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.

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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 balances and the dispersion of power.

The practical argument for representative government is even more compelling today when the multiplicity of technically complex issues facing government makes it impossible for any one constituent and, perhaps, any one legislator to fully comprehend them all. Reality, time constraints, complexity, and multiplicity all counsel in favor of a delegation of decision-making power through a representative form of government.

[419]  The Framers readily conceded the practical impossibility and undesirability of self-rule. In like fashion, they also rejected monarchy. They embraced instead a third option, representation.

2. The Nature and Scope of the Delegation of Power

The Constitution makes one facet of representation clear: the constituent delegates not merely the right to vote on an issue according to the majority’s preferences but rather the power to determine the particulars of public decisions. This delegation entails a transfer to the legislator of the power and responsibility to make the “hard choices.” 122 The nature and scope of the delegation of decision-making power from constituent to representative differs greatly from the self-rule concept’s tendency to reduce representation to little more than vote aggregation. The Constitution’s representation scheme legitimizes the representative’s exercise of personal and moral judgment.

The people have “intrusted” their representatives with the power and obligation to make binding law. 123 While the self-rule paradigm would turn representatives into little more than placeholders for the majority’s preference on any particular issue, the Constitution is centered around the necessity of a delegation of decision-making, which is to say the legislature, as constructed, did not create a majoritarian “difficulty,” but rather freed government to pursue the common good, regardless of majority preferences.

[420]  The representative contemplated by the Constitution is yoked with heavy responsibilities. The legislature is elected to make independent and well-informed judgments in the best interests of the people regardless of whether the people would make those particular judgments themselves. 124 As James Wilson explained his own role at the Convention as follows:

Mr. Wilson … asked himself the serious question what he should say to his constituents in case they should call upon him to tell them why he sacrificed his own Judgment in a case where they authorized him to exercise it? Were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the retort: did you suppose the people of Pennsylvania had not good sense enough to receive a good Government? 125

The delegation of power is not unlimited, it is a delegation of decision-making power and responsibility. The power and right to make law is “delegated [by the people] for a certain period, on certain conditions, under certain limitations, and to a certain number of persons.” 126

Legislators were held to a high standard of performance whereby they were expected to exercise judgment, which included taking into account the struggle of interests occurring around them and the expressed needs and desires of their constituents. 127

Representatives were not to be utterly detached from the people, in contemplation of an ideal good. Rather, a representative acting according to the Framers’ prescriptions must weigh the desires and needs of her present and future constituents in constructing what  [421]  she viewsas the best solution. In attempting to achieve a best-world solution the representative properly may depart from particular constituents’ views.

For example, the southern mayor who enforced the dictates of the Brown v. Board of Education decision falls into this category, as does the federal legislator representing the Bible Belt who refuses to vote in favor of legislation that would declare the United States a Christian country. Some would argue or assume that representatives are majority-driven, because they seek re-election, but this is an oversimplification. For each vote cast the representative must think, as James Wilson did, whether his constituents will think he did the right thing, not, whether he followed their will in the face of better ideas at hand. Elections test results, not simple allegiance, except for one-issue voters. 128

This is precisely the point where the Court in Smith departed from the constitutional design. When the Court presumed and accepted that minority religions would be disabled in the legislative process constructed, it rested on a false assumption. The legislative process is constructed so that representatives consider a larger horizon than the simple majoritarianism the Court presumed, and instead creates the very possibility for minorities to get their voice heard and their needs served.

Although the people have no continuing right to instruct after the election, 129 they do have the power publicly to disapprove, ridicule, and refuse to reelect their representatives. 130 Thus, the typical  [422]  legislator, far from being an isolated, sovereign ruler, 131 is driven to engage in an ongoing dialogue with the people. Moreover, the legislator hears not only the judgment of her present-day constituents, but also the judgment of history imaginatively played out during the course of her representation. The legislator, thus, is accountable both to her geographically designated constituents, as well as to the res publica. 132 This reality belies the simplemindedness of a representation scheme that involves only the aggregation of existing individual preferences and explains the necessary resort by the representative to best world rather than direct representation. 133

What distinguishes the legislator from a conduit of preferences is judgment, which includes the capacity to make choices between seemingly equally valued prospects and the capacity to include in the ultimate calculation the prioritization of particular issues. 134 Instead, legislators mediate between two poles of a dialectic, one pole being careful consideration of the judgments of citizens and the other being the exercise of independent judgment in the interest of the polity.

