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NYU Law School professor Noah Feldman is both the leading young legal expert on church/state relations and one of the few voices of the Decent Left, having been the chief U.S. advisor on the writing of the new Iraqi Constitution. This book represents the first systematic presentation of his thinking on the role of religion and religious freedom in American politics. As history it is simply wonderful, a must read for virtually every citizen. However, in its final section he offers a compromise, his idea for how we should proceed from here, that is surprising for being both ahistorical and politically unrealistic. It's almost as if he hasn't paid any attention to what he's said up to that point. the reader, on the other hand, should pay no attention to what he says after that point.

Though the history is detailed, fascinating, and eminently worth reading, we can perhaps condense it down to some basics for our purposes here. Early America having been in large part settled by peoples seeking the opportunity to exercise their religions freely, when the time came to write a constitution for the new nation sought to guarantee a liberty of conscience. To this end they adopted the First Amendment to the Constitution, with its Establishment Clause, who forbade the federal Congress from Establishing a religion, lest individuals tax dollars be collected and used to support a brand of religion that they did not adhere to personally. Of course, securing liberty of conscience was not the sole or even the primary end of the Founders--they spelled those ends out in the Preamble of the Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
...ends which are entirely consistent with the vision of legitimate government they had earlier spelled out in the Declaration of Independence, and which are obviously dependent on certain core religious beliefs about the nature of Man and the rights of Man that precede the state:
WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.
Now their experiment in ordered liberty has been so successful for so long -- and been imitated so widely, though less successfully -- that it it is all to easy to forget how unlikely a project it seemed at the time.

The Founders though, as you can see in this series of quotes from Thomas Jefferson, were certain that the best way to guarantee the success of the Republic was to educate the citizenry, to inculcate in them the values that republicanism requires. The need for a republican education and shared values became all the more compelling as more and more immigrants came to America, bringing different cultural backgrounds and traditions with them:
The common purpose necessary to sustain a republic called for shared knowledge and common moral values, neither of which could be taken for granted in a changing America.
So, over a period of decades, a movement grew up for providing public education and:
If the point of the common schools was to gentle the the unlettered and ill-bred, so that they would participate in the republican project instead of subverting it, then surely the schools must give children the solid morals that they might not get at home. Teaching them to read and write without inculcating proper moral values would have been, on this theory, worse than irresponsible--it would have been a waste of money.

The notion of teaching children morality by some means that did not involve religion would hardly have entered the American mind. Morality, it was understood, derived from religion, and...that meant morality came from the Bible, especially the Gospels.
In order to provide this common moral education but to do so in a manner consistent with liberty of conscience, Americans arrived at what Mr. Feldman calls the "nonsectarian solution":
...the claim that there were moral principles share in common by all Christian sects, independent of their particular theological beliefs. Nonsectarianism would turn out to be among the most powerful--and controversial--ideas in American public life in the nineteenth century and beyond, an idea whose resonances are still felt in our own contemporary debates over religion and values. It promised to unite Americans behind common, identifiable moral commitments, transcending their religious differences and engendering unity of purpose. It also seemed to have a basis in observed social reality. Visiting America in 1830, Alexis de Tocqueville put the point this way: "There is an innumerable multitude of sects in the United States. All differ in the worship one must render to the Creator, but all agree on the duties of man toward one another. Each sect therefore adores God in its manner, but all sects preach the same morality in the name of God."
In its "perfect form" the "ideology of nonsectarianism" held that:
Common morality, derived from the "pure" Bible, undergirded the fabric of American republican life. Without a shared morality, collective political life would be impossible.
This vision was so powerful, in fact, that it would obtain until at least 1942, when the Supreme Court began to chip away at it. But we get ahead of ourselves...

It will be argued that there is no such common morality among the various sects and/or that it is impossible or intolerable to force a sect that deviates from the rest to conform. Mr. Feldman however provides a textbook case of how just such commonality was forced upon a recalcitrant sect. One of the things that drove the Mormons all the way to the Utah territory was their desire to find a place where they could practice polygamy in peace, yet the rest of the country proceeded to require them, even using military force when necessary, to conform to the standards of the rest of the country. And what was the result?:
The nonsectarian norm literally became Mormon teaching, enabling Mormons to assimilate themselves into the ideology and social reality of American Christian nonsectarianism.

If today Mormons are often seen as archetypally American, deeply patriotic and overrepresented in the highest echelons of government service, this is a mark of both the coercive and transformative power of the nonsectarian ideal. Nonsectarianism demanded conformity on some dimensions, but once conformity was achieved, pluralist inclusiveness was sure to follow.
There is the genius of the solution--first require conformity to the moral basics and then a fair degree of pluralism is possible elsewhere.

