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The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism

Richard W. Garnett, "The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism," in NOMOS: American Conservatism, ed. Sanford V. Levinson, Joel Parker, and Melissa S. Williams (New York: NYU Press, Forthcoming).

Notre Dame Legal Studies Paper No. 1502

39 Pages Posted: 25 Jan 2015 Last revised: 13 Feb 2015

Richard W. Garnett

Notre Dame Law School

Date Written: January 23, 2015

Abstract

A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.

That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[]…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.

Keywords: American political thought, conservatism, constitutional law, First Amendment, pluralism, religious freedom, religious liberty, separation of church and state

JEL Classification: K10, K19

Suggested Citation

Garnett, Richard W., The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism (January 23, 2015). Richard W. Garnett, "The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism," in NOMOS: American Conservatism, ed. Sanford V. Levinson, Joel Parker, and Melissa S. Williams (New York: NYU Press, Forthcoming).; Notre Dame Legal Studies Paper No. 1502. Available at SSRN: https://ssrn.com/abstract=2554513

Richard Garnett (Contact Author)

Notre Dame Law School ( email )

Room 327
P.O. Box 780
Notre Dame, IN 46556-0780
United States
574-631-6981 (Phone)
574-631-4197 (Fax)

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