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Believing Persons, Personal Believings: the Neglected Center of the First Amendment

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Believing Persons, Personal Believings: the Neglected Center of the First Amendment SMITH.DOC 4/21/2003 4:31 PM BELIEVING PERSONS, PERSONAL BELIEVINGS: THE NEGLECTED CENTER OF THE FIRST AMENDMENT Steven D. Smith* In this article Professor Smith addresses how our conception of what it means to be a person influences First Amendment law. The article explains how the conception of the person as a believer eluci- dates the values that the First Amendment protects thereby providing a justification for why speech and expression are protected, and pro- viding guidance regarding the general direction the legal doctrine should take. After discussing the shortcomings of conceiving of the person as interest-bearer, autonomous agent, and citizen, the article proposes a conception of the person as believer, explaining how be- lieving is essential to personhood. The article concludes by exploring the implications of the believing person for First Amendment juris- prudences, specifically advocating the older “category” approach and casting doubt on the “neutrality” position that has come to dominate modern First Amendment jurisprudences regarding both speech and religion. TABLE OF CONTENTS I. Introduction..............................................................................1235 A. Conceptions of the Person.......................................................1236 B. An Apology for Theory...........................................................1239 C. The Argument...........................................................................1244 II. First Amendment Problems and Persons .............................1245 A. Problems with Consequentialist Justifications......................1245 B. Problems with “Self-Determination” Justifications .............1248 C. Problems with Democracy-Based Justifications ...................1249 * Warren Distinguished Professor of Law, University of San Diego. For helpful comments on earlier drafts I thank Larry Alexander, Curt Bradley, Dan Farber, Kim Ford-Mazrui, Julia Mahoney, Liz Magill, Caleb Nelson, Bob Nagel, Michael Perry, Martin Redish, Jo- seph Vining, Ted White, Jim Weinstein, George Wright, Kim Yuracko, and participants in the legal the- ory workshop at the University of Virginia. I also benefited from discussion of sections of the article in the constitutional law Discussion Group at Georgetown, organized by Professor Mark Tushnet, and at a conference of religiously affiliated law schools at Pepperdine, organized by Professor Bob Cochran. 1233 SMITH.DOC 4/21/2003 4:31 PM 1234 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2002 D. Problems with Contractarian Justifications...........................1253 E. Conceptions of the Person in the Standard Justifications....1255 F. The Precarious First Amendment ..........................................1257 III. The Person as Believer............................................................1260 A. Believing and Personhood.......................................................1261 1. The Necessity of Believing....................................................1262 2. The Human Distinctiveness of Believing............................1263 3. The Moral Quality of Believing ...........................................1267 B. The Nature of Believing ..........................................................1268 1. Belief, Believing, and the Believing Person........................1268 2. The Dimensions of Believing ...............................................1268 a. The Objective Dimension.....................................................1269 b. The Subjective Dimension....................................................1270 c. The Unity of Believing..........................................................1272 C. Believing and Meaning ............................................................1274 D. Believing, Persons, and the Ideal of Integration...................1279 IV. The Believing Person and the First Amendment.................1281 A. The Believing-Based Rationale ..............................................1281 1. The Republic of Persons.......................................................1282 2. A Community of Believers ...................................................1283 3. Belief and Its Manifestations................................................1286 4. Revisiting the Standard Justifications .................................1288 a. The “Truth Rationale”..........................................................1288 b. Self-Realization Justifications ..............................................1290 c. The Democracy Rationale....................................................1291 d. Contractarian Justifications..................................................1292 B. The Believing Person as a Subject of Legal Doctrine: Free Speech and Free Exercise........................................................1294 1. Balancing, Categorical, and Neutrality-Based Approaches............................................................................1295 2. The Mirage of Neutrality ......................................................1298 3. Reviving the Categorical Approach? ..................................1303 a. The Believing Person and the Categorical Approach .......1304 b. The Speech/Conduct Distinction .........................................1305 c. Categories of Unprotected Speech?....................................1307 d. The Exercise of Religion.......................................................1311 C. Nonestablishment: The Republic of Persons and the Public Engagement of Belief...............................................................1313 1. The “Anti-Orthodoxy Principle”.........................................1314 2. The Constitution’s Convoluted Strategy.............................1316 V. Conclusion................................................................................1320 SMITH.DOC 4/21/2003 4:31 PM No. 5] THE FIRST AMENDMENT PERSON AS BELIEVER 1235 I. INTRODUCTION It is a plain, if sometimes forgotten, fact that law (like “govern- ment” in Lincoln’s famous description) is of, by, and for people—or, more stiffly, “persons”—so every body of law and legal discourse will necessarily embrace some conception, or perhaps multiple conceptions, of the person. Consequently, the most routine and practical efforts of lawyers, judges, and legislators presuppose answers to one of the most daunting questions that troubles philosophers and theologians: What is—or what does it mean to be—a “person?” Lawyers, to be sure, rarely speculate self-consciously on such ab- struse subjects; indeed, legal discourse sometimes seems deliberately cal- culated to obscure the fact that persons are involved.1 Even so, concep- tions of personhood will exercise a powerful if subtle effect on legal discourse and hence on law. Thus, Lon Fuller worried several decades ago about what he viewed as the pernicious effects on law of a concep- tion of “the nature of man” taken over from the behavioral sciences. Fuller contended that many legal thinkers of his time had adopted a Skinnerian view that saw the person as “the helpless victim of outside forces.”2 And he argued that this depiction was undermining the efficacy of law, which depends on “the view that man is, or can become, a respon- sible agent, capable of understanding and following rules, and answer- able for defaults.”3 Fuller’s general insight, though not the specific content of his argu- ment, informs this article. I do not intend to criticize the behaviorist con- ception of the person that concerned Fuller or to promote the “responsi- ble agent” conception that he advocated—not in those terms, at least. But I do mean to suggest that important areas of the law—and in particu- lar the various modern jurisprudences that we have come to associate with the First Amendment4—have suffered by embracing conceptions of the person ill-advisedly imported from other disciplines or philosophical perspectives. These jurisprudences would be strengthened and enriched by a more self-conscious recognition of what I will call “the person as be- liever.” 1. The theme is thoughtfully developed in JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW (1976). 2. LON L. FULLER, THE MORALITY OF LAW 167 (1964). 3. Id. 4. This article will not address the connection (which I suspect is real but convoluted) between modern First Amendment jurisprudences and the “original understanding” of the amendment. I have discussed the original meaning of the First Amendment’s religion clauses at length elsewhere. See, e.g., STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM 17–54 (1995) [hereinafter SMITH, FOREORDAINED FAILURE]. SMITH.DOC 4/21/2003 4:31 PM 1236 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2002 A. Conceptions of the Person Modern legal thought pervasively operates with some version or blend of three principal images of the person: the person as interest- bearer, the person as autonomous agent (or perhaps the person as chooser), and the person as citizen. These conceptions are not mutually exclusive, and any of them may or may not be accompanied by a corol- lary asserting that persons are “rational.”5 The first conception—of the person as a bearer of “interests”—resonates with thinking in the sciences and social sciences6—in evolutionary psychology7 and economics,8 for in- stance—and with the consequentialist or utilitarian ethical tradition asso- ciated with influential thinkers like Bentham. The second image is en- tirely orthodox in the liberal political and moral tradition that goes back to Locke and Kant and that is represented today
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