Under god
Mike Schutt
michsch at regent.edu
Fri Apr 2 12:36:38 PST 2004
Thanks to Steve for his thoughtful responses. And I think Mark's post
takes us down the right path. I agree fully with the definitions of the
"third way" Mark describes and the fundamentally "religious" character
of the first principles that must ultimately drive law and political
convictions. I want to read the article to see where we go with it,
but the suggestion that the state cannot speak to which "comprehensive
set of religious principles is correct" seems right (as a matter of law
and theology). Yet, at some retail level, under the very definitions
that Mark sets out, the state must *act* (through laws, pronouncements,
etc.) as if one or the other of various religious propositions were
true. I suppose that's always the quandary and what we argue about on
the list. I look forward to reading the piece.
Mike
-----Original Message-----
From: Mark Modak-Truran [mailto:MModak at mc.edu]
Sent: Friday, April 02, 2004 11:55 AM
To: religionlaw at lists.ucla.edu; michsch at regent.edu
Subject: RE: Under god
I find the dialogue between Steve and Mike quite informative regarding
the debate on the foundation of fundamental rights. I sense that Steve
holds a neo-Kantian belief that rights can be grounded on the "inherent
work and dignity of each person" without relating to conceptions of the
good and/or religion. This may be something like Rawls's Political not
Metaphysical. The rights generated from the original position and
refined by reflective equilibrium are then supported by an overlapping
consensus of comprehensive doctrines. (Please correct me if I
misunderstood your position).
On the other hand, Mike's comments suggest that rights must be grounded
on religious convictions in some sense. Although not explicit in his
comments, Mike suggests that we need to share a common religious
conviction about the foundation of fundamental rights (a divine origin
of fundamental rights). (Mike please correct me if I am putting words
in your mouth).
I want to suggest a third way. Although I won't go through the argument
here, I think Rawls's attempt to get beyond comprehensive liberalism
fails (see my critique of his theory in the forthcoming Mississippi
College Law Review Symposium on Law, Religion, and Human Rights in
Global Perspective). Like Mike's comments, the third way maintains that
we cannot avoid relying on comprehensive or religious convictions for
fully justifying fundamental rights. Comprehensive or religious
convictions are the most comprehensive normative convictions that humans
hold, and all humans who act with reflective self-understanding (even if
they don't believe in God) are religious. Some people observe
traditional religions like Christianity, Judaism, Islam, Hinduism, and
Buddhism while others follow nontraditional religions like humanism,
communism, and other so-called secular comprehensive perspectives. With
respect to normative questions, comprehensive convictions are claims
about what constitutes authentic human existence. Rather than
envisioning fundamental rights as depending upon a shared political
foundation or a shared religious foundation, fundamental rights are
fully justified by a plurality of comprehensive doctrines. We may agree
that liberty and equality are fundamental, but disagree about what
liberty and equality mean and about the foundation. When judges must
determine the scope of the indeterminate fundamental rights under the
Due Process Clause, they must import their own comprehensive convictions
to determine what these rights mean and how they are justified.
Consequently, like Steve, there is not a shared religious foundation for
those rights. However, the consequence of this third way is that the
law is "reenchanted" in the sense that a plurality of comprehensive
convictions implicitly shape and ground the law.
Comprehensive convictions must only implicitly shape the law because the
religion clauses prohibit the state from deciding which comprehensive
doctrine is true. The religion clause institute a full and free debate
in American society on these fundamental questions. In addition, a
proper understanding of religious pluralism also prohibits comprehensive
convictions becoming part of the law. Religious pluralism properly
understood recognizes that religious convictions make truth claims that
are always subject to further debate and refinement. Religious
pluralism should not be understood as maintaining that all religious and
comprehensive convictions are true but that it is logically possible
that there is more than one true religion. Under this third way, the
plurality of comprehensive or religious convictions are the silent
prologue to any full justification of the law and human rights. (Please
forgive the superficiality of these arguments. I have an article
forthcoming in Catholic University Law Review on this topic and am
looking for a publisher on a book length version of the argument).
Best wishes,
Mark
Mark Modak-Truran, J.D., Ph.D.
Associate Professor of Law
Mississippi College School of Law
151 East Griffith Street
Jackson, MS 39201
(601) 925-7159
mmodak at mc.edu
>>> michsch at regent.edu 04/02/04 11:48 AM >>>
I appreciate Prof Jamar's comments. A couple of quick points on his
post and I'll return to lurking.
