School choice at the Supreme Court

Another school funding case is knocking at the U.S. Supreme Court’s door. This case, Espinoza v. Walborn, hales from Montana, where the state’s fledgling school-choice program was killed moments after it left the crib. The Court now has a chance to revive it and land a major victory for educational choice across the country.

Montana’s first school-choice law, passed in 2015, took the form of a tax-credit scholarship program. If a taxpayer donated to an approved scholarship organization, she could claim up to $150 of the donation as a tax credit. The scholarship organizations then dished out scholarships to help parents afford to put their kids through private school.

Then the Montana Department of Revenue gutted it. The Department promulgated a rule that none of that scholarship money could go to religious private schools. This basically killed the program, since the vast majority of private schools in Montana–and in most states–are religious schools.

The Department claimed that the state constitution prohibited the scholarship dollars from going to religious schools because of the state ban on indirect public aid to religious schools. This is an absurd argument. The scholarship funds are privately donated dollars–they never touch a public coffer. The fact that someone can claim a tax credit hardly means that the donation becomes “public funds” because of diverted revenue. Such an argument, extended to its logical conclusion, would mean that all money is the government’s, and when it graciously declines to tax us, that extra money of ours is in fact part of the public fisc.

Nonetheless, the government prevailed at the Montana Supreme Court. In fact, the Court did the state one better–they just invalidated the whole tax-credit program, even for the few parents who might use a scholarship to send their kids to a secular school.

It’s a terrible blow to parents in Montana trying to find some genuine variety in education. But it also gives the Supreme Court a chance to right a wrong that has been festering in education policy for well over a century. The Supreme Court should hold that barring religious schools from accessing a neutral and generally available funding program violates the Free Exercise Clause and the Equal Protection Clause of the U.S. Constitution.

The portion of Montana’s state constitution that laid the tax-credit program in an early grave is known as a Blaine Amendment, named after 19th-century Congressman James Blaine. In 1875, Blaine proposed a federal constitutional amendment that would, among other things, prohibit states from funding “sectarian” schools with public money. Blaine’s federal amendment failed, but many states passed state-level amendments to the same effect, and Congress managed to make inclusion of such amendments a condition of statehood for new states entering the union.

The history is clear that these amendments are rooted in anti-Catholic bigotry. As the United States transitioned to a public school system, public schools had a distinctly Protestant flavor (often state-endorsed or even state-forced). Catholic migrants therefore began forming and attending private religious schools of their own. The backlash was fierce, and anti-Catholic sentiment often expressed itself in hostility to Catholic schools. James Blaine’s proposed amendment was a key manifestation of this bigotry.

And the bigotry lives on today. Ironically, however, now opponents of genuine choice in education have retrofitted Blaine Amendments as a partisan weapon to combat vouchers, tax credits, and education savings accounts. Montana’s law is only the most recent victim. If the Supreme Court doesn’t grant this case and strike down these state laws rooted in religious bigotry, it won’t be the last.

Catholic Emancipation as a Constitutional Revolution 

Religious toleration is important to Britain’s historical self-image as a bastion of liberty against continental tyrants like Hitler, Napoleon, and Louis XIV.

But for much of the 18th century, Catholics in Britain were barred from government service, the army and navy, the law, and the universities. Formally, they were not allowed to inherit land or even marry with Catholic rites (though in practice there were well-recognized workarounds). Catholic priests faced life imprisonment and Catholic schools were illegal. When these laws were liberalized in 1778, this provoked the worst riot in early modern British history, the Gordon Riots.

Frazer details the travails involved in passing Catholic Emancipation. The King and the Anglican establishment were strenuously opposed to liberalizing laws against Catholics. Despite the fact that he had Catholic friends, George III opposed emancipation because it violated his coronation oath to champion the Protestant religion.

Prime Minister William Pitt proposed emancipation in 1801 and offered to resign if the King disapproved. This prompted George III’s descent into paranoia or “madness”. Frazer notes that

“There had already been a bout of this madness in 1788 and 1789, with the younger George as temporary Regent. Whatever the actual illness from which he periodically suffered, it included among the symptoms an obessional quality which certain topics unquestionably aroused. Catholic Emancipation, that appalling prospect which would cause him to be damned for breaking his sacred vow, was prominent among them:

None of this is mentioned in the 1996 film, featuring Nigel Hawthrone, of course!