3. The Requirement of Communication

The necessity and the reality of the delegation of political authority to representatives immediately raises the issue of accountability. The Framers gathered at a time when American culture was consumed with the idea of avoiding the tyrannies of the  [423]  past. 135 “Most commonly the discussion of power centered on its essential characteristic of aggressiveness: its endlessly propulsive tendency to expand itself beyond legitimate boundaries.” 136 By the time the Constitution was being framed, the robust optimism of the post-Revolutionary era had given way to a more frank distrust of the people and governing institutions. In that milieu, it was inevitable that the increase in the power of representatives would be coupled with a strong belief in the need for plain communication between them and their constituents.

The Constitution constructs a marketplace of expression that institutes two-way communication between the people and their representatives through a number of mechanisms.

First, the Framers included a Speech and Debate Clause that would prevent legislators from being incarcerated or prosecuted for their statements during legislative session. 137 Blasphemy, heresy, and sedition laws had been used against members of Parliament in England. This clause was intended to free members of Congress to speak their minds during debate and had the effect of making it more likely that their views would be known by the public.

Second, the Houses of Congress must keep a record of their proceedings and publish them:

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. 138

They must record the votes of each member even when only a small number ask for such a recording. This is forced communication that is intended to prevent the Congress from turning into a collection of secret cabals making secret laws  [424]  according to whim. 139 Plainly, Congress is not supposed to operate as a secret cabal hiding its intentions from the people. These measures, though not absolute in their requirements, guarantee at least some information to the public.

The Congressional Record is the answer to the Journal Clause, and carries all statements made on the floor of either House. The Record certainly does not give citizens an unvarnished view of the legislative debate, with its prepared speeches, but it does provide some evidence of legislators’ views. The House has done the Clause one better by routinely reporting votes unless the rules are suspended. 140 In addition, both Houses require committee reports to be made public. The Senate Rules provide that reports made by a committee of conference to the Senate shall be printed as a report of the Senate. 141 In the House, with exceptions, committee reports are to be filed with the Clerk and then printed in the Congressional Record.

The Appropriations Publication Clause also requires Congress to publish a statement and account of the receipts and expenditures of all public money. 142 Congress is required thereby to disclose a report of all money received by the federal government and an account of all expenditures. 143These Clauses have not succeeded in making Congressional processes fully transparent, of course. The two Houses have evolved various means by which they may make their  [425]  most important determinations in secret as public disclosure has hit a low with too many enactments passed through “voice vote” or “unanimous consent,” neither of which requires members to be present, let alone have their votes recorded. 144

The Religious Test Oath Clause also enhances information flowing from Congress to the people.145 Members of Congress may not be required to take a religious test oath, which contributes to their sense that they may speak their minds regardless of their religious status. These three Clauses-Journal, Speech and Debate, and Test Oath-operate jointly to encourage representatives themselves (and not just the press) to report on their deliberations and decisions.

Third, and this is normally overlooked by constitutional scholars, the Constitution’s Copyright Clause lays the foundation for a free market in privately generated expression that may challenge the government. It creates a system whereby “authors” may have “exclusive rights” in their writings for “limited times” and thereby collect the monetary (or other) rewards the market is willing to bestow. 146 Because of the Copyright Clause, individuals can express themselves through reporting, the arts, and even religious tracts without being beholden to the government. They are granted the potential economic independence necessary to be able to create works that either directly or indirectly challenge the government’s potential for hegemony over meaning. 147Some surely will create and profit from works that are pleasing to the government, but even those individuals who curry the government’s favor will not have the worth of their contribution determined solely by the government itself. Value, rather, is determined by the consumers in the marketplace, the people. Most important, they can choose to change their tune and criticize the government, and yet they may still find  [426]  financial support through the market. The Copyright Clause thus makes a substantial contribution to the possibility of communicating plainly with the government.

