If Brad DeLong wants to pick a fight with Eugene Volokh (and C.S. Lewis), lesser mortals would be well advised to stand aside. But such is my passion for bringing concord that I feel compelled to observe that the two sides in the debate seem to me to be talking past each other.
All of us, including Volokh and Lewis, think that burning witches was wrong. Since no one actually has the powers that witches pretended to have, believed they had, or had attributed to them by others, they could not have been justly punished for wielding those non-existent powers. The history of the witch trials has lessons for the present day.
The question in dispute, I submit, is, “What lessons?”
One candidate lesson is:
Ewww, those early modern Christians sure were superstitious and cruel. Aren’t you glad we’re not like that anymore? The First Amendment ensures that religious disputes aren’t carried into the criminal courts. Hurrah for us!
That’s more or less the way the witch trials are taught in most schools. It’s partly valid. And it leads to the maxim: Keep religious questions out of the secular law courts, and especially the criminal courts, with which, I repeat, we all agree.
But Volokh (and Lewis before him) point out that the narrative version of that lesson involves a confusion of moral and factual judgments. Since we now know (or at least believe) that “witchcraft” as understood by its persecutors was nonsense, it’s easy for us to say it was silly and wicked to burn and hang a bunch of poor old women as witches. A law against witchcraft would be barred by the Free Exercise Clause.
But Volokh’s point, I take it, is that the Free Exercise Clause is sustainable only if we don’t believe in the capacity of the practitioners of some religions to acquire and use destructive supernatural powers.
Imagine, say Volokh and Lewis, that you believed in witchcraft. Or — since that’s a hard thing to imagine — imagine instead that there existed a real contemporary threat parallel to the threat that witchcraft was conceived to pose.
Say, for example, that a group of Martians wanted to conquer the Earth, and that some Earthlings had sold out to the enemy and, as their payoff for acting as spies and saboteurs, received the power to kill with a glance, in ways beyond the capacity of our science to understand or trace.
Your problem is to decide how the criminal laws should be applied to such cases. Should it be a crime to be a Martian fifth columnist with destructive psychic powers, or part of an organization for the purpose of cultivating and using such powers on behalf of the planetary enemy? What rules of investigation, evidence, and criminal procedure should apply in such cases?
Now imagine further that the Martian fifth column is set up as a church, with the planetary traitors not merely working for, but worshipping, the planetary enemy. Should membership in the Church of Ares be protected by the Free Exercise Clause?
That, I submit, is a hard problem, once you’ve stopped giggling and actually wrapped your head around the hypothetical. Volokh and Lewis are asking for a certain amount of sympathy for those who, confronted with what they thought was a parallel problem, created the witch-hunting craze.
DeLong replies that we shouldn’t cut them too much slack, given that they were in fact wrong. That’s a fair response. Acting on excessive certitude based on deficient information, the witch-hunters created huge amounts of avoidable suffering. But DeLong’s suggestion that the alleged witches should have been prevented from committing their supposed crimes by cutting them off from their materia magica and their familiar animals seems to me to avoid taking the problem seriously.
Acknowledgement of fallibilty ought to work both ways; how would it have been possible for someone in the seventeenth century to know that there wasn’t a huge Satanic plot — or even to assure himself that he ought to assign a Bayesian probability of less than some critical value to the existence of such a plot — in the face of voluminous testimony that it was real, and a consensus of the theologians, who were the carriers of what was deemed at the time to be the relevant expertise?
DeLong can’t legitimately answer “Because we know that Satan is imaginary”; that assumes what was to be proven. And if there were such a plot, failing to deal with it would have generated large amounts of avoidable suffering.
So the Free Exercise Clause represents an empirical (or metaphysical) as well as a moral judgment: that no one can actually pray his neighbor dead. If prayer were an efficacious means of homicide, Free Exercise would be a very poor idea.
If we’re going to defend ourselves against analogues to witch-hunting, we need a maxim more general than the Free Exercise Clause. It might go like this: In the face of what is believed to be a wave of crimes whose nature makes them hard to prove, resist the temptation to craft new rules of evidence and standards of proof, and to tear down old procedural barriers, in ways that make the charges almost impossible to defend against.
That general warning, if heeded, would have avoided some of the horrible injustices of the child sexual abuse prosecutions of the 1980s, in which many innocent people were convicted. (One California man was released just yesterday after twenty years in prison on child-molestation charges that were transparently absurd; coincidentally, Gerald Amirault, the victim of similarly egregious injustice in Massachusetts, was just released on parole; the state still won’t admit it got that one wrong.)
Such a maxim would also have prevented some of the egregious injustices of the war on drugs, while at the same time making it more difficult to convict the guilty in drug trafficking cases.
The application to terrorism is left as an exercise for the reader. It is not, I submit, an easy problem. But it will be on the exam.