The American Constitutional Experiment in Religious Human Rights: The Perennial Search for Principles

The American constitutional experiment in religious rights and liberties, which initially inspired exuberant rhetoric, now inspires more criticism and praise. Not only has the Court's recent decisions on the religious rights of Jews, native American Indians, Muslims, and school children evoked withering attacks in the popular and professional media. Its record of religious liberty has become vilified for its lack of consistent and coherent principles and its uncritical use of mechanical tests and empty metaphors. When an experiment becomes a "kind of wandering inquiry, without any regular system of operations," Francis Bacon wrote (about scientific experiments), we must examine our first principles, our experiment in light of those principles, and our experiment in comparison to those of other scientists. Taking inspiration from Bacon, this chapter does three things. First, it distills from the diverse theological and political traditions and experiences of the eighteenth century the most widely embraced "first principles" of the exercise of religion, confessional and structural pluralism, equality of religions before the law, separation of the institutions of church and state, and disestablishment of religion. Second, it analyzes America's constitutional experience in light of these first principles, lifting them out of the familiar free exercise and establishment clause cases of the past half century. Third, it considers the principles and practice of the American experiment against prevailing international norms of religious rights and liberties.