Why did Catholic emancipation provoke this reaction? The British state faced a crisis in the early 19th century. Most accounts focus on the French and Industrial Revolutions, which disrupted the existing social order and alarmed ruling elites. Religion is scarcely mentioned. Thus from a Marxian perspective, the Chartists and the passing of the Great Reform Act — which extended the franchise to property holders — represent the bourgeoisie, demanding political rights to match their economic power. Acemoglu and Robinson model the transition from oligarchy to democracy as a game theoretic problem, in which the threat of revolution from below obliged elites to grant democratic rights, in order to make the promise of economic redistribution credible. Neither spends much time on religion.

But an older historical tradition saw the Catholic Emancipation as among the key causes of the constitutional crisis that the British state underwent in the 1820s and 1830s. According to John Derry (1963, 95):

‘The Protestant ascendancy was part of the Constitution: one might say without it the Constitution would never have existed. The Coronation Oath pledged the monarch to maintain the Protestant religion as by law established, while the Act of Settlement ensured a Protestant succession. Both the landed gentry and the commercial classes — as well as the urban mob — believed that if the Protestant ascendancy went the gates were open to unimaginable horrors.”

To understand why this was so, and why Catholic Emancipation paved the way for further liberalization and the rise of liberal democracy, let us revisit the argument of Persecution & Toleration.

The significance of the Protestant Ascendency reflected Reformation England’s Church-State equilibrium. The treatment of Catholics is a canonical instance of what we call condition toleration. Catholicism per se was not illegal, but it was constrained, and these constraints were justified in political terms. Throughout the 17th century, Protestants feared a return of Catholicism which they associated with unrestrained autocratic rule. For Henry Capel MP in 1679:

“From popery came the notion of a standing army and arbitrary power. Formerly the Crown of Spain, and now France, supports the root of this popery amongst us; but lay popery flat and there’s an end of arbitrary government and power. It is a mere chimera without popery”.

It was on these grounds that the Whigs sought to disbar James II from the throne. After the Glorious Revolution, the Toleration Act of 1689 excluded both Catholics and atheists. And famously, the great advocate of religious toleration, John Locke rejected toleration for Catholics, as they were loyal to a foreign prince.

The religious aspect of the Glorious Revolution is neglected in the seminal accounts of it in the political economy and economic history literatures (i.e. here). But the Glorious Revolution settlement did not only guarantee the independence of Parliament from the Crown, it also safeguarded the political position of the Anglican Church by excluding Catholics from positions of power. In return, the Church of England remained the mainstay of state. As J.C.D. Clark (1985, 438) observed:

“The Church justified its established status on a principle of toleration — the toleration of other forms of Trinitarian Christian worship. It drew a sharp distinction between this and the admission of Nonconformists to political power.”

This was particularly significant in Ireland, where the Protestant Ascendency ensured the political and economic dominance of the Anglo-Scottish Protestant elite over the Catholic majority.

Now 18th century Britain was much less reliant on religion to legitimate political authority than prior regimes. As Jared Rubin argues, one consequence of the Reformation was a decline in the legitimizing power of religion; it was superseded by institutions such as parliaments, which represented economic rather than religious elites.

Other things had changed too. The ascendancy of the Church of England was seen as crucial to state security in post-Reformation England. But this was no longer the case by 1800. Following the initial break with Rome in the 16th century, these fears had not been groundless: Protestant Englishmen felt threatened by revanchist Catholic powers such as Spain and France and, in the Gunpowder plot, Catholic conspirators threatened the death of the king and the destruction of Parliament. The fact that the vast majority of Catholics were loyal to crown and country was not enough to alleviate Protestant fears, which occasionally erupted into persecutions, such as those that accompanied the Popish plot.

Following the French Revolution, however, Catholicism was no longer associated with an aggressively expansionist continental power. The old enemy was now secular. Catholic priests fleeing Revolutionary persecution found sanctuary in Britain. And by the 1820s there was a growing pragmatic and liberal opinion in favor of Catholic Emancipation. Lord Palmerston’s argument, as summarized by Frazer (p 157), was that

“. . . times had inevitably changed, and the argument to history could not be sustained: what if Nelson, Fox and Burke had all happened to be Catholics by birth. Would it have been right to deprive the nation of their services?”

