Professor Marci A. Hamilton, Religion, the Rule of Law, and the Good of the Whole: A View from the Clergy, 18 J. L. & Politics 387 (2002)

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I. Introduction

“The separation of church and state” is a malapropism, in the sense that it awkwardly captures the constitutional arrangement between church and state. While it rightly captures the notion that church and state are to have distinguishable identities, and distinguishable interests, it fails to come to grips with the reality that religion and the state must and do coexist in the lives of the people. This coexistence was not questioned in the latter half of the eighteenth century, leading up to the framing of the Constitution. Nor should it be today. While the debate over the meaning of Thomas Jefferson’s phrase “separation of church and state” 1 may continue indefinitely, there can be little question that the Framers, the text of the Constitution, and its realization in American society point to one fact: the two were intended to and do in fact exist together in a dialectical relationship of difference and interaction.

This principle is a direct application of the larger principle used to explain church-state relations in the Supreme Court’s decision in Lynch v. Donnelly: “No significant segment of our society and no institution within it can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government. “It has never been thought either possible or desirable to enforce a regime of total separation… . .'” 2

Yet, how may government and religious entities coexist and interact under the First Amendment? To admit their mutuality does  [388]  not answer where the Constitution draws the line between their independent though interrelated existences. To answer this question, one must look not only to the Free Exercise and Establishment Clauses, but also to the structures of lawmaking within the Constitution. This Article reasons that when understood together, it is possible to know when law or religion rightfully may claim the upper hand of the believer’s allegiance and which branch is best suited to that determination. With the Supreme Court rightly having rejected the theory that the religious demand must always or even generally trump the law, the question left is when government may adjust the law to lighten burdens on religious believers through permissive legislative accommodation.

While “separation” treats church and state as mutual exiles, the question of permissive accommodation foregrounds the inescapable fact that religion and politics do operate together. They always have, and they always will. The Constitution may put the brakes on some results of that collaboration or relationship, 3 but it cannot hope to forbid either the exchange between or the inevitable mutual attraction of the two most authoritative structures of human existence.

So how are we to understand when the legislature may bow to the requests of religious claimants and when not? How may we understand when the religious believer or organization must defer to the law even when it conflicts with religious conduct?

The debate over the superiority of church or state mandate was energized when Professor Michael McConnell argued in an influential Harvard Law Review article that religious conduct, in general, ought to trump inconsistent law. 4 Using a blend of historical sources and arguments from a strand of evangelical theology, he argued for a constitutional right to avoid laws that conflict with religious conviction, which I will call the mandatory judicial accommodation thesis. 5Professors Philip Hamburger and Ellis West did an excellent job showing that the history does not [389]  support the concept of mandatory accommodation. 6 Even though the Supreme Court, in Employment Div. v. Smith, plainly rejected the mandatory judicial accommodation thesis nearly simultaneously with the publication of Prof. McConnell’s article, 7 the article stakes out an important position in the debate.

The question left open by the Supreme Court’s 1990 decision in Employment Div. v. Smith-and by the Supreme Court’s silence on the topic since Smith-is when accommodation is consistent with the right principles governing church and state’s coexistence. In rejecting McConnell’s mandatory judicial accommodation thesis, the Court did not reject accommodation altogether. Rather, the Court in Smith embraced the notion of permissive legislative accommodation: even though legislatures are not required to accommodate religious conduct at odds with generally applicable laws, they may consider and enact accommodations when doing so is consistent with the public good. 8 Thus, the Court did not rush to the opposite of McConnell’s position-that the rule of law must always trump or is ontologically superior to religious obligation-but rather simultaneously acknowledged the validity of the rule of the law and the social instinct that would avoid unnecessary burdens on religious conduct not at odds with the greater good:

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a  [390]  society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. 9

In other words, the Court assumed in this religion-friendly polity that requests for exemption would be frequent and treated seriously. In fact, they are.

The false inference drawn by many regarding Smith was that the Court was prescribing a rampant majoritarianism that would be unfriendly to minority religions. 10 Thus, rejection of the mandatory judicial accommodation thesis plus the move to the political forum was thought to be a dramatic setback for religious liberty, or so the argument went. 11

Unfortunately, this point was reinforced by the Court’s statement that:

It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not  [391]  widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs. 12

This concession on the part of the Court was as empirically wrong as it was unnecessary, and it betrays the actual structure of representation that legitimates legislative accommodation, a point I will go into in more detail in Section III.

