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The Rise and Decline of American Religious Freedom

The Rise and Decline of American Religious Freedom

Steven D. Smith
Copyright Date: 2014
Published by: Harvard University Press
Pages: 240
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  • Book Info
    The Rise and Decline of American Religious Freedom
    Book Description:

    Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven Smith says in this incisive examination of a much-mythologized subject. The American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and of conscience. Smith maintains that the First Amendment was intended merely to preserve the political status quo in matters of religion. America's distinctive contribution was, rather, a commitment to open contestation between secularist and providentialist understandings of the nation which evolved over the nineteenth century. In the twentieth century, far from vindicating constitutional principles, as conventional wisdom suggests, the Supreme Court imposed secular neutrality, which effectively repudiated this commitment to open contestation. Instead of upholding what was distinctively American and constitutional, these decisions subverted it. The negative consequences are visible today in the incoherence of religion clause jurisprudence and the intense culture wars in American politics.

    eISBN: 978-0-674-73013-7
    Subjects: Law, Religion, History

Table of Contents

  1. Front Matter
    (pp. [i]-[vi])
  2. Table of Contents
    (pp. [vii]-[xii])
  3. PROLOGUE The Standard Story and the Revised Version
    (pp. 1-13)

    In good conscience I can concede, cheerfully, this much: the oft-told, much beloved story of religious freedom in America is not wholly false. In fact, the story contains a number of partial truths. And yet a collection of partial truths can combine, as we know, to make up a tale that is, in the aggregate, profoundly misleading. As in this instance.

    The story of American religious freedom has been told in many places and many ways. But most of the venerable tellings include several or all of the following themes:

    1.Americans as Enlightened innovators.When Americans committed themselves in...

  4. 1 American Religious Freedom as Christian-Pagan Retrieval
    (pp. 14-47)

    Instead of dividing up time into BC and AD (or BCE and CE), in thinking about religious freedom and perhaps even about religion itself, we might more aptly mark the years and centuries as BFA and AFA—before and after the First Amendment. Or so it may seem from standard accounts.

    BFA, the domain of religion was a dark and turbulent one, perpetually troubled by persecution, oppression, strife, torture, and death. That statement simplifies, obviously, and selects. Christopher Hitchens notwithstanding,¹ religion wasn’t always and in all respects poisonous: surely it sometimes inspired acts of courage, charity, or mercy. Who would...

  5. 2 The Accidental First Amendment
    (pp. 48-75)

    Freedom of the church. Freedom of conscience. Chapter 1 suggested that these notions were the contributions, derived from centuries-old Christian themes and doctrines that, when accepted and adapted in American constitutional law, helped shape the distinctively American approach to freedom of religion.

    But aren’t we getting ahead of ourselves? And did Chapter 1 assume too much at the end of its survey? Did these classical commitments—to freedom of the church and freedom of conscience—actually make it into the American constitution? And if so, how exactly did they get there, and where are they located? Those will be the...

  6. 3 The Religion Question and the American Settlement
    (pp. 76-110)

    Perhaps surprisingly, the main protagonist in our story thus far has been . . . the church. Freedom of the church, or separation of church and state, are on their face church-centered subjects. Freedom of conscience not so much, maybe, or at least not so obviously: still, in the period we have mostly been considering—namely, from the inception of Christianity up through the early American Republic—conscience was connected to the church. As we saw in Chapter 1, the commitment to freedom of conscience descended from a convergence of the idea that the church is a jurisdiction independent of...

  7. 4 Dissolution and Denial
    (pp. 111-138)

    Up to this point, our narrative has played off of the standard story of American religious freedom, honoring the elements of truth in that story, supplementing and correcting as seemed appropriate. Admittedly, the supplementation and correction in Chapter 3 came close to standing the story on its head: what in its blacker moods the standard story describes as a sort of dark age in which the luminous promise of the First Amendment was dishonored or ignored, I presented as a period in which the American approach to religious pluralism—or what I have called “the American settlement”—achieved its distinctive...

  8. 5 The Last Chapter?
    (pp. 139-166)

    In November 2011, Stanford law professor (and former federal judge) Michael McConnell debated Harvard law professor Noah Feldman at Georgetown University on the topic “What’s So Special about Religious Freedom?”¹ McConnell reminded the audience that the First Amendment singles out religion for special protection, and he argued that this treatment continues to be appropriate today. For his part, Feldman conceded the first half of McConnell’s argument: the First Amendment provides, and framers like Madison supposed, that religious freedom is deserving of special protection. But that supposition is no longer justified, Feldman argued. The Constitution’s special treatment of religion was based...

  9. EPILOGUE Whither (Religious) Freedom?
    (pp. 167-172)

    The standard story of American religious freedom tells how, under the influence of the Enlightenment, the American founders broke away from the intolerance and dogmatism of centuries of Christendom and courageously set out on a radical new experiment in religious liberty. More specifically, the founders adopted a Constitution that committed the nation to the separation of religion from government and thus to secular governance that would be neutral toward religion. These commitments were not immediately realized; on the contrary, the new nation suffered for a century and a half under a de facto Protestant establishment in which religious minorities or...

  10. Notes
    (pp. 173-214)
  11. Acknowledgments
    (pp. 215-216)
  12. Index
    (pp. 217-223)