Professor John Q. Barrett has published, as the lead article in volume 168 of the University of Pennsylvania Law Review, a previously unknown essay by the late U.S. Supreme Court Justice Robert H. Jackson on religion, with Barrett’s introduction, footnotes, and afterword.  The article is attracting wide readership, media coverage (e.g., this National Law Journal article), and discussion.

Here is the abstract:

When Justice Robert H. Jackson died, he left thirteen handwritten pages—this Essay—among his papers. It has been unknown for sixty-five years, until this publication.

The essay addresses two topics: (1) Jackson’s own religious beliefs and practices and those of his ancestors, who were 19th and early 20th century American farmers; and (2) some history of Spiritualist movements in their western Pennsylvania and western New York State region. Jackson and his people were shaped by religious currents and diversities. They believed that the proper way to live is to give people space and to tolerate what they are and what they choose to believe and to practice in their own spaces, so long as they do not intrude unduly on others’.

Justice Jackson’s essay is significant because it comes from him, a renowned writer and one of the most interesting, thoughtful, and significant United States Supreme Court justices ever—it is a late-life, deeply personal piece of Jackson. The essay also has significance because it is Jackson on religion, a topic of great import in life, constitutional law, public debates, and legal cases.

As a Supreme Court justice, Jackson wrote many notable opinions addressing how the U.S. Constitution limits and empowers government in the realm of religion. In West Virginia State Board of Education v. Barnette (1943), for example, he wrote the Court’s opinion holding that the Constitution prohibits public officials from compelling Jehovah’s Witness schoolchildren to salute and pledge allegiance to the American flag. For Jackson, that limit on government power to compel professions of faith was of a piece with his view that government constitutionally may prohibit religious proselytizers from harassing others, especially in their homes—under the Constitution as he understood it, government may regulate religious actors when, but only when, their conduct imposes upon the freedom and peace of others. Jackson also believed that the Constitution bars government from ranking religion itself or any particular religion as more or less correct, or from evaluating the sincerity of professed adherents. In his view, to believe and practice any religion or none at all is, short of the point where it imposes on another, for the individual to determine, separate from government involvement.

This Jackson essay reveals that his personal views on religion and his own religious practices very much fit with his judicial interpretations of the Constitution. Jackson did not really believe in God or practice religion, but he was tolerant of others who did and how they chose to do so. He respected and deferred to the sincerity of people whose belief systems were not his. In both his living and his constitutional judging, Jackson gave religion its private space. He objected, however, and he read the Constitution as the legal basis on which to object, when government sought to bring religion into public spaces, because they belong equally to people whose beliefs range from religious belief to non-belief.