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The First Amendment was not, of course, "first" among the amendments put before the states in 1789 for ratification. It was the third of twelve, the first two of which went unratified. Tellingly, in James Madison's initial proposal, the amendments would have been inserted amid the various clauses of the body of the Constitution, reflecting and reinforcing its central logic but not altering its substance. For Madison, the First Amendment did not protect anything that was not already protected by the Constitution: the injunction for Congress to "make no law" was a reminder of the limits of governmental power. And yet what became the First Amendment, insofar as it points us to the origins of modern constitutionalism, might properly be labeled "first." Attempts to negotiate the "theological-political problem" are at the heart of modern constitutionalism and inform the American constitutional order. Central to negotiating this problem was to cast individual conscience—in a manner that implicated both speech and religion—as beyond the proper care of civil authority.
These two books, in different tones and shades, examine some of the central ideas that underlie the First Amendment. Let me initially note, without dwelling on it, that both books (particularly Anthony Lewis's) engage in silly asides about "original meaning" that bespeak ignorance of the range of originalist thought, which runs far beyond the efforts of Judge Robert Bork. Indeed, Judge Bork's version of originalism has much more in common with Lewis's heroes—the famous duo of Justices Oliver Wendell Holmes and Louis Brandeis—than it does with James Madison.
Freedom for the Thought That We Hate takes its bearings from Holmes and Brandeis, who for Lewis capture the essence of the First Amendment—protecting the play of opinions that "we loathe and believe to be fraught with death"—as it has evolved in a purportedly progressive direction since the early 19th century. Lewis, a veteran New York Times op-ed writer (1969-2001) and occasional lecturer in law at Harvard and Columbia, insists that "their rhetoric was so powerful, so convincing, that it changed the attitude of the country and the Court." Yet he doesn't capture the whole of their thought. Lewis offers Brandeis's concurring opinion in Whitney v. California (1927) as the most profound expression of the meaning of the First Amendment:
Those who won our independence believed that the final end of the State was to make menfree to develop their faculties. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.... Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
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I do not dwell on the admittedly minor point that Madison did not offer the First Amendment to protect us from the potential tyranny of governing majorities: he thought the Constitution itself was a better defense against this than the parchment barriers that might be contained within a bill of rights. I want to emphasize the far deeper point that Brandeis's concurring opinion was hesitant to protect us from the potential dangers of majority rule. Just prior to his elegant passage quoted above, Brandeis insisted that, "Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due processclause of the 14th Amendment applies to matters of substantive law as well as to matters of procedure." The logic of Brandeis's famous defense of speech, then, was premised on his view that the Court should not be protecting any of these substantive rights. But if it was going to protect property rights—a term, by the way, never used by the justices who protected them—then we should also protect rights like freedom of speech. What happens, though, when the Court abandons constitutional limits in regard to "economic" issues as it did in the late 1930s under the sway of Brandeis and Holmes?
This basic question has vexed constitutional debate for much of the 20th century. Yet unlike most intellectual descendants of Holmes and Brandeis, Lewis is not the least bit perplexed by such matters. At first glance, this may not matter much. After all, one does not read Lewis to puzzle out difficult constitutional questions. We read him for the narrative he weaves that brings to life the dramas and personalities that have represented and shaped our constitutional understandings of freedom of speech, including the sedition cases of World War I and Robert Paul Cohen's wearing "F--- the Draft" on the back of a jacket to name but two. And yet, as this book is meant to serve as an "engaging introduction" to those untutored in the fundamentals of constitutional law, it is profoundly incomplete and likely to miseducate. Consider Lewis's praise of Holmes's putative protection of liberty as a fundamental right in this cryptic dissent: "If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." This, as has long been noted, is a peculiar and shocking "defense" of free speech. For Holmes, if a tyrannical majority decides in the course of history to overthrow free speech, then that is that. Lewis offers some vivid portraits of First Amendment disputes, but his failure to attend more carefully to the intellectual ground on which the First Amendment stands means that this cannot be a true "biography" of the amendment.
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Nussbaum's liberty of conscience wrestles more convincingly with such essential questions; it is a serious book and addresses serious matters in seeking to defend "America's tradition of religious equality" against current "dangers." Some of the "dangers" are frivolous, like Alan Keyes's inane statement that Jesus would not vote for Senator Barack Obama. Others are more troublesome: the Texas Republican Party's foolish affirmation in its platform that America is a "Christian Nation." And there are interesting omissions as well. Nussbaum, a professor of philosophy, divinity, and law at the University of Chicago, does not mention that Hillary Clinton believes that those who "see the divinity of every person" are more likely to "save some poor, at-risk child." Surely, in Nussbaum's terms, this belief would demean our equal concern and respect for the non-religious, or for those religions that do not believe in divinity. One might charitably skip portions of Nussbaum's overwrought introduction and turn to her argument about religious liberty, which considers a range of issues in a thoughtful manner.
