Why Liberal Jurisprudence Needs History, or More on the Myth of American Religious Freedom

More on the Myth of American Religious Freedom from my blog post with the American Constitution Society, the liberal counterpart of the Federalist Society. As many of our readers know, conservative legal thinkers have argued that law has a particular orientation to the past. They seek to determine the original meaning of the law, particular in constitutional law, in order to apply that original meaning in the present. Originalism, as this idea is called, has come up several times on this blog, most recently in the comments on my post about Jill Lepore and Gordon Wood. Because of their originalism, conservatives routinely return to the past to justify their opinions in the present, and in the process they often make dubious historical claims. Liberals, in my view, attend to history in law much less often, especially on the subject of religion, but when they do their appeal often features equally dubious claims. That's because the history of religion and law is a particularly tricky subject for liberals. Liberals claim that the First Amendment separated church and state, which it could not have done since the religion clauses of the First Amendment did not apply to the states prior to 1940 and almost all the issues of church and state would come up on the state level. As a result, there was rampant religious coercion in law prior to the actions of the mid-twentieth century Supreme Court. But as I argue in the post, acknowledging that history of religious coercion does not necessarily aid the cause of conservatives. In fact, the most powerful argument for liberal jurisprudence is historical. Quoting from the post: "In the not-too-distant past, religious dissenters were subject to religious oppression that used the apparatus of the state. In the mid-twentieth century, after over one hundred years of activism, the Supreme Court acted by applying the religious clauses of the First Amendment to the states in order to guarantee the rights of the individual as part of a larger effort to create a liberal democracy in the United States." Understanding this wider context of jurisprudence and the historical burdens out of which liberal decisions arose shows why liberal jurisprudence is necessary.

Read the entire post here.