Judicial Faith? Ideology, Religion and the Rule of Law: A Conversation with Noah Feldman
Pew Research Center Washington, D.C.
Just weeks before the Senate confirmation hearings of Judge Samuel A. Alito, President Bush’s nominee for the U.S. Supreme Court, the Forum held a discussion for journalists and other policy leaders on the role of religion in the judicial confirmation process. The discussion featured Noah Feldman, a law professor at New York University Law School, author of Divided By God: America’s Church-State Problem and What We Should Do About It, and a former senior constitutional advisor to the Coalition Provisional Authority in Iraq. Feldman addressed a wide range of topics, including whether religious faith is a legitimate area of inquiry in the judicial nomination process; the controversy over teaching evolution and intelligent design in public schools; and prospects for democracy in Iraq.
Noah Feldman, Professor of Law, New York University School of Law
E.J. Dionne Jr., Senior Fellow, the Brookings Institution; Columnist, The Washington Post
Luis Lugo, Director, Pew Forum on Religion & Public Life
LUIS LUGO: Good afternoon to all of you and thank you for coming. I’m Luis Lugo, director of the Pew Forum on Religion & Public Life, and I am sharing the moderating duties today with my friend and colleague E.J. Dionne. When we have an event like this, I typically just enjoy my lunch and take in all the conversation, but unfortunately the other co-host of this Pew Forum Lunch series, Michael Cromartie of the Ethics & Public Policy Center, who always sits to E.J.’s right – and that’s both a physical and a political statement – could not be here today; he had an out-of-town commitment and unfortunately could not get out of it, so he wanted me to pass along his regards.
This luncheon is part of an ongoing Forum series bringing together journalists and policy leaders to discuss timely topics at the intersection of religion and public life. Our format here is really very simple. After our special guest speaks for 15 minutes or so, we’re going to open it up to you for questions. This is meant to be a conversation, so we strongly encourage you to participate – not that journalists need much encouragement actually to get into it.
We’re very pleased to have Noah Feldman with us today. You have a copy of his biography in your packets, so I’ll just briefly say that Noah is a professor of law at New York University School of Law and an adjunct fellow at the New America Foundation. Earlier in his career, he served as a law clerk for Justice David Souter. After all the talk about the religious views of John Roberts, Harriet Miers and now Samuel Alito, we have asked him to address the question of whether the topic of faith is a legitimate area of inquiry when it comes to judicial nominations. I’m sure we’ll have a lively discussion about that, but I hope that in the question-and-answer period we go even beyond that question and take advantage of Noah’s wide-ranging interests and expertise. With the holidays approaching and the “Christmas wars” heating up again, I’m sure you would like to hear his thoughts on how we might negotiate a truce between secular and religious Americans on these issues. In fact, his most recent book, Divided By God: America’s Church-State Problem and What We Should Do About It, tackles precisely that challenge.
As you may or may not know, Noah served as a senior constitutional adviser to the Coalition Provisional Authority in Iraq, and subsequently advised members of the Iraqi Governing Council on the drafting of the interim constitution, so I’m sure he has something to say as well about the controversies surrounding the role of Islam in the Iraqi constitution. And if you’re going to range widely, Noah, you might as well feel free to share with us your views on what seems to be afoot in highly secular Japan, which is to amend its constitution to perhaps lower the wall of separation between shrine and state, as we might say in that case.
E.J., I know you wanted to say a couple of things, and then we’ll turn it right over to Noah.
E.J. DIONNE: Thank you. Welcome, everybody, including lots of old friends. I wanted to say two “Thank you’s” to Noah. The first “Thank you” is because I know it’s been hard for him to travel for a very happy reason, which is that he became a father four months ago, and so I really appreciate your coming up here to be with us. And there’s a second thing I wanted to thank him for: some months ago, I was assigned to review his book Divided By God. I had never met Noah, but I had so many friends who admired him, that I had this great fear that I wouldn’t like his book. I thought, this guy sounds like a wonderful person and I hope I don’t have to trash his book. (Laughter.) And so what I wanted to do is thank him for writing such a good book because it was very easy to write the review and I commend to everybody Divided By God. I think it is one of the best, most compact and fairest histories of the religious controversy in our country that’s been written for a long time, and I’m assigning it to my Georgetown students next semester. It’s a real honor to meet you, Noah. Thank you for coming.
MR. NOAH FELDMAN: Thank you, E.J. for that really nice compliment. And thank you, Luis, for having me. I’m excited to be here. I came directly from meeting with a group of Article III judges who serve on a committee in which our judiciary interfaces with judges elsewhere in the world. We spent about an hour and a half talking about the state of the rule of law in the Islamic world, and the situation of democratic development or lack of same. And I wondered if maybe I could have just doubled up and used the exact same title for both because ideology, religion and the rule of law are as much at stake in the Muslim world today as they are here.
Indeed, one of the things that most astonished me when I had the chance to work in the U.S. government and then outside the government in Iraq was the repeated statements by Americans who should have known better, including some lawyers, that we could just take our church-state solution and use it in Iraq. The point was not that I thought this was some terrible exercise in imperialism, though it may have been; it was that it was pretty clear that we had no idea what our church-state solution was here in this country. (Laughter.) And yet people seemed to believe that there was some identifiable, single solution that was exportable in some form. I think we did succeed in exporting the debate, however. (Laughter.) So maybe we can be grateful for that.
This topic is a rich and an interesting one, and I think one way to frame it is to say that, in fact, if Judge Alito is confirmed as the fifth Catholic justice on the Court, that would be karmic payback for 150 years of anti-Catholic discrimination in this country. The payback, though, would have to operate on multiple levels, because it would reflect some specific issues that have always been of interest to Catholics in the United States with respect to the constitutional arrangements, specifically funding for Catholic schools. That would be one issue on which it would be relevant. But it would also be a further opportunity to refute the early republican view (and I don’t just mean that with a big “R,” but also with a small “r”) that somehow Catholicism was incompatible with what they called republican forms of government. That is a view that you can find consistently expressed over almost 100 years of American history, but in terms that are very much reminiscent of arguments that we hear today about Islam. Indeed, I would even go so far as to say that into the 1930s, you could still see political science textbooks that said that Catholic countries were not places where democracy could eventually take hold because of the incompatibility of Catholicism and democracy.
One of the lessons is, of course, the preposterousness of this claim in historical terms, though it was not preposterous as understood at that time. In fact, it was reasonable to claim – though I think ultimately incorrect, and there was an unpleasant racial tinge to this view also – that democracy had flourished in Northern European lands, and that it was a phenomenon closely associated with Protestantism. But there is something to the claim that the conception of religious liberty that prevailed in the United States, certainly from the later part of the 18th century was in some ways distinctively Protestant. As a historical matter, that was certainly true. It did grow out of a distinctly Protestant set of ideas about Christian liberty and the merger of those ideas with broader ideas of the liberty of conscience.
And it was not entirely outside the realm of relevance to make this point, nor was it possible to deny that the Catholic Church, as a formal matter, well into the 19th century explicitly declared the liberty of conscience to be a heretical and false view. Deliramentum, a term that requires no translation, appears in a papal encyclical of errors as late as the 1870s.
So the first thing I want to say is that any discussion of the question of religious faith and judges, which is obviously connected to the question of religious faith and politics in this country, must be put in this broader historical context and also in this broader comparative context.
Let me focus on the specifics of the question a little more precisely. I’m going to propose a view that I think I could defend and I’ll try to defend it a little, but I’m proposing it more as a basis for discussion than as a view that I think is absolutely, definitively the one that everyone should hold. I think it’s pretty clear that an inquiry into the religious faith of judicial nominees as such would be very troubling from the standpoint of American constitutional history. But what would not be troubling would be an inquiry into the question of what a given nominee believed was the proper relationship between religion and government. I want to distinguish here between asking a nominee something like, “Do you accept Jesus Christ as your personal savior?” under oath – a question that even has constitutional implications under the religious tests clause of the Constitution – and asking a nominee, “What do you under oath believe is the right way of arranging the relationship between religion and government?”
Not coincidentally, that latter question – the question about the right relationship between religion and government – is a central question. I would argue it is the central question at the heart of the contemporary church-state debate and it doesn’t only underlie the decisions that a judge would make with respect to questions of where the crèche goes and can’t go and how many plastic reindeer have to be next to the crèche, though as I’m sure all of you know, one of the Alito opinions which has been discussed in this context is exactly a plastic reindeer case.