In time though a challenge arose to this nonsectarian solution in the form of secularism:
American secularism, as it eventually emerged in the 1870s and '80s was...a gradually growing development in educated circles embracing rationalism and science over traditional religious belief. The true aim of this strong secularism was the full replacement of religion by reason, both in the realm of belief and in the political sphere. The intellectual side of the secularist equation sought to convince Americans to form their beliefs on the basis of scientific evidence, not revelation; religious dogma (what its adherents would call faith) must be abandoned in favor of the conclusions reached by the scientific community. The political side of secularism demanded, in the words of one of its leading exponents, "that our entire political system shall be founded and administered on a purely secular basis."
As that last quote recognizes, even if the author doesn't, secularism was an assault on the very foundations of the Republic. Start with the elitist nature of secularism, add in its explicitly anti-religious and implicitly anti-American program, and then mix in the Darwinism, social Darwinism, eugenics, etc. that it brought in its wake and it's easy enough to see why it was a failure in the popular sphere, most notably at the Scopes trial.

Unable to sway the electorate to which it was generally hostile, secularism turned to the Supreme Court, an inherently elitist sphere, in what Mr. Feldman terms "legal secularism":
By directing its arguments to the Court, not to the general public, legal secularism was able to turn the limited popular appeal of secularism into a virtue. If secularism, like integrationism,could never have won at the polls , it could become the consensus among educated elites who looked on their opponents as regressive and insufficiently attuned to the rights of minorities. To embrace legal secularism was, for the Court, continuous with a set of liberal values characteristic of enlightened citizens and educated jurists.
So the Court would in short order redefine public education as fundamentally and necessarily secular, in obvious contradiction of American history and political theory, and rapidly dispose of everything from teaching the Bible in school to prayer in schools to mandatory recitation of the Pledge of Allegiance to Creationism and on to the rest of the public sphere where it would ban public religious displays and so on. But even as the strategy worked and the secularists racked up victory after victory, they estranged themselves and the courts so thoroughly from the great majority of the American people that the inevitable reaction came. While economic and national security matters and the basic American temperament certainly played their parts, it seems fair to say that the flame out of liberalism by the end of the '70s owed much to the contempt of secular elites for the religious values of most of their countrymen and the antidemocratic manner in which those elites substituted their own rationalist judgments.

The reaction has been led by what Mr. Feldman calls values evangelicals--religious/social conservatives associated with the Republican Party. Since we're in the midst of this counterattack we can see that it proceeds on numerous fronts. Even a moderate conservative like Sandra Day O'Connor has begun carving out exceptions to legal secularism and, but for George Bush Sr's tax hike, the courts would be so dominated by conservative judges that legal secularism would be dead already, instead of on its likely last legs. Meanwhile, in the legislative sphere, conservative politicians are end-running the Court via things like the Faith-Based Initiative and school vouchers, which explicitly allow government money to go to religious institutions. Mr. Feldman frets that vouchers in particular tend to move us away from the commonality that nonsectarianism sought to provide in education, but it would seem obvious that, as the making of good republican citizens requires the religious/moral component of education, this solution is preferable to a common but demoralized system.

Hopefully as the takeover of the courts proceeds we will be able to return to the original 19th century vision for nonsectarian moral education. Mr. Feldman frets about this too, but for an odd reason. He suggests that values have become so divergent in modern America that we can no longer agree on what should be taught in common schools. Were he to just examine the structure he's imposed on our history and analyze the current situation accordingly it seems apparent his objection merely shows why we need to move in a retrograde direction. Schools, and other public institutions, do not exist in order to facilitate and mediate between a wide range of very different values. The Constitution still depends on the same common religious values it did when it was adopted and the Republic it created still has to inculcate those same values if it is to endure and thrive. Just as it was appropriate to force Mormons to conform it is appropriate to force other sects, including Secularists, to do so. The truths didn't stop being self-evident just because some folks don't like them and the fact that when those folks sought to impose countervailing ideas they brought with them a whole series of social pathologies--eugenics, divorce, abortion, bioengineering, euthanasia, etc.--that violate the Founding principles only makes it all the more important that they be made to conform. Once people accept the common values there is room for considerable plurality on lesser matters, but a system that does not require commonality on the things that matter, that instead tries to found our nation on secularism, is simply not American.