Nussbaum's argument takes aim chiefly at Justice Antonin Scalia's opinion for the Court in Oregon v. Smith (1990), which held that a neutral law prohibiting the use of peyote—thereby incidentally prohibiting the religious practices of some Native Americans—was constitutionally legitimate. Against this understanding, and following the redoubtable federal Judge Michael McConnell, Nussbaum insists that "free exercise" requires an accommodation for religious believers even against a neutral law that burdens their religious liberty. One wonders, however, why Nussbaum's main target is not Justice John Paul Stevens who, unlike Scalia, insists that the legislature may not grant religious accommodations lest it run up against the Establishment Clause. As Judge McConnell has noted, Justice Stevens takes "a strong position on establishment and a weak position on free exercise."
McConnell roots religious accommodation in the original meaning of the First Amendment, as he understands it. Nussbaum, while not rejecting this view, insists that religious liberty properly understood is grounded in an equal concern and respect for the individual. Her argument begins, perhaps surprisingly but often convincingly, with the dissenting Protestant thinker Roger Williams (1603-1683), who believed that the individual conscience must be free to see its way to God against both church and state. This led him to reject religious establishments—for a time, reportedly, he would only pray with his wife—and to insist that civil authority (the wilderness) should not intrude into the garden (the church). Yet as Nussbaum illustrates, Williams was not simply interested in protecting religion from the state, nor in giving us an early form of separation of church and state.
Instead, Nussbaum interprets Williams as anticipating the more famous argument of John Locke's Letter Concerning Toleration (1689) and running beyond it in crucial ways. While both men recognize the separate spheres of political and theological authority, Nussbaum places the emphasis on their notable differences: Locke rejects the idea of accommodating religious belief against a neutral civil law, whereas Nussbaum spins out Williams's logic in such manner as to compel religious accommodations. While Williams does not formally take up the issue, there is support for her interpretation in Williams's Bloudy Tenet of Persecution for Cause of Conscience (1644)—though Williams seems sometimes to command religious believers to follow civil laws if the scope of the law is truly civil. Still, there is a serious difference at the root of these arguments. Locke is most interested in toleration because it creates civil peace, whereas Williams prefers to see liberty of conscience as essential to religion. To be sure, Locke suggests that true religion must be based on liberty of conscience, but, in doing so, he places civil society first. Thus religious opinions contrary to "the moral rules" that are necessary to the "preservation of civil society" cannot be "tolerated by the magistrate." When religious conscience conflicts with the needs of civil society, it is religious conscience that must give way. Unlike Locke, Williams is driven by religion qua religion and his argument unfolds from that preoccupation. Not that he is unconcerned with civil peace: the Bloudy Tenet is a dialogue (sort of) between Peace and Truth. But Peace is necessary insofar as it is the only means whereby an individual can truly come to God (Truth).
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This account, Nussbaum argues, better captures the understanding of religious liberty present in the early state constitutions and ultimately in the First Amendment. For Nussbaum, Williams's influence is most evident in James Madison's famous petition for religious liberty in Virginia, the "Memorial and Remonstrance." "If ‘all men are by nature equally free and independent,'" wrote Madison, then "all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights." Madison even goes so far as to say that an establishment of religion "degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority." Nussbaum seizes on this to insist that the Establishment Clause prevents direct aid to religious organizations even on a "nonpreferential" basis because it degrades the equal standing of some citizens. This may well be Madison's position—and perhaps it is the most tenable position—but that does not mean such an understanding captures the original, constitutional meaning of "establishment." Nussbaum is too quick to dismiss such objections and far too quick to cast Williams's and Madison's arguments as proto-Rawlsian.
Yet Nussbaum respects religious believers and offers an insightful discussion of religious liberty in the public square (including indirect aid to religious organizations). In fact, she is least persuasive when she attempts to minimize Madison's concern for tempering religion's own vices. This was not much of a preoccupation for Williams, but it was for Madison. Madison's natural rights argument implicitly tempers religion by limiting the reach and claims of revealed theology. Nussbaum does not take as seriously as she might the fact that some religions may have to alter themselves to fit within the contours of this settlement.
This is no doubt why we remain preoccupied by the theological-political problem. Constitutional government depends on liberty of conscience and also, though perhaps more quietly, on softening the religious fervor of a Roger Williams. Hence liberty of conscience points us to the origins of modern constitutional government and makes a just claim to be "first."
