Does the text of the Free Exercise Clause justify special judicial scrutiny of laws burdening religious freedom?
Joseph Postell’s Liberty Forum essay intervenes in a multifaceted debate about whether Congress or the presidency best embodies the American people governing itself. A third possibility also entertained is that self-government emerges from a creative interplay between the two, and a fourth is that perhaps self-government isn’t possible at all.
Absent from this debate are some other seemingly plausible alternatives. The judiciary could produce self-government. Or the Constitution itself could be the way that we perform self-government. These are interesting possibilities, but I will defend still another one: that the people generally can govern themselves, but that no state institutions of any form can do the job for them. At best, this entire class of institutions can make the conditions for self-government relatively more possible; at worst, governmental institutions are usurpers that promise self-government while supplying just the opposite.
When a libertarian says “self-government” he means, or should mean, the capacity of individuals to make responsible choices for themselves in the direction of their own lives, by means of adhering to a justified rule of conduct. Self-government touches on decisions like responsible personal finance, being a devoted father, exercising self-restraint and risk management, keeping healthy, and having an active intellectual and spiritual life. Self-government in this sense is a question of individual autonomy and the cultivation of personal virtues.
Self-government’s necessary preconditions are individual liberty and the generally law-like operations of the state and of others around us. The individualist who looks to any corner of Washington, D.C. in search of avatars of self-government is bound to be disappointed, or at least he should be.
Consider that I live in the congressional district of Mr. Steny Hoyer (D-Md.), a not inconsiderable man-about-Washington. He is the dean of the Maryland congressional delegation and the House minority whip. He grew up in Mitchelville, the same neighborhood where I now reside.
Perhaps Mr. Hoyer can self-govern me?
The question is more than faintly absurd. It becomes overwhelmingly so when we consider that Hoyer receives a grade of F from the National Rifle Association; he inclines strongly toward higher taxes; and he favors the adoption of a socialistic national manufacturing strategy.
All of this introduces a problem with George Washington’s belief, with which Postell begins, that the people will be self-governed through Congress. The problem is that, although Congressman Hoyer appears to be a relatively honorable politician—no serious scandals to speak of—one can’t say he favors self-government. What he favors is him governing me. I, for my part, would prefer to be governed otherwise, with freer gun laws, lower taxes, and no national manufacturing policy at all.
Now let’s turn to the White House, whose current occupant exercises less self-government than anyone else I can name. He is impulsive, cruel, short-tempered, ill-informed, easily swayed, and lacking in anything that one might call a principle of personal or public conduct. The idea that this individual should be the one to self-govern any other person is almost absurd enough to distract from the fundamental oxymoron of being self-governed by another.
Given my choices, I fear I might do better entrusting the government of the United States to the first 400 people in the nearby Jessup Correctional Institution. But there remain significant problems in the relationships among self-government, democratic representation, and personal virtue, and these problems take us deep into intellectual history.
For reasons already stated, I doubt that any institution can square the circle of self-government by another, at least as we individualists understand self-government. The answers to this conundrum supplied by social conservatism, however, seem unpromising to me. I confess that I have read only a little Willmoore Kendall, whom Postell takes for inspiration in his essay. I therefore tread carefully and qualify my conclusions about Kendall’s ideas. Still, it appears that he offers little to situate self-government in any more satisfying place.
I agree with Kendall, insofar as I understand him, that the problem of majority rule is central to modern politics. It certainly is. That problem only grows more salient when we recall that man is endowed with inalienable rights. These rights mean that majorities must be limited in their actions; they are moral claims against the actions of others, no matter how numerous.
On this I presume everyone agrees. What, though, are the proper limits to state action? Do I read Postell correctly that Kendall found the Mayflower Compact helpful in answering that question? Does Postell agree? I know that I certainly do not.
Let us not mince words: The Mayflower Compact established a Christian theocracy, for the glory of God, amen. The Compact did only one other thing, which was subject Plymouth to “our dread sovereign Lord, King James, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, etc.”
Although the Plymouth Colony did practice democracy (Quakers excluded), the Mayflower Compact itself was silent on democratic governance. Still less did it adumbrate a theory of limits to democratic decisionmaking, whether derived from rights or otherwise. It contained literally nothing besides submission to God and the king.
We are all glad to have the king out of our government, and we should feel the same way about God. What is this Compact to a Jew, a Muslim, a Hindu, or a religious skeptic like me? As historians like to ask, what is the usable past here? What is the lesson that we can profit from, as we seek to constrain democracy in the name of liberty, or otherwise to reach an accommodation between the two?
The Mayflower Compact is certainly not a framework for government that I could tolerate or live comfortably under. Nor, for that matter, could Catholics, Baptists, or members of many other Christian denominations. Even High Church Anglicans—like King James I himself—would not have been altogether welcome. James I and William Bradford had been on opposite sides of the law for years before the Compact was signed. Yet somehow I count the members of many different Christian and non-Christian faiths as my neighbors, and as equal citizens in a peaceful, pluralist, democratic, rights-respecting society.
So: As a rule of personal conduct, please do follow your conscience. Follow it scrupulously and go in peace wherever it takes you. I will be the last in the world to object. But if you’re seeking a way to temper the principle of majority rule, then bending the rest of society to your particular religious objectives does not suffice.
