Here is an interview on "Church-State Relations in the U.S. and Europe" that friend-of-MOJ Paolo Carozza and I did for the ZENIT news service. Paolo says, among other things:
[O]ne of the principal advantages that I see in the American approach to church-state relations is its emphasis on the relationship between religion and freedom -- both the freedom of individuals and the freedom of smaller communities within the overall political society.
Implicit in that is a greater space for those communities, united by religious commitments, to generate culture, to take initiative and to construct a common life. A more equality based and statist approach, which characterizes many of the European systems, risks losing sight of the way that an authentically lived religious life is creative and fruitful in responding to human desires and needs.
I observed:
The church-state headlines in recent years have tended to focus, first, on the tricky line between neutral funding programs and illegal state-sponsored "indoctrination"; and second, on the perceived dangers that attend "religious" expression by government actors or in the public square. So, we've discussed and litigated issues concerning school vouchers, the Pledge of Allegiance, the Ten Commandments and so on.
However, perhaps the most pressing church-state issue in the American context involves not matters like these, but challenges to the independence and freedom of religious communities and associations. Although, in the American tradition, the focus has generally been on the religious rights of individuals, the danger today is to the freedom of the Church.
This is not the first Fourth of July I have spent out of the USA, but it is the first time I have been able to go to the terrace above my room and gaze upon some symbols that are important to those who hold or profess interest in the work of MOJ.
The first category of symbols I see are those of ancient Rome--the Republic and the Empire. They represent a good deal of the inspiration for our American republic. When I turn my gaze slightly, I see another group of symbols that also inspire. These represent the seat of Peter and of the Church universal. I am also mindful that the government that represents the American people sends ambassadors to both Rome and Peter. There won't be fireworks here tonight, so maybe later I shall go back upstairs to see all of these symbols awash in light and to reflect, to ponder on what they mean to me as a participant in MOJ if nothing else. My initial impressions of what these sights mean follow:
I think the most important symbol upon which I shall gaze is the dome of St. Peter's Basilica. Impressive it is, and on the scale of the purely architectural, it is the tallest and broadest structure on the skyline of Rome. But that is not what fancies me the most about it.
What ultimately captivates me is the manner in which this dome symbolizes an early disciple who, after some stumbling, went boldly amongst the cultures, the people he met to proclaim the good news. Now, as lawyers, some of us may say that is a risky venture given some of our recent contributions to MOJ. Recalling the rich conversation over the past few days regarding establishment, Peter was not interested in establishing a State religion (this reflects some of my argument on why the American people and their legal institutions need a solid definition of "establishment"). He was, on the other hand, desirous to be bold enough to suggest, to teach, to enlighten those who might choose to listen to him so that they might improve human existence in the most meaningful of ways not just for themselves but for everyone. Sounds like a pretty good model of citizenship, but I digress.
Peter did not have the State backing him, and that is quite clear since there were times when the State was trying to silence Peter. But, he spoke, and he did so in a way that was public, respectful, and virtuous. Ah, yes, virtues. We have seen a bit about that over the past few days in MOJ. But, again, I digress.
Might we who celebrate our national day today be courageous to do the same and follow Peter and his example? In a manner of speaking, today we celebrate not only independence but also interdependence. For that is what the American Constitution proclaims. It begins with "We the people..." It doesn't say "Some of the people..." Nor does it open with "A few of the people..." It also states that We the People, for the objective of forming a "more perfect union to establish Justice, insure domestic Tranquility, provide for the commons defence, and secure the Blessings of Liberty" enter this union not just for ourselves but for our Posterity as well. We are all in the American experiment (a term that I hope might be put aside one day soon) together. Each of us who has some faith in Catholic Legal Theory/Thought probably also have some faith in the one whom Peter followed, succeeded, and died for. It does not appear that Peter shouted, threatened, or tried to outmaneuver. He did try to convince others in his public debates with reason and faith. Should we be any different as lawyers who are members of the American city but who also claim to be citizens of the City of God?
As MOJers (is this a proper noun?), as lawyers, as people of Faith, are we willing to follow Peter and the example he set? Or are we content with the model of Rome without Peter? Some of the symbols I gaze upon speak of democracy for some, as long as one was a citizen of Rome. Others proclaim democracy for all if you also claim to be a citizen of two cities.
As we declare and celebrate our independence, might we also profess our willingness to follow Peter and to be bold and virtuous; to be prudent and wise; but most of all, as John Paul II often repeated scripture, not to be afraid.
Having read this morning's NY Times on line, it struck me that there are many substantive issues abrewing, including who shall succeed Sandra Day O'Connor, that could benefit from our experience as intellects and citizens. But in addition, we are also willing to speak from our faith, and we do so not to impose but to propose as John Paul II exhorted. Peter was independent in his own way, and this enabled him to speak and inspire. I pray that some of us may elect to follow in his path so that we may demonstrate to the skeptics of our world that we desire to participate not only in a weblog but also in the res publica where the voice of MOJ members should surely be welcome.
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!