Because McConnell argued that the believer cannot fail to do God’s bidding, and did not acknowledge a religious obligation to obey duly enacted law, an inescapable, underlying assumption of his thesis was that mandatory exemptions are religion-friendly, or required by anyone who takes religious devotion seriously. That is to say: within the universe of his reasoning, a mandatory exemption regime is pro-religion, with the corollary being that the Smith constitutional architecture is hostile to religion. That is precisely the message McConnell and others took to the public and the academy immediately following Smith. 13

This view, however, is an oversimplification that depends on a particular theological perspective, as opposed to a belief held by persons of all, or even most, religions. In fact, it does not reflect the view of the majority of religious leaders at the time of the framing, many of whom were instrumental in instituting and explaining to the people the operation of the rule of law as it applies to the actions of religious believers. 14 It is a fact-as true then as it is today-that some of the most influential leaders of United States society on issues of politics are members of theclergy. (It would be odd indeed were this not true, given the vast numbers of Americans who are [392]  religious. 15 Though it is empirically inaccurate to say that this is a Christian society, it is without question a religious society.)

From the mid-to the late-eighteenth century, many members of the clergy-in their sermons-helped to establish the relationship between religious conviction and the rule of law. As the shape of an American polity evolved through the Revolution, the Articles of Confederation, and finally the Constitutional Convention, members of the cloth addressed this pivotal issue directly. Unlike Deist Thomas Jefferson, though, they did not presume a stark separation of church and state, but rather mulled over the hard question of the coexistence in any citizen’s life of the demands made by the church and by the state.

The accumulated range of answers from later eighteenth-century clerics reveals a sophisticated set of presuppositions about the proper relationship between the church and the state that betray the easy assumption that application of the rule of law is hostile to religious individuals or faith. These views (1) falsify the either-or choice (for or against religion) implied by the mandatory judicial accommodation thesis as sketched by Prof. McConnell; (2) validate the criticisms levied against the McConnell formulation by Philip Hamburger and Ellis West; and most important for purposes of this Article, (3) pave the way for a legislative permissive accommodation that is in harmony with that described in Smith.

The sermons undermine McConnell’s implicit presupposition that the application of laws to religious conduct at odds with the law is anti-religious. At the very least, hearkening back to these members of the clergy makes clear that in most circumstances allegiance to the rule of law (passed by a duly elected representative whose power is derived from the people) was considered an obligation of a religious person.

The latter eighteenth century sermons reveal that religious leaders of the day did not envision a society that would permit any person to be a “law unto himself.” 16 Their vision was more collective, or at least  [393]  more community-based. For believers to achieve true liberty they needed to obey the laws enacted by the duly elected legislatures, for the sake of order and the public good. 17 The social compact generated not a deal whereby the believer could in good conscience retreat from society’s requirements, but rather a reciprocating compliance. The rule of law sat firmly in a theological vision of mutual reciprocity and obligation.

It is this duty to obey, and duty to the good of the whole, which sets this religious vision apart from the more recent theories that would interpret the Free Exercise Clause as a requirement of “equal treatment” or “equal regard” of atomistic individuals. 18 The vision painted in these sermons is not one wherein religious individuals meld into society, where all must be treated alike, but rather one in which religious individuals bear special obligations to serve the greater good. To state it in other words, the religious individual is under a stronger obligation to society and its laws than the nonbeliever. The claims to mandatory judicial accommodation turn this understanding on its head by treating the religious believer as a weak member of society that must be accorded special treatment in order to sustain belief. In the sermons of the eighteenth century, the greater good was achieved through believers who conformed their conduct to enacted law.

Yet, the obligation imposed was not a faithless or blind obedience. The obedience was due to just laws, which were defined as the creation of governments duly elected by the people and operating in the public good. 19 When laws became tyrannical, the people had reason and justification to depose their rulers, but not the rule of law itself. Even so, John Witherspoon warned against revolting too soon in light of the cost to society. Because “resistance … is subverting the society altogether, [it] is not to be attempted till the government is so corrupt, as that anarchy and the uncertainty of a new settlement is preferable to the continuance as it is.” 20

[394]  This Article is organized into three sections. First, it lays out the various explanations provided by members of the clergy regarding the rule of law and religious conduct in the half century culminating in the Constitution, for the purpose of more fully laying the groundwork for understanding where the Constitution draws the line between legal obligation and religiously motivated conduct. Second, it sketches the legitimate legislature that culminated in the Constitution and that could compel obedience from religious believers, under the views of the religious leaders at the time. Third, it shows how the Supreme Court’s contemporary jurisprudence is consistent with this early vision. By permitting accommodation by duly enacted legislators, the Court has placed accommodation decision-making, and therefore religious believers and lawmakers, under the shared horizon of the good of the whole. Thus, the vision painted by the Supreme Court in Smith is consistent with and supported by the predominant religious viewpoint at the time of the framing and before.

