Is Religion a Non-Negotiable Aspect of Liberal Constitutionalism?
45 Pages Posted: 12 Dec 2017
Date Written: November 1, 2017
The question that was addressed on January 4, 2017, by the Section panel on Law and Religion at the AALS Annual Meeting, and is now addressed in these papers, is whether Secularism is a Non-Negotiable Aspect of Liberal Constitutionalism? That question elicited a variety of important responses at the panel discussion. Of course there were definitional issues: What is meant by secularism? What is the nature of liberal constitutionalism? The panelists also explored the relationship among religion, secularism, and constitutionalism. Some panelists pointed to historical experiences in which dominant religions oppressed minority religious believers and non-believers. The panel pointed out how a secularly oriented government can oppress religious believers. Importantly, the deep religious roots of constitutionalism were acknowledged. The question put was not answered, of course. It is not the kind of question that has one simple answer. But the discussion greatly enriched the question concerning religion in a constitutional order.
The discussion was not entirely open, however, but was subtly shaped by the way the question as put: privileged secularism. The question implicitly assumes that secularism will normally occupy an important place in a liberal constitutional order and then asks whether there are special circumstances that might justify a departure from this norm. These are the same assumptions that many, perhaps most, American law professors would bring to consideration of the role of religion in a constitutional order. Phrases like the “separation of church and state” or the “ban on establishment of religion” sound familiar to the ears of American constitutionalism. By and large, American law professors assume a secular constitution. In this privileging of secularism, the question is reminiscent of the similar assumptions behind Brian Leiter’s well-known 2013 book challenging religion, Why Tolerate Religion? Like the panel question, Leiter presents secular constitutionalism as the desired ideal, from which to greater and lesser extents, national constitutional regimes depart. Indeed, so much is the question in the Leiter tradition, that the question put to the panel would not have been greatly altered if the phrasing had been: Should Secular, Liberal Constitutionalism Tolerate Religion? Despite this conventional privileging of secularism, one important way that the consideration of religion was expanded beyond the usual arguments that are made in this field in American constitutional thought was in the makeup of the panel itself. By inviting participants with rich backgrounds in international constitutional systems to the panel, the organizers plainly intended to upset these easy American assumptions, even while formally restating them. The experiences of the panelists raised issues of popular resistance against a secular political and legal order, as well as the opposite issue of government interwoven with religious institutions. The assumption by American law professors that secular government having little or nothing to do with religion is one of the necessary goals of constitutionalism was undermined by these presentations. In other countries, religion occupies a more vital public role than it is thought to occupy in America.
In contrast to this important attribute of the panel, in this essay I aim to challenge the question’s implicit privileging of secularism as a constitutional norm by returning to the American experience. Recent events, in particular the Presidential campaign of 2016, demonstrate two seemingly inconsistent propositions about American constitutional government: First, the American political and constitutional system is in important respects not secular, but religious, yet it remains fully liberal. Second, the increasingly secular nature of American government and society — and the parallel increasing marginalization of religion — are leading to the demoralization and breakdown of American public life. America is succumbing to nihilism. In these two different ways — one political and the other ontological — the answer to Brian Leiter’s question turns out to be that we tolerate religion because we have to do so. To the extent that we do not tolerate religion, sustainable constitutionalism is impossible. So the answer to the question put to the panel is that it is not secularism, but religion, that is a nonnegotiable aspect of liberal constitutionalism.
Keywords: Religion, Law, Liberal Constitutionalism, Secularism, Nihilism
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