It is because Mr. Feldman loses track of the purposes of the Founding and the Constitution that the church/state compromise he offers in the end is so deeply dubious. He contends that a "workable solution to our church-state problem must reconcile secularists and evangelicals by making both sides feel included in the experiment of American government and nationhood" even though he's previously stated that secularism grew out of opposition to that experiment. Now, at the very moment that values evangelicals are winning the fight to restore the original American system he proposes that they give it up. He suggests that we: "offer greater latitude for public religious discourse nd religious symbolism, and at the same time insist on a stricter ban on state funding of religious institutions and activities. ... This would mean abandoning the argument that religion has no place in the public sphere while simultaneously insisting that government must go to great lengths to dissociate itself from any affiliation with or support for religious institutions." In other words, the secularists let us talk about religion in public again so long as we abandon the bulwark of republicanism, the instruction of citizens in the set of common moral values upon which the American experiment depends. It must be obvious that t6his deal is a non-starter, not just because values evangelicals are winning and have no reason to accept such lop-sidedly pro-secular deal, but because to accept would be to abandon the American vision of our Founder and our forefathers. In a nation that's rapidly shifting back from Blue to Red that just isn't going to happen.

Finally then, this is an excellent history of church/state relations in America, particularly of the struggle between the broad nonsectarian consensus of the American public and the secular anti-religion of the intellectual and legal elites. That history supplies the reader with an ideal grounding from which to reject the author's own conclusion and that says much for his honesty. It's a book every American should read.


(Reviewed:)

Grade: (A)

  

Websites:

See also:

Law
Noah Feldman Links:

    -Noah Feldman: Professor of Law (NYU School of Law)
    -Yale Law School | Faculty | Noah Feldman
    -Noah Feldman (Wikipedia)
    -The Globalist | Biography of Noah Feldman
    -New America Foundation : Bio - Noah Feldman
    -ARCHIVES: Noah Feldman (New America Foundation)
    -ARCHIVES: "Noah Feldman" (Find Articles)
    -ESSAY: The Intellectual Origins of the Establishment Clause (Noah Feldman, 77 NYU L. Rev. 2, 2002)
    -ESSAY: A Church-State Solution (Noah Feldman, July 3, 2005, The New York Times)
In our own era, two camps dominate the church-state debate in American life, corresponding to what are now the two most prominent approaches to the proper relation of religion and government. One school of thought contends that the right answers to questions of government policy must come from the wisdom of religious tradition. You might call those who insist on the direct relevance of religious values to political life 'values evangelicals.' Not every values evangelical is, technically speaking, an evangelical or a born-again Christian, although many are. Values evangelicals include Jews, Catholics, Muslims and even people who do not focus on a particular religious tradition but care primarily about identifying traditional moral values that can in theory be shared by everyone.

What all values evangelicals have in common is the goal of evangelizing for values: promoting a strong set of ideas about the best way to live your life and urging the government to adopt those values and encourage them wherever possible. To them, the best way to hold the United States together as a nation, not just a country, is for us to know what values we really hold and to stand up for them. As Ralph Reed recently told an audience at Harvard, 'While we are sometimes divided on issues, there remains a broad national consensus on core values and principles.'
,br> On the other side of the debate are those who see religion as a matter of personal belief and choice largely irrelevant to government and who are concerned that values derived from religion will divide us, not unite us. You might call those who hold this view 'legal secularists,' not because they are necessarily strongly secular in their personal worldviews -- though many are -- but because they argue that government should be secular and that the laws should make it so. To the legal secularists, full citizenship means fully sharing in the legal and political commitments of the nation. If the nation defines itself in terms of values drawn from religion, they worry, then it will inevitably tend to adopt the religious values of the majority, excluding religious minorities and nonreligious people from full citizenship.

