Tisa Wenger on Jack RakoveW
hat comes to mind when you hear the words “religious freedom?” Who and what, in practice, has this freedom actually protected? What are the limits of this freedom, and who gets to decide?
In Beyond Belief, Beyond Conscience, Jack Rakove, a political scientist and historian at Stanford, aims to shed new light on the importance of religious freedom as an American ideal. Beyond Belief, Beyond Conscience is part of Oxford’s Inalienable Rights series and, like all the texts in that venerable series, is intended as a “short, analytically sharp exploration of a particular right,” clarifying ongoing points of tension and “challenging us to rethink our most cherished freedoms.” The book and the series as a whole speak within the constitutional framework of the United States. You might say that they seek to refurbish and revitalize the building blocks of American exceptionalism towards new and more inclusive ends. In service to that broader mission, with all its perils and pitfalls, Rakove offers a trenchant defense of religious freedom as a classically liberal ideal.
Rakove is one of the few authors in this series who writes not as a lawyer or legal scholar but primarily as a historian. And so, perhaps to manage his readers’ expectations, he repeatedly stresses the limits of the historian’s gaze. He reminds us that historians cannot predict the future; and that the disciplinary tools of history provide little help in deciding what the law should or should not be. When approaching a topic like religious freedom, he tells us, the historian’s task is to clarify the historical conditions that produced the ideal and shaped its development over time. But Rakove is so insistent about the limits of his view as a historian that the disclaimers, at least to this reader, begin to feel a bit disingenuous. The book is no disinterested history—does such a thing exist?—but rather draws on history to articulate a set of principles by which the author believes religious freedom should be governed.
Rakove’s approach will confound some readers’ assumptions around the politics of religious freedom. His concern for the moral conscience of individuals (all individuals) contradicts the conservative tendency in recent years to favor churches and corporations over the contravening rights of the individuals who oppose them or simply get in their way. Progressives, on the other hand, are likely to falter at Rakove’s claim that the freedom of religion serves as the most important grounding for the “moral autonomy of individuals” and for the whole array of freedoms that Americans cherish. By returning to the Madisonian ideal, by insisting on religious freedom as a right adhering above all to the individual person, Rakove hopes to restore much-needed clarity to this field.
Rakove builds his case through a whirlwind tour of American history. His first two chapters move swiftly through several centuries of European and colonial American history to show how American practices and principles of religious freedom emerged out of the specific context of the American Revolution. Most important, in his telling, was a developing evangelical Protestant theology that stressed the sovereignty of the individual conscience, fortuitously combined with an on-the-ground religious diversity that made European-style establishments impossible to secure. Chapter three focuses in on Thomas Jefferson and James Madison as the key figures in formulating a forward-looking framework for this freedom for the new United States. Chapter four surveys key constitutional developments in the long nineteenth century, while the fifth and final chapter sums up religious freedom jurisprudence since the 1940s. Noting the significance of Employment Division v. Smith (1990) and the legislative response of the Religious Freedom Restoration Act (1993), Rakove ends with ongoing debates over the kinds of exemptions the state should provide on religious grounds to otherwise applicable public laws.