II. Eighteenth Century Clergy and Explanations of
the Rule of Law

As the experiments with democracy around the world in the last thirty years have taught, the rule of law cannot operate without the widespread acceptance of this principle among the people. 21During the latter half of the eighteenth century, such acceptance in this country was significantly furthered by sermons in a wide range of Protestant churches-Baptist, Presbyterian, Congregational, and Episcopalian. 22

[395]  Whether religious believers would be subject to the general laws of the new country was a topic that was frequently on the minds of preachers in the latter half of the eighteenth century. Their sermons, as well as governing documents of the churches, show the religious leaders of eighteenth-century society articulating a fairly cohesive vision for the coexistence of God’s law and civil law. I do not intend to overstate the consistency of their claims, because there are dissenting, minority views and not every preacher adopts every tenet discussed here. Nevertheless, there is a generally accepted view that is sufficiently repeated to justify the claim that it was an important and formative element in the social mix.

To be sure, the ideas that the various sermons set forth are consistent with and can even plausibly be traced not only to theology, but also to political philosophy of the time. In particular, many of the sermons reference the work of John Locke. The purpose of this Article is not to show the ultimate repository of any particular idea, however, but rather the sociological reality that religious leaders at the time of the formation of the Constitution conveyed a vision to their members: Congregants were urged by their religious leaders to follow the rule of law on a number of grounds.

The discussion of religion and the rule of law in the pulpit usually proceeded by an acknowledgment of the existence of two concurrent realms, one civil, one religious, each with a rightful pull on the citizen. While the argument for the superiority of God’s obligations is made, a point consistent as far as it goes with the mandatory exemption thesis, a number assert that the civil law is in fact a form of God’s law, a turn in the argument that undermines the mandatory exemption thesis. Believers were not to focus solely on their private understanding of what God asks of them individually, but rather, as part of their Christian practice, to take into account the good of the whole in their obedience to the law. They also argued, in the larger picture, that obedience to the civil law is necessary for the realization of true liberty and that the freedom of religion does not extend to conduct beyond worship. Far from the overly simplified assumption that conflicting laws automatically should give way to religious claims, eighteenth-century religious leaders cautioned their members of the perils to the broader society of failing to follow the law.

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A. Church and Civil Government: Concurrent and Distinguishable Realms of Power

In eighteenth century sermons, there was a repeated emphasis on the concurrent and distinguishable realms of power, church and state. Each was to have its rightful, limited claim on human conduct and mutual boundaries. 23

Civil law made legitimate claims on religious believers, when civil law operated in the proper realm. For example, Elisha Williams in 1744 stated that “obedience is due to civil rulers in those cases wherein they have power to command, and does not call for it any farther.” 24 In other words, according to Williams, “The ground of obedience cannot be extended beyond the ground of that authority to which obedience is required.” 25 The proper ground included the preservation of “life, liberty, money, lands, houses, family, and the like.” 26 Three years later, Charles Chauncy echoed that civil “rulers … have an undoubted right to make and execute laws, for the publick good.” 27 The horizon under which legislatures were to make law was the public good. Per John Lathrop, “If the essential parts of any system of civil government are found to be inconsistent with the general good, the end of government requires that such bad systems should be demolished, and a new one formed, by which the public weal shall be more effectually secured.” 28

[397]  The two domains were coterminous and mutually exclusive. Thus, civil government’s proper realm ended when it attempted to “establish any religion” 29 by instituting or requiring “articles of faith, creeds, forms of worship or church government [in part because] … these things have no relation to the ends of civil society.” 30

To be sure, the clergy did not intend to rubber stamp the rule of any civil government per se, but rather only that government that flows directly or indirectly from the people and that is obligated to the public good. The law that binds is the law derived as follows:

Reason teaches men to join in society, to unite together into a commonwealth under some form or other, to make a body of laws agreeable to the law of nature, and institute one common power to see them observed. It is they who thus united together, viz. the people, who make and alone have right to make the laws that are to take place among them; or which comes to the same thing, appoint those who shall make them, and who shall see them executed. For every man has an equal right to the preservation of his person and property; and so an equal right to establish a law, or to nominate the makers and executors of the laws which are the guardians both of person and property. 31

For at least one preacher in 1784, the fact that citizens have legitimized the government by choosing their rulers leads to the conclusion that such rulers are to be obeyed. 32

Aside from the requirement that the people play a role in choosing their leaders, there is no necessary prescription for the  [398]  form of government. Rather, the right government is to be fit to the particular community. 33