I teach my students parenthetically that the fact that the reindeer were plastic is actually crucial to the constitutional holding in that case. (Laughter.) I’m happy to talk about that more. I’m actually not joking about that, but I’m happy to return to that. (Laughter.) But this question of the right relationship between religion and government also underlies some of the more profound debates that are very much alive and which will come before the judiciary in the future. And those are the debates about when life begins, when life ends, and with whom one can form the most intimate bonds of partnership in life. And those three broad headlines touch on – and I feel this way maybe because I just had a child – but they touch on most of the really crucial issues about what it means to be a human being that the state inevitably engages with on some level or another, that the state cannot opt out of or hide from in some way. It doesn’t mean that the state has to dictate it, but the state has to engage with it on some level. And even a decision to defer such questions is a decision on how one should engage with them.
So these kinds of questions have a lot to do with one’s view of the relation between religion and government. In fact, I don’t mean to say this is always true, but if you tell me what you think about the right relationship between religion and government, I can often give you a pretty good guess as to what your view would be about stem cell research, abortion, the death penalty, Terry Schiavo and same-sex marriage, just to name some of the practical instantiations of the big questions: beginning of life, end of life and whom you get to form your intimate bonds with during life.
Now, once that question has been asked, you can sort of picture a fork in the road. If a nominee says, under oath, “I think that the right relationship between religion and government is that religion is a wholly private matter having nothing to do with public decision-making, having no role to play in my or any other citizen’s governmental behavior” – and I call that in my book a legal secularist view, but that’s a defensible view, philosophically defensible, politically defensible, constitutionally defensible; I happen not to be clearly convinced it’s correct, but it’s a more than plausible view. If someone gives that answer, and one could continue to ask the person what that meant in practice, and so forth, I think that would mean that that nominee shouldn’t be asked further questions about the substance of his or her own religious views because the person has said, under oath, what he thinks about this relationship; and he has said that the relationship is not a significant one.
I take it that maybe not everyone in life tells a truth under oath, but the judicial nominees tend to be people who are really careful about that sort of thing and would at least like to tell the truth under oath to the extent they feel capable of doing so. I haven’t been a judicial nominee and I’m sure I’ll never be one, so it’s easy for me to say that. But if a person answers the question in a more nuanced or equivocal way, or in a direct way, and says, “I think that religion is fundamentally relevant to public, political, governmental choices, and I think that it is relevant to individual judgment, and I think it’s relevant to politics, and I think it’s relevant to how it informs one’s most basically held beliefs,” then I think the nominee hasn’t just opened the door – that’s sort of a prosecutor’s way of thinking of it – then the nominee has explicitly affirmed that, in fact, the topic of religion, and of his or her own religious beliefs – is a wholly appropriate question for further examination. The nominee has said that in his view (I’ll just say “his”) in his view, religion does matter for public life and decision-making. And that view, too, is an eminently defensible, thoughtful, sophisticated view, and it obviously has many subcategories within it, of the way religion and government should interact in the United States, which is, after all, as I was saying, a crucial question not just constitutionally, but politically as well. At that point, I think questions are fair ones so long as they reasonably relate to issues or problems that would be likely to come before a judge or the public space that are, in fact, connected to judicial practice.
I can still imagine there are some questions that would sound as though they were off base. Just to name one example, I’ve been recently reading a forthcoming book that I’m reviewing on the religious faith of judges, and much was made of certain Unitarian judges and their worldviews. I don’t think that it would be plausible to ask someone about the subtleties of his belief in a Unitarian versus a Trinitarian conception of God as directly relevant to the decision of actual cases. I think there are some theological points that are very unlikely to come up. But I don’t actually want to press that point too far either, because the truth is that saying, for example, “I am a Catholic,” tells one relatively little about where one would come down on issues whether it is interplay between religiously infused values and political decision-making, even if one were to acknowledge that there was a relationship between those things.
And it’s for that reason that I would want to add another principle to this, another point to the mix, and that is, in general, ask these questions – go ahead and ask them. I think under the circumstances the nominee has himself brought them into play and should welcome them. In fact, if indeed it is his view that religion does have a role to play in governmental thought, then he should welcome these questions. But don’t be sure you’ll be able to get any really useful information out of a nominee under these circumstances. The reason I say that is if you try (as the author of the book I’m currently reviewing tries to do) to argue that you can explain justices’ decisions in light of their religious beliefs, it turns out to be incredibly difficult to do that in an even slightly plausible way.
So I don’t just mean that Justice Scalia – and he’s spoken about this publicly – is someone who disagrees with certain teachings of the Vatican (not ex cathedra pronouncements, of course, but certain pronouncements that are normatively desirable teachings of the Catholic Church) but not others. I’m also talking about the question of how one explains where Justice Brennan fits on a continuum where he would be thought of as a Catholic justice. Where does Justice Hugo Black fit into a story of the right relationship between his Baptist religious beliefs and his political or judicial decisions?
The thing about individual biography is you don’t write it until that person is dead, because the relationship between the training you undergo and the beliefs you hold, and the political or judicial judgments that you make, is necessarily a tremendously complex one that differs drastically from case to case. We need to know a lot more about a justice than just his religious affiliation or even the substance of his religious views to know how he is likely to rule on a case.
I’ll even take this a step further and say that I suspect that a judge, a judicial nominee, may himself not know where he is likely to end up on these sorts of questions. Just as our religious views develop and change over the course of our lives – this came up in a Harriet Miers context, the question of individual personal development and its relationship to religious faith and judicial faith – so do judges very famously undergo significant transformations in terms of what they believe and what they think over the course of their careers, with Justice Blackmun being just the most obvious recent example.
The tremendous variability among humans and the tremendous change that takes place in a person’s own inner life world and the tremendous range of possibilities for the interaction between religion and government make me think that you can ask these questions all you want, because they are part of the public discourse, and the Senate hearing is part of public discourse. But don’t make the mistake of thinking that the data that you’re going to get is going to tell you anything that you really want to know in the long run.
So with that I think I’ll open the conversation up. I hope I’ve said enough things to provoke, to keep the conversation going, but, if not, I’ve got more to add where that came from. (Laughter.)
MR. DIONNE: I’m very sympathetic to the basic argument you just made, Noah, and I’d like to ask two questions. On the one side, if a nominee were to say, “My religious views would have no effect on my jurisprudence; I believe in the separation,” could that open a legitimate line of inquiry then to ask this person, “Does that suggest a kind of hostility to religion?” and to kind of press him? I have a feeling this book on Unitarians might be pressing that argument, but I could be wrong.
Second, if religion has a legitimate role in the public square – and I made an argument somewhat similar to yours saying it is legitimate – then it ought to be legitimate to ask justices about the relationship between their religious views and how they might rule. The trouble there, of course, is where do you cross the line where you are getting into a religious test? How do you distinguish doing what you and I think is legitimate without crossing that line? Or is it too blurry to know?
MR. FELDMAN: On the hostility question, I don’t think there’s anything wrong with asking someone who’s said there’s a fundamental difference, “Are you hostile to religion?” Or: “Sir, your answer suggests that you may be hostile to religion.” And then the person had better be able to give a good answer to that, but it’s pretty easy to imagine what that answer will look like: “The fact that I believe in the separation does not mean that I’m hostile to religion – very far from it.” But I think that a nominee would be on very good grounds at that point in saying, along the line of JFK, but in fact a little differently, “Senator, I believe so deeply in my religion that I won’t discuss it with you,” or words to that effect.
MR. DIONNE: That will go over very well. (Laughter.)
MR. FELDMAN: That leads to your second point. This is all in the context, obviously, of actual political debate, and in the sphere of actual political debate, the whole notion that there are lines that can be drawn or even that there’s a constitutional line of religious test that can’t be crossed is in a way notional. This is not an issue that will ever come before a court, right? Certainly – after Bush v. Gore one should never say “certainly” before a claim about legal doctrine, but as close to certainly as one can say – the Supreme Court of the United States and no lower court will hear a claim that questioning by senators in a judicial nomination proceeding violated the religious tests oaths. And a reasonable claim could be made (reasonable, I’m not saying correct) by senators discussing this in good faith that even asking someone, “Sir, do you believe X or Y?” would not be a religious test unless they said, “I will vote against you if you say this.” And they will be sophisticated enough not to say that.
In a general, realpolitik way of looking at this, the question is hard to ask. When we ask if the line is being crossed, we are really asking, what is our personal interpretation of the Constitution and what interpretation of the Constitution on this point will be pushed forward? Judging it from that standpoint, the place where you cross the line is where you’re no longer asking about the relationship between a belief and an area of direct relevance to what the judiciary does, if it’s a question of dogmatic theology. The senator or his staff had better draw the connection between the question and the area of law on which it is said to be relevant, thereby allowing the judge to say in response, “Well, I do think there’s a relationship between religion and government, but not on this question.” That is also a plausible answer to make in a particular case for someone who nonetheless believes that there is a proper relationship between religion and government.
