Hall on Rakove at Christianity Today

Mark David Hall has an article out at Christianity Today that reviews the new work by Jack Rakove on religious liberty and the American founding. A taste:

The Boundaries of Toleration

Historically, religious toleration has been the exception rather than the rule. But early modern thinkers such as John Milton and John Locke argued in favor of tolerating dissenters, and in 1689 England’s Parliament passed the Toleration Act, which offered limited protections to non-Anglican Protestants. Rakove states that the act “did not legally bind Americans,” but he suggests that it did “influence their behavior.” However, Rhode Island, Maryland, and Pennsylvania were already doing a superior job protecting religious liberty, and many American colonies soon joined them in surpassing their mother country. (I do not mean to imply that religious liberty was always and everywhere advancing in British North America. For instance, in 1692, following the Glorious Revolution, Maryland repealed its groundbreaking 1649 toleration act.)

In the Anglo-American world, the boundaries of religious toleration were regularly tested by members of the Society of Friends—better known as Quakers. Among other peculiarities, Friends decline to swear oaths, a practice Rakove attributes to the Fourth Commandment. I suspect he means either the Second or Third Commandment’s admonition not to “take the name of the Lord your God in vain” (Ex. 20:7, ESV). (Different traditions number the commandments differently.) But even citing Exodus is incorrect—Quakers refuse to swear oaths because they take literally biblical passages such as Matthew 5:34–37, where Jesus says, “Do not swear an oath at all. … All you need to say is simply ‘Yes’ or ‘No’; anything beyond this comes from the evil one” (NIV). Furthermore, Quakers are pacifists and so refuse to serve in the military. They were routinely jailed because they acted on these convictions.

In 1696, Parliament passed a law permitting Quakers in England to affirm rather than swear some oaths. However, they were not allowed to be witnesses in criminal cases or hold civic offices—disabilities that remained until 1826 and 1832, respectively. Yet as early as 1647, Rhode Island permitted them to affirm rather than swear. Many American colonies followed this example and, in addition, exempted them from militia duty. The United States Constitution bans religious tests for office and permits anyone to affirm rather than swear oaths, which enabled Quakers to serve in the national government 44 years before they could do so in England. Rakove almost completely ignores these important advances for religious liberty in America.

Hall clearly endorses religious exemptions more so than Rakove does. That's the point of the review. However, figuring out how the founding fathers/First Amendment ought to apply is complex. Like Hall, I tend to generously support religious exemptions. Though I think Justice Scalia in Employment Division v. Smith got it right that the Free Exercise Clause of the First Amendment doesn't require such. 

That is, to the extent that these exemptions are legitimate, they are as creatures of legislatures and state constitutions. 

Further, scholars such as Marci Hamilton, Philip Hamburger and Phillip Munoz have demonstrated that such is the correct originalist understanding of religious liberty. True, America's founders did support giving exceptions and accommodations from the secular law that might burden religious practice. But did so more as a privilege that could be taken away.

(I understand this point is quite contentious in some scholarly circles; but at the moment I would kick the can to the above mentioned three scholars and can link to some of their arguments in the comment section if any readers so desire.)