Steven D. Smith, professor of law at the University of San Diego, has an admirable review of Martha Nussbaum’s
Liberty of Conscience: In Defense of America’s Tradition of Religious Equality in the February issue of
First Things . Since I agree with everything Professor Smith said, it is perhaps not surprising that I warmly recommend his review. There are, it seems to me, a few additional points worthy of attention.
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, 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 Dr. 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 four hundred pages. But then, she is covering an 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 sixteen words were subject to only modest debate or litigation until the 1947
Everson decision when Justice Hugo Black, writing for the Court majority, discovered 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. Dr. Nussbaum’s book 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, however, 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. That is to say, the reason the government must not establish a religion is that having an established religion would prejudice the free exercise of religion by those who do not belong to the established religion. Since
Everson , however, and as numerous scholars have pointed out, the end of the Religion Clause, i.e., free exercise, has been subordinated 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 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 questions 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, Dr. 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. At one point, the Supreme Court decreed that the Constitution allowed the government to provide maps but not books for parochial schools. To which the late senator Patrick Moynihan quipped, “What about atlases?”
Martha 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 Martha Nussbaum, there is no doubt that the third question trumps the first two.
Against “originalists,” such as Justices Alito and Scalia, 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 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.” As Steven Smith asks in his review, Just who is living in fear and insecurity?
It is at the grand theoretical level, however, that 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 seventeenth-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 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 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.
To be sure, it was not secured by religious conviction alone. The distinguished historian Gordon S. Wood of Brown University has underscored the role played by religious self-interest. The competing factions of Protestant Christianity strongly favored nonestablishment because, among other reasons, they feared the establishment of rival factions. Competition in the religious marketplace does not sit well with Catholic ecclesiology, since the Catholic Church does not understand itself to be a denomination but, quite simply and uniquely, the Church. But, by force of circumstance and a theologically sound process of enculturation, Catholicism has joined in protecting the “no-establishment” that serves religion’s “free exercise.” While Nussbaum has favorable things to say about the high premium Catholicism places on public reason understood as natural law, the dynamics that actually secured and today sustain religious freedom get slight attention in her book.
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 are making America less Christian and more religiously diverse. For all its merits,
Liberty of Conscience is finally a partisan tract, albeit a very long tract, employing a potted history in support of a fanciful theory of the first freedom of the First Amendment, a freedom that we all, including Martha Nussbaum, rightly revere.
(The above is a revised and expanded version of a review that appeared in the New York Sun
on February 27.)
There will be more about William F. Buckley Jr. in the forthcoming issue of
First Things . I was privileged to count him as a friend for the last quarter century, and the two of us last had lunch together at his Stamford, Connecticut, home in December. He was getting ready to leave for Florida to write a book on Ronald Reagan, for which he had a January 20 deadline. He doubted he would get it done. The emphysema was the big problem and he had to keep an oxygen kit ready at hand. Norman Mailer had died a few weeks earlier and that prompted conversation about fame, life as a performance, and the fittingness of mortality. In the last two years, Bill had been preparing himself for death, and more intensely since losing Pat in April 2007. He thought he had pretty much done what he was put here to do. We talked by phone while he was in Florida. The book was not going well. In the last two days, much has been written about what he accomplished, and much more will be written. Bill Buckley was a man of almost inexhaustible curiosity, courtesy, generosity, and delight in the oddness of the human circumstance. He exulted in displaying his many talents, which was not pride so much as an invitation to others to share his amazement at the possibilities in being fully alive. He was also, in and through everything, a man of quietly solid Christian faith. I am among innumerable others whose lives are fuller by virtue of the gift of his friendship. May choirs of angels greet him on the far side of Jordan.
References
Liberty of Conscience: In Defense of America’s Tradition of Religious Equality 
by Martha Nussbaum