Fourth, the Framers crafted a limited set of powers for the Congress, which included no enumerated power regarding speech or the press. 148 Control of the marketplace of ideas thus would not be a primary power or object of the Congress.

The Federalists, who masterminded the structure of the Constitution, including James Wilson, James Madison, and Alexander Hamilton, believed that an enumerated bill of rights was unnecessary because Congress was not given the power to make laws regarding speech, religion, or the press. 149 The Anti-Federalists, who hoped to protect the people and states from a strong and potentially tyrannical national government, however, demanded a bill of rights. 150 A  [427] compromise was struck: the Constitution’s backers agreed to accept amendments-a list of rights-if the naysayers would ratify the Constitution as it stood. Thus, the Constitution was ratified with an implicit contract to add a bill of rights.

James Madison drafted the explicit bill of rights, the first ten amendments, which were ratified on December 15, 1791. The First Amendment stated that Congress could not “abridge the freedom of speech, or of the press.” 151 When added to Article I’s reporting requirements and the Copyright Clause, the First Amendment constructs a two-way conversation process between the people and their leaders.

Fifth, the First Amendment reinforces the principles of communication laid down in the body of the Constitution. In this day, some assume that somehow the First Amendment single-handedly constructs the marketplace of expression that will keep government in check. The First Amendment, however, is parasitic on the pre-existing clauses mentioned above, the Speech and Debate Clause, the reporting requirement, the Copyright Clause, and the decision not to include speech or the press under the enumerated powers of Congress. The First Amendment is a gate that forbids the government from undue interference with the marketplace already instituted through these other means and would be superfluous were these factors ineffective.

Sixth, the entire Constitution rests on a moral, philosophical, and theological premise that all centers of power ought to check abuses of power by the others. Each office is delineated and distinguishable from the others. It is not enough simply for the three federal branches to check each other or for the states to check the federal government and vice versa. The people are also intended to check the abuses of power by their representatives. They have the voting booth where they may oust those representatives who displease them, but they also have an obligation to inform their representatives during the term of representation of their views. Similarly, representatives have a moral obligation-if the system is to work-to inform the people during the term of their intentions and actions. Neither side can claim the moral high ground in the event of failed  [428]  communication on their part. This imperative permeates the various individual mechanisms instituted and the society in general.

An obligation of two-way communication between representatives and constituents is crucial to understanding the Constitution’s prescription for representation. Without it, representative democracy starts to look suspiciously like an aristocracy, or oligarchy. The Constitution constructs a representative system of palpable accountability. 152 In Wilson’s words, “an unreserved communication of sentiments, as well as a union of interest, should always subsist between those who direct and those who delegate to them the direction of public affairs.” 153 Wilson believed in the necessity of freedom against government censorship as well as the right of the people to know the activities of the legislature as concomitants to the representative fulfilling his communication obligation.

In addition to communication, the Constitution limits representatives through the voting booth. The Framers rejected perpetual terms of office. 154 Under the U.S. Constitution, the people are not only capable of affecting political outcomes through mandatory communication by Congress and mandatorily permissible communication from the people, but they also hold the power to decide whether to re-elect a member of Congress. During the term  [429]  of representation, therefore, the people wield two weapons over their representatives, both of which are intended to ensure that representatives do not spin off into an elitist aristocracy utterly divorced from the people’s views and needs.

With their deep distrust of the people, the Framers struggled over whether elections of representatives should be direct or indirect. James Wilson argued most forcefully in favor of direct election of both houses of Congress, seeing that this was a valuable tool in checking the abuses of legislative power where the people no longer held a right to instruct their legislators. The fear of mobocracy at the Convention, though, led the Framers to divide the baby. Members of the House of Representatives were to be directly elected by the people, but the Senate-and the President-were to be indirectly elected. As the system matured, it became apparent that the people required the tool of direct election to make Senators more accountable, though not the right to instruct. In 1913, the Seventeenth Amendment was enacted, which provides for the direct election of Senators.