Responding to Mark's invitation to contribute thoughts about Noah Feldman's important NYT essay, reader Matthew Festa writes:
. . . I've read [Feldman's NYT article] through a couple of times and thought that you might want to get the perspective of a Catholic economist. For the most part, I felt the article was well articulated and fair. I agree with most of what was said. This, however, I thought was somewhat unfair:
"On the other hand, charitable choice, which permits billions of dollars in federal money to support faith-based organizations, should not be a vehicle for allowing government to pay for programs that treat alcoholics by counseling them to accept Christ. Schools that teach that Shariah (or Jewish rabbinic law or canon law) is the ultimate source of values should not be supported by tuition vouchers."
If I remember my study of the founding period correctly (and I have some experience with this historical time period, both as an undergraduate and a publius fellow at www.claremont.org, which specializes in the founding ), I do not think this point holds up to much criticism.
Part of the solution the American founders articulated for the "theological-political problem" was that each person would be allowed to worship as they wished so long as the religion was tempered by reason, and subscribed to the fundamental beliefs of the American Republic. Parents had the right to school their children anyway they wished, be it Baptist, methodist, Quaker, Jew, etc, as long as that religion believed "all men are created equal, that they are endowed by their creator with certain inalieable rights, that among these are life, liberty, and pursuit of happiness."
To the founders, this statement is self evident, or understandable to anyone who grasps the terms of the proposition. Thus, if a religion denied this truth, it was not valid. Proof of my statement lies with the early history of the American Catholic Church. Many people in the 18th and 19th century did not believe the Catholic Church believed in these "self-evident" propositions and therefore discriminated against it (despite the fact that one of declaration's signers was Catholic!). So it is not that the founders accepted any and all religions. Rather, they recognized that many diverse religions (at the time diverse practices of Christianity and Judaism) answered man's highest questions while respecting the self-evident truths of the political sphere. Even though many of the founders were deists, it did not matter that parents educated their sons and daughters in the tenets of their faith because their faith accepted the principles of the founding. There was no conflict.
When applying this principle to today, Feldman's argument against vouchers falls apart. Why is it the state's business to deny money to a committed poor parent who wants to educate his/her son in Judaism or Catholicism? As far as I can tell, both religions embrace the principles of the founding and would be more than glad at teaching it to the students to teach it to the students (aside: I attended an all boys Catholic school. As part of my graduation req I had to take 2 years of American history (jun and sen year). My brother's public school required one....) To me, this denial of public funds to parents is a denial of their religious liberty and their fundamental right to parent their children.
To answer the second charge against vouchers (that is would bias structured religions all ready in place, i.e., the Catholic Church), let me answer by referencing Milton Friedman. (This argument is coming from Capitalism and Friedman VI). Part of the reason you do not see a proliferation of private schools is that they cannot compete against public schools. If you allow a marketplace to exist where parents get to choose which school to send their child, you will see an increased amount of schools opening. This would, in my opinion, greatly help other denominations open schools (particularly Lutheran and Jewish), mitigating the advantage the Catholic Church has. In addition, a meaningful voucher system would also bring about secular private schools, which would compete with religious schools.
Another reader, Jonathan Watson, writes:
In response to Professor Sargent's invitation concerning Noah Feldman's proposed solution, I have the following comments:
To begin with, Professor Feldman's discussion of the history behind the sovereignty of the people is correct . . .. During the time period between the fall of the Roman Empire and the Treaty of Westphalia, there were many different iterations of church-state relations, and I think that any attempt to lump them in under the idea that "the religion of the sovereign was he religion of the people" is an overstatement and tends to ignore the extraordinary works of the ius commune jurists in Romano-Canonical law on this very subject.
With that said (and seeking to avoid exclusion by concentration on collateral issues), I have a few more substantive criticisms of his paper. In general, Professor Feldman seems to ignore at least one taxation issue that confront religious believers. He proposes that the ideal treatment of church-state relations centers around "no coercion and no money." Yet this ignores an essential double-taxation issue. Assuming that most schools are funded by local, state, and federal taxes, the believers who desire to send their children to religious schools are then in a bind of subsidizing the public schools while also paying for parochial. Perhaps the counter-argument would be that the individual portion of any person's taxes which goes towards education is de minimus; yet, the principle must be addressed if Professor Feldman is truly seeking a more just solution.
I am also concerned by Professor Feldman's use of straw man. "Consider what will happen" he says, "when some delegate in a state legislature rises to argue that voucher payments should not be extended to schools that teach racism, or anti-Americanism, or sexism." He then burns this particular straw man by describing how his solution would avoid such institutional divisiveness. There seems to be an inherent contradiction here. In the start of his paper, he argues that secular and non-secular political members should not be afraid that their respective positions are conversation stoppers, but should engage one another on their own turf. He proceeds with the aforementioned argument to nullify one of the very controversial items in society, one which ought above all to be discussed. Perhaps he perceives that he is one such individual, and this argument is just the opening salvo to one of the very divisive topics of debate.