Part of this shared vision does depend on a notion of differentiation between church and state, but it is not a total separation that forces the believer to choose one sphere over the other, but rather a distinction of spheres, each with a legitimate, concurrent, and strong pull on the believer’s allegiance. Thus, the free exercise of religion was to be pursued not in isolation but rather in “so far as may be consistent with the civil rights of society.” 34 Taking the image of concurrent but distinguishable realms to its logical end, Isaac Backus reasoned that when each is functioning properly within its own realm, “the effects are happy, and they do not at all interfere with each other.” 35 The key to such happiness lies in their separate spheres, with “mischiefs” ensuing whenever “these two kinds of government … have been confounded together.” 36

The one realm reinforced allegiance to the other. The obligation to obey the civil law was treated as part of the Christian’s obligation. Peace was to be achieved when men lived under these two authoritative regimes, because Christians “are taught to obey [civil] magistracy … .” 37 Thus, the allegiance to the Christian Church carried with it an allegiance to laws duly enacted by those who were appointed by the people and entrusted with serving the public good. 38

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B. Reasons to Obey the Civil Law

Far from urging civil disobedience, many eighteenth century sermons exhorted believers to obey the civil law. There are three reasons offered by the clergy to obey the law. First, the law is given by God and therefore the believer must obey. Second, the rule of law serves the good of the whole. Third, which is a subset of the second justification, true or real liberty cannot be achieved in the absence of the rule of law functioning in a system appointed by the people.

1. The Law Is God-Given

For many of the preachers in the eighteenth century, God is present in both types of government-civil and ecclesiastical-in the sense that God has instituted government and that reason is founded in God. In a strong challenge to the notion that church and state are completely separate, Charles Chauncy in 1747 rejected the notion that civil government is purely a “humane constitution.” 39Rather, civil government arises out of reason and therefore is “essentially founded on the will of God. For the voice of reason is the voice of God.” 40 Indeed, God’s hand is in the very institution of civil government. 41

Applying these grounding principles, Elizur Goodrich preached in 1787 that “transgressing the laws of society … [will] expose ourselves to the high displeasure of Almighty God.” 42 In other words, the obligation to obey the law is not merely based on principles of reason, but rather is a directive from God.

2. For the Good of the Whole

In contemporary debate, the argument is oft raised that churches and their believers have a right to be left alone by the law, to isolate themselves from the community in effect. Indeed, one of the most  [400]  common justifications for the mandatory judicial exemption from the law is that the law should leave religious believers alone. In other words, no regulation affecting religion should be the baseline. 43

This is a vision that is alien to the religious leaders of the latter half of the eighteenth century. It is as though history is being read through the anachronistic prism of Brandeis’ famous twentieth century argument for the “right to be let alone.” 44 By contrast, in the eighteenth century sermons, there is a strong focus on the importance of believers contributing to the greater good, the community at large. In Nathaniel Eells’ words in 1743, “We are not made for our selves alone, but we are made to help in making the World better.” 45 Parishioners were exhorted to “promote the public peace and happiness,” not just their private salvation. 46 The failure to submit to the “just commands of the civil authority” was contrary to God’s will and worked “an injury … to the community.” 47

On these terms, there would be no true liberty, but rather only anarchy, in the isolationist Brandeis-like vision. Thus, “public good is not a term opposed to the good of individuals; on the contrary, it is the good of every individual collected.” 48 The Protestant preachers rejected the notion that Christians can live apart from society, isolated and not responsible for the common good. This element, in and of itself, points away from McConnell’s mandatory accommodation thesis, which rests on a vision of the individual, separate from society, who must foreswear the obligations of society in order to serve God. McConnell reasoned in a way directly contrary to the dominant eighteenth century vision, saying “If conscience must be respected, and if conscience can be defined in no other way than by the individual believer, then doesn’t liberty of  [401] conscience give believers a license to violate laws vital to social order?” 49 The sermons seem to say quite the opposite.

The move to the public good was coincident and further encouraged by the need following the Revolution and the era of the Articles of Confederation and the framing of the Constitution to institute a national order and identity. “With God’s help they would build a harmonious society of “comprehensive benevolence.'” 50 “”Let regard be had only to the good of the whole’ was the constant exhortation by publicists and clergy.” 51

Indeed, one of the most potent reasons given to distrust Catholics at the time was their predilection to esteem separate societies, such as monasteries and convents. Such isolation was a threat to the unity of the community that was emerging in the society during the latter half of the eighteenth century.