    -EXCERPT: First Chapter of What We Owe Iraq: War and the Ethics of Nation Building by Noah Feldman
    -ESSAY: Foundering? (NOAH FELDMAN, 7/31/05, NY Times Magazine)
    -ESSAY: Agreeing to Disagree in Iraq (NOAH FELDMAN, August 30, 2005, NY Times)
    -ESSAY: Islamist Democracies: The West’s Worst Nightmare? (Noah Feldman, November 23, 2003, The Globalist)
    -ESSAY: The Best Hope: A response to “Islam and the Challenge of Democracy” (Noah Feldman, Boston Review)
    -ESSAY: Ugly Americans: THE LAWS OF A WAR AGAINST EVIL (Noah Feldman, 05.25.05, New Republic)
    -LECTURE: Brookings Briefing: Iraq After the Elections (Noah Feldman, 2/10/05)
    -INTERVIEW:"Islamic Democracy" in Iraq: an interview with Noah Feldman (Truth, War & Consequences, PBS Frontline)
    -INTERVIEW: What We Owe Iraq: An Interview with Noah Feldman (Bradford Plumer, January 16, 2005, Mother Jones)
    -INTERVIEW: Iraqi Constitution - Noah Feldman (Geraldine Doogue, 22 February 2004, Sunday Profile: Australian Broadcasting Corporation)
    -INTERVIEW: CONSTITUTIONALISM IN THE MUSLIM WORLD: A Conversation With Noah Feldman (State Department)
    -INTERVIEW: The Iraqi Constitution from an Economic Perspective: Interview with Noah Feldman (CIPE, August 1, 2005)
    -AUDIO INTERVIEW: Next Steps for Iraq's Constitution Authors (Madeleine Brand, August 23, 2005, Day to Day)
    -AUDIO INTERVIEW: Negotiating Iraq's Transition (Liane Hansen, April 25, 2004, Weekend Edition)
    -AUDIO INTERVIEW: Noah Feldman (The Leonard Lopate Show, April 07, 2003)
    -PROFILE: To Exist in the Heavens: Noah Feldman and the Culture War (Gabrielle Birkner, October 2005, Moment)
    -PROFILE: Have a Nice Country: Noah Feldman helped write the Iraqi constitution. Now he gets to watch it sink or swim (Kareem Fahim, June 29th, 2004, Village Voice)
    -REVIEW: of Divided by God: America's Church-State Problem - And What We Should Do About It By Noah Feldman (Franklin Foer, NY Times Book Review)
    -REVIEW: of Divided by God (Carol des Lauriers Cieri, CS Monitor)
    -REVIEW: of Divided by God (Ami Eden, The Forward)
    -REVIEW: of Divided by God (Alan Wolfe, Slate)
    -REVIEW: of Divided by God (STEVEN I. WEISS, Opinion Journal)
    -REVIEW: of Divided by God (Thomas C. Berg, Books & Culture)
    -REVIEW: of Divided by God (Michelle Goldberg, Salon)
    -REVIEW: of Divided by God (The Economist)
    -REVIEW: of Divided by God (Bette Novit Evans, Journal of Religion & Society)
    -REVIEW: of Divided by God (BEZALEL STERN, Jerusalem Post)
    -REVIEW: of Divided by God (L. B. Madison, Online Journal)
    -REVIEW: of What We Owe Iraq by Noah Feldman (Robert Kagan, NY Times Book Review)
    -REVIEW: of What We Owe Iraq (L. Carl Brown, Foreign Affairs)
    -REVIEW: of What We Owe Iraq (Steven Vincent, American Enterprise)
    -REVIEW: of After Jihad: America and the Struggle for Islamic Democracy by Noah Feldman (JONATHAN D. TEPPERMAN, NY Times Book Review)
    -REVIEW: of After Jihad (Steven Martinovich, CS Monitor)
    -REVIEW: of After Jihad (Steven Martinovich, Enter Stage Right)
    -REVIEW: of After Jihad (Lizzie Skurnick, Baltimore City Paper)
    -REVIEW: of After Jihad (W. J. Rayment, Conservative Monitor)
    -REVIEW: of After Jihad (Bernard K. Freamon, H-Law)
    -REVIEW: of After Jihad (Michael Alexander, Forward)
    -REVIEW: of After Jihad (Robert B. Killebrew, Parameters)

Book-related and General Links:

    -First Amendment - Religion and Expression (FindLaw)
    -FindLaw : Legal Subjects : Constitutional Law : Supreme Court Religion Cases
    -First Amendment and the Founding Fathers (Religion & Ethics, July 1, 2005, PBS)
    -ESSAY: Horace Mann's balanced vision for public education (Steve Farrell, October 10, 2005, Enter Stage Right)
   -ESSAY: Faith and Freedom: The Missing Link (Joseph Loconte, December 6, 2000, Heritage Foundation)
   -The Faith Of The Founding (American Enterprise Institute, April 2000)
   -LECTURE: The Necessity of Truth (Rick Santorum, August 6, 1999, Heritage Lecture)
   -LECTURE: God and Politics: Lessons from America's Past (John G. West, Jr., March 25, 1997, Heritage Lecture)
   -ESSAY: The Godless Party (Rod Dreher, April 2003, Touchstone Magazine)
   -LECTURE: Eve Without Adam: What Genesis Has to Tell America About Natural Law (David F. Forte, May 1, 1996, Heritage Lecture)
   -ESSAY: Why Religion Matters: The Impact of Religious Practice on Social Stability (Patrick F. Fagan, January 25, 1996, Heritage Foundation)

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