SIMPLE COERCION:

The Intellectual Origins of the Establishment Clause (Noah Feldman, May 2002, NYU Law Review)

Coercion of Conscience and Establishment Clause Analysis

Consider one possible use of the historical evidence that the intellectual origins of the Establishment Clause lie in concern for the liberty of conscience of dissenters: It might be argued that, if the Clause’s origins reveal that protection of dissenters’ liberty of conscience formed the motivating force behind the Clause, it follows that the Clause only prohibits government from action that coerces the consciences of religious dissenters. If coercion is present, then the Establishment Clause is violated. If coercion is not present, the government action is constitutional. Justice Kennedy has taken a position akin to this one, and the secondary literature has been replete with discussion of this idea.

The first point about such a coercion-based approach to the Establishment Clause is that it frames the Clause not as a general provision for ordering good government, but as a guarantor of a negative liberty right. Notwithstanding its origin in the conception that Christ’s dispensation rendered human conscience free over indifferent things, the idea of liberty of conscience by the eighteenth century had come to be called, in explicitly Lockean terms, an “‘unalienable right of every rational creature.’” The right to liberty of conscience was understood as a right against being coerced to perform religious actions that violated one’s beliefs about the proper way to worship or against being prohibited from performing religious actions that one believed were appropriate for religious worship. Rights against coercion were the sorts of rights that Englishmen had traditionally claimed, and the right to liberty of conscience derived from this tradition of negative liberty. Negative liberty is concerned with the coercion of the individual to prevent him from accomplishing some action; it is not concerned with a person’s independent capacity to accomplish the action. Understanding the Establishment Clause as a guarantor of negative individual liberty against the state’s coercion makes the Clause look similar to many of the other rights found in the First Amendment in particular and the Bill of Rights more generally. It enables us to frame the question whether a given provision violates the Establishment Clause in terms of a straightforward test of a familiar type: Is coercion present?

The initial doctrinal appeal of such a coercion-based negative liberty approach is marked. First, it promises to streamline the complexity of Establishment Clause analysis into a straightforward question. Second, such a coercion approach purports to simplify a complex area of doctrine by reference to an identifiable historical value. It is rare enough in constitutional analysis that such a clear value can be identified; when one does exist, it would seem foolish to neglect its value for deciding hard constitutional questions. Third, the coercion-based approach would use the history of the origins of the Clause to suggest that the doctrinal edifice built up around the Establishment Clause—the Lemon test with its cycles and epicycles, the endorsement test with its vague content—is unnecessary and historically misplaced. If the Framers were concerned predominantly with religious coercion, then it would be possible to avoid asking about secular purposes and effects and about the symbolic meanings of public manifestations of religion.

What is more, it is worth noting that such a coercion-based approach to Establishment Clause analysis would not have to be crudely originalist in the sense of simply trying to identify what the Framers would have considered coercive. The approach could strive for fidelity to the original purposes of the Establishment Clause while simultaneously acknowledging changed circumstances and beliefs. Thus, it would be possible for an advocate of a coercion-based approach to Establishment Clause jurisprudence to investigate how the eighteenth-century idea of coercion could be developed in a contemporary attempt to apply it.

If one wanted to define coercion more broadly today than did the thinking of the eighteenth century, then it might be possible to argue that in some situations (schools, for example), peer pressure constitutes coercion. One might hesitate to find coercion in public spaces where adults may freely come and go; reasonable people could, and no doubt would, argue about whether coercion existed in a particular situation. One could also argue about the origin of certain sorts of coercion, which could be governmental or societal; and we would probably want to distinguish sharply between coercion originating with the state and coercion derived from background societal convention. It emerges that a coercion-based model does not guarantee particular outcomes in Establishment Clause cases. Nonetheless, it might still be said that the history this Article has described supports the deployment of the concept of coercion in some form as the key to deciding cases under the Establishment Clause.

The reason for caution about using the intellectual origins of the Establishment Clause to make coercion of conscience into the touchstone of Establishment Clause analysis is that the intellectual history does not and cannot fully answer the question of how, precisely, the Establishment Clause institutionally accommodated the value of liberty of conscience. Some of the Framers could perfectly well have aimed, in adopting the Establishment Clause, to prevent coercion of conscience by prohibiting a range of government activities greater than the set of actions that directly coerce conscience. Others might have intended to do no more than protect conscience. Thus, the intellectual history does not allow us to conclude definitively that the Constitution is violated only by direct coercion.

In terms of the relation between actual constitutional provisions and their intellectual origins, this question represents the point at which the rubber of a specific enactment meets the road of back-ground. While the Framers certainly understood protection of liberty of conscience to undergird the Establishment Clause, and all agreed that, in principle, coercion of conscience was wrong, there was, we have seen, no clear consensus on hard questions of whether certain forms of government support of religion should be understood as coercing conscience. As a result, some Framers may have intended the Clause to go beyond situations of coercion to protect conscience more broadly.

Consider government collection and distribution of taxes in a nonpreferential manner for religious purposes. There was broad agreement that coercive taxes for religious purposes would, in principle, violate liberty of conscience. But there was no agreement about whether it was coercive to collect such taxes when the law provided for everyone to designate the religion of his choice as the recipient of his taxes. Many people at the time of the framing, including some Framers, thought that taxation of this sort was perfectly compatible with liberty of conscience. This was the view of most Congregational-ist New Englanders. The Massachusetts Constitution, for example, guaranteed liberty of conscience even as it required local taxes to pay for local ministers. Similarly, the supporters of the unsuccessful Virginia Assessment Bill—people such as Patrick Henry—were committed to liberty of conscience and also simultaneously believed that taxation to support religion violated no one’s liberty of conscience where the taxpayer could designate the recipient. On the other hand, many people at the time of the framing, including Madison and those in Virginia who supported him, were convinced that taxation in support of religion threatened liberty of conscience, even if it could not be shown that any individual’s conscience had been coerced. It is therefore very difficult to argue, based on the intellectual history, that the Establishment Clause was definitively limited to cases of direct coercion. Whether the Clause, as written, protected only against coercion or guarded liberty of conscience more inclusively was debatable in the eighteenth century, just as it is today.

Given that the Framers’ generation disagreed on the propriety of certain church-state arrangements, what can be said about whether they sought to bar such arrangements at the federal level when they enacted the Establishment Clause? Those Framers who thought religious taxation should always be banned for reasons of protecting the liberty of conscience of tax-paying dissenters probably believed they were prohibiting such arrangements at the federal level by prohibiting an “establishment of religion.” But what of those who believed that such arrangements did not necessarily coerce conscience? They may have shared the same expansive understanding, since the prohibition on establishing religion is ultimately broader than the phrase “coercing the liberty of conscience.” But they also may have thought otherwise and understood the Clause as limited to cases of coercion proper.

The point is that an accurate account of the intellectual origins of the Establishment Clause does not, and cannot, provide a definitive answer to the question of what exactly the Establishment Clause prohibited then or prohibits now. The historical analysis does not get us all the way to a doctrinal answer. We ought, therefore, be cautious about using the history in this Article to make “coercion” into the sole test of constitutionality under the Establishment Clause.

This is an eminently sensible discussion of the Establishment Clause and, despite Mr. Feldman's ultimate reservations, suggests that actual coercion should be the test. Not that this would end the argument, but it does set the bar where our history and common sense suggest it should be.

Posted by Orrin Judd at November 14, 2003 1:39 PM