Liberal Protestant clergy further argued that

“a Catholic layman who finds all the honor of the state open to him, will not, I think, run into treason and rebellion” (quoted from Frazer, 2018, 158).

Translated into the framework of Persecution & Toleration: the equilibrium had changed. Catholics no longer posed a political threat. The legitimatizing power of the Church of England was waning. Population growth, urbanization — particularly the rise of new urban centers — as well as immigration from Ireland, undermined the ideological hold of the Church of England.

Nevertheless, when the issue finally came to head in 1827–1829, it brought down the government. Catholic Emancipation was the Brexit of its day. When the pro-emancipation George Canning became Prime Minister, its leading opponents, the Duke of Wellington and Robert Peel resigned and the Tory party split into two. Canning then died. But the move towards liberalization now had momentum. Agitation in Ireland raised fears of revolution. In 1828 the Test Act was Repealed. Wellington and Peel reluctantly switched sides. 1829 Catholic Emancipation passed, despite the fact that King George IV disapproved of it.

Thus according to J.C.D. Clark’s insightful (though contested) account:

“As significant were the consequences of Emancipation: the belief that the sovereign would not resist massive constitutional change; and the profound schism which now rent the party of Wellington and Peel” (Clark, 1985, 536).

Catholic Emancipation thus set in motion a more general constitutional revolution. Both Whigs and Tory ultras who opposed Catholic Emancipation lost faith in the existing Parliamentary system. A fundamental pillar of society, the Church-State alliance, had been undermined. It was followed by the Great Reform Act and the rise of liberal democracy. In Clark’s word’s

“. . . the effect of the measures of 1828–1832 was to open the floodgates to a deluge of Whig or radical reform aimed against the characteristics institutions of the former social order . . . English society can point to few events which changed the pattern on the ground with the totality and the dynamism of 1776, 1789 or 1917: 1832 was not such an event. It was, however, decisive in many other ways, for it dealt a death blow to England’s old order. In the process, it produced what in other disciplines is called a ‘paradigm shift’”(Clark 1985, 555–556).

The Institutional Foundations of Antisemitism

Antisemitism has returned to mainstream politics in Europe and America. One fundamental misconception about antisemitism is that it is simply another form of racism. Thus Jeremy Corbyn responds to charges of antisemitism with “ ‘I’ve spent my whole life exposing racism in any form”. But of course, Corbyn is, at the very least, an enabler of antisemitism (and there is evidence he holds antisemitic prejudices himself — see here).

Why is antisemitism different from other forms of racism? And what makes antisemitism unique. When Noel Johnson and I began writing Persecution & Toleration, we didn’t envision antisemitism returning to prominence, but I believe our analysis sheds important insight on the institutional foundations of antisemitism.

Continue reading

Why Persecute?

Why was religious persecution common in the premodern world? This is the question Noel Johnson and I address in Persecution and Toleration.

Answers that rely on the alleged barbarism of the times or the brutality or narrowed-mindedness of individual churchmen or rulers are unsatisfying. We need to understand why religious dissent was so alarming that political and religious authorities resorted to violent repression.

In Persecution and Toleration, we outline why states often had an incentive to enforce religious conformity.

Suppose the ruler wants to pass a law. The religious authority can choose to legitimate this law or to oppose it. If the religious authority opposes it, the law will be seen as illegitimate, and the ruler will face unrest or opposition in attempting to enforce it. If the religious authority legitimates the law, then compliance with the law will be greater and the law will be enforced at a much lower cost for the ruler. Rulers therefore have a good reason to want legitimacy. Because religious authorities were the most powerful source of legitimacy in the premodern period, it was natural for rulers to rely on religious legitimacy.

Rulers can bargain with religious authorities to obtain legitimacy. One way to do this is to enforce religious conformity. This provides a natural framework for studying religious persecutions.

One insight is that persecutions are necessarily political. The justification for persecution can vary. Secular authorities will persecution in terms of secular arguments. Religious authorities may persecute on religious or doctrinal grounds. But structurally these persecutions will resemble one another.