A two-way communication process, 155 along with the power to vote and to refuse to reelect,156 forges a necessary link between the people  [430]  and their representatives. This link is forged by mutual challenge and distrust, however, not by blind trust.

4. The Many Facets of Representation

The resort to self-rule in so much of the literature and public discourse, including the Smith decision, falls in the face of the complicated nature of the representative relationship. The relationship is not a simple pairing of governor and governed, ruler and people. The constitutional relationship is complex and so is the job assigned to the representatives. The prevailing theories falsify reality by oversimplifying representation. 157 The representative stands in a vortex of dialectical relationships to a wide variety of phenomena. It is only by acknowledging the complexity of the judgment required that one fully can come to understand the enormous responsibility the Constitution places on the shoulders of representatives. The failure to address any one can doom the decision made, though the possibility of employing all parameters with respect to every law is virtually impossible. The taxonomy of judgment includes the following features, some of which go to the quality of the legislator, some of which go to the criteria by which the legislator must reach decisions, while others contextualize the decision.

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a. The qualities of the legislator.

Though the Framers did not institute an aptitude test for federal representatives, they acknowledged that the constitutional scheme would only succeed to the extent that at least some virtuous rulers took the helm. Virtue in those representing the people is in fact the fulcrum on which the constitutional system rests. If no virtuous leaders can be found, the scheme cannot succeed. But that does not mean all representatives must be great leaders. Certain that not all representatives would be virtuous, the Framers hoped that enough would be inclined to serve the common good and that the system could check the overreaching of those bad men not so inclined.

After the Constitution was enacted, Witherspoon assessed whether sufficiently virtuous men were in the Congress:

The persons chosen to fill the houses of Congress, have been generally approved. Perhaps some states, in a few instances, might have made a better choice; but upon the whole, there is little reason to complain. I remember to have heard a gentleman well acquainted with the subject, say of the former Congress which conducted the war, that he had never known a time in which it did not contain a great plurality of men of integrity, and of those a very respectable number of distinguished abilities. I hope and believe that this is the case at present; and may it always continue to be so. 158

There is no ideal representative, because there are no perfect humans. Ever pragmatic, the Framers were acutely aware that representatives would not be gods but humans. Thus, the legislature operates best that contains a mix of qualities wherein individual representatives can counterbalance each other’s strengths and weaknesses (the play of characteristics found at the Convention itself). But there are qualities that are innately valuable to the formation of good judgment, such as education, maturity, common sense, intelligence, empathy, and integrity. The good legislator might also have certain traits of character, courage, vision, and fealty to the rule of law. Each legislator brings with him a peculiar mix of these qualities.

b. Whom does he represent?

The federal representative represents many constituencies, including his electorate (the state or district from which he was  [432]  elected); the national constituency of the people taken as a whole; the factions or interests that knock on his door; the moral or religious zeitgeist; and even the international community. Despite his obligation to take all or some of these factors into account, depending on the issue, none of the entities being represented has the constitutional right or power to direct the representative’s judgment. Though rarely alone in his decision-making, he is independent.

His judgment thus is a synthesis brought to bear on a mix of entities being represented. The multiplicity of legislators, combined with the particular qualities of those individuals exercising judgment, leads inevitably to compromised conclusions.

c. What are the building blocks of his judgment?

Just as the representative does not act merely as a conduit for the people’s preferences, he does not rest solely on guesses or predictions regarding their preferences. Polls are often employed to “direct” the legislator to a certain decision, but exclusive resort to polls falsifies and undermines the Constitution’s fuller role for the representative. The legislator can receive and take into account information from many sources: the press, the research services of the Congress such as the Congressional Research Service or the General Accounting office, interest groups, history (either read as a mandate or as a set of teaching examples), and projections into the future that reflect back on the present decision. Even more than information, though, moral and religious principles inevitably guide, if not drive, particular legislators on particular issues.

d. What are the limits on his judgment?

