More on Justice Thomas, Public Reason, and Natural Law

The indispensable Legal Theory Blog has worthwhile posts up, by the University of San Diego's Steve Smith and Larry Solum, on the Justice Thomas / Natural Law / public reason issue, which I mentioned here a few days ago.  Here is Larry Solum's original post, commenting on the question "whether it is proper for a Supreme Court justice to argue that the underlying moral foundation for the constitution is religious in extra-judicial discourse."  It is tempting simply to cut-and-paste the entire discussion, but I won't.  (Go check it out!).  One of Solum's conclusions is that, "few exceptions, Supreme Court opinions should include only public reasons."  However, Solum is careful to note (as, unfortunately, many who write and comment on these matters are not) that "[t]he best ideal of public reason does not equate the line between reasons that are public and reasons that are nonpublic with the line between reasons that are religious and reasons that are secular."

Larry also posts Steve Smith's response.  Steve notes that "discussions [about public reason and religion] always provoke a couple of questions in my mind:

1. Were Thomas Jefferson and the other signatories of the Declaration of Independence behaving badly when, acting as founders and statesmen and not as preachers or even private citizens, they made the statements that provoke this discussion-- e.g., that our rights are attributable to a creator, etc.? Is this what the critics of Thomas believe? Is it what Rawlsian are forced to say, or perhaps eager to say?

2. Is it the current consensus that when Justice Douglas, writing for the Court in Zorach v. Clauson, famously said that "we are a religious people whose institutions presuppose a Supreme Being," was he (a) just plain wrong, or (b) saying something he should not have said as a Justice and for the Court, or (c) both?

Larry answers both of these questions in detail.  For my own part, I'm inclined to think -- with respect to the first question -- that the Declaration signers were not "behaving badly" (i.e., not violating political morality), and not only because (as Larry observes) theistic claims and premises fit comfortably within the zone of "public reason" of the 18th Century.  (I can imagine coming to a different conclusion, had the signers' theistic premises been more denominational and sectarian.)  But, with respect to the specific kinds of public claims the Founders made, and the premises they appear to have endorsed -- that is, claims and premises having to do with, for example, the connections between basic human rights, the existence of God, the knowability of certain moral truths through reason, the dignity of the person as a creature of God -- it seems to me that they must always be acceptable in public political and judicial discourse.  They are acceptable, and any attractive theory of political morality will permit and welcome them, because they are powerful on the merits, and not only because they are widely shared at a particular moment in time. No worthy political discourse, in my judgment, could exclude such claims and arguments, and so any theory of political morality that purported to require their exclusion should be, for that reason, a non-starter.

Rick