Shulman on History and Discerning the Content of the Religion Clauses

The Journal of Law and Religion (Vol. XXVII, Hamline University School of Law, St. Paul, MN.) will soon publish The Siren Song of History: Originalism and the Religion Clauses, by Jeffrey Shulman of the Georgetown Law Center.  The article surveys three recent historical studies of the constitutional framers and their religious convictions; based on the studies, Shulman argues that historical research fails to discern in the spirituality of the founders enough coherent, unitary content to formulate an adequate originalist  interpretation of constitutional religious freedom.

At the outset, Shulman asserts, “[W]e are all originalists now”—meaning, in his view, that originalism has become a keystone to litigating freedom of religion questions.  Through his reviews, Shulman seeks to call into question this perceived judicial susceptibility to originalist-historical interpretation of the First Amendment.  He does so by arguing that history does not disclose a thorough, consistent enough picture of the founders’ religiosity to endow the Religion Clauses with “something determinate enough to serve a heuristic purpose in legal controversy.”

To illustrate his argument,  Shulman reviews The Forgotten Founders on Religion and Public Life (Daniel L. Dreisbach et al. eds., Notre Dame 2009) (see Professor DeGirolami’s discussion here), a collection of biographical outlines of under-acknowledged “founders” and their views on the relationships between religion, law, and society.  Among those outlines, the collection sketches Thomas Paine’s deism; the “quirky individual religion” of Benjamin Rush, a Philadelphia physician; and the moderate Anglicanism of first attorney-general, Edmund Randolph.

For further discussion of  The Forgotten Founders and the other two books Shulman surveys in The Siren Song, please follow the jump.

Shulman sees in these diverse perspectives only a shared sense of American exceptionalism, a provident “linkage of liberty and Christianity, of religion and the republic.”  But, in his view, the volume’s objective to “enrich rather than simplify our picture of what the founders ‘believed’ ” essentially undermines originalist arguments; for, he claims, the religious diversity painted in the eleven biographies shows that relatively little religious consensus existed at the time the First Amendment was drafted.  In this view,  any historical claim about what the Religion Clauses meant based on one particular framer’s views is suspect.  In fact, Shulman finds in these divergent viewpoints the conclusion that the discovery of  historical truth on  this issue only makes historical clarity more remote.  He states, “The more we look for answers in the historical record, the more we are likely to find ambiguity—and with each step we [move] away from the promised land of historical clarity, [and] closer to the richer, if less certain, terrain of historical truth.”

Likewise, Shulman interprets Church, State, and Original Intent, by Donald L. Drakeman (Cambridge 2009) (see Professor DeGirolami’s discussion here), as a study of how originalist premises are founded primarily on opportunistic and otherwise tainted historical interpretations.  Shulman characterizes Drakeman’s piece, which examines several Supreme Court cases on the Religion Clauses in the 19th and 20th centuries, as “an illuminating history of bad history,” a study of how the Court accepted “law office history” regarding the founders’ views.  This history, says Shulman, was actually historical interpretation necessarily skewed by the adversarial system and the taint of particular interpreters’ ideological perspectives.

Finally, about God and the Founders: Madison, Washington, and Jefferson (Cambridge 2009), by Vincent Muñoz, Shulman considers it significant that these three founding giants held very divergent views on religious liberty.  Again, Shulman uses this book, like the others , to build his claim that discerning the concrete, “original” content of the Religion Clauses may be artificial, as he gleans little consensus, even among the chief framers, with respect to individual rights to religious freedom.

Happy reading.

–DRS, CLR Fellow