Feldman review

Michael McConnell michael.mcconnell at LAW.UTAH.EDU
Wed Jun 25 09:52:43 PDT 1997

I hope I am not taxing the patience either of Stephen
Feldman or of the other participants in the list, by
carrying our conversation another step:

Stephen Feldman writes:
> 1.  I agree that some (many) Jews, including Leo Pfeffer, strongly advocated
> a wall of separation between church and state in the post-World War II
> period.  In fact, in my Introduction, I quote a passage from Pfeffer as
> evidence of the dominant story of church and state.  Moreover, in chapters 9
> and 10, I discuss the role of Jewish defense organizations in postwar
> developments and offer an explanation for Jewish participation in the
> dominant story.  To me, it is unsurprising that outgroup members would learn
> to use the language and concepts of the dominant group.  If they wish to be
> politically effective, what are the choices?

I see no evidence that Jewish lawyers, groups,
or thinkers adopted separationist ideas out of deference to
"the dominant group." On the contrary, they were among the
leaders of the movement to conceptualize religious freedom
in these terms.

> 2.  I discuss many manifestations of antisemitism, not only those statements
> that came from leading Christian writers, such as Luther and Calvin.
> Moreover, I treat Christianity not only as a religion, but also as a
> culture.  Western society has been dominated by Christian culture for
> centuries, so even individuals who claim to repudiate Christianity can
> easily reproduce certain aspects of Christian culture, including antisemitism.

This converts your position into a truism: this is a
Christian culture, there are bad things in this culture,
and we can attribute all bad things to Christianity. To me,
it seems more valuable to ask whether those who have broken
from Christianity in western culture have been less
antisemitic than the Christians. I see no evidence for this
(although one can, of course, identify both Christian and
non-Christian individuals who dissent from the prevailing
antisemitism of their day.)

> 3.  I do not argue that the American system of church and state is better or
> worse than some specific or ideal alternatives.  My book is not a
> comparative study.  Instead, I argue that the American system is far
> different from what the dominant story suggests.

Without some standard of comparison, it is impossible to
judge.  Many critics of American intolerance (whether
against Jews or anyone else) implicitly or explicitly adopt
the standard of America's own ideals: in other words, they
measure performance against principle. Others say that the
principles themselves are inferior to some other set of
principles--indeed, that the principles are part of the
problem rather than part of the solution. Which is closer
to your perspective? In other words, is your complaint with
the separation of church and state (whatever that means),
or with our failure to live up to the ideal of the
separation of church and state?

> 4.  On the question of ideals or principles:  My point is that the history
> of the separation of church and state reveals that freedom of conscience and
> governmental disestablishment were not born or created as principles or
> ideals at all.  Freedom of conscience is a Christian, especially Protestant,
> doctrine based on the sharp Christian division between spiritual and
> temporal worlds.

I fail to understand why the fact that the  idea of
freedom of conscience had a theological origin negates the
conclusion that freedom of conscience is a principle or

>Governmental disestablishment largely arose as a political
> development.  Most briefly, as Christianity splintered into different groups
> (starting especially with the Reformation), the divisions within
> Christianity led to civil strife among different Christian groups.  At those
> times when no one group wielded sufficient political power to dominate the
> other groups, governmental disestablishment was a politically expedient
> measure to promote peace.

There is much truth to this, as John Courtney Murray
pointed out long ago. (He called our First Amendment
"articles of peace, not articles of faith"). But again, I
do not understand why this makes the peaceful
("expedient") solution unprincipled, antisemitic, or
otherwise objectionable. Many laws of fairness arise
because they provide a reliable second-best solution for
everyone. Game theory would predict that something like the
separation of church and state (using the term loosely, in
the spirit of your comments) would arise in a religiously
pluralistic environment. Democracy is likely to arise in a
nation with a large middle class. International law norms
are likely to arise in a world with a lot of powerful
countries that can inflict injury on one another. Kids
playing games will arive at a set of rules. All these
things are "expedient." They are also principled and good.
> 5.  As with Professor Hankins, Professor McConnell is troubled by my refusal
> to make grand normative recommendations.  I have two reactions.  First, I
> think that understanding and explaining the development of the separation of
> church and state over 2,000 years is extremely interesting, regardless of
> prescriptions for the future.  Second, as to my own personal normative
> position, I sought to intervene in American church-state relations in the
> way that I thought was likely to be most effective (and was within the realm
> of my possibilities and abilities).  I do not think it would be politically
> effective to tell the Supreme Court what to do (I do not believe that they
> are listening to me).  I also do not think that some broad prescription for
> remaking American society would lead to a transformation of social
> relations.  I do believe that my critical social narrative of the separation
> of church and state and my small proposal--to say to people, "Please don't
> wish me a merry Christmas"--might influence a few people to see the world
> differently.

The point is not that your analysis might help the Supreme
Court, but that stating a point of comparison would give
substance to your critique. Separation of church and state
(like other ideals) is neither good nor bad in the
abstract, but only in comparison to feasible alternatives.

-- Michael McConnell (U of Utah)

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