March 13, 2008


Liberty of Conscience: In Defense of America’s Tradition of Religious Equality. By Martha C. Nussbaum. Basic Books. $28.95.

      This is an important book on an important subject. It is carefully structured and closely argued, and alive with intellectual ferment. Yet even in a presidential election year, it is unlikely to find an audience much beyond academic circles, because it inevitably draws its cogency from the study of minutiae that are far beyond the purview of most people’s everyday lives and concerns. Martha C. Nussbaum deserves a wider audience than she is likely to get.

      Nussbaum is a political philosopher who teaches at the University of Chicago – not only in the Philosophy Department, but also in the Law School and Divinity School. All her areas of expertise dovetail neatly in Liberty of Conscience, which studies religious tolerance in America since long before the days of the Constitution – and looks at the First Amendment’s stand on religion not only by examining the language we have but also by discussing the many alternative formulations that were rejected. The result is a highly insightful look at what the Founders meant and what they did not mean – and how the accepted First Amendment language can best be looked at from the distant vantage point we occupy today.

      The intricacies of Nussbaum’s arguments may put her book beyond most people’s endurance, but they are fascinating to anyone interested in the American constitutional legacy and its implications for a modern United States. For example, the First Amendment states that Congress shall make no law regarding certain elements of religion; it does not talk about individual states – and this is historically significant. Then there are issues such as this: “‘No law respecting’ is broader than ‘no law establishing.’” And there is reasoning such as this: “I have said that the idea of equality is central to the religion clauses. But the word ‘equal’ does not occur in them. …[W]e need to think of the phrases that were actually in use at the time. The word ‘equal’ went naturally with ‘rights,’ ‘natural rights,’ and ‘liberty.’ It did not turn up with ‘exercise’ – thus, when ‘free exercise’ replaced ‘rights of conscience,’ the word ‘equality’ dropped out.”

      This close analysis becomes the basis for Nussbaum’s explanation of the deliberate vagueness of much of what the Founders wrote about religion – a vagueness that has become increasing unsettling in modern times, especially now that the United States is the most avowedly religious of Western nations and the most internally riven by religious arguments and counter-arguments in its politics. Nussbaum does not rest after explicating the Founders’ debates about religion – she finds them, for all their fascination, merely prologue to the hundreds of years of court history that have followed. She discusses not only well-known Supreme Court cases involving religion, but also some less known (at least to the general public) that are genuinely fascinating. For example, there is Abington v. Schempp (1963), which threw out a Pennsylvania law requiring daily Bible reading in public schools – and was brought by a 16-year-old student who tested the law by bringing in the Koran, even though he was not a Muslim.

      Nussbaum deals with very heavy subjects throughout, but her prose is entertaining enough (when she is not parsing legal opinions in detail) to keep Liberty of Conscience moving smartly along most of the time. And she does not hesitate to take on the current Supreme Court, although never with the venom so often seen in the modern political sphere – even when she clearly disagrees with certain justices’ opinions, notably those of Antonin Scalia and Clarence Thomas.

      Nussbaum’s own views on the legal standing of religion in the U.S. become clear to the reader only over time. Somewhat surprisingly, she does not advocate strict separation of church and state, but rather a form of consensus that requires citizens to respect each other’s matters of conscience even while strongly disagreeing on matters of ultimate meaning. It is only in this prescription that Nussbaum shows a streak of naïveté: it is hard to imagine the United States today becoming a nation whose citizens have this much residual respect for those with whom they disagree most intensely. Yet Liberty of Conscience is ultimately not a prescriptive book but a descriptive and analytical one – and is highly effective on those bases, at least for those willing to breathe the rarefied air that Nussbaum clearly finds so bracing.

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