Each legislator is limited by his own shortcomings, a reality the Framers assumed into the constitutional structure. The whole, though, may be greater than the sum of its parts, and the virtues of some compensate for the weaknesses of others. Of course, as Madison feared, this formula only works where the more virtuous outnumber and out-judge their weaker cohorts on important issues. When the uneducated and self-serving reach critical mass, the whole may be no better than accumulated evil of the weaker members.

Legislators are also limited by the necessity of compromise in a body of so many. It is literally impossible for each and every representative to achieve his own independently determined [433]  legislative goals. The multiplicity of the participants, combined with the fact that they can only act as a whole, forces representatives to prioritize and to vote at times against their best judgment on a particular issue to preserve the right outcome on a more important issue.

The Constitution also poses meaningful barriers on the ability of legislators to follow their independently reached conclusions. The enumerated and limited powers of Article I, the checks and balances from the President and the courts, the countervailing power of the states’ dual sovereignty, and the Bill of Rights place obstacles in the path of decisions that would otherwise satisfy the legislator’s designs.

The matrix of representative judgment at the federal level, therefore, is exceedingly complex; indeed, so complex that evaluation of the wisdom of any one legislative enactment is often quite difficult and may be impossible, especially in the short run. Those affected certainly can criticize representatives for not serving their particular concerns, but that is no final judgment on whether the “right” result-the good of the whole-was reached. Thus, the legislator’s internal tally of whether a particular decision was right or wrong in retrospect is exceedingly difficult to keep during the term of service. It may be years and even decades before the representative, the historian, or the people can assess whether that act was the right act, at the right time, for the right reasons, and for the right people.

But this assumes that the representative is struggling to reach the right answers for the common good. When members of Congress shirk their responsibilities by deferring solely to interest groups, by solely following opinion polls, or by handing the hard choices to the executive branch, the constitutional judgment is swift: failure. The structure of the Constitution requires more of members of Congress than of any other governmental office. In James Wilson’s words, the legislators have the “hardest and least profitable task of any who engage in the service of the state.” 159

There is little wonder that Madison left the Convention with a profound depression and a conviction that the system simply could not work. For one who had approached the framing of the Constitution as Calvin had approached the Church, filled with a zeal for concocting a structure that would deter abuses of power, it was  [434]  nearly intolerable that the selection of the men who would bear this awesome burden was beyond the Framers’ actual control.

The legislative structure was crafted by the Framers to avoid the problems of majoritarianism, or mob rule. Representatives are free of their constituents’ instruction as they are simultaneously driven to consider the public good in a fishbowl of public scrutiny within which they operate and seek re-election. This structure is far superior in creating the possibility of consideration of the public good over direct democracy, which operates solely on a majoritarian basis. Currently, raw majoritarianism is most apparent in public initiatives, which permit a bare majority of the people to determine issues of public concern, without the mediating influence of the representative. 160

The foregoing discussion describes the legitimate legislature, which ought to be obeyed even by religious believers, under the reasoning of religious leaders at the time of the framing.

IV. The Rule of Law, the Legislature, and
Permissive Accommodation

The rivers of ink spilled in criticism of the decision in Employment Division v. Smith 161 are the stuff of which legends are made. The law review articles, 162 the hearings in Congress, 163 and the numerous editorials in newspapers and magazines contributed to a Nile of print. The standard story was apocalyptic, with the Supreme Court-actually, Justice Scalia himself-betraying the Free Exercise Clause  [435]  and ruining religious liberty. In the words of one of my First Amendment students, which reflect the view of so many upon first reading the opinion, it was “just idiotic.”

The focus of ire was on the reasoning that rejected the McConnell thesis on mandatory judicial exemptions under the Free Exercise Clause and declared that generally applicable laws (i.e., those that pass through duly elected legislatures with a neutral purpose) that incidentally burden religious conduct are constitutional.