A second key argument is that some form of religious repression was the default in the premodern world but outright persecution was, in fact, quite rare. The default level of religious repression we characterize as a state of conditional toleration. Religious differences were usually tolerated, but only conditionally. Outright persecution was quite rare. But the threat of persecution played an important role in enforcing religious conformity, restricting dissent and providing states with legitimacy.

How general is our account? Is this story only applicable to Western Europe? Or to monotheistic societies? Can it explain the persecution of Christians in pagan Rome or the persecution of Christians in 17th century Japan? And what distinguishes religious persecutions from other persecutions?


To address these concerns, consider the persecution of Christians in the Roman Empire. Historians such as Candida Moss downplay these persecutions (here). Catherine Nixey’s The Darkening Age — reviewed positively in the New York Times —for example, writes:

“The idea, therefore, of a line of satanically inspired emperors, panting for the blood of the faithful is another Christian myth. As the modern historian Keith Hopkins wrote, ‘the traditional question: “Why were the Christians persecuted?” with all its implications of unjust repression and eventual triumph, should be re-phrased: “Why were the Christians persecuted so little and so late?”

Nixey correctly cautions the reader not to view Christian accounts of the death of martyrs as historical accounts. But her argument is a larger one. To her mind, the persecution of Christians was not a religious persecution. Commenting on the Roman governor Pliny’s decision to persecute some Christians, she writes:

“Pliny’s problem with all of this is not religious. He is not upset because Jupiter has been neglected, or Hera has been slighted: he is upset because the citizens of his province are becoming disgruntled by the Christians’ behaviour . . .”

“. . . Even the locals who were forcing Pliny’s hand might not have been complaining about Christians for religious reasons either: it has been speculated that what was really upsetting them was not theology but butchery. Local tradesmen were angry because this surge of Christian sentiment had led to a drop in the sales of sacrificial meat and their profits were suffering: anti-Christian sentiment caused less by Satan than by a slow trade in sausage-meat.”

Because Christians were punished as pests and social deviants, rather than for reasons conventionally identified as religious, Dixey suggests this was a simple matter of“law and order”. If anything her sympathies appear to be with the Roman governor responsible for prosecuting Christians:

“What should Pliny do with these odd people? Trajan’s reply is brief and to the point. He doesn’t get into theological or legal debates about the legal status of Christianity (to the disappointment of later scholars); nor does he (thus confounding the martyrdom tropes) fulminate against the Christians. He does agree with Pliny that those who are proved to be Christian ‘must be punished’ — though for precisely what charge is unclear. He also adds that ‘in the case of anyone who denies that he is a Christian, and makes it clear that he is not by offering prayers to our gods, he is to be pardoned as a result of his repentance however suspect his past conduct may be’. Roman emperors wanted obedience, not martyrs. They had absolutely no wish to open windows into men’s souls or to control what went on there. That would be a Christian innovation.”

This hardly not exculpates the Romans or implies the persecution of Christians was a myth. Nixey is correct that the Roman authorities were unconcerned with what Christians believed. But she is wrong to suppose that this is the defining characteristic of religious persecution. And the urge to downplay the persecution of Christians suggests other anachronistic instincts are at work. After all, no-one denies that Christians were killed, often horrifically, in the Roman persecutions (for a critical review of Moss’s book, on which Nixey relies, see here).

Theologians were, of course, concerned with wrong beliefs. But the reason why religious dissent became a major concern to both secular and religious authorities in medieval Europe was precisely due to the threat heresy posed to the established social and political order.


Consider another example from medieval Europe. Norman Cohn’s Pursuit of the Millennium explains the threat heretical movements posed to political order. Focusing on the most revolutionary millennium sects — movements that envisioned the last days as at hand, and took action to herald their coming — Cohn’s text vividly captures both the appeal as well as the radicalism and violence of these movements. Describing the manifesto of the “Revolutionary of the Upper Rhine”, Cohn writes:

“the route to the Millennium leads through massacre and terror. God’s aim is a world free from sin. If sin continues to flourish, divine punishment will surely be visited upon the world; whereas if sin is once abolished, then the world will be ready for the Kingdom of the Saints. The most urgent task of the Brethren of the Yellow Cross is therefore to eliminate sin, which in effect means to eliminate sinners . . . To achieve that end assassination is wholly legitimate: ‘Whoever strikes a wicked man for his evildoing, for instance for blasphemy — if he beats him to death he shall be called a servant of God; for everyone is in duty bound to punish wickedness.’ In particular the Revolutionary calls for the assassination of the reigning Emperor, Maximilian, for whom he had an overwhelming hatred.”

