Article by Timothy L. Hall
When George Washington declared in 1796 that religion and morality were “indispensable supports” of “all the dispositions and habits which lead to political prosperity,” he reflected the continuing potency of republican ideals at the end of the eighteenth century. Republican commitment to participatory democracy relied on the virtue of citizens who joined together in discourse about the common good. Washington and his listeners naturally looked to religion as a crucial source of this virtue.
Two important First Amendment commentators have recently highlighted the connection between civic virtue and the religion clauses. Mark Tushnet and Michael McConnell have each suggested that the Free Exercise and Establishment Clauses had their birth, at least partially, in a regard for religion's role in creating the circumstances in which civic virtue might flourish. Tushnet has argued that republicans saw religious groups as a locus in which citizens could learn to recognize and act in concert to attain the common good. McConnell likewise has suggested that the Constitution's framers guaranteed religious liberty “in the hope and expectation that religious observance would flourish, and with it morality and self-restraint among the people.”
The assertion that religious freedom is a necessary condition for the flourishing of civic virtue is not the only possible argument for religious liberty, and not even the most important. At least during the founding generation, advocates of religious liberty spoke more frequently of preserving the individual's ability to respond to divine obligations prior in time and degree to those arising out of the social contract. In addition, writers such as Thomas Jefferson and James Madison, following John Locke, justified religious liberty by arguing that government was incapable of coercing a change in the religious beliefs of citizens. They concluded that the state had no business attempting what it could not achieve. In fact, during the founding period the connection between religion and civic virtue tended to be asserted by the proponents of religious establishments: those who would, by today's standards, be considered enemies of religious liberty. Historically, then, making republican principles the guardian of religious liberty was something like asking the wolf to superintend the sheep.
Nevertheless, a republican argument for religious liberty draws on ideas about our shared public life that continue to exert a substantial influence at the end of the twentieth century. One may therefore expect to hear republican voices among those which together create an overlapping consensus in favor of a robust principle of religious liberty. Accordingly, this Article attempts to construct a theory of free exercise from the insights of civic republicanism. To do so requires the retrieval of particular strands of republican thought which are still capable of commanding a broad consensus under the conditions of modern American life. It also requires, however, the rejection of other republican ideas repudiated both by the founding generation and by the subsequent development of the principle of religious liberty. In Part II, I attempt to isolate the particular premises that would support a vigorous concept of religious liberty based on the role of religion in nurturing civic virtue and conclude that, with some modifications, these premises remain persuasive. In Part III, I propose a reformulation of the republican argument for religious freedom to account for weaknesses of classical republicanism. Finally, in Part IV, I consider the possible ramifications of a republican theory of religious liberty for free exercise jurisprudence.
About the Author
Timothy L. Hall. Associate Professor of Law, University of Mississippi Law School. J.D., 1983, University of Texas.
Citation
67 Tul. L. Rev. 87 (1992)