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Religious Argument, Free Speech Theory, and Democratic Dynamism

Gregory P. Magarian

Washington University in Saint Louis - School of Law

February 18, 2010

86 NOTRE DAME L. REV. 119 (2011)
Notre Dame Law Review, Vol. 86, No. 1, 2011

Political theorists have long debated whether liberal democratic norms of public political debate should constrain political arguments grounded in religious beliefs or similar conscientious commitments. In this Article, Professor Magarian contends that normative insights from free speech theory have salience for this controversy and should ultimately lead us to reject any normative constraint on religious argument. On the restrictive side of the debate stand prominent liberal theorists, led by John Rawls, who maintain that arguments grounded in religion and other comprehensive commitments threaten liberal democracy by offering illegitimate grounds for government action and destabilizing democratic politics. On the permissive side stand leading advocates for religious liberty, who deny that religious arguments pose any threat to liberal democracy and insist that normative constraints on religious argument deny religious believers’ political autonomy. Both sides proceed from their premises about whether religious argument threatens liberal democracy to their conclusions about whether norms of public political debate should constrain religious argument. Professor Magarian agrees with the restrictive premise that religious argument poses a meaningful threat to liberal democracy, and he accordingly rejects the logic of the permissive position. He finds deeper fault, however, with the restrictive theorists’ move from consciousness of danger to advocacy of normative constraint. Drawing upon two prominent free speech controversies – the debates over First Amendment protection for Communist advocacy and the First Amendment’s proper role in balancing values of political dynamism and political stability – Professor Magarian derives normative lessons that counsel against constraints on religious argument. Based on the Communist speech controversy, he contends that even political advocacy that existentially threatens liberal democracy adds distinctive value to liberal democratic political discourse. Based on the stability-dynamism controversy, he contends that political conditions in the contemporary United States and the nature of religious advocacy make religious argument, at the margin, more beneficial than threatening to our political culture. As a corollary to his rejection of normative constraints on religious argument, Professor Magarian contends that our norms of public political debate should also freely permit substantive political criticism of religious arguments and doctrines.

Number of Pages in PDF File: 60

Keywords: First Amendment, Politics, Religion, Free Speech, Political Theory

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Date posted: February 20, 2010 ; Last revised: November 12, 2013

Suggested Citation

Magarian, Gregory P., Religious Argument, Free Speech Theory, and Democratic Dynamism (February 18, 2010). 86 NOTRE DAME L. REV. 119 (2011); Notre Dame Law Review, Vol. 86, No. 1, 2011. Available at SSRN: https://ssrn.com/abstract=1555193 or http://dx.doi.org/10.2139/ssrn.1555193

Contact Information

Gregory P. Magarian (Contact Author)
Washington University in Saint Louis - School of Law ( email )
Campus Box 1120
St. Louis, MO 63130
United States
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