Smith is to the Free Exercise Clause what Lemon v. Kurtzman is to the Establishment Clause. 164Both surveyed the entirety of previous jurisprudence to derive the principles that should govern the Clause. Essentially, in Smith, the Court looked back over its jurisprudence and saw what was there to be seen: religious claimants had not done terribly well fighting the rule of law except during the years 1963-90 in a particular arena, unemployment compensation, 165 and in an individual case involving compulsory education law. 166 Even though the Court accurately captured the general trend of the cases, it immediately was attacked as knowing nothing and being anti-liberty, in the press, in the law reviews, and in Congress. 167 Religious organizations, which were informed by leading academics that the Court had just pulled a fast one, united to fight the Court’s alleged unjust treatment.

To be sure, the Court did itself no favors by engaging the issue of what standard to apply under the Free Exercise Clause in a case in which the parties never addressed the issue, either in their briefs or during oral argument. If a charge was ever to be made against the Court for acting unilaterally, those are the conditions that foment such a charge. In this case, it was a criticism more procedural than substantive. Truth be told, the Court did not need briefing to lay out its own cases, and the standard under the Free Exercise Clause was certainly well within the purview of the necessary doctrine to determine the outcome of the case. Yet, had the Court heard re-argument on the issue, the hue and cry would have been muted,  [436]  because everyone would have known the issue was up for consideration. Oral argument would have permitted the Justices to lay the groundwork for reconsideration.

The standard story on Smith has been tightly focused on the Free Exercise Clause, which has been read as a fundamental right of individual and organized religious believers to trump the rule of law. 168 But the Court did not reject simply the mandatory accommodation thesis. That it decidedly did, but it also pointed to another path: legislative permissive accommodation. 169

It reaffirmed the view of the relationship between legislative government and religious interests first painted by religious leaders of the latter half of the eighteenth century. The first element of the opinion is quite true to the views of religious leaders in the eighteenth century: there was no absolute or general right for believers to trump duly enacted law. 170 To the contrary, they had an obligation to obey as part of serving the common good. 171 Further, legislatures, when acting legitimately, were responsible for serving the general peace, safety, and welfare of society, the common good, as well. 172

The question left open is whether legislatures could consider exempting religious believers from a particular law burdening their practices under this horizon. The reasoning follows from the co-presence of the rule of law and the role of the legitimate legislature. There is no reason within that universe to reject the concept of legislative accommodation. In fact, it seems to have been an accepted practice at the time. As Professor Hamburger has pointed out: though some “did seek exemption from civil laws, they typically asked, not for a general right of exemption, but merely for exemptions from a small number of specified civil obligations.” 173 Even then, only a few were provided in state constitutions.

[437]  Legislators were always under an obligation to consider the public good with every decision, and that horizon logically can extend to considerations for exemption. But the legislature never gets out from under the obligation of considering the common good. Thus, any consideration for exemption that focuses solely on the religious claimant without reference to the common good fails to fulfill the constitutional scheme. Where the exemption can be explained by the legislature as consistent with the public good, then the legislature has acted not solely in response to lobbying by religious entities, but rather with the larger good in mind.

It is impossible to invalidate a law where the legislature does not consider the public good solely on that ground, but it is possible to critique the process and to discern the actual purpose of the law by examining the way in which the legislature considered the public good (or not). Where the legislature’s focus is solely upon providing a benefit to a particular religious group, and not on the general good, the argument that it is an unconstitutional, bare benefit for religion in violation of the Establishment Clause is quite strong. But where the focus was on the public good and the exemption was found to be a rational means of lightening a government-caused burden on religious conduct (with the exemption well tailored to the burden and therefore not overbroad), then the argument for bare benefit is likely to fail.