To secure true liberty, Christians were to be part of the tapestry of the society, contributing to its highest ends: peace, welfare, and security. “True liberty was “natural liberty restrained in such manner, as to render society one great family; where every one must consult his neighbour’s happiness, as well as his own.'” 52 Isaac Backus further explained the principle as follows: “Each rational soul, as he is a part of the whole system of rational beings, so it was and is, both his duty and his liberty to regard the good of the whole in all his actions.” 53

As parts of the fabric of society, Christians had obligations to ensure that the greater good was secured to the society as a whole in many categories. In Jonas Clarke’s words,

In a word, as by the social compact, the whole is engaged for the protection and defense of the life, liberty and property of each individual; so each individual owes all that he hath, even life itself, to the support, protection and defence of the whole, when  [402]  the exigencies of the state require it. And no man, whether in authority or subordination, can justly excuse himself from any duty, service or exertions, in peace or war, that may be necessary for the publick peace, liberty, safety or defense, when lawfully and constitutionally called thereto. 54

The alternative to this vision was anarchy, division, and war. Thus, God’s directive to seek peace was to be achieved by the body of Christians operating as a community together pursuing the common good.

Late in the eighteenth century, Jonathan Edwards reaffirmed this view of Christian community with an obligation to the common good: “it especially becomes this [Christian family], visibly to unite, and expressly to agree together in prayer to God for the common prosperity.” 55 Under this understanding, believers were obliged not simply to look after their own interests and to follow duly enacted law, but rather to embrace the needs of the polity as a whole as part of the Christian mission here on earth.

3. Obedience to the Rule of Law Is Necessary for True Liberty

Real liberty was to be achieved through obedience to law as well as the good of the whole. John Witherspoon taught his students, a number of whom later became Framers including James Madison, at the Presbyterian College of New Jersey, now Princeton, that the “true notion of liberty is the prevalence of law and order, and the security of individuals… .” 56 The various eighteenth-century sermons state that liberty from the law of a legitimate government is no liberty at [403]  all. Government is necessary and obedience to just laws is necessary for there to be “real liberty.” Indeed, “it is so far from being necessary for any man to give up any part of his real liberty in order to submit to government, that all nations have found it necessary to submit to some government in order to enjoy any liberty and security at all.” 57

The peace and good order imposed by a just government, i.e., one chosen by the people, was not to be undermined by the religious believer.

When a man adopts such notions as, in their practice, counteract the peace and good order of society, he then perverts and abuses the original liberty of man, and were he to suffer for thus disturbing the peace of the community, and injuring his fellow-citizens, his punishment would be inflicted not for the exercise of a virtuous principle of conscience, but for violating that universal law of rectitude and benevolence which was intended to prevent one man from injuring another.58

Thus, the laws ensuring peace, tranquility, and order obligated the believer and trumped counter-instincts for the purpose of achieving the fullest liberty. “It is true, the interests of society require subordination, but this deprives none of liberty, but helps all to enjoy it better.” 59

C. Conduct, Even When Religiously Motivated, Is Regulable

One of the most interesting aspects of the sermons, taken as a whole, is that they are consistent in naming the arenas over which the church has complete control as they leave the achievement of peace and order to the civil government. The churches’ domain  [404]  included the “power to make or ordain articles of faith, creeds, forms of worship or church government.” 60 Conversely, “the duty of magistrates is not to judge of the divinity or tendency of doctrines” 61 but rather to constrain actions that harm others and the public good. “Disturbers … ought to be punished.” 62

The ecclesiastical domain ended and the civil domain appropriately held sway when the beliefs, faith, worship, and church governance turned into “overt acts of violence [or effect].” 63 So even when overt acts involved the subject areas of ecclesiastical government, the civil authority permissibly dominated. Thus, religious defenses to a wide range of antisocial conduct, such as “murder, theft, adultery, false witness, and injuring our neighbor, either in person, name, or estate” were immoral or irreligious or both. 64

The sermons of the latter half of the eighteenth century raised and rejected the possibility that religious fervor could justify or excuse a violent crime:

A Shaking-Quaker, in a violent manner, cast his wife into a mill-pond in cold weather; his plea was, that God ordered him so to do. Now the question is, Ought he not to be punished as much as if he had done the deed in anger? Was not the abuse to the woman as great? Could the magistrate perfectly know whether it was God, Satan, or ill-will, that prompted him to do the deed? The answers to these questions are easy.