I’ll add one more thing, and this is the legal realist in me talking. You want to avoid a situation in which someone says, “Well, I believe there’s a good, important relationship between religion and government in fundamental values, but I don’t think that has any place in Supreme Court decision-making because all I’m going to do is follow the Constitution.” I can imagine that answer being given. Someone could say, “Well, naturally I think when the voter goes to the polls or when you, Congressman, debate things, you can talk about religion all you want, but I’m a strict constructionist and I’m guided only by the Constitution.” At this late date we should be prepared to acknowledge that the answer to every conceivable constitutional question cannot be found within the four corners of the Constitution. You have to sometimes ask yourself, what are the values of the Constitution? And when you ask yourself that, you’re asking yourself, what are the values of the American constitutional order? And when you’re asking yourself that question, now you’re on the ground where if you believed that religion is relevant to fundamental values, religion is going to enter into the picture. So I wouldn’t want to let a nominee get away with that kind of clever logic-chopping answer that said, “Oh, they’re sort of connected but they’re not connected for me.” Or: “I believe there’s a close relationship, but not for me as a judge.”
MR. DIONNE: I hope they let you on the committee during these hearings to ask questions. (Laughter.) Just a quick question because a lot of people may have the same curiosity. Why does plastic matter?
MR. FELDMAN: Right. My argument on the plastic reindeer issue. You all know that there are two cases that we teach together. One is a case involving a crèche in Pittsburgh on the steps of the Court House, that the Supreme Court rules is unconstitutional, and the other is a crèche surrounded by plastic reindeer and a wishing well and bunch of other stuff on a public square in Pawtucket, Rhode Island, and that’s supposed to be constitutional. My argument is that the plastic stands for the kitschification of Christmas. (Laughter.) I’m not actually kidding about this, although it is funny. The view of the court actually is that – and the court goes to great detail in listing all these things – that the so-called context is actually that if you make Christmas sufficiently commercialized and put enough plastic into it, it ceases to be a celebration of Christ’s birth, which is something that I think most Christians would probably agree with and which the court sees as true. It becomes instead the American holiday that Congress acknowledges called Christmas, which is a plastic consumerist holiday. But if you just have a tasteful crèche, now it’s Christmas for real, and that’s constitutionally troubling and problematic. I’m not saying this is the correct view of the law, but I’m saying this is the plausible explanation of what the court is doing in these cases.
MR. LUGO: Very interesting.
MR. FELDMAN: Plus it makes it kitsch. (Laughter.)
MR. LUGO: Well, I did hear that word in “The Graduate.” I knew it had great import. (Laughter.) I just never knew it had such great import for First Amendment jurisprudence. Let’s hear some questions from our journalists.
DAVID VON DREHLE, THE WASHINGTON POST: Say you get the answer from a nominee, “Yes, Senator, I’m a Catholic and it’s important to me and I use it to make my decisions.” That covers everyone from Bill Brennan to Clarence Thomas, and presumably we could find similar examples with Methodists and Jews on the court. Then really isn’t it a pointless question, because it doesn’t mean anything about how you’re going to decide any case, and so aren’t you just cutting right after that to the secondary question, which is how are you going to decide an abortion case? Because that’s what you really want to know and the religious question is merely inflammatory.
MR. FELDMAN: Well, I partly agree with that. But I also think that you could want, for example, a nominee to say under oath, which might matter to him if he were a religious person, that he thinks that there’s no connection between his religious faith as a Catholic and the way he will decide an abortion case. And I can see reasons that a senator would want to get that answer. I could see also, though, a nominee, maybe not in today’s political environment but maybe in some future utopian time or maybe in the past – well, in the past we didn’t have these kinds of hearings and who knows if these things will go on in the future – but you can imagine a nominee trying to offer a richer answer and saying, “My Catholic faith has taught me the centrality of the value of human life, and just knowing that about me doesn’t tell you how I’m going to vote on the following sets of questions, because I don’t think my job is to apply church teaching to the Constitution. But when I think about constitutional issues, Senator, the value of human life is central for me, and I feel the importance of balancing that against the need for human dignity.”
I would like to be able to imagine a world where an answer like that wouldn’t just be laughable and where it would lead to a more nuanced understanding of where the person was coming from. And the reason I say this is the nominees’ answers on the questions of constitutional law that they are asked can tell you a lot about how they think about problems because, after all, if you asked them how they would rule on a Fifth Amendment property case, they don’t give you a straight answer on that either, but they will talk to you about their principles of constitutional interpretation and that can sometimes be useful.
And they’ll sometimes tell you who their favorite justices were. And sometimes people misunderstand what they mean when they give their answers to that (laughter). You know, Justice Souter – who I should add strongly disagrees with me on many topics of church and state, and makes no bones of telling me so, so I don’t represent his views in any way, shape or form – when Justice Souter was being questioned, he said that one of the justices who most influenced him was John Marshall Harlan. And many people said, “You see, the conservative who opposed the revolution of the Warren Court.” But what Souter meant was that he was a Burkean conservative and that he thought that if things weren’t broken, then you shouldn’t fix them, and that’s led him to very frequently reach judicial rulings that are characterized as liberal, but in fact I think it’s fair to say are very much Burkean. This is not always the case, obviously, but I think that’s an example of where you’ve got to listen carefully when they give you their answers, but you could learn something from those kinds of answers.
AMY SULLIVAN, THE WASHINGTON MONTHLY: I’m interested in the point you brought up earlier, which is that the relationship between religion and how it informs how you act or make decisions is so complicated that people themselves may not know what that is. I often think if we have to go through therapy for years and years to figure out how our family has influenced us, it makes sense that religion is also going to be a difficult thing to really tease out. To what extent is there a responsibility for nominees to be able to think through that and be able to explain it, and how much leeway do we give them for not being able to articulate that?
MR. FELDMAN: With respect to what I call the threshold question – what’s the proper relationship between religion and government? – I think that’s a constitutional question. It’s a question about constitutional worldview and I would hold a nominee responsible to the same standard I would in asking a question about just compensation for takings of property.
I would like to hear a thoughtful answer that reflected an understanding of the problem and at least an attempt to grapple with it in good faith as a constitutional matter without specifying answers to specific kinds of cases. And I don’t think that’s an unreasonable standard to set. Perfect coherence is probably asking too much, but it’s probably asking too much in the constitutional context, too.
On the question of how would you try to do this, I grant you the complexity point, but I think it’s also true of all constitutional decisions, and I think we can demand a pretty high standard of responsiveness there. I would be prepared to demand a relatively high standard of thoughtfulness about this question, too. And again, in the real world I’d be prepared for stonewalling answers, but even just the issue of which stonewall answer you provide is more information. It reveals something.
ELISABETH BUMILLER, THE NEW YORK TIMES: I am curious about your view of how it happened that there might be five Catholics on the Supreme Court, if Alito is confirmed. Is it a coincidence, or is there something larger going on that we should know about? And also, can you sum up if there’s any consistency to their judicial philosophy because they’re Catholic?
MR. FELDMAN: Well, it’s a fascinating question and one I’ve been thinking about a lot, and one that I think deserves a lot more thought than I’ve given it so far, for sure. I do think that it’s not coincidence. I think that it’s connected to – at least in the cases of Judge Roberts and Judge Alito – it’s connected to a phenomenon of the relationship of Catholic intellectuals to a generation of Catholic legal thinkers in which the move to conservatism came to be an attractive one and one that was available to everybody, but it was particularly attractive to certain Catholic intellectuals who had moved in a more conservative direction.
So in a sort of post-Vatican II and also reaction-to-Vatican II world, one could see the very rich Catholic intellectual tradition meeting up with constitutional theory and constitutional law, and I think that’s significant in a range of ways. One is that it’s connected to the kind of historically significant phenomenon of Catholics and Protestants seeing eye to eye on church-state questions, which, as all of you know, was fundamentally not the case prior to Vatican II. In fact, the fundamental conflict in American church-state terms, if you understand it demographically from 1830 to 1970, really could be characterized as a Protestant-Catholic divide. That wouldn’t be a perfect categorization, but you could fairly characterize it that way. I talk about it a little bit in my book in which, on questions of government funding for religious institutions, Catholics were consistently seeking equal funding and Protestants were consistently denying it to them.