The best example of this lies in the exemptions for faith-healing groups from medical neglect laws. It is illegal in most states medically to neglect either a child or a disabled adult, but religious organizations have achieved exemptions in many states. 174 A crucial question to be asked with respect to such exemptions is whether the legislature ever considered the public good or simply acquiesced to a request from a persistent lobbying effort. The same can be asked  [438]  about child abuse reporting requirements that exempt religious entities from reporting child abuse.

There is an important caveat. No law issued through such a process is automatically immune from constitutional attack. To the extent that any such law offends constitutional boundaries, then the law is unconstitutional and obviously not intended to be obeyed. Conversely, in the absence of constitutional defect, the law is binding in the system of the rule of law.

For example, a law passed by a legislature that plainly considers the public interest still could fail by transgressing the separation of powers or by violating the procedures for amendment set forth in Article V, or by violating the inherent limitations of federalism.

When a religious individual or entity demands exemption-essentially a right to break the law that otherwise applies to others-it is required to account for how its actions affect the common good.

While this particular issue was not addressed directly in the various sermons, it follows from their discussions that where the welfare of society could be served by creating an exception to a general law for a religious believer, the legislature had still fulfilled its fullest function. Which is to say that the sermons and the Smith Court’s reach for permissive legislative accommodation have in common a resort to a theory of civil government that it is to be devoted to the greater good of the whole and that the life of the citizen-religious believer carries with it a responsibility likewise to be dedicated to the good of the whole and to be bound by laws duly enacted under that horizon.

Having been bound by such laws, there is no constitutional prohibition on believers requesting an exemption to ease a burden on religious belief, so long as the resulting law reasonably can be said to serve the common good.

The history following Smith further illuminates how this union of the rule of law and legislative accommodation might work consistently. After the outcry over Smith, various forces went forward in the state and federal legislative processes and achieved exemptions for the religious use of peyote from additional states and the federal government. 175 In fact, the Smith Court had rather unsubtly pointed  [439]  the way to such accommodation, by citing state laws that already exempted peyote from narcotics laws for religious use. 176 So even though the standard story was and continues to be that the Court had closed the door on religious liberty, the subject matter in Smith itself was treated to widespread legislative exemption and therefore an increase in religious liberty, consistent with legislative responsibility. The reason why? Because such exemptions were found to be consistent with the larger public good. Peyote is not the sort of recreational drug, like heroin, that poses a serious risk of addiction and death, and it generally is used only in religious ceremonies because the experience it provides is not terribly pleasant. 177Under the horizon of the common good, the peyote exemptions made a great deal of sense.

In current lawmaking practice, there are instances where the public good is not effectively included within the process. Were an exemption to be enacted outside the usual legislative process and instead through a public initiative, which permits laws to be enacted based on a bare majority of the voters, that exemption would illustrate the bare majoritarianism that is rightly decried by Smith’s  [440]  detractors. Such initiatives fall short of the constitutional scheme for representation. 178

The peyote example also brings to light the error in the majoritarian thesis advanced against Smith and unnecessarily conceded by the Court in Smith. 179 The Native American Church is a small minority church with few members and little political clout. Were representatives simply subject to majoritarian control, the requests for peyote exemption before Smith and after would have fallen on deaf ears. Yet, there were such exemptions both before and after, because legislators are placed in a position of power that permits them to consider claims by minority groups with concern and seriousness. Representatives are free from the instruction of their constituents and, as discussed above, must make decisions in light of how those decisions actually will play out against the backdrop of the common good. 180

Political scientist Mancur Olson’s work in political science is critical here. His work shows that small, cohesive groups with a coherent message do better in the legislative fight than do unorganized, majority groups. 181 The key is in the directed organization of the delivery of a message and in the coherence of the message itself. These conditions are not insuperable obstacles to a quest by any religious organization for an exemption.

While Smith did not find the Court creating an exemption for the particular claimants in that case, it opened the door to greater dialogue between religious and legislative entities, not only about laws that pose burdens on religious entities, but also about the common good. No longer could legislatures pass such determinations off to the courts, which are institutionally incompetent to consider the nexus between any particular exemption and the common good. Instead of the courts haphazardly skewing the common good through individual determinations under the Free Exercise Clause, the legislatures, which are intentionally  [441]  constructed to consider the larger public good, became the proper forum.