By way of conclusion, Rakove proposes “Madison’s razor” as a way to cut through this contemporary fray. He argues that religion ought to be treated “as a matter of private belief and voluntary associations,” and honored as “a true wellspring of constitutional privacy.” Current debates are typically framed to pit religious freedom (often for conservative Christians) against civil rights and liberties (often for women, same-sex couples, or transgender people). Reflecting on this situation, Rakove decries the ‘third-party effects’ that ensue when exemptions from public laws, granted to some on religious freedom grounds, cause harm to others. Madison could not have envisioned this problem, he explains, because in Madison’s lifetime the complexities of the ‘modern regulatory state’ did not yet exist.” And so Rakove extrapolates from Madison’s expressed concern for protecting “minorities and individuals against the opinions, passions, and interests of popular majorities.” When contraception and abortion are recognized as matters of conscience, Rakove asks, how could the law grant anyone the right to make such decisions for others? How could anyone “alienate that right” to their employer or to the state? How might the law honor devoutly religious minorities, of all kinds, and other kinds of minorities, such as same-sex couples who seek equal rights and equal status under the law? Arguing against a cadre of conservative legal scholars and activists—and indeed against the current majority on the Supreme Court—Rakove concludes that religious freedom must adhere not primarily to churches or corporations but to individuals; and that the separation of church and state does not stand in tension with this freedom but rather preserves it.L
ike Rakove, I speak as a historian, and I too would disclaim the ability to offer any final solutions. I am sympathetic, as well, to many of his conclusions. But as a historian of religion with longstanding interests in the law—and especially in the social formations and consequences of religious freedom law—I wanted Rakove to push deeper into these muddiest of historical waters in search of greater clarity about the nature of the problem. I would pose a series of questions about how standard American ideas about religion itself were made and remade through the histories Rakove relates, and about the unintended consequences of this religion and the regimes of governance it enables.
In my view, Rakove is overly rosy about the successes of Madison’s approach, and tends to gloss over its many exclusions. While he asks how the principle of religious freedom developed, he treats the underlying notion of religion as self-evident. He knows what it is when he sees it, and he takes for granted that his readers do as well. Religion is the source of individual “moral autonomy,” he writes. It is the source of deeply held values, convictions, and spiritual meaning. Jefferson and Madison, at the leading edge of the American Enlightenment, concluded that religion was best when it was private, removed from political concerns. Religion, ideally, exists in its own realm of conscience, morality, and belief. Rather than explicitly wrestling with the task of defining religion, Rakove simply assumes that this is what religion is—or, in the modern American constitutional order, what religion should and must be.
But the things people designate as religion rarely play by these rules. Rakove would benefit from engaging with recent work in religious studies and the anthropology of religion—starting with Talal Asad’s Genealogies of Religion, or Tomoko Masuzawa’s The Invention of World Religions—that ask how the category of religion itself, and the insistence that it be free, are products of very particular European and Anglo-American histories. The kind of religion that Jefferson, Madison, and now Rakove have aimed to liberate was, in a sense, imagined into being through countless arguments in its defense. That creation has always been unstable, a vision more than a reality. On the ground, in the conflictual messiness of human life, the communities that organize as religions are almost never content to leave their convictions and their consciences safely in the private sphere. Religions, as people name and observe and claim them, always seem to exceed the privatized limits of liberalism’s ideal.
Rakove does not see—or perhaps does not consider relevant to the topic at hand—how the liberal ideals of men like Madison and Jefferson were bound up with the violent systems of settler colonialism and slavery in which they participated. He describes colonial Pennsylvania as a kind of incubator for religious freedom, not only because of William Penn’s Quaker idealism but also through a “recruitment strategy” that “juxtaposed giving immigrants ready access to land with the promise of liberty of conscience.” (54, 60). European settlers, in other words, were actively recruited through the twin promises of free religion and freely available land. In later years, the same was true of the western territories claimed by the United States. Yet these lands were not open “wilderness,” as Rakove describes them. They were the homelands of numerous Indigenous nations whose very existence as sovereign nations were systematically being denied.
Nor does Rakove see how the religion of the majority generally escaped the privatized model that functioned quite consistently to discipline colonized, racialized, and non-Christian others. He acknowledges that British colonists largely dismissed Native American “religious practices as the work of heathens and devil worshipers” (43). But he does not follow that story through the active suppression of Indigenous practices in the nineteenth and much of the twentieth centuries, surely the most sustained assault on any set of religious traditions by the United States government. Policymakers believed that Christianity would “civilize” Native Americans and free them from the tyranny of their “heathenism.” Christianity, in this instance as in Rakove’s narrative, was framed as the source of individual freedom, instilling moral autonomy and so creating the modern (civilized or civilizable) subject. These convictions both enabled the public privileges of Christianity and helped justify the theft of Indigenous lands.R
akove barely mentions the enslaved African Americans who were equally excluded from the scope of early American religious freedom. In Jefferson’s and Madison’s own households and throughout their society, enslaved people were denied the bodily autonomy that must be the precondition for any “moral autonomy” worth having. The religious liberty that the founding fathers granted to enslaved people was a mockery, as Black abolitionists like David Walker recognized. It was limited—explicitly in the writings of John Locke, and implicitly in the US Constitution—to the spiritual and not the “civil” sphere. Slaveholders claimed the freedom of religion (along with the rights of property) to defend the practice of slavery against abolitionists who, it was said, aimed to destroy the (white) Southern way of life. The issue here is not simply that the “booming spiritual marketplace” of the nineteenth century was inaccessible to many, or accessible on dramatically unequal terms, but also that this spiritual marketplace cannot be separated from the energies, anxieties, and enthusiasms of a White settler society that came into being through the seizure of Black bodies and Indigenous lands.