In the year of 1784, Matthew Womble, of Virginia, killed his wife and four sons, in obedience to the Shining One … to merit heaven by the action … .  [405]  Neither his motive, which was obedience, nor his object, which was the salvation of his soul had any weight on the jury. 65

In other words, actions taken in contravention of public peace and safety, under a civil government chosen by the people, left the perpetrator, even if a religious believer, vulnerable to civil action. 66 “The subjects of the kingdom of Christ, claim no exemption from the just authority of the magistrate, by virtue of their relation to it. Rather they yield a ready and cheerful obedience, not only for wrath, but also for conscience sake. And should any of them violate the laws of the state, they are to be punished as other men.” 67

The portrait of society painted by the sermons of the eighteenth century brought Christians from a wide sweep of denominations under a shared horizon of working toward the public good in concert with the government, a task that required obedience to duly enacted law governing actions. Backus captured this worldview when he explained that religious believers had “an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby.” 68

The following discussion of the Constitution’s structure of representation shows how the legislature in particular fits under this horizon.

III. The Legitimate Legislature

The sermons depicted believers in a joint enterprise with government to pursue the public good through their actions, which included obedience to duly enacted laws. In the absence of a  [406] government oriented toward the public good, their vision could not become real.

The exception that proves the rule of the foregoing (and the following) can be found in sermons delivered during the Revolution. The Revolution was sparked by rebellion against “virtual representation,” the claim in Britain that the Parliament could represent colonists’ views without representation by colonists. 69 For the colonists, virtual representation was not legitimate representation in the interest of the common good, but rather a usurpation of their rightful role in lawmaking that affected them. Accordingly, many members of the clergy counseled their members to refuse to obey the laws handed down by Parliament and to revolt. 70 For these preachers, the years leading up to the Revolution were a time when the true rule of law had been suspended by Britain vis-a-vis the colonies, and therefore obedience to law was not required. The foundation of their charge to obey the law was the legitimate legislature.

The following describes the Constitution’s structure of a legitimate legislature intended to be oriented primarily toward the public good, and away from personal, self-serving interests of any particular representative. This was the legislature the clergy had in mind.

For many of the religious leaders of the eighteenth century, two elements were essential in this formula. First, the government must be chosen by the people. 71 Second, the lawmaker must be capable of serving and striving for the common good, which was the proper goal of the government. 72 In Witherspoon’s words, there needed to be “wisdom to plan proper measures for the public good [and f]idelity to have nothing but the public interest in view.” 73

The Constitution crafted lawmaking bodies-the Congress and, via the Guarantee Clause, the state legislatures-that satisfy these requirements. They are chosen by the people through constitutional [407]  ratification and election. Though the Convention was not driven solely by the views of religious leaders, of course, the system of representation consciously was constructed to make it possible for representatives to strive for the common good.

The following is an explanation of the structure of representation that orients representatives toward the common good. In an article on religious jurisprudence, it may seem overly detailed. It is necessary, however, to explain fully the legislative process on which the eighteenth century sermons rested and to which the Court in Smith handed accommodation. Without this understanding, it is impossible to judge adequately where permissive legislative accommodation is or can be a good thing or to judge the constitutionality of any particular accommodation.

A paradox of distrust and hope, with strong Calvinist undertones, played a role in the Framers’ discussions during the framing of the United States Constitution, and in particular the legislative branch. 74 The Rev. John Witherspoon’s statement that “nothing is more natural than for rulers to grasp at power” is a commonplace. 75 Wherever the Framers looked, they accepted as a fact that men could and would use their power to accomplish evil, rather than good: “From the nature of man we may be sure, that those who have power in their hands will not give it up while they can retain it. On the contrary we know they will always when they can rather increase it.” 76 In James Madison’s words, “the truth was that all men having power ought to be distrusted to a certain degree.” 77

[408]  The fact that the Framers were consumed with identifying and preventing abuses of power (whether through inaction or aggression), did not translate into unanimity as to which particular governmental structure would tend to tyranny and which would not. Rather, these conclusions were empirical. In the context of discussing whether there ought to be popular elections, Mason stated the matter bluntly: “At one moment we are told that the Legislature is entitled to thorough confidence, and to indefinite power. At another, that it will be governed by intrigue & corruption, and cannot be trusted at all.” 78 James Wilson responded that “the legislature might deserve confidence in some respects, and distrust in others.” 79 In short, the disagreements at the Convention did not arise from different assessments of human nature or different judgments regarding ancient or modern forms of government, but rather revolved around the different empirical assessments made by each of the Framers with respect to each social entity examined and its ability to serve the greater good. Federalists distrusted state legislatures, Anti-Federalists distrusted the new federal powers, and each Framer brought his own individual assessment of whom and what to trust to the Convention.