Something big must be missing here, because a sectarian theocracy is obviously not the solution to the problem of self-government through state institutions. What’s missing, I think, is that the American Founders spoke a political language significantly different from our own, with access to concepts that are to some degree foreign to us today. This difference in political language raises problems that we can begin to solve only by relearning some lost ideas. Understanding these ideas will put George Washington’s call for American self-government through Congress in a different light.
The fact is that when the Founders spoke of self-government, they did not mean precisely what individualist libertarians mean today. We like to claim the Founders as ancestors, and to some degree they are, but they also had principles in this area that served to cabin popular government in ways that will need significant reconstruction if they are to be made understandable in the present world at all.
Specifically, the Founders spoke of self-government through the state, and they did not perceive any oxymoron therein, because they accepted as a matter of course that humans have a binding, collective, social identity as well as an individual one: As an individual, I should govern myself by adhering to a chosen code of conduct, as George Washington famously agreed. Meanwhile, and as a collective, Americans should do the same, with results that I am obliged to obey. This type of collective choice, far from being a danger to liberty, was understood as an exercise of liberty.
This way of thinking is not one that I endorse. It does remain coherent, I think, provided that we answer two pressing questions: First, how are a collective’s laws to be recognized or otherwise chosen? And second, who is in (and who is out) of the collective? The Founders had answers to these questions that we moderns tend to pass by or forget.
This notion of a collective identity lying at the heart of the American Founding tradition may be uncomfortable to anyone who considers America to be the land of individualism. But it arises from the classical republican tradition, to which the Founders were all indebted to one degree or another, George Washington probably most of all.
Classical republicanism was an intellectual tendency in the early modern era that looked to Greece and particularly to Rome for examples of conduct befitting republican political action. Classical republicanism can be found in Renaissance Florence, Commonwealth England, Revolutionary France, and the early United States. It supplied ready answers to the two questions mentioned above, that of the means of discovery of laws, and that of the membership of the group on which they are binding.
Laws were well-chosen insofar as the most virtuous members of the collective did the choosing, and no one else. To live under the subjection of a foreign power—and thus without access to the laws that the virtuous members of one’s own collective would otherwise supply—was therefore a great evil. In the political language of classical republicanism, a key meaning of the term “liberty” was simply non-domination by outsiders, sustained through native virtue. Domination by insiders was perfectly okay, as long as they were virtuous. Liberty understood in this sense meant that whatever governance was done would be done by the best members of one’s own recognized group, whether that group was the Romans, the Florentines, or the Americans.
This view of liberty—much closer to the liberty of the ancients than to that of the moderns—also had to address our second question, that of membership in the collective. Determining membership became all the more difficult in an increasingly diverse society, which could not so easily resort to shared ethnicity to decide who is in, and who is out, of the American identity. Writing in Federalist 2, John Jay posited the existence of a unified American identity in terms that were both ringing and plainly false:
Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.
Now, the American people were not united in most of these ways, and they never would be; but classical republicanism said that they should be, so John Jay said that they were. Any polity that was so united, particularly if it were united in religion, might have done tolerably well on the classical republican plan. But the cracks in that worldview were certainly showing.
Defining liberty as only established by and for a collective explains why slavery raised few qualms in Roman society, or indeed almost anywhere before the modern era. To the Romans, the Roman polity alone had earned liberty through victory and virtue. Slaves, by being defeated in battle, had earned their slavery. Centuries later even John Locke accepted this principle, though admittedly the brief defense of slavery in the Second Treatise (1689) has the character of a legal fiction.
That’s why Maryland native Frederick Douglass’ question—What to a slave is the Fourth of July?–was so incisive. Douglass’ 1852 speech began by lauding (white) Americans for taking self-rule upon themselves, but it did not stop there, as a conventional Independence Day speech might have done. Instead it moved to an individualist defense of self-rule, one by which the enslavement of any man was always wrong. As Douglass put it, “There is not a man beneath the canopy of heaven, that does not know that slavery is wrong for him.” (Emphasis in original.)
Douglass’ genius was to take the various identity-based, collectivist ideas of liberty that were common in the classical republican tradition and argue from all of them to a general idea of liberty, one that was individual in character and therefore applicable to everyone. As long as Jefferson was known to be a slaveholder, and as long as even Locke allowed for slavery, all American slaveholders could claim the mantle of liberty, as previously defined. Douglass denied this to them, using an argument that they themselves had partially accepted.
Yet this was certainly a radical political move. By this argument, the very exercise of government ceased to bear any obvious or necessary connection to liberty at all. Douglass did not assimilate all government to slavery, and he would have been wrong to do so, but his argument against slavery certainly raised difficult questions about government.
Douglass might easily have taken a more classically republican stance himself, favoring a collective, self-ruling liberty reserved solely for African-Americans, and a virtue-based politics for his race alone. That he did not take this route shows him to be much more an intellectual kinsman to modern individualists than to the Founders whom we so like to cite. In a philosophical contest between George Washington and Frederick Douglass, I would pick the Marylander over the Virginian, and I am sorry to say it, but it wouldn’t be close.
In this light, attempts to situate self-government in the institutions of the state can be understood as throwbacks to an older political tradition, one that took collective identities for granted and then looked to find their virtuous members to rule the collective.
The results of these attempts have generally been poor. In the sense that libertarians ought to mean it, a legislature, or a President, cannot do the work of self-government. At best such institutions may create or preserve the preconditions that make self-government possible. States overreach when they do more. We are entirely too governed by others, by the Hoyers and the Trumps of Washington.