Nussbaum and Rawls on Religion and “Public Reason”

Richard Neuhaus, "Review of 'Liberty of Conscience,' by Martha Nussbaum", New York Sun, February 27, 2008.

Martha Nussbaum straddles several disciplines, holding appointments in the philosophy department, the law school, and the divinity school at the University of Chicago. In her new book, “Liberty of Conscience” (Basic Books, 406 pages, $27.50), she reminds us that she also straddles cultural and religious traditions, having ancestors who came over on the Mayflower and having converted from liberal Episcopalianism to liberal Judaism of the Reform persuasion. Thus does she embody, so to speak, the diversity that she champions in this spirited work of advocacy.

Almost every word of the book’s title raises interesting questions. Is “liberty” the same thing as religious “free exercise”? Does the “free exercise” of religion mean “religious equality”? Are “conscience” and “religion” interchangeable terms? And is her account of “America’s tradition” consistent with the legal history and lived experience of our country? These are all questions very much worth debating, and on all of them Ms. Nussbaum has strong opinions that she advances with an air of great self-confidence, and at length. One wonders if the book really needs to be all of 400 pages. But then, she is covering a truly enormous territory.

The first freedom of the First Amendment reads like this: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Those 16 words were subject to only modest debate or litigation until the 1947 Everson decision when Justice Hugo Black, writing for the Court majority, held that they mean that “Neither a state nor the Federal Government … can pass laws which aid one religion, aid all religions, or prefer one religion to another.” This came as a great surprise to students of American history. In his magisterial 2004 study, “Separation of Church and State,” Columbia law professor Philip Hamburger underscored the ways in which Black’s long-standing animus toward Catholicism led him to turn the Religion Clause on its head. “Liberty of Conscience” is a determined defense of Black’s stratagem.

In discussions of the Religion Clause, it is common practice to speak of an Establishment Clause and a Free Exercise Clause. In fact, both grammatically and in intent, there is one clause with two provisions — no establishment and free exercise. The first provision is in the service of the second: The reason the government must not establish a religion is that having an established religion would prejudice free exercise by those who do not belong to it. As numerous scholars have pointed out, however, the end of the Religion Clause, i.e., free exercise, has been subordinated since Everson to the means, i.e., no establishment. The result is that “the separation of church and state” (a phrase of Jefferson’s that is not in the Constitution) has come to mean that wherever government advances, religion must retreat.

There is a school of constitutional law that holds that the entire fuss over the Religion Clause is misbegotten. The Founders intended nothing more, in this view, than to assure the states that the federal government would not interfere with the several state establishments of religion that existed at the time. The last state establishment (Massachusetts) was dismantled in 1833, so that’s that, and the Religion Clause is no more than a historical artifact. This view is charmingly straightforward, but Ms. Nussbaum does not address it, and just as well, for, like it or not, the Religion Clause has, since Everson, been deeply and confusedly entangled in our law and politics.

Among the disputed issues for which an answer has been sought in the Religion Clause are these: Conscientious objection to war, prayer in public schools, the religious use of peyote, mandatory school attendance, government aid to religious schools, the words “under God” in the Pledge of Allegiance, a crèche or Christmas tree in the public square, the public posting of the Ten Commandments, and on and on. Again and again, Ms. Nussbaum takes the side of “strict separationism,” although she does allow that “under God” likely will, as a practical matter, have to remain in the pledge until Americans get used to living in a less Christian and more religiously diverse society.

It is hard to find a constitutional scholar today who does not agree, with greater or lesser dismay, that Religion Clause jurisprudence since Everson is an incoherent mess. In 1978, the Supreme Court decreed that the Constitution allowed the government to provide books but not maps for parochial schools. To which Senator Moynihan quipped, “What about atlases?”

Ms. Nussbaum proposes to clear up the mess by addressing three questions: What was “the most likely meaning of the text at the time of its drafting”? What was “the best understanding of the text” when it was “incorporated” to apply to the states after the Civil War? And third, “In the light of what we now know about history and human behavior, what is the most plausible and defensible account we can give of the general idea of nonestablishment?” For Ms. Nussbaum, there is no doubt that the third question trumps the first two.

In contrast to “originalists,” such as Justices Alito and Scalia, Ms. Nussbaum is an unapologetic defender of “the living Constitution.” And, if you want to know what we now know about history, human behavior, and plausible accounts, you have only to ask Martha Nussbaum. There is an insouciant tone of being above partisanship in her distinctly partisan answers to all the aforementioned questions in the dispute. Her apodictic style aside, however, she has read broadly and imaginatively, with the result that there are more than occasional ideas of genuine interest.

More the pity, then, that for all her stressing the need for civility and mutual respect, she caricatures the views of those with whom she disagrees in a most unseemly manner. Again and again, they are described as acting out of fear, insecurity, ignorance, a theocratic desire to undo the Constitution, or all of these in combination. The chief villain, of course, is the hated “religious right.” America is “under assault” and “facing a huge threat.” “An organized, highly funded, and widespread political movement wants the values of a particular brand of conservative Christianity to define the United States.” She ominously observes that “the current threat is not, or not yet, violent.” Did someone mention fear and insecurity?

It is at the grand theoretical level, however, that Ms. Nussbaum’s radical revisionism has come in for sharpest criticism, and deservedly so. She agrees with political philosopher John Rawls that genuinely public reason cannot be based on “comprehensive accounts” of reality such as those proposed by religion. Then, from start to finish of the book, she lifts up the 17th-century Roger Williams, founder of Rhode Island, as the philosopher and practitioner of her understanding of “liberty of conscience.” Williams did indeed defend Quakers, Jews, and sundry religious dissenters, but he did so emphatically, explicitly, and contentiously on the basis of his reading of the Christian Bible, as anyone familiar with his “The Bloudy Tenet of Persecution” well knows. In the scholarly, and I think correct, depiction of Williams, he was something of a religious fanatic who arrived by uncompromising religious reason at conclusions about religious freedom with which almost all of us agree. To contend, as Ms. Nussbaum does, that Roger Williams anticipated the arguments of John Locke, Immanuel Kant, and John Rawls is — not to put too fine a point on it — risible.

Equally implausible is her effort to recruit the much more temperate James Madison to the Rawlsian cause. In his “Memorial and Remonstrance,” written in support of Jefferson’s Virginia Statute for Religious Freedom, Madison wrote: “It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society.” And Jefferson’s statute began with this: “Almighty God hath created the mind free; all attempts to influence it by temporal punishments or burthens … are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do.” What Ms. Nussbaum does not see, or refuses to acknowledge, is that, both in theory and in lived experience, religious freedom in America was secured — and is today sustained — by religious conviction.

Often graceful in style, although less than civil in argument, “Liberty of Conscience” ranges widely, offering frequently provocative readings of familiar texts. It provides useful insight into a way of thinking — a way of thinking hardly limited to the author — that is profoundly uncomfortable with a society composed mainly of Christians and unmistakably formed by a Judeo-Christian moral tradition. Throughout, she claims and clearly hopes, although in the absence of supporting evidence, that the growth of Islam, Buddhism, Hinduism, and other traditions is making America less Christian and more religiously diverse. For all its merits, “Liberty of Conscience” is finally a partisan tract, albeit a very long one, employing a potted history in support of a fanciful theory of the first freedom of the First Amendment — a freedom that we all, including Ms. Nussbaum, rightly revere.

Father Neuhaus is editor in chief of First Things, an ecumenical journal of religion, culture, and public life, and author of “The Naked Public Square: Religion and Democracy in America.”

New York Sun