Second-class citizenship for those with deeply religious moral systems

[Howard Schweber]

At 12:59 PM 11/27/2006 -0800, Sean Wilson wrote:

>What you are suggesting is that an epistemic qualification be placed upon 
>views that survive the democratic ritual.


No, what I am suggesting is a discursive test for the performance of the 
duties that go along with the offices that are conferred as the result of 
the democratic ritual.  I have heard people argue about the relative rights 
and duties of citizenship before -- I have always taken it for granted that 
there were duties involved in holding positions as government officials, 
and I am arguing that these duties include the acceptance of constraints on 
modes of discourse

"It is not that your "wall of separation" could not also be offered as a 
policy product -- John Kerry took that view about abortion, and he won an 
election while espousing it -- it is that the election is the ultimate 
basis of the entitlement, not the view."

I disagree, sort of.  The election is the ultaimate basis of the 
entitlement within the limits of constitutionally permissible discourse.  A 
candidate who runs on a platform that says "I will abolish the Constitution 
and declare myself a king" and wins has not validated the democratic 
enterprise, he has been a party to ending it.  When Rome made Caesar 
dictator it was acting as a republic; when the same Senate transformed his 
office to "dictator for life" the republic was over.  I forget who said "if 
Fascism ever comes to America it will be because the people voted it in," 
but the point is that the mere fact that an outcome is the product of a 
democratic process does not make it democratic; hence the fact that an 
argument prevails does not make it consistent with fundamental norms of 
constitutionalism.  As Madison reminded us, parchment barriers are 
ineffective unless they are supported by the will to treat them so.


"Such is the nature with the democratic ritual. There is no historical, 
constitutional or philosophic rationale that would allow a world view to 
survive the ritual but be disqualified because it takes the form of a 
religious a priori."

Certain world views could be taken to be subject to disqualification 
regardless of their source -- this gets back to whether religion is a 
special sub-category of a larger phenomenon.  But sticking with imagine 
religious world views, how about a view that God demands a king and the 
abolition of the Constitution?  The obvious response is that this example 
is not a case in which a view is disqualified because of its religious 
origin but because of its content.  "We're not talking about those extreme 
cases," goes the argument, "we're talking about cases where the religious a 
priori supports and reinforces an independently articulable constitutional 
proposition."
         But then it is that consistency that justifies the introduction of 
the religious claim, not the other way around -- which is precisely the 
order of legitimation that western religions reject.  I argue -- and thus 
far am not persuaded to change my argument -- that the order of 
legitimation is the crux of the matter.  Religious arguments are acceptable 
insofar as they are consistent with democratic norms, not the other way 
around.  That order of priority is what is denied by a direct appeal to a 
principle of religions morality.

>The question is not whether "god views" can be legitimately espoused in 
>Copngress, it is whether the passage of "religious views" by a religious 
>political hegemony "respects an establishment" -- which something that the 
>democratic ritual is not given power to do (without forming a super 
>majority, at least).

We are talking a little bit at cross purposes, here.  I am not making an 
argument about the requirements of the Establishment Clause, I am making an 
argument about the necessary discursive constraints of constitutional 
self-rule as a form of analysis (I think the Establishment Clause reflects 
a not-completely-worked-out recognition of that necessity).  Which, I 
freely grant, is a little abstract for this medium.

I am sure that Sean and Eugene -- and perhaps others -- will have more to 
say, and I am inclined to grant them the last word(s) on the issue simply 
on the grounds that I think I have stated my arguments as well as I am able 
to do in this setting.  If I may be forgiven for adding a personal note, I 
have found this to be an extremely stimulating exchange of ideas -- this is 
exactly what I was hoping to find on this list, and this is very far from 
the first time I have been grateful for the opportunity to participate in 
its discussions.

Howard Schweber
Dept. of Poli. Sci.
UW-Madison