And it took a very complicated process, of which I think Roe v. Wade is the central part – not the only part – for these two disparate movements to coalesce and to seek common ground. That, I think, has been central to the subsequent development of what you might call elite, conservative legal thought. And I notice that Dean Reuter of the Federalist Society is here, and I think the Federalist Society can be seen as one of several central vectors, and in certain ways the most significant.
MS. BUMILLER: Is the Federalist Society largely Catholic?
MR. FELDMAN: No, but the Federalist Society is one of the forums and the most important forum in which conservative intellectuals engage with problems of legal theory. And in that world, there is a space for common cause to be made between Catholics and Protestants. By the way, my answer is certainly not “sound bitey,” but that’s because I’m thinking it through as I go.
I think that the emergence of Catholics as important conservative legal voices is a product of a political movement in which Catholics and Protestants have come together on some common questions within the conservative movement. And so we then find when the time comes to nominate Supreme Court justices that some of the most sophisticated, conservative legal thinkers – and this is true of academics too, but I’m speaking now of people who are career attorneys and judges – turn out to be people like Justice Roberts and Judge Alito. It’s not demographically a complete coincidence.
It’s not that there aren’t good Protestant candidates, too. There certainly are with the same qualifications. It’s that 50 years ago you’d have been unlikely probably to find within those organizations this kind of common cause being made, and you’d be less likely to find Catholic lawyer intellectuals in that space. So I think that, with respect to these two nominees, it is not a coincidence at all.
It’s also connected to another demographic trend, the entrance of Catholics into what had previously been Protestant-dominated elite educational institutions. In the case of Alito and Roberts, the Yale and Harvard Law Schools followed after the Princeton and Harvard Colleges, which happened demographically in a relevant time. And most people who go to those organizations come out more liberal than they went in, and that may be true on the whole, but that’s not true of everybody.
So if you go in and you don’t come out a liberal, you have certain advantages. My liberal law students often come to me complaining that I’m sending my conservative law students to fancier appellate clerkships. And I sometimes try to explain to them that – at least at NYU, where I’ve been teaching – there aren’t very many of my really excellent conservative legal students, and so they’re just as smart as the other kids but the competition is a little less, because there are fewer of them in the whole left-leaning phenomenon of American legal education.
MR. DIONNE: Now it’s relevant to ask Mr. Reuter, are you Catholic and how does it affect the way you engage in the Federalist Society? (Laughter.)
Could I just ask a quick follow-up questions? There was a good piece in The New Republic on this question by Frank Foer. He suggested that evangelical Christians had themselves embraced the conservative Catholic intellectual tradition to fill in some holes in their own tradition. If I were an evangelical intellectual, I suppose I would have taken offense at that piece, but I’m just curious. There was a lot of sense in that piece when you look at the rapprochement between conservative Catholics and conservative evangelicals.
MR. LUGO: In fact, the other co-host of this luncheon series, whom I’m sitting in for, Michael Cromartie, has been very vocal on this with respect to his own fellow evangelicals. He says what’s missing with evangelicals is a robust natural law tradition. And that’s where the Catholics have the leg up. That’s why in terms of public discourse, but also with respect to the judiciary, they’re often much more sophisticated in how they handle this.
Mike may then point out that it probably – I’m putting words in his mouth now -wasn’t a complete coincidence that when Ralph Reed staffed the Christian Coalition office here in Washington, he hired primarily Roman Catholics because, again, the language of natural law provides sort of a mediating language. So that’s part of the explanation, perhaps, Noah. But I think it complicates your analysis of the relationship between religion and government, because many Catholics will take the view that, well, this is not religion (if by that you mean the dogmas of the church). It is certainly a morally informed approach to politics, but it’s informed by natural law criteria, rather than particularistic teachings of the Catholic Church. So I think it introduces a third element into your religion and government nexus that may make it a bit more difficult to navigate these issues.
MR. FELDMAN: Well, first of all, I totally agree that the issues are very difficult to navigate. I guess I would disagree a little bit in saying it’s a different issue, though, because of the question of how one comes to natural law. I mean, one could came in and say, “My name is Thomas Jefferson and I believe in natural law, but I think the Pope is a man of sin or worse.” In other words, one can be a natural lawyer and not be a Catholic.
But today, the natural law tradition has its richest contemporary expression through the writings of Catholic intellectuals interpreting a particularistic Catholic natural law tradition, which doesn’t look exactly like all the other natural law traditions. So if someone comes to it through religion, then I think – in my view, at least – it would come under that heading of religion, even though I grant you that it can be wholly sustained without reference to religion. You can be an atheist natural lawyer.
On the demographic question, too, these are the last bits to add to this that it’s the overall demographic shift of American Catholics towards the –
MS. BUMILLER: Well, my other question was about your comment regarding the trend of entrance of Catholics in the elite legal institutions. That sounds right, but could you talk more about that? I mean, are you talking about, the ’50s and ’60s? That’s when those institutions opened up in general.
MR. FELDMAN: Yeah, that’s right, although it’s more complicated than that. It is true they were opening up in general in those years, but a lot of the elite colleges and law schools had a lot of Jews in them already in the teens and ’20s, and a much smaller number of Catholics. And why that is is a very rich and complicated question because the answer isn’t solely external discrimination. It’s also educational norms among the relevant demographic groups of people. So even when Harvard College effectively adopted a quota system, Harvard Law School didn’t because Harvard Law School was an examination-based institution and remained an examination-based admissions model.
MS. BUMILLER: But Yale College changed in the ’60s.
MR. FELDMAN: The story is subtly different for the colleges and the law schools. But I think that’s right. These colleges became demographically more open. And it was not only opening up by religious background or ethnic background, but also by class background, which is also part of the story, for sure.
MR. DIONNE: And maybe we Catholics needed a long time to live down Roger B. Taney in the Dred Scott decision.
MR. LUGO: Jody?
JODY HASSETT, POINTY SHOE PRODUCTIONS: You said you cannot necessarily expect the nominee to be perfectly coherent in explaining the connection between his faith and his legal thinking today. What about looking back on past decisions, seeing rulings and decisions made when someone was immediately out of law school, so in terms of expecting a kind of coherence or for them to address what may have been earlier a sort of mutation of their faith and legal thinking 20 years ago – what is the value of that? And then on your second point about the connection, your idea that if the nominee opens up the idea of religion so that you can then follow up with the questions on that, could you parse what you were saying about trying to figure out their faith? Is there a proper follow-up question?
Journalists are frequently accused during campaign years of not having a follow-up question after someone says “I’m an Episcopalian.” They leave it at that, when if you ask two follow-ups, you may actually learn something. Is there a parallel there in terms of the question you’re perhaps asking, you know, an Augustine versus Aquinas question, or something that would get you further down that road of understanding?
MR. FELDMAN: Let me take the second one first. Yes, I think there are really important follow-up questions that can be asked. It just takes a little legwork to figure out within the particular religious organization that we’re talking about what might be the relevant questions to be asking. But if someone says that they are Catholic, I think questions about their views of the relationship between church hierarchy and church teaching and their own personal views are par for the course and are valuable questions that actually can reveal a lot.
With respect to earlier writings, I guess my view there is that if someone disagrees with what he said before, that is good because that shows intellectual development or personal development, but I would like to hear from someone, “Here is why I no longer agree with what I previously said.” I want to hear a reason. It’s not enough to say, “I was young.” Well, yeah, but why do you have a different view now than you had then, if in fact you do? And I think that’s a fair standard to put on all of these kinds of questions.
I don’t think that if you said something when you were shortly out of college – or at any point in your career, for that matter; you could have said it last week and you should be able to explain why. One of the problems that we have in our political system is this perception that if you ever admit that you’ve changed your mind on something, this is a sign of weakness or mushiness or flip-flopping. That’s a disease we have societally, and who’s responsible for that disease, I’m not exactly sure. Clearly more than one person is responsible, but so-and-so contradicting himself in his past should not, in my opinion, be a headline. And we should change our minds – it’s a sign of being willing to develop – but we should be able to give reasons for why we changed our minds. And absent those reasons, I think, then you do look like you’re muddleheaded.
ALLEN PUSEY, THE DALLAS MORNING NEWS: One of the other problems is that issues like religion and personal belief systems and that sort of thing have been reduced in the public realm to code words and short, pithy phrases that mean one thing to the person who expresses them and mean another thing to the person who’s listening. To what extent would it be to the advantage to the person who’s nominated to actually express an opinion that used any phrase like “respect for the dignity of personhood” and that sort of thing that’s a catch phrase for a whole other belief system?
