mean that Scalia’s interpretation of the history is correct. One of the problems, among many others, with original intent as a method for interpreting the Constitution is the fact that justices are not historians.  Too often original intent has been used to mask the individual preferences of the particular legal scholar. After spending years studying the history of the Religion Clauses of the First Amendment this fact has become all too clear.

If we are ever going to significantly decrease the senseless killings (as well as the large number of accidental deaths and suicides) that are made possible by the unregulated gun market, we need to debunk the Second Amendment myth that gun ownership is an individual right that can never be infringed. Gun regulation will not completely eliminate gun violence, but it can significantly decrease the violence (as it did in Australia).

Therefore, I want to include a few links by two prominent historians and one legal scholar who show why the Second Amendment fundamentalists are wrong:

  1. “To Keep and Bear Arms,”: This essay by Gary Wills is long, but worth it. He carefully and comprehensively destroys the arguments of what he calls the “Standard Model” school (i.e. the Second Amendment dogmatists who insist that the amendment confers to them an absolute individual right).
  2. The brief from the Pulitzer Prize winning historian Jack N. Rakove in the Heller decision.
  3. “How the NRA Rewrote the Second Amendment,” written by the author of The Second Amendment: A Biography, Michael Waldman. This essay deals more with the political movement that created the Second Amendment orthodoxy that now plagues us.

Please read and share these links!

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