Such beliefs were a threat to all established authority. Church authorities were naturally concerned with monitoring belief and practice. But heresy also posed a potent threat to secular authority.

Of course, many people in medieval society had incorrect and unorthodox religious beliefs. What principally concerned the Church was not ignorance but heresy: obstinately holding beliefs that directly contradicted Church teachings.

Heresy was feared because it was a source of disorder. Religious dissent had the potential to unleash revolutionary violence and social chaos. This was one reason why Martin Luther recanted his earlier support for religious liberty during the Peasant Revolt.

Arguments for enforcing religious conformity went deeper than the fear of revolutionary violence. Such was the importance of the Church to the social and political order that all challenges to Church authority were perceived as threats to society.


Consider the doctrine of apostolic poverty — which emerged in the 11th and 12th centuries as the Commercial Revolution was transforming the European economy increasing urbanization, trade, wealth, inequality and also poverty. Shocked by the growing gap between the rich and the poor, adherents to this doctrine aspired to the simple poverty of Christ’s followers. They lived without property or money and they were critical of the wealth accumulated by the Church.

The fact that the Church was wealthy did not, of course, imply that Churchmen were not devout or dedicated. The problem was, however, that the Church was also a political institution. Many bishoprics were the preserve of the nobility who would jostle to ensure that their younger sons became influential churchmen. These prelates were expected to be the equal of the secular nobles, to entertain lavishly, and to dress splendidly. Taken too far, therefore, apostolic poverty threatened the legitimacy of the Church and its relationship with secular authority.

Through mendicant orders such as the Franciscans, the Church could accommodate these demands and concerns. But groups who directly attacked the legitimacy of the Papacy itself, such as the Waldensians and the Spiritual Franciscans could not be tolerated. The leader of the Spiritual Franciscans, Angelo da Clareno denied that Pope John XXII was pope, a direct challenge to the legitimacy of the Church. Precisely because of the threat they posed to the church and state alliance — and not because of their theological beliefs, which were unremarkable — the Spiritual Franciscans had to be repressed.

Were the concerns of the Roman Emperors so different from those of medieval rulers and churchmen? Religion was not a private affair in antiquity. It had political consequences; it mattered for the fate of the Empire. The first Empire-wide persecution of Christians occurred under Decius (r. 249–251). Decius’s response to the political crisis facing the Empire — invasions from both Persia and the Goths — was a revival of the state religion and the imperial cult.

Claiming that Roman persecutions of Christianity were not religious but political, as Moss and Nixey do, is misleading; all persecutions are political. Because it began as a persecuted cult, Christianity as a religion contained many potent arguments against religious persecution. For these reasons, it was probably less predisposed to persecution than many other religions. Nevertheless, the fact that the medieval Church eventually came to persecute dissent points to deep, structural, political economy factors that made religious freedom impossible. It this these factors that are the subject matter of Persecution & Toleration.

Nightcap

  1. Free speech for me but not for thee Michael Koplow, Ottomans & Zionists
  2. Religious freedom in the Islamic world Daniel Philpott, Volokh Conspiracy
  3. Religious and other freedoms James Robinson, Cato Unbound
  4. Why we need analytical Marxism Chris Dillow Stumbling & Mumbling

Nightcap

  1. Can there be peace in Afghanistan? Shreyas Deshmukh, Pragati
  2. Competition among states wasn’t sufficient for religious liberty Johnson & Koyama, Cato Unbound
  3. Transnational queenship Michelle Beer, JHIBlog
  4. Russia the Terrible Timothy Crimmins, Modern Age

Nightcap

  1. How to pay for the Green New Deal Simon Wren-Lewis, mainlymacro
  2. Racism in an elevator Alison Bowles, Policy of Truth
  3. The fitful march of religious liberty Johnson & Koyama, Cato Unbound
  4. The why of religious freedom Ethan Blevins, NOL