MR. FELDMAN: There are two questions in there. Let me do the latter one briefly. On the issue of sort of what’s the upside for the nominee, I feel like I’m not the politician who’s going to hold the hands of the nominees as they walk through the process. And such a politician will generally advise the nominee to say as little as possible if they’re in a strong position. And then it becomes this constitutionally embarrassing struggle between senators and nominees to dig out information. I mean, I’m sure that as journalists who professionally dig information out, you both think that the senators aren’t very good at it and also kind of feel bad for them that it’s such a difficult thing to do under these circumstances. But we’re talking here about the world the way it should be to some extent – the kinds of answers that one would like to hear.
MR. PUSEY: Yeah, but this is a context of advocacy.
MR. FELDMAN: Well, you’re right. And so there might be circumstances where it’s useful to use words that mean different things to different people. Certainly saying “I believe in judicial restraint” has that effect, because everyone in theory is in favor of judicial restraint, right? Liberals don’t want the court to strike down more pieces of legislation than it has done in recent years, and that’s what they mean by judicial restraint; and conservatives don’t want the court to invent constitutional rights that aren’t written in the Constitution, and they think that’s what’s meant by judicial restraint. So everyone is in favor of judicial restraint. How wonderful.
That leads me to what I think is the deeper point that you’re suggesting, which is this phenomenon of the euphemism or the codeword as core to our political discourse, and I think it’s frankly disastrous. It blocks the debate. It enables a mentality of “I fit into this box, you fit into this box, and there’s no point in us discussing it any further.” And sometimes these euphemisms arise out of political convenience, but sometimes they actually arise because of judicial doctrine, so I’m going to give you what I think is the most prominent example, and it’s broadly within what we’re talking about. That is, intelligent design.
Intelligent design as a sort of intellectual movement is a euphemism of a euphemism, right? It’s a euphemism in the sense that it’s a replacement for creation science, which itself was a replacement for creationism.
Now, the irony here is that nobody thinks that intelligent design is science. Scientists don’t think so, but neither do most of the people out there propounding it. They think that it’s religion, and they would like to be able to say openly that their view is a religious view, and they would like to be able to call for religion to be taught in a more explicit way or at least an acknowledgement of religion to be present in a more explicit way in the schools. But because the courts have consistently said first that creationism in the curriculum was unconstitutional, and then the same for creation science, which is a cover for creationism, the legal background has pushed in the direction of the creation of still more euphemisms to talk about these things.
Now, I think if you acknowledge that this is the case, it helps point the direction towards something like a better solution. Get the euphemism out of here; don’t have this debate about whether to teach intelligent design in science class. Instead, have a debate about whether in classes other than science class creationism could be taught in some way that didn’t offend basic constitutional principles.
I think if taught, if presented in a descriptive way as a view about the creation of the world held by many millions of Americans – and I don’t mind being specific; you guys do wonderful studies on these things, and let’s cite those studies in these contexts – not only is there nothing constitutionally problematic about it, but I don’t think there’s anything pedagogically troubling about acknowledging it to students in class or even by adding that this is a worldview that stands in opposition to the scientific worldview with respect to the question of evolution.
And I have no objection whatsoever to saying in the science class that what you’re about to hear is a scientific worldview propounded by and held by the scientific community, which is a group of people who can be identified. It’s not some abstraction out there. And this is the scientific community’s view of the truth, and the creationists’ view is in some part a contradiction of the religious community’s view of the truth.
In that environment, I think we have one huge advantage over the euphemistic world, which is at least we know what the stakes are. At least we know what we’re discussing. And that, I think, might lead to disagreements. I’m not claiming that it’s going to lead to agreement. I don’t think it’s going to lead people who think that religion is bunk to think that it’s not. It’s not going to lead people who think that science is bunk to think that it’s not, but at least the student would be getting an accurate depiction of the state of play in the world with respect to these questions.
And I think that both sides should be prepared to prefer a model like this. Scientists would no longer have to debate whether something was science, a debate which they’re going to lose to the extent that when they have to stand on their epistemological ground and insist that “we get to say what science is,” ultimately their only real answer – and this is a problem for the philosophy of science – their real answer is “because we’re the scientists and we say it goes,” and that’s not a very satisfying answer. It’s a sociological answer to an epistemological question. It’s not very good.
And similarly, people on the religious side could be spared the embarrassment of having to attach themselves to a theory that relatively few of them particularly believe in, adopted on grounds that pretty much everybody understands are not the real grounds for adopting it. And this goes to my more general point about discourse about religion and politics, of which the Supreme Court discussion is a part, but just a part. And that is that I think we do better in these debates when we acknowledge the presence of deeply held different views on core questions and acknowledge that for a lot of people their fundamental beliefs and values do, in fact, come from religion. I don’t think that the game is up for secularists when this is acknowledged, as a lot of legal secularists, I think, tend to believe. I don’t think they lose under those circumstances, especially because it will push them to stand up and make more coherent arguments for their own positions.
MR. PUSEY: That was a better question than I thought. (Laughter.)
MR. VON DREHLE: It’s not a question and not on even ground, but I think you got half of a right answer there, because just as the ID people are speaking euphemistically about their beliefs, the scientists are as well, as you can see from many a bumper sticker of the Christian fish with the legs on it. Not all biologists hold that evolutionary biology is a religion, but many do. They answer fundamentally religious questions by applying biological science, and so they’re doing the same thing. I was with you right up to the point where you said in science class we’re going to say this is science. No. I would say we should say this piece of it is science where we answer scientific questions using the scientific apparatus. But at the point where your biology teacher tells you that this is the way the universe was created or why being is or how you should think about religious questions or, as you put it much better, religion is bunk, then they’re doing the same thing that the ID people are doing. They’re applying the wrong apparatus. To me what you have are religious people trying to claim that they’re doing science and scientific people trying to do religion, and the twain should not meet.
MR. FELDMAN: I think that does sometimes happen. I don’t know how many biology teachers around the country are telling their kids this is why being is. My strong suspicion is that if we’re lucky enough that the Big Bang is taught, no one is answering the question of who caused the Big Bang, certainly not in high school cosmology.
And I also am not sure I agree with your interpretation of the Christian fish with the legs. I mean, as a social symbol I don’t think it’s that they’re saying it’s a religion. What they’re saying is that this is an epistemological struggle about what the truth is and I think that’s the joke that’s intended there. And it is a sort of religion-is-bunk, with respect to this question, worldview. So what I’m looking for is for each side to say, “We believe this to be the truth.” I don’t want anybody to water it down, in other words. I don’t want to say to the evangelical, you need to say something like, “Well, this is the religious way of seeing the world, but the other side of the world is also valid.” No, you should be able to say in public discourse, “I think this is the truth about the world,” and the scientists should also be able to say, “I think this is the truth about the world.”
But when it comes to disciplinary division in a high school class, I think it is appropriate to say in science class, we teach those things that the scientific community believes to be the truth, and in these other classes we’ll teach you other things that other communities believe to be the truth.
And, by the way, everyone will acknowledge it’s on different grounds. Almost nobody who’s a creationist will tell you that the reason he’s a creationist is that the scientific evidence supports it. He’ll tell you that the reason he’s a creationist – 99.9 percent of the time – is that revelation supports it and he believes as a matter of faith. And then he’ll say, and by the way, I think I’ve got a better interpretation of the science than the scientists.
But the true ground of belief – not 100 percent, but 99.9 percent of the time – is a religious grounding, and there’s nothing embarrassing about that. That’s great. That’s not shameful. That’s something we should be fully open to acknowledging, whereas the scientist should be able to claim with comparable certainty that the grounds for his belief are scientific grounds and that if those scientific grounds changed, he’d have a different view of the topic. And then if the question becomes “Do you believe in God?,” then that question is not particularly susceptible to being answered in terms of the kinds of evidence that proceed on the basis of evidence that he himself believes in, and the evidence for that is there are many scientists who have different views on this topic. There is, in fact, no consensus in the scientific community on whether God exists. If there is any consensus within the scientific community, the consensus is that that is not a scientific question.
MR. VON DREHLE: Right. But there’s no – at least to the extent that I can find it – there’s similarly no serious person in the ID movement who holds that natural selection doesn’t exist. I mean, so both –
MR. FELDMAN: That may be the case and that’s what –
MR. VON DERHLE: They’re both cartoonishly presented by their enemies.
MR. FELDMAN: But that may be one of the problems with ID. The difficulty with ID is that if the view were that natural selection exists, but is guided in some way by divine providence – bracket the question how special that providence would have to be versus general – then almost no one who’s out there supporting that movement in the political world would actually like to sign up with that movement, right? The overwhelming number of evangelicals who are voting for people who are going to go and advocate for the teaching of ID in the schools, if they knew that about ID, they couldn’t support ID in good faith.