A. The Rejection of Self-Rule

The Constitution plainly rejects direct democracy as did Rev. John Witherspoon, mentor to James Madison, who had the following to say about direct rule by the people:

Pure democracy cannot subsist for long, nor be carried far into the departments of state-it is very subject to caprice and the madness of popular rage. They are also very apt to chuse a favourite, and vest him with such power as overthrows their own liberty,-examples, Athens and Rome. 80

[409]  The Constitution does not provide a single mechanism for the people to rule directly on any issue. There was a time-around the Revolution-when legislators were considered servants to their constituents, subject to citizen direction, and beholden to citizens for the wisdom necessary to solve social problems. 81 At that time, there was a widespread belief in the ability of the people to manage government functions directly coupled with a corresponding disillusionment with Parliament’s conduct. 82 This theory of representation, when put to the test in the post-Revolutionary state constitutions, was found to be misguided. Legislatures controlled by the people tended not to serve the public interest. The Framers, pragmatic as always, took this experience into account as they moved toward a very different idea of representation for the Constitution.

Before the Revolution, the colonists chafed under the fact that they had no representation in Parliament, but were nonetheless ruled by it. Britain’s defenders attempted to justify the colonial arrangement as an example of “virtual representation.” 83 With no elected representatives in Parliament, the colonists were told that their interests were being virtually represented by British members of Parliament. Parliament was the supreme ruler of the realm of which the colonies were a part and whatever was in the interest of the realm would also be in the interest of the colonies, or so the reasoning went. 84 On the other side of the Atlantic, the equation of the realm  [410]  with the colonies simply was not persuasive. Virtual representation was no representation. Rev. John Witherspoon among others counseled war in the face of Parliament’s usurpation of power against the colonies. 85

The Revolution succeeded in casting off the yoke of the Parliament and the monarchy. However, it left the American citizens with the question of where to lodge governing power. Thus, during the pre-and post-Revolutionary years, sermons consistently referred to “legitimate” lawmakers, those chosen by the people, but did not specify more particulars as the emerging polity felt its way towards a workable system. The standard against which each successive form was judged, however, was the good of the whole identified in the sermons. 86 In the literature of the day, Britain, from its citizens to its government, was portrayed as utterly corrupt. In contrast, the colonists praised themselves as a more virtuous lot. 87 Thus, they flirted with the heady concept that ruling power should reside with the people. There was no movement to institute town-meeting style democracy in all the states, but following the Revolution many of the state legislatures were constructed so as to give the people oversight authority over their representatives. 88 In another move intended to hand power to the people by wresting it from corruptible institutions, many state executives were not given power. 89 By handing the bulk [411]  of governing authority to the people, the post-Revolutionary era expected to avoid the “tyranny” against which the war had been fought.

If there ever were a moment in American history when direct democracy or self-rule might have obtained a toehold, it was the post-Revolutionary era. The drift toward direct democracy, though, was impeded by the negative consequences of popular control unchecked by the executive: civil wars, impending anarchy, and a lack of leadership of the whole, especially on issues involving the economy and national defense. 90 Popular control of legislators had proven inadequate to serving the good of the whole.

The people-dominated legislatures proved no more capable of guaranteeing stability or good government than the British scheme. The state legislatures were transformed into collections of secret cabals, ironically becoming irresponsible and unresponsive to the people who were supposed to control them. 91 Only one decade after the states turned to the people to rule through their state legislatures, the Articles of Confederation were declared a failure and the Constitutional Convention was assembled. 92

The Framers were very forthright, in their belief that control by the people is a scourge. 93Speaking from their own experience, they were in broad and vocal agreement that rule by the people is mob rule and is incapable of serving the national interest or the higher  [412]  good.94 In his Notes of the Convention Debates, Madison explained why Rome had rejected direct democracy: “because the people by reason of their numbers could not act in concert; were liable to fall into factions among themselves, and to become prey to their aristocratic adversaries.” 95As a practical matter, the people could not be entrusted with ruling power, though they were the source of the power wielded by their representatives.

Within the Framers’ discourse, direct democracy conflicted with their chosen model of legislative representation. Direct democracy demands that the individual be empowered to reach governing decisions. Representation, in the Framers’ scheme, places the responsibility for decision-making in other hands. 96 The failure of the state constitutions to bring peace and prosperity following the Revolution led the Framers to conclude that representation is unavoidable as a pragmatic matter.

A caveat is in order. The Framers only rejected direct rule as a means of public governance. Private control of private concerns remained an important ideal, as the sermons’ reference to two spheres-one church, one government-reveals. 97 The Constitution aims to find the optimal role for the representative that ensures order as it preserves liberty, for the purpose of serving the greater good.

