It has certainly taken me a long time to get around to it, but I wanted to make sure that I put in a plug for The End of Secularism, by my friend Hunter Baker. It is a very interesting and well-written book which will do a great deal to change the way in which we view religion’s role in public life.
Which is not to say that I agree with everything that Hunter has written. Specifically, I take issue with his claim that the Establishment and Free Exercise Clauses of the First Amendment cannot be incorporated against the states. As we know, of course, pursuant to the Incorporation Doctrine, the Establishment and Free Exercise Clauses are found to apply against the states via the Due Process Clause of the Fourteenth Amendment to the Constitution. Hunter believes that they cannot based in part on an examination of the historical record concerning the public debates over the applicability of the Clauses to the states. The historical record is certainly interesting to study if one wants to learn the nature of the debate surrounding the applicability of the Clauses, but the historical record is not used by adherents of original public meaning jurisprudence–like me–to interpret what the law actually says concerning the Clauses. It’s worth noting that the line of cases on the issue is clear, and is not likely to be upset anytime soon–if ever.
Additionally, even if one wishes to take issue with case law, the Privileges and Immunities Clause of the Fourteenth Amendment–which perhaps will be revived once the Supreme Court realizes the enormity of its historical error in having gutted the Clause in the Slaughter-House Cases of 1873 (a more likely eventuality than the overturning of the line of Supreme Court cases concerning the Establishment and Free Exercise Clauses)–informs us that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The Privileges and Immunities Clause should be found to prevent the abridgment of any part of the Establishment and Free Exercise Clauses by the states, which would constitute a de facto–if not de jure–application of the Clauses to the states.
Those disagreements having been noted, let me applaud the book for an excellent examination of the history of the church, and for its willingness to take on conventional wisdom concerning the role of religion in the public square. Hunter’s work will do much to shake up traditional thinking on these issues, and will doubtless lead to a fresh examination of religion’s place in public life. It is an examination long overdue; whatever my disagreements with certain portions of Hunter’s book, the fact remains that if a particular school of thought goes unchallenged for too long, it becomes intellectually ossified as a consequence, thus harming that particular school in the long run. Even those who disagree with Hunter’s work ought to thank him for publishing it. He has done them the favor of forcing them to remain sharp in making, and defending their arguments.
For more on this issue, be sure to check out Ben Domenech’s interview with Hunter about his book.