DAVID MASCI, THE PEW FORUM: There are some people in the ID movement, though, who say that natural selection exists only within sort of very narrow parameters. In other words, the bacteria that’s changed and becoming resistant to penicillin or whatever, not that we all evolved from the same organisms or the same organism, I should say – that we evolved over hundreds of millions of years and that the only difference is that there was the guiding hand of some designer.
MR. FELDMAN: Well, fair enough. But that’s to say that natural selection doesn’t exist. What they’re saying is that artificial selection exists in the sense that it’s an artifact of some intentional being.
MR. MASCI: Right.
MR. FELDMAN: Not that it’s not natural selection, so that view – in my judgment, at least – it’s not a view by natural selection. If that is the view, then in fact people are not foolish to be signing up to support the movement.
MR. MASCI: Right. Because a person who believes, let’s say, in revelation, like you were talking about earlier, probably could buy into something like that. Well, we see that we have different breeds of dogs. We see that various diseases –
MR. FELDMAN: And you would have to buy into that. Right.
JAMES STANDISH, SEVENTH-DAY ADVENTIST CHURCH: I have two comments. One, I know that we’ve sort of got off on the ID thing, and that’s probably not the intention of this discussion, but I can’t help it. You made a statement, Noah, that kind of stuck in my throat. You said no scientists believe in these ideas of scientific theory. It just so happens my brother is a molecular geneticist, has his Ph.D in the area, something that I admire because, like yourself, I’m a lawyer. I don’t know a whole lot about science, even though we lawyers sometimes talk with great confidence. But my brother does and he deals with a lot of serious scientists who look at ID not as a religious theory that’s through revelation, but they look at the evidence that we have and then try to extrapolate how we got here. My wife and I had an experiment in this. We had a child; you’ve just had the same thing. You look at the enormous complexity, the intricacies, the joy and the love, the soul and all those sorts of things to come at it and you say, could this possibly come from nothing?
MR. FELDMAN: But that’s not –
MR. STANDISH: Just hear me out. And my answer to that is, no. And on a more subtle and complex level, people looking at the genome and all those other genetic complexities, at least some have come to the idea – and at tremendous professional cost, incidentally, because it does not behoove you in the scientific community to advance the cause of ID. We’ve had the case over here at the Smithsonian of the guy who was frozen out for publishing an ID article and so forth. But that said, I’ve made my peace on that; I think we’ve had a sort of discourse on ID.
Maybe I should go to the issue that I wanted to raise from the beginning, and that is, you said that if a nominee comes up and says, “I believe in this sort of separation from my religious life and public life and religion will not impact my decisions in public life,” I think that’s a fair thing to say, but I don’t think it’s necessarily an honest thing to say because the next question you have to ask is, will morality play into your decisions? And I hope morality would play into the decisions of people in public life. The alternative is to make amoral decisions, and that would be very troubling.
Then the next question would have to be, what influences your morality? Now, for myself, my Christianity does influence my morality, even if I’m not being explicitly Christian in thinking about religious issues. I assume that for someone who is Muslim, Islamic traditions will influence their views on morality even when they’re not dealing with religious questions. Similarly someone from a Jewish background and so forth.
And I think one of the things that we often kid ourselves about in society is that there’s some sort of secular morality out there that has not been impacted by religion, is not influenced by religion, and is somehow objective from it. And I’d posit that maybe people can come up with totally objective moral constructs, but outside of just straight utilitarianism, I think it’s very hard to do.
And so to go back to my point, even if somebody says, “Religion is not going to influence my decisions and I believe in a strict separation,” and so forth, you’d still have to ask, wouldn’t you, whether morality will and what the source of that individual’s morality is.
MR. FELDMAN: So two really interesting points. I’ll say a very brief thing about the intelligent design point, and then return gratefully to the general topic here. (Laughter.) I certainly shouldn’t be heard as saying that there are no scientists like your brother. I meant to say – and I think you also acknowledged – that sociologically speaking the consensus within the scientific community is overwhelmingly not just against ID, but against a view that ID is a scientific theory.
And again, not all scientists are the best philosophers of science and not all philosophers of science are the best scientists. But I think one could say fairly that to the extent that the ID claim takes roughly the form that you gave it – namely, observe the tremendous complexity of biological phenomenona and deduce, or induce, to be more precise, from that the presence of a creator – I would make the response, which I think would be the standard response, that the very great improbability of events is never from a scientific standpoint an argument against the impossibility of those events, just because extraordinarily improbable things do happen.
In fact, arguably everything that happens is extraordinarily improbable relative to the background. So the inductive move – when you say, well, of course I accept that that’s true, but look at the complexity – I don’t dispute it as a valid move, but I would suggest that in as much as you said that in your morality religion comes in, I’m betting – it’s impossible to prove these things – I’m suggesting that perhaps your religious beliefs sneak in there, too.
MR. STANDISH: Absolutely. I don’t make any apology for that.
MR. FELDMAN: Yeah, yeah, nor should you.
MR. STANDISH: Though, conversely, religious perspectives of faith on the supernatural and so forth must also influence those who reject ID, just as much, although the religious teachings of those whose religious traditions reject –
MR. FELDMAN: Well, it is true that without the acceptance of a naturalistic worldview, according to which repeatable events occur according to universalizable natural laws, you can’t get yourself to a scientific worldview. That’s absolutely right. So that does entail a rejection of the idea that the sole causal account of something that occurs in each individual case is specific divine intervention. I agree. One has to reject that to adopt a version of the scientific worldview unless – there might be ways out of it, but I think that’s basically correct.
Your second point about morality – well, first of all, there is a legal view that morality should play no role in the judge’s decision-making. Ironically, Justice Scalia holds this view, that morality is not for the judge, morality is for the legislature; all the judge is supposed to do is apply the law. In a famous debate after Justice Scalia gave his wonderful and interesting series of lectures, which was published as A Matter of Interpretation, which I assign to my students, Ronald Dworkin, my colleague at NYU, made the following argument to him. It’s the kind of argument that’s made Ronny Dworkin very famous. He says, “Well, you say that morality shouldn’t come into judging. Why?” Well, the reason you’re going to give is that the job of judges is to judge, not to introduce morals. Why? Well, because the best political system is one that – and why? So if you keep doing the two-year-old thing – my son is not there yet – but where you keep on saying “why?”, according to Ronny Dworkin, you land on some argument that is grounded in morality – some form of morality, political morality. You have to be giving some moral frame about the best way to live.
And so he says – and he said in his writing and it drives Justice Scalia crazy – “Scalia and I see eye to eye on the question. We both deeply believe in a moral vision of the Constitution.” Right? And Justice Scalia just wants to scream. So now you may agree with Dworkin on this – so that’s one possibility. I believe one could have the Scalia view coherently. I believe Justice Scalia could have that view coherently and he may actually have that view. (Laughter.)
MR. DIONNE: But he always finds his morality in the four corners of the Constitution.
MR. FELDMAN: Well, his is a complex jurisprudence. But the truth is, to be fair to Justice Scalia, because he has a well-worked-out and well-reasoned jurisprudence, it is easier to show contradictions when he makes them than it is for the other eight justices who don’t have well-worked-out jurisprudential philosophies. So you’ve got to give him credit at least for the boldness of it.
MR. DIONNE: And then point out his contradictions.
MR. FELDMAN: Exactly. And so on this point of whether there can be a secular morality, I think that a plausible historical case could be made that even though we come from a world where even Kantian moral theory had its origins in religion, there’s something religious about a Kantian – although Kant didn’t think so. And much of contemporary moral philosophy is devoted to the project to show that there is a morality not derived from religion. You may think it’s a failed project, but those devoted to the project are very well meaning, very smart.
A friend of mine has a great story, Kim Roosevelt, who’s a writer and a novelist and a professor at U Penn. When he was a freshman at Harvard – he became a major figure in the philosophy department, Kim did when he was there – but he wrote a paper about Kant for a very famous professor. And he thought he had found a problem or something, and he got a little note back from the professor saying, “Kant was a genius. Don’t you think he thought of this?” (Laughter.)
And the point I’m making is just that a radically anti-utilitarian, Kantian moral philosophy strives to be and makes plausible arguments that I think reasonably claim to be a secular grounded account of morality. And from an intellectually honest perspective it’s not easy to dismiss that worldview as necessarily shot through with religion.