Following this observation, in looking through Professor Feldman's paper, I find that in the end it is both a description of his ideal church-state relationship, and an argument within that ideal. He does not separate the terms of engagement (offering greater latitude for religious debate) from arguments that would arise through those terms (governmental funding of religious schools). He views the exchange of greater religious debate as a quid pro quo for "values-evangelicals" giving up desire for state-support of religion. It appears reasonable, but the contrary is devastating. If I, as a "value-evangelical" refuse to give up my desire for state-supported religious institutions, am I then condemned to a refusal to discuss these matters by legal secularists, or worse if legal secularists have the capability, outright suppression of those ideas?
Our readers' views' are, of course, our readers' views. More are welcome.
Now that MOJ readers have had a chance to read Noah Feldman's provocative new piece on religion and American democracy in today's Sunday NY Times (or to buy his new book, which I found in Borders on Friday), I would like to open MOJ to discussion not just by our blogistas but also our readers. Please send your comments via email to me, Rick, Tom, Mike P or anyone else in the blog group, and we will post, exercising our editorial prerogative as usual.
This March, the Supreme Court considered the question whether the Ten
Commandments could be placed in courthouses and on the grounds of the
Texas state capitol. On Monday, a divided court banned the commandments
in the courthouse, but upheld—in six conflicting opinions—the Texas
monument.
Harvard law professor Bill Stuntz offers up a provocative TCS column on the Ten Commandment cases. Money quote:
... my natural sympathies belong to Jesusland. I'm a Christian. I believe the Bible is a true account of who God is and who we are. I believe the Ten Commandments lie at the core of wisdom. I believe the Incarnation, the event all those manger scenes celebrate is incomparably the best and most important event in human history. If it matters, I even voted for George W. Bush, twice. So if anyone should want the Ten Commandments in state capitols and "in God we trust" on the coins and manger scenes on courthouse lawns, I should.
But I don't want any of those things. I'd much rather give them back.
Overall, the analysis would slot nicely into the Anabaptist tradition.
http://www.thenewatlantis.com/archive/8/lawler.htmA few weeks ago, reporting on the Foundations of Freedom conference at the University of Portland, I expressed some doubts about the very interesting paper, "President Bush, the Ownership Society, and the Catholic Understanding of the Common Good,” presented by Dr. William Hudson. Also relevant to the "Ownership Society" debat is this new essay, "The Caregiving Society," by Peter Augustine Lawler and available at The New Atlantis. Here is a taste:
In his stirring second inaugural on “
America
’s ideal of freedom,” President Bush called upon us to build “an ownership society.” “By making every citizen an agent of his or her destiny,” he declared, we “will give our fellow Americans greater freedom from want and fear.” With that vision in mind, he proposed to reform Social Security by bringing it under the control of each individual agent. Certainly, some reform is needed as individuals live longer, children become scarcer, and the baby boomers retire. And surely there is a large potential upside to making today’s workers active investors in their own retirements and deploying today’s assets in the entrepreneurial economy.
But there is also something deeply inadequate about viewing old age in terms of individual “ownership” of one’s own destiny. The aging society, after all, will confront us with the realities of human neediness. Freedom from “want and fear,” to the extent such freedom is humanly attainable, will require the old accepting the inevitability of their growing dependence on others, and it will require others who willingly accept the burden of caring for their elders, even at the expense of their own independence. The ownership society only makes sense if it prepares us to be care-givers and care-receivers, and if it does not encourage us to see ourselves as unencumbered individuals. . . .
Self-reliance, of course, is a great American virtue. America is a middle-class nation, and it continues to become more middle-class all the time. This does not mean that we are all equal economically, or that we are all equal when it comes to intelligence and virtue. It means that we all work because we have to work, and that we are all free. We believe that all human beings have an equal right to work and no right to expect the fruits of other people’s labors. And we believe that freedom means not being dependent on others or constrained by others. We are against all forms of servitude and dependence, and we often see no real difference between paternalism and despotism. Even the rights and responsibilities of parents are quite limited and temporary; our children are raised to be free and independent, to achieve on their own, to go their own way.
More than ever, we experience ourselves simply as individuals, distinguished by our freedom from what nature has given us. We are freer to escape the constraints of bodily limitation, of gender, senescence, and decline—or at least to live for an extended period of time as if we could do so. The world exists, the individual thinks, for me. In the beginning, there I was, and after me there is nothing.
But this view of ourselves as individuals remains far from complete. Despite our pretensions, we remain in many ways dependent beings.
Thanks to MOJ contributors who have called attention to Justice O'Connor's resignation. Her stepping down from the Supreme Court will trigger a great deal of discussion about the qualities of her successor. Here is a short essay Download moral_issues_and_the_virtuous_judgenomination_of_supreme_court_justices.mdi I wrote on a related topic, the role of virtues, back in the mid 1990s. It may still offer some thoughts relevant to the judicial selection process in 2005. I read the Solum commentary linked to Rick's earlier posting on Justice O'Connor's resignation. I saw Solum's question about whether advocating for a virtuous judicial candidate is naive. I hope I was able to present some points why considering the virtuous character of candidates is not naive but essential. RJA sj
A few days ago, I posted an essay by Notre Dame's Dan Philpott on forgiveness. For some interesting reactions to the Philpott essay, by a law professor who has written often and thoughtfully about issues of mercy and justice, see this post at Prawfsblawg, by Dan Markel.
