While the religion clauses of the First Amendment provide the framework for the creation and protection of religious freedom in the United States, the question has always been precisely how we are to understand the meaning of religious freedom and the way the clauses protect it. In particular, we have usually understood the clauses to mandate governmental neutrality toward religion, a concept that has generated conflicting conceptions. Strict neutrality typically requires that government may not favor religion A over religion B, but also that government may not favor religion over non-religion or vice versa. Benevolent neutrality, by contrast, agrees that government may not favor religion A over religion B, but allows that government may favor religion over non-religion in order to accommodate the free exercise of religion. Thus, for benevolent neutrality, the only requirement is what is called non-preferentialism.

There have been two principal ways of addressing these questions about the religion clauses: one, an historical approach typically associated with originalism, and the other, a more theoretical and jurisprudential approach. The new book by John Ragosta, Religious Freedom: Jefferson's Legacy, America's Creed, is a very interesting example of the historical approach directed to Thomas Jefferson's conception of religious freedom and especially to the centrality of his conception to the American understanding of religious freedom. Specifically, Ragosta wants to make an originalist case against Chief Justice Rehnquist's originalist argument in Wallace v. Jaffree that “relying on Jefferson and Madison and their experience in adoption of the Virginia Statute to define religious freedom and, particularly, to understand the First Amendment is demonstrably incorrect as a matter of history'” (3). In contrast, Ragosta argues that ever since Chief Justice Waite's reliance on Jefferson in Reynolds v. United States in 1879,

Thus, Ragosta's position and the Rehnquist position each argue that the other side has its history wrong.

Religious Freedom seeks to refute those who claim that Jefferson played a minor role in establishing the American conception of religious freedom and that religious freedom even in his terms allows for something more cooperative and less than a strict separation of church and state. Ragosta argues as to the first point that

Regarding the second point, Ragosta sees Jefferson as the foundation of the conception of strict neutrality and rejects any notion of non-preferentialism as the sole requirement of the religion clauses. In contrast to the contention that “The wall of separation between church and state is not there to protect the state from the church; rather, it is there to protect the church from the state,”Footnote ¹ Prof. Ragosta argues that Jefferson, though concerned to protect religion from state interference, “was most concerned about the danger that religion posed to republican government” (93). “What Jefferson and others rejected,” he maintains, “was that government had any role to play, or should have any role to play, in promoting religion and that religionists would have any particular sway in government” (34, footnote omitted).

According to Ragosta, this position was based not on hostility to religion, nor on any notion of what today we would characterize as secularism. Rather, he argues that Jefferson's views on religious freedom were grounded in his own religious views. Consequently, the strict neutrality of the separation of church and state is not detrimental to religion; it is the foundation for not just republican government, but true religion itself. There are thus religious as well as secular reasons for the separation of church and state.

Religious Freedom is a work of history, and its accounts of the political context in Virginia that led to Jefferson's Statute for Establishing Religious Toleration, Madison's Memorial & Remonstrance and the political context of the adoption of the religion clauses of the First Amendment are especially interesting and enlightening. Nevertheless, we must consider the methodological issue implicit in the phrase above that Ragosta seeks to make an originalist case against Rehnquist's originalist argument. To be sure, Ragosta states that the central question in his approach is “how and why we should rely on Jefferson (or other Founders) at all in seeking to answer modern questions” (208). His answer is basically the observation that “from across the political and judicial spectrum, there has been a remarkable consensus that the First Amendment's religion clauses must be understood in their historical context” (211–212). The problem is that advocates of the Rehnquist position would not disagree, and yet we still face competing historical accounts.

Specifically, Ragosta's methodological approach rests on the question as to “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). His answer, of course, is yes, and that that person was Jefferson, along with Madison. The question that Ragosta's originalism leads him to miss or ignore, however, is whether Jefferson was correct about the meaning of religious freedom. For example, Ragosta states, “Jefferson expected separation; yet he did not bespeak a secular nation but, rather, a secular government” (220). Yet consider this claim by the late Richard John Neuhaus:

Even if Ragosta is correct to attribute to Jefferson the possibility of a disjunction between a religious nation and a secular government, the question is, as Neuhaus' position here suggests, was Jefferson right? As H. Jefferson Powell has noted, history “has nothing to say to the listener who replies, after hearing the originalist's evidence, ‘So what?’ ... That question belongs to political theory (or philosophy) or constitutional law and must be answered in the terms of those other spheres of discourse.”Footnote ³ There is, then, a difference between (1) saying that X is what Jefferson thought the religion clauses mean and others agreed with what Jefferson thought, and (2) saying that X is what the religion clauses mean. Ragosta's originalism leads him to take for granted that to explain (1) is to explain (2), but he comes dangerously close to the circularity of holding that we consider the intentions of the Founders as normative because they intended that we do so.

In other words, the implicit, problematic assumption in Ragosta's approach is that “X is what Jefferson thought the religion clauses mean” and “X is what the religion clauses mean” are equivalent statements. My own argument as to the meaning of the religion clauses in general and the Establishment Clause in particular — the principle that government shall not take a position, nor do anything that amounts to taking a position, on the truth or worth of religion, religious beliefs, or religious practices — does in fact come close to the Jeffersonian conception of religious freedom that Ragosta advances, but I make my argument in defense of that principle not because it is Jeffersonian, but because it makes the most sense of the case law and constitutional literature as they have developed over time. To the extent that Religious Freedom: Jefferson's Legacy, America's Creed is a brief for the claim that “X is what Jefferson thought the religion clauses mean,” it is an excellent book and well worth the attention of anyone interested in the political and constitutional thought of Thomas Jefferson. To the extent that the book is a brief for the latter claim, that “X is what the religion clauses mean,” however, it remains an interesting work but the case it makes is problematic. We are nevertheless indebted to Ragosta for a stimulating read.