MR. STANDISH: Mind if I just respond to that? It just so happens that I wrote an article about the problems with Kant’s secular moral construct. Look, you take the Kantian imperative and it boils down to the “do unto others as you would have them do unto you” rule. What are the chances that he would have come up with that if he hadn’t grown up being immersed in a Christian society? I think it’s very, very unlikely.
MR. FELDMAN: I don’t want to get too far into this, but just very briefly, that historical claim, which I think is completely convincing as a historical claim, gets you everywhere in the history department, but it gets you nowhere in the philosophy department. Philosophers will say the origin of an idea is irrelevant to the substantive truth or falsehood of that idea. I believe lots of things because I was taught them as a kid. Some of those things were false and some of them were true, but it can’t be that they’re true or false because I was taught them as a kid.
MR. DIONNE: Jody has a question, and I want to go to Jody, but it would be a shame to miss such an important opportunity – we don’t get to sit down very often with somebody who helped write the Iraqi constitution, so I’d love to talk some about that experience.
JODY HASSETT: Well, I fear I’m going to take us into much more pedestrian terrain, but my question gets to Iraq. Much has been made of the decisions, many of them dissents, by Judge Alito on religious accommodation issues, and my question was really whether you think in our lifetime we might pick up a headline and read about a case on religious accommodation being decided in Iraq.
MR. FELDMAN: Well, I would say something about one in particular Alito opinion on accommodation, which is the Fraternal Order of Police against Newark case. I know that case very well because it was central to a case that I subsequently litigated in the Third Circuit.
So that decision is a decision in which Judge Alito for the court bent over backwards to get around the Smith opinion, and what’s interesting about this is in part that Justice Scalia himself, it seems, is now in some doubts, at least based on the recent oral argument, about the Smith opinion on its own terms. Justice Scalia in Smith did not write an opinion that was very popular in any religious community, which is why you know when the Christian Coalition and the ACLU are getting together on legislation that you’ve said something unpopular. (Laughter.)
But what’s interesting in that opinion is what Judge Alito did. It’s a brilliant piece of lawyering and it’s pushing the doctrine to a point where you might think that the doctrine couldn’t bear the twists and turns that it takes there, but it’s clearly goal-directed and it’s directed to a principle of accommodation that’s quite popular on the left and quite popular on the right. It seems sometimes like it’s only Marci Hamilton who’s against it.
To turn to Iraq, first, we have to get ourselves to a situation where Iraq has a constitutional order in which the high federal court, which is their name for their constitutional court, is actually in a position to make these hugely important judgments that according to the structure of the constitution it’s going to have to make.
As you all know, the constitution expresses a deep aspiration to the compatibility of Islam and democracy, but it doesn’t lay out exactly how these two things are supposed to fit together. It tells you that Islam is the basic source of legislation and it tells you that Islam is the official religion and it tells you that no law may contradict the provisions of the judgments of Islam, which is some kind of term of art referring to Islamic legal judgments. And it tells you that the constitution is a democratic constitution and that no law may contradict the principles of democracy or the basic liberal egalitarian rights in the constitution, right? It’s a both/and, not an either/or frame of the constitution. This is not Iran where the Islamic law trumps. This is something new. This is a creative attempt to make these things work together.
In a perfect world, which is to say a world where there’s a court that matters and not a civil war in Iraq, we would see a court attempting to deal with these issues, which leads to the question of the composition of that court and as you also, I’m sure, all know, that’s an issue that was punted on in the final analysis. The draft constitution says there shall be ordinarily trained judges and lawyers on the court and there shall be Sharia experts, and that the numbers of each and the manner of their choosing shall be determined by the legislature.
So that means not only that this first elected legislature is going to pass a judiciary act that says how many justices there are going to be – that’s not so strange; our judiciary act does that. Or that it will be subject to revision, which is also not so strange, because our number of justices is also subject to a statutory revision, something that people tend to forget.
But it also means that how many of them are going to be Sharia experts, which is obviously a crucial question for the balancing of religion in government, is itself going to be decided by this first legislature. So if anyone in here is an Iraqi, you really want to show up to vote if you want to have an influence on these issues. This first legislative body is going to have a big set of responsibilities before it, and this is one of the chief on the list. But this will also be changeable subsequently because it’s going to be by legislation, rather than constitutional. These numbers are going to be malleable over time. Court-packing is in the cards for the future of this Iraqi constitutional arrangement.
Now, under those circumstances I think you could very well have accommodationist-style holdings from the court. You could have much more. You could give a great deal of strength to the religious players on this federal court. And I think another thing to keep in mind is that the federal court doesn’t only do religion; it also does allocation of powers between the federal government and the branches. You could imagine potentially some horse-trading between the different judges of this court on religion questions, as opposed to other kinds of questions. It could be that you’re a person who cares more about the religion issue and less about whether the provincial or federal government does a particular thing.
MR. DIONNE: Although those could end up being intertwined as well.
MR. FELDMAN: They probably will be. In fact, I think they’re closely intertwined. One of the reasons that the Kurds were prepared to cut the deal that they cut, allowing Islam to play as significant a role in this constitution as it does play, is that they believe that they have the assurance that when it came to education, sale of alcohol, other ordinary aspects of daily life in Kurdistan, the federal government wouldn’t be able to make laws or impose Islamically oriented laws on them – that they would have their own leeway to make their own decisions. And whether that turned out to be true is also, I think, very much open to doubt.
You may well see a central legislature wanting to weigh in and say that alcohol can’t be sold anywhere in the country. I would be very surprised if we didn’t have a serious prohibition fight in Iraq. Already we know most of the liquor industry has been shut down in the southern and central parts of the country; not exactly an issue on which the administration is likely to make a big stink, but from the perspective of ordinary Iraqis, it’s a life-changing kind of thing.
MR. LUGO: On that, too, there’s some precedent in American history.
MR. FELDMAN: Absolutely, yes.
MR. LUGO: I’ve heard a lot of very complimentary comments about the analysis in your book, including from E. J. today. But I’ll be honest. We have not done a scientific poll on this, but just based upon anecdotal evidence, the number of people who are taking you up on the grand bargain that you seem to be proposing is mighty small. Am I mistaken on that?
MR. FELDMAN: A lot of people seem to say, “I like my half of the bargain.”
MR. LUGO: Yes, that’s right. (Laughter.)
MR. FELDMAN: “I’ll take my half. I just won’t take the other half; it’s outrageous.” Yes, I think that’s true. But go on. Do you want to ask me a question or do you just want to throw that in my face? (Laughter.)
MR. DIONNE: I wanted to say the same thing, which was to say I loved everything about your book except the solution. Which I admired, but didn’t think worked. But go on, Luis.
MR. LUGO: No, but it does get to the broader comparative context which you posed. And I recently came back from a trip to Europe, and every time I go to Europe I come back and look at the debates we have. Very fruitful, very important debates between what we call “strict separationists” and what we call “accommodationists.” And it strikes me from a European context that in that comparison we’re all accommodationists in some sense.
I’ve heard Rabbi Saperstein from the Religious Action Center wax eloquent on religion’s role in public life. I’ve heard the same from folks from the Baptist Joint Committee. And these are “strict separationist” organizations. I mean, a lot of our strict separationists, as they’re called, really are sort of religion friendly and want a strong role for religion in public life. There’s the issue, of course, of government support and so forth, but in Europe it seems to me that it goes much deeper. I mean, this notion of laïcité doesn’t get just at the question of government support. There’s a very strong notion of religion being illegitimate in public life, with or without government support. So it does raise for me the question of the integration of Muslim immigrants into Europe and whether in a sense we don’t have a strong comparative advantage in that regard because our generally accommodationist point of view is much more amenable to a Muslim understanding of the relationship of faith to public life than what they’re finding in Europe.
MR. FELDMAN: First of all, I agree with that assessment, and it’s one of the reasons that I haven’t given up on the suggestion for a kind of a compromise, and it’s precisely because we are not that far from each other. I mean, laïcité and what I call values evangelicalism really can’t reach any common ground. They’re just fundamentally opposed. But actually, I think there is a lot of overlap in the U.S. context when it comes to end state goals. I don’t think, despite what people on the secularist side say, that many values evangelicals want to see some merger of religion in government. One hears this all the time from people on the left, by the way; not everyone is as eloquent as David Saperstein. One hears a lot of loose talk on the left about how the right wants to turn this into a theocracy, and that’s clearly preposterous. So we don’t have some call for that. And by the same token, there is interest, because of free speech principles, in people having the opportunity to express their beliefs and values – including religious beliefs and values – in the public square.
