Belated Thanks; Noah Feldman's Article; and Farewell (for a While)

Thanks again to Rick for his interesting comments on my paper (two sets of comments, both on June 30).  And thanks to Tom Berg for his interesting answer to my question (which was prompted by one of Rick's comments).

***************

About Noah Feldman's proposed rules:  no coercion and no funding.  The constitutional law of the United States includes both the free exercise norm and the nonestablishment norm.  Even without the nonestablishment norm, the no-coercion rule would make sense ... as an implication of the free exercise norm.  Indeed, given the free exercise norm, I don't know why we need to refer the no-coercion rule to the nonestablishment norm.  (For my take on the proper division of labor between the free exercise and nonestablishment norms, see here.)

Does the no-funding rule make sense as an implication of the nonestablishment norm?  It does not, in my judgment.  (I defend this judgment in chapter 1 of my book Under God?)  Thus, I agree with what Rick Garnett says in his post on June 29.  Feldman's no-funding rule is not a persuasive gloss on the nonestablishment norm.

If we were to accept Feldman's argument, and if we were to base the no-coercion rule on its natural ground--i.e., the free exercise norm--it follow that as a practical matter, the sole distinctive content of the nonestablishment norm would be the no-funding rule.   But it seems to me to make little if any sense to suggest that it would not violate the nonestablishment norm for government to revise the Pledge to read "One Nation, Under Christ"--or to issue currency with the motto "In Christ We Trust  ".   (As I understand it, Feldman's construal of the nonestablishment norm would permit government to do both of these things.)  Here, let me concur in what Tom Berg says in his MOJ post on June 30 and in his SCOTUSblog post on July 1.

Let me emphasize that I do not believe that it would violate (what most of us accept as) one's human right to religious liberty for government either to revise the Pledge to read "One Nation, Under Christ" or to issue currency with the motto "In Christ We Trust".  (I have written recently about the human right to religious liberty:  here.)  More generally, it would not violate one's human right to religious liberty  for us to amend the Constitution to get rid of the nonestablishment norm--so long as the free exercise norm is understood as it is now and is vigorously enforced.   The Irish Constitution, which affirms Christianity in its Preamble, doesn't have a nonestablishment provision, but the Irish Constitution does protect the human right to religious liberty.

Nonetheless, for better or for worse, the constitutional law of the United States does include the nonestablishment norm, and Noah Feldman's construal of the norm is problematic for (at least) three reasons:   (1) the no-coercion rule finds its natural home in the free exercise norm; (2) the no-funding rule is not a persuasive gloss on the nonestablishment norm; and (3) the no-coercion and no-funding rules would permit imaginable practices that virtually all of us agree would "establish" religion:  "One Nation, Under Christ"; "In Christ We Trust".

(Feldman has a fair amount to say, in his article, about the proper role of religiously grounded moral premises in the policymaking of a liberal democracy.  I am in substantial agreement with what Feldman has to say on that front.  See chapters 2-3 of my book Under God?)   

***************

I'll be out of the country, spreading mischief in Europe, and then in the upper reaches of the Teton range, far away from electronic communication, for much of the time between July 8 and mid-August.  I report this out of fear--nay, terror--that someone will interpret my silence as acquiescence!

_______________

mp