Religion and Its Relation to Limited Government
McConnell, Michael W., Harvard Journal of Law & Public Policy
Is religion, and strong protection for the freedom of religion in particular, best understood as allied with commitment to freedom in general? Or should we understand religion and strong protection for freedom of religion as a pre-modem and essentially authoritarian force in political life? Conventional wisdom teaches that secularization was an essential ingredient in the cultural background for liberal democracy. To have liberal pluralistic democracy, it is said, we in the West first had to break away from the religious worldviews that were characteristic of pre-modern feudalism, aristocracy, and monarchy. The Establishment Clause of the First Amendment and the various disestablishments at the state level are said to be the legal embodiment of that movement toward a secularization of our public culture. (1) This Essay argues that this understanding is historically and constitutionally incorrect.
The First Amendment at the national level, like disestablishment at the state level, was intended to prevent the government from exercising control over religion, which was seen as a particularly important and valuable institution for the formation of public character and opinion in a republic. The Establishment Clause is thus more akin to the Free Press Clause-indeed to free enterprise and limited government in general-than to any impulse of secularization or anti-religiosity.
This perspective is apparent in three different ways. The first situates the Religion Clauses within a set of decisions that deprived the new federal government of power to control or even greatly to influence public opinion, public culture, or the formation of national character. These functions would be left to private or decentralized institutions, and not infrequently to religious ones. The second situates the commitment to a separation between church and state within a broader understanding of limitations on the proper role of government. The separation of church and state is not a limitation on churches or religion; it is a limitation on the role of government with respect to churches and religious life in general. The third analogizes the free exercise of religion to free enterprise in the economic sphere. Both are strategies to encourage certain socially desirable activity through deregulation and liberty. Religion was not made free of establishment because religion was regarded as unimportant or deleterious, any more than the economy was made free of government domination because economic activity is unimportant or deleterious. Free exercise promotes the flourishing of religion in much the same way free enterprise promotes a flourishing economy.
I. THE FRAMERS' DISESTABLISHMENT
The Framers, or at least the disestablishmentarians among them, believed that in a republic public opinion should control the government, instead of the reverse. The Free Press Clause served this principle by preventing the government from controlling the press, an important institution for the formation and spreading of opinion and ideas. And by keeping the state's hands off religion, the Establishment Clause did the same. (2)
In assessing this point, it is important to note how the establishment of religion functioned historically. We often think of the establishment of religion as synonymous with theocracy, leading to religious control over the government. But in the established Church of England that the Framers knew, it was the other way around. Britain under the Church of England was not a theocracy. It was, in theological terms, Erastian: The government controlled the Church and used the Church for political and governmental purposes. (3) The Act of Supremacy made the King or Queen of England the supreme head of the Church, responsible for maintaining orthodoxy and naming all of the high prelates. (4) The doctrine and liturgy of the Church of England were also determined by parliamentary statute, and all ministers in the land were required to conform to them. …