That leaves the hard question of funding, which has traditionally been where the action was. Right now, it’s not where the action is, because the court has taken a stand on it and that looks relatively unlikely to change, although we were at a juncture point where the court held back where it could conceivably go now. I mean, the juncture point is nonpreferential funding is constitutional, but the real question is, if the state is funding some nonreligious activities, does that require the state to fund all religious activities that are in some way comparable? And that’s the question that was posed in Locke against Davey, and there the court – and when I say “the court,” I really mean Justice O’Connor and the chief, who wrote the opinion; I mean, I’m just guessing that based on the oral argument – were not prepared to go there, but notably those are two votes that are going to be gone now, and so I expect that it should be revisited. So we could have another fight over the funding question.
But in the end, there’s also a strange dichotomy in the funding principle we’ve got in the United States, which is that we’ve got this law that authorizes faith-based initiatives. We’ve got money there for faith-based initiatives, and we’ve got a lot of unused money in this sphere. It’s a very unusual thing. Usually if the government puts money out there, it all gets snapped right up. We don’t see that here. The sociological realities haven’t caught up with where the doctrine is, and that’s why I tend to think that the money might actually be an area where compromise is possible, because that’s the one missing piece of the puzzle, if we can get compromise on the other things.
Just to close on the topic on France, or the Europe question more broadly, I don’t think that as long as the state insists on this form of laïcité it will be able to successfully integrate Muslims who have strong identity claims. The theory was always, we need to have laïcité in order to engage in integration through assimilation; it was a self-consciously assimiliationist model. That could have worked, and arguably it did work for a long time in France. It worked, for example, quite well historically for French Jews up until the point where they were deported, right? I mean, Jews were willing to take that deal in France historically, and even in Germany, to a very significant degree. The difficulty wasn’t coming from the side of Jews who were thrilled to be assimilated under that deal. The difficulty ultimately came from Europe’s unwillingness to take seriously the offer of emancipation that it, one would have thought, so sincerely had made 100 years previously.
And that, I think, offers some interesting parallels for this. You know, many young Muslims would be prepared, I think, to be assimilated under this kind of a model. The number of girls who want to wear head scarves to French schools is still relatively small; much smaller, certainly, than the number of young Frenchmen of North African origin who are out there burning cars. The reason they’re burning the cars is that although the society is prepared to integrate them on the society’s own terms in some way, on another level European society is completely unwilling to integrate them. It’s unwilling to open the framework of social opportunity in a way that actually enables North Africans to be full participants in a society. So at that point it turns out that French society won’t take the deal, and so you get the young people reacting and saying, well, hey, then I want to protest.
So I think that for there to be actual integration of some kind in Europe now, the options are really threefold. One is a social peace form of affirmative action – where affirmative action is being offered as a kind of olive branch to immigrant communities, to say, okay, we’ll have some opportunities for some of you. That’s part of the compromise of affirmative action, anyway. These are not exclusive, by the way.
A second is reduction of the social welfare network in order to decrease unemployment, thereby increasing the number of jobs. I mean, one thing that’s true of poor people in Western Europe is that they actually have social services. They’re not protesting because they don’t have health care. They do have health care. They’re not even protesting because they don’t have a living wage. They have a living wage from the dole, but they don’t have a job. So that’s another step along the way. And nicely, one of the first of those points is a sort of left-wing point and the second one is a right-wing point, but they’re both plausible points.
And then the third piece of the puzzle is to be prepared to acknowledge difference as opposed to saying that the only way you can be part of our society is if you leave your difference at the door. That, I think, just has to be done at this stage, and maybe it will happen. Maybe. But I have to say Europe’s track record is not very good on this.
MR. DIONNE: Could I say one thing on France? The one thing on deporting the Jews is that was when the state was briefly taken over by people who never bought the emancipation deal, when the Nazis occupied. Which is, I think, an important piece of the story.
MR. FELDMAN: A very good point.
MR. DIONNE: In closing, I want to try to bring this together with Iraq. In your experience in Iraq, to what extent did Iraqi Muslims actually look at the American experience in the sense that the three of us would describe it in comparison to Europe, as a potential model? And to what extent do they actually see it as primarily secular, despite the fact that our system, on this issue, is quite different from Europe’s? What was your experience in these discussions?
MR. FELDMAN: I think there’s a lot of uncertainty. Among people who are paying attention to these things in the Muslim world, there’s now a lot of uncertainty about whether we are a secular country or a Christian country, which maybe reflects our own uncertainty about this question.
But certainly if you looked in the ’90s at the books that were being written in the Arab world – which does not mean in Iraq; they say books are written in Lebanon, published in Cairo, and read in Baghdad; that was the old motto – but if you look at the books written in Arabic, the big question was religion versus secularism with the West being treated in an undifferentiated way as secular, the U.S. alongside of Europe. And when they talked about secularism, they really had a laïcité kind of model in mind. And there’s almost no nuanced writing in Arabic from that period, or more recently, that would come to see the U.S. in slightly different terms on this religion-versus-government question, or religion-versus-secular question.
However, the increased political sophistication of Arabic-speaking audiences as the result of the sophistication of Al-Jazeera – and Al-Arabia, but mostly Al-Jazeera – in other words, the fact that the ordinary Arabic-speaking subscriber to Al-Jazeera has a more sophisticated understanding of U.S. domestic politics than the ordinary American does is literally true because of the extent and depth of the coverage that’s available. And just parenthetically, you could say that the –
MR. DIONNE: That’s a powerful critique of the American media. You know that.
MR. FELDMAN: Two summers ago I was in Maine, and I was far from a cable television hookup, and I was able to watch about a half an hour of the political conventions each night until the last night. Jazeera carried all of the conventions gavel to gavel, and the analysis was from the same people who do the U.S. analysis, only they give them more time. Literally, the same exact talking heads just go into Jazeera – I do it, too – they go onto Jazeera, you have a 15-minute interview, which they simultaneously translate. And 15 minutes is much better than 30 seconds we get here. Now, how many people are watching it? I don’t know. But the point is that these are networks that are driven by advertising and they want people to watch this. They thought it was relevant to the people.
So that growing sophistication, coupled with our intervention in Iraq and even, before that, some of the public statements by the president or various generals about religion, which were intensively covered in the Arab world, pushed a lot of Muslims to think maybe the United States is actually a Christian country acting in a Christian way. And that’s led to a sort of reevaluation of this question of whether the United States is a secular country. I haven’t seen anything in Arabic that systematically addresses this question. Jazeera has done a little bit of programming on churches in America, again, if you can believe it, and pretty good programming. So that issue has not fully been worked through there, but I think now there is some doubt.
Now if you ask people, is America a secular country?, a lot of them would say, well, it’s a Christian country. Then you might ask them, are Christianity and secularism the same?, and I think there’s a recognition that no, they are not the same. So I think that our own confusion is being increasingly understood abroad, but it’s being understood by an audience of people who have some sophisticated interpreters of American domestic politics. And that’s just a strange feature of – a good thought to close on – of what it is to be a comparativist in religion, in church-state matters, today. And that’s sort of what I am, a church-state comparativist.
If you work on historical material, you can look at the structure of the Holy Roman empire and the structure of the Caliphate and you could see some interesting things about it, but in the end you’re not talking about two systems that dealt with each other at the political level except by fighting each other. When they understood each other, it was in the vaguest and generally the most mistaken terms imaginable.
Today, though, people really are comprehending the other side a lot better than they ever have before. We’re much more sophisticated in our understanding of Islam today in this country than we were three or four years ago – incomparably so. And the Muslim world – and the Arabic-speaking world in particular – is much more sophisticated about us and our domestic foibles than they were five years ago.
So that doesn’t mean we can’t still fight each other. I don’t believe that mutual understanding is a basis for love. (Laughter.) Very often the more you know of somebody the less you like them. But the degree of understanding has substantially increased, and with it the degree of mutual influence, and this is sort of the interesting point.
The Israelis and the Palestinians are the best example of this. They may not acknowledge that they’re influencing each other, but when Palestinians form their legislature and demand single nondistrict proportional representation, that’s the model they’re getting from the Israelis. And when an Israeli religious radical assassinates the prime minister of Israel and says that he’s doing it because the prime minister was deserving of death because he was more or less an infidel, he’s being subconsciously influenced by a certain vision of martyrdom that we’re familiar with from the assassination of Sadat.
So when you know someone intimately, they influence you, even if you hate them and you’ll never acknowledge that they’re influencing you. I’ll close on that.
MR. LUGO: All right. Thank you, Noah Feldman. (Applause.)