Do these exclusions matter to Rakove’s argument? No doubt he would respond that Jefferson and Madison were men of their times, and that we cannot delegitimize their good ideas simply because they were mixed up with the bad. “Moral condemnation is an easy task,” he writes; “historical explanation is a much more difficult endeavor.” Despite the limited scope of their vision, despite the nation’s many failures, surely the freedoms elaborated by Jefferson and Madison can and should be extended to all. As my own work shows, the constitutional principle of religious freedom has indeed provided cultural legibility and legal recourse for minorities of all kinds. And it is clear that the scope of these constitutional protections, at least in principle, have widened over time.
And yet, the exclusions and inequities of religious freedom are clearly not limited to the past. Christian privilege remains very much alive in the placement of churches in prime locations in American towns; in the organization of public-school calendars; in the kinds of “faith-based” programs that are likely to be publicly funded; in the kinds of hot-button issues—opposition to abortion, contraception, same-sex marriage, or transsexual existence—that get publicly framed and privileged as religious freedom concerns. It is harder to locate religious freedom, either within or beyond the courts, for Native people who seek to defend the lands they call sacred, lands which the United States government defines as property to be bought and sold. Religious freedom is a right guaranteed to inmates trapped within the racialized system of mass incarceration. And yet, as with enslaved people in antebellum America, the freedom of conscience for unjustly incarcerated people must be a hollow freedom indeed.R
eflecting on this rather gloomier historical account, I worry that Rakove’s celebratory defense of religious freedom continues to instantiate a very particular kind of religion. In the perennial tension between religious freedom as an individual or a collective right, he unapologetically takes the side of the individual. He is rightly concerned for the people who become collateral damage when religious freedom exemptions are granted to churches and corporations. But his argument, I fear, only reifies the value of religious freedom and has little power to resolve its contradictions. If, as Rakove does, we understand religion as the primary site of human moral formation, if religion resides in the places where subjects and subjectivities are formed, then surely this freedom cannot be framed as purely an individual concern. The notion of religion as individual conscience, disembodied and disembedded from its relational networks and from the land itself, is a product of the imperial Enlightenment. All too often it has been imposed only on protesting minorities—who are told to keep their religion in its properly privatized place—and so has enabled the privilege of those already in power.
At a time when appeals to the collective rights of religious freedom seem only to reify Christian privilege, any challenge to Rakove’s prioritization of the individual might seem inconvenient. But if, like Rakove, I can step out of my lane as a historian to suggest a new way through, I would call for a weaker but also wider version of this freedom. Unlike some critics, I see little advantage, either pragmatically or substantively, in calling for its abandonment. Rather I would weaken it by viewing religion as less special, not more; and by framing religious freedom as one freedom among many, not as the most foundational freedom. Nobody’s religious freedom should have the right to trump the constitutional rights and freedoms of others. Through that weakening, as well, we might also recognize a more capacious and inclusive religious freedom that can honor both individual consciences and the value of the diverse communities (and lands) that mold them.
Tisa Wenger is Professor of American Religious History at Yale Divinity School. Her books are We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom(2009) and Religious Freedom: The Contested History of an American Ideal (2017). Her current research asks how colonial encounters made and re-made both indigenous and white settler religion in the early national United States.