1. Defining the "inherent worth and dignity of each person" is a
theological proposition. And it is probably the most broadly religious
of any foundation of human rights.
2. I think the "broad consensus of people developed over time" is
always, ALWAYS, amended in practice with "until we know better, and we
choose to do it differently." The gay marriage debate is an excellent
example. The broad consensus of people developed over time is that
marriage is between a man and a woman. If rights are derived from that
consensus, there is no such thing as a "right" to same-sex marriage. Yet
in the span of a relative few years, the governors (judges, here)
ignored the "weight of history, longitudinal consensus, and experience."
Perhaps this was the enlightened thing to do, yet it was not based on
history and broad consensus; in fact, those arguments were pretty
quickly disposed of on this list.
3. I agree that it most certainly matters for religious liberty. As a
general proposition (with exceptions, of course, since theologies vary
and people administer regimes in flawed ways), religious liberty has
flourished in governments influenced by Christianity relative to those
influenced by Islam (for example, generally, and subject to exceptions).
Muslims and atheists are politically free in France, England, and the
United States. In comparison, Christians and atheists are not so
politically free, even in Saudi, Syria, and Iran, for example. I agree;
it matters to religious freedom.
Mike
-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Friday, April 02, 2004 10:48 AM
To: Law & Religion issues for Law Academics
Subject: Re: Under god
Well, some of us argue that the foundation of rights is indeed more
than "the current choice of the governed and the governors."
Some of us argue that rights are premised on the inherent worth and
dignity of each person.
Some of us argue that rights are premised upon a broad consensus of
people developed over time -- and are thus enshrined in international
human rights documents and in constitutions -- not subject to passing
currents of whims of shifting majorities.
And I think this is not just playing with words. There is a difference
between rights which are purely the result of a temporary majority
power and those which have a weight of history, longitudinal consensus,
experience, and ethical underpinning (inherent dignity of each person).
And this matters for religious freedom too. One need not put
government under a god to have it under something of importance - such
as constitutional enshrinement of fundamental freedoms. Or under
international consensus. Or under the premise of advancing the cause
of genuine recognition of the inherent worth and dignity of each and
every one of us.
Even Christians. Even Muslims. Even athiests, etc.
Steve
On Friday, April 2, 2004, at 10:41 AM, Mike Schutt wrote:
> "It is no business of the state to assert theological propositions,"
> was, to Madision and Mason, a theological proposition.
>
> That's why this long-dead generation is an interesting comparison to
> ours-- they believed that God was the giver of fundamental rights,
> more or less, and that those who governed did so "under God." We
> reject that as a matter of theology, but in its place we argue that
> rights need no foundation other than the current choice of the
> governed and the governors. That is not to say that "under God"
> should be in a pledge, even under the "outdated" theological view of
> the world and rights. As a theological proposition, even Madison and
> Mason may have opposed, for the reasons Professor Berg has set out.
>
> Mike
>
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Levinson
> Sent: Friday, April 02, 2004 9:11 AM
> To: religionlaw at lists.ucla.edu
> Subject: Re: RE:
>
>
> Mike Schott asks:
>
> I'm curious whether most think section 16 is (or would or should
> be)unconstitutional?
>
> I think it is clear that if a contemporary legislature passed
> something like the Virginia Declaration, it would be unconstitutional
> in all sorts of ways, beginning with the fact that it is no business
> of the state to assert theological propositions. I take it,
> incidentally, that most people on this list might even agree that it
> would be unconstitutional if "under God" were the subject of a
> contemporary piece of legislation against a background of the pre-1954
> pledge, just as I take that that even more people on this list agree
> that it would be unconstitutional to
> add "In Jesus is Our Salvation" to the coinage. I take it that the
> Virginia Declaration is of nothing more than historical interest
today,
> offering us a window into the way that a long-dead generation thought
> but having almost literally nothing to teach us as to how we should
> approach the complex issues of religion and state today.
>
> sandy
>
>
>
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--
Prof. Steven D. Jamar vox:
202-806-8017
Howard University School of Law fax:
202-806-8428
2900 Van Ness Street NW
mailto:sjamar at law.howard.edu
Washington, DC 20008
http://www.law.howard.edu/faculty/pages/jamar
"I have the audacity to believe that peoples everywhere can have three
meals a day for their bodies, education and culture for their minds,
and dignity, equality and freedom for their spirits."
Martin Luther King, Jr., (1964, on accepting the Nobel Peace Prize)
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