The result is worth close analysis by sociologists and political scientists as well as law professors. The permissive accommodation formulation makes it impossible for legislatures to send claimants to the courts for individual case-by-case exemptions. At the same time, it forces religious entities to present their requests for exemption in terms of the public good. Far from being a path to majoritarianism, permissive accommodation brings back the uniting horizon of the common good. While not dictated by the views of the framing generation, the dynamic is consistent with its vision and with common sense.

Of course, permissive accommodation is not all good news for those religious believers who would seek an exemption. The legislative process, including executive signing into law, which considers such requests against the backdrop of the common good, will doom some requests. For example, Sikh schoolchildren in California sought to carry knives-or kirpan-in school as part of their religious heritage, which requires a weapon to defend their honor. The issue was considered publicly by the California legislature over several years, which did enact such an exemption, but Governor Pete Wilson vetoed it on the ground that he was “unwilling to authorize the carrying of knives on school grounds and abandon public safety to the resourcefulness of a thousand districts.” 182

Perhaps the most obvious and sensible permissive accommodation was the exemption for the use of sacramental wine during Prohibition. 183 The harms generated by alcohol could not be substantiated in the miniscule amount of wine drunk during communion, and therefore the exemption was consistent with the public policy goals of the general law and of Prohibition (however misguided Prohibition itself was in retrospect), and independently consistent with the general good.

As the Prohibition example illustrates, as the laws change over time, the need for exemption may change. In addition, as society  [442]  alters its view on the value of any particular set of individuals within the society, exemptions will appear to be inconsistent or consistent with the public good. For example, many state legislatures have granted exemptions for children’s medical neglect and abuse to faith healers. 184 As the rights of children have increased incrementally over time, however, children’s advocates have become increasingly vocal and have lobbied state legislatures to repeal the neglect and abuse exemptions. The same story is occurring with respect to reporting requirements of child abuse; there was a time when churches were regularly exempted from such reporting. 185 This era of clergy child abuse scandals has brought into sharp relief this special treatment for religious entities. Massachusetts, the site of the most scandalous of the recent revelations of seriatim child abuse, recently added clergy to the list of professionals required to report child abuse. 186

This is not the article to lay out the parameters for the consideration and adoption of constitutional permissive legislative accommodation. That I leave to further endeavors. Rather, this final Section was intended to illustrate through contemporary examples how the shared common good that motivates the worldview of eighteenth-century religious leaders and the Constitution’s legislative process can be understood to be at work today-both in the Court’s doctrine and in existing legislative accommodations.

Without doubt, having sketched this much, a huge question looms, and that is: how do we determine the common good? It is a perfectly fair and a perfectly difficult question, but one, like the question of how to draft a constitutional legislative accommodation, that I will leave to a later day. This Article aims only for the more modest goal of uncovering the inherent connection between two seemingly disconnected elements in the Constitution-free exercise and the legislative process.

[443]

Conclusion

What makes the United States’ constitutional engine run is in no small part the American people’s embrace of the rule of law. This embrace was fostered by religious leaders in the eighteenth century, who took it upon themselves to explain how the believer is to live in two kingdoms simultaneously. Believers were, at the same time, to believe and worship God under the church’s domain over belief, conscience, and worship and to obey the civil government when it regulated injurious conduct. Government, church, and believers were intended to share the horizon of a common good.

As arguments for the free exercise of religion have moved to a theory of isolationism rather than participation in the public good, this essential feature of the constitutional experiment has been threatened. The Supreme Court in Employment Div. v. Smith, however, reinstituted the accountability of religious believers, a move that is in harmony with the views of religious leaders at the time of the framing of the Constitution and that is likely to be essential to preserving this national community as the plurality of religions ever increases. 187

Copyright (c) 2002 Journal of Law & Politics, Inc.
Journal of Law & Politics
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