B. Conventional Wisdom and the Legislative Process

To explain fully the legislative process, it is necessary to unmask current false presuppositions. The Congress is widely assumed today  [413]  to be controlled by interest groups, and the leap is too often made that that feature necessarily and fully describes the nature of the process. The dominant legislative paradigm holds that legislators are self-serving, weak, blindly ambitious, and that interest groups are disproportionately powerful and resourceful. Legislators are depicted as mere salespeople of votes. 98 Others view them as single-minded reelection seekers. 99 Still others view legislators as motivated entirely by self-interest. 100 Interest groups are depicted as powerful  [414]  private elements struggling over legislative outcomes in the virtual absence of legislators. 101 Day-to-day observers of the legislative process have reached similar conclusions.102

According to these descriptions, the legislator is, at best, a toll-gate and, at worst, a pernicious rent-seeker who operates only out of a self-interest narrowly understood. Certainly, in many circumstances, they describe some instances of current legislative practice. But they have come to be taken as inevitable realities. As the interest group model has come to dominate, the role of the representative in serving the greater good has nearly disappeared. 103 If this were the structure of representation, the concerns expressed about the fairness of throwing constitutionally required accommodation to the legislature would have serious weight.

Rent-seeking behavior is not a necessary condition for legislation, nor does it express the unalterable nature of the legislator in the system constructed by the Constitution. It is a real possibility, nothing more and nothing less. Counterbalancing the possibility of thoroughgoing selfish behavior is the human capacity, identified as essential for other functions within the practice of law and  [415]  lawmaking, for altruism, 104 integrity, 105 and empathy. 106 In short, those are the characteristics that constitute a legislator’s unselfish capacity to seek the good of the whole. Fortunately, we do not have to choose between the two extremes of human behavior in crafting a theory of legislation. 107 Even a cursory observation of one’s own conduct reveals that each of us is capable of operating within the spectrum of possibilities between the two extremes as well as at either extreme. 108 Legislators certainly must, as human beings, share this capacity for a range of motives and behaviors. It is precisely this character of human experience that motivated the Framers and that is repeatedly revealed in the eighteenth-century sermons of religious leaders.

If the negative portrait of the legislator described the necessary qualities of the legislator representation should be abandoned altogether. The Constitution establishes a legislative scheme that is intended to orient legislators toward the best interests of all, to transcend their individual interests, and to serve the nation as a whole.

[416]

C. The Constitution’s Model of Representation

James Madison believed that the most important element of the Constitution was its institution of a system of representation. 109 There are two fundamental characteristics of representation as adopted by the Framers: the exercise of independent judgment and the maintenance of continual communication with constituents. The constitutional scheme places burdens on both representatives and the people: the former to perform to high standards in the interest of the whole and the latter to monitor and check the former.

1. The Source of the Legislator’s Authority and the Circumstances of Its Delegation

The two primary architects of representation at the Convention were James Madison and James Wilson. They identified the initial source of governing power as the people. That does not mean, however, that they would rest ultimate governing power in the people per se.

According to the Constitution, the constituent is the source of whatever power the representative has, and an election legitimizes the transfer of authority from the people to the legislator. The principle of popular sovereignty centers the relationship between the people and their representative because “the people retain the supreme power.” 110 The three branches of government may serve as checks upon each other, but the people are the ultimate check on all three. In James Wilson’s words, “in all governments, whatever is their form, however they may be constituted, there must be a power established from which there is no appeal … . The only question … is where that power is lodged? … It remains and flourishes with the people.” 111 For Wilson, neither kings, nor legislatures, could hold final or absolute power over the people. Rather, the people are  [417]  the source of sovereignty. 112 Their “consent is the sole obligatory principle of human government and human laws.” 113 Thus, representatives act “not by their own power, but by the power of those whom they represent.” 114

Power is transferred from constituent to representative out of necessity. If self-rule were the sine qua non of right rule, such a transfer would be anathema. Government by self-rule, however, is impracticable and ill suited to serving the common good. 115 Even at the time of the framing, actual self-rule was a practical impossibility. 116 In a complex and geographically large country, which cannot be managed through town meetings, the legislature was a necessity.

The Framers believed that self-rule becomes increasingly difficult as the constituency becomes larger and more complex. 117 Wilson envisioned, more fully than any of his counterparts, the United States as a national and united public. 118 His vision of a national polity, 119  [418] combined with his passionate belief in the capacities of the people in a representative democracy and his recognition of the need for efficient government, naturally drew him to advocate what would become the Constitution’s scheme. 120

Consistent with the views of religious leaders of the time, the Framers believed that “self-rule” is in fact anarchy. Individuals in a system of self-rule, acting without restraints, were thought to be less likely to serve the common good, a fear expressed in not a few of the sermons. 121 Because of this understanding, representatives were placed in a constitutional structure intended to deter their abuses of power and to channel their decision-making toward the common good through checks and