U.S. Supreme Court Justices Hugo Black and Felix Frankfurter famously differed fundamentally as to the proper approach to understanding the Due Process Clause of the Fourteenth Amendment. Where Black maintained that the Due Process Clause must be defined by the Bill of Rights, Frankfurter held that the clause has what he called an “independent potency.” While this difference led to the justices' taking conflicting positions in Adamson v. California, 332 U.S. 46 (1947), for example, their contrasting interpretive approaches nevertheless led them to agreement on the holding in Rochin v. California, 342 U.S. 165 (1952). In parallel, if much more modest, fashion, John Ragosta and I appear to agree about the meaning of the religion clauses of the First Amendment based upon our own interpretive approaches. He makes an historical case for essentially the same principle for which I make a theoretical case, the view he calls strict separationism and I call the proposition that government shall not take a position, nor do anything that amounts to taking a position, on the truth or worth of religion, religious belief and values, and religious practices.

I am grateful for Ragosta's generous assessment of my book as “a powerful political science work on the necessity of a separationist understanding of the First Amendment.” His principal criticism, however, is that due to what he calls my “historical agnosticism,” I seemed to “endorse others' faulty history” and missed “numerous opportunities” to support my analysis with relevant historical facts. In response, let me say, first, that I never would want to sanction bad history, and that I found Ragosta's historical account of Virginia politics in the years that led up to the adoption of Jefferson's Statute for Establishing Religious Freedom to be simply excellent. I learned a great deal from reading it, and I recommend it highly. Second, however, Ragosta's reference to others' faulty history instantiates my point. He and I differ about how one properly should go about determining the meaning of the religion clauses: he believes that, properly conceived, this is an historical question, whereas I believe that it is a theoretical question. The issue of bad or faulty history shows that on Ragosta's approach we can easily end up in the position of hearing the supporters of two competing historical accounts — here, Ragosta's originalist account of the religion clauses versus Chief Justice Rehnquist's originalist account of the religion clauses — left to say, basically, “My history is better than your history.” As H. Jefferson Powell said elsewhere in the article I cited in my initial review, Rule 12 for originalists is: “History sometimes justifies plausible but opposing interpretations” (“Rules for Originalists,” 688). Particular intellectual or even political partisans might well say that an instance of historical disagreement is, from their perspective, a case of good history versus bad history, but from a less partisan perspective we might well be faced with good history versus good history. Good history is certainly preferable to bad history, but the question is whether history itself is capable of solving the problem at issue.

Specifically, there is a difference, as I noted in my initial review, between (1) an account of what Jefferson thought the religion clauses mean and how others agreed with what Jefferson thought — and on this question Ragosta is excellent — and (2) an account of what the religion clauses mean. In other words, whatever Jefferson thought the clauses mean, the key question is, was he right? Ragosta states in his book, “the question is whether a particular Founder or Founders were so engaged in the drafting, adoption, or definition of a particular provision that their understanding should be privileged” (214). I take issue with the very idea of privilege in the first place, because to privilege a particular Founder or Founders is to conflate (1) and (2), which are two distinct questions. We must remember, as Powell put the matter, that history and constitutional interpretation “are two separate and distinct spheres of discourse. They cannot be equated, nor can one be collapsed into the other.”Footnote ⁶ I disagree with Justice Joseph Story's view of the meaning of the religion clauses, but he had it right when he said of the Constitution, “Nothing but the text itself was adopted by the people.”Footnote ⁷

It is completely beyond both our purpose and allotted space here to get into the originalism debate (see my The American Constitution and the Debate over Originalism Footnote ⁸), but Ragosta's approach assumes that the meaning of a particular constitutional provision or phrase is what it meant to those who wrote and ratified that language. My own approach — which, I caution, is not what is called non-originalism — is that the text has a certain semantic autonomy; its meaning is independent of what those who wrote and ratified it might have thought it meant. Consequently, we must assume that the meaning of a constitutional provision is fixed; it is our understanding of that meaning that can change. In these terms, Jefferson had a particular understanding of the meaning of the religion clauses, explained well by Ragosta, but while we should take Jefferson's understanding of that meaning into account in reaching our own understanding, we must bear in mind that we are attempting to understand the meaning of the religion clauses. We are not, at least for purposes of constitutional interpretation, attempting to understand Jefferson's understanding of the meaning of the religion clauses, and we may decide that Jefferson was right or that he was wrong. The difference is that between a normative question and a factual question. Moreover, as I noted more briefly in my initial review, when Prof. Ragosta writes, “Supreme Court justices from across the political spectrum, repeatedly, have said that no section of the Constitution should be more carefully defined by its history than the religion clauses of the First Amendment” (212), he comes perilously close to saying that we should treat the determination of the meaning of the religion clauses as a historical question because that's how constitutional scholars on and off the bench have historically treated it.

In sum, despite the foregoing concerns, I suggest once again that Ragosta gives us an extremely interesting and well-done examination of Jefferson's views on religious freedom and separation of church and state, with a particularly first-rate account of the events leading up to his Statute for Establishing Religious Freedom. I am pleased that, on Ragosta's account, Jefferson turns out to have the same understanding of the meaning of the religion clauses that I do, but, on my approach, examining how we make sense of the existence of the religion clauses in our political and constitutional tradition, it is not necessary to the validity of my understanding that Jefferson have that same understanding. Anyone interested in Jefferson in regard to religious freedom should read this fine book. I am grateful for the opportunity to have done so.