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1. BOOK REVIEW: Liberty in the Balance:Religion, Politics, and American Constitutionalism, 71 Notre Dame L.

Rev. 991

Client/Matter: -None-

BOOK REVIEW: Liberty in the Balance:Religion, Politics, and American Constitutionalism

1996

Reporter 71 Notre Dame L. Rev. 991 *

Length: 18942 words

Author: Scott C. Idleman *

* Assistant Professor, Marquette University Law School. I would like to thank Daniel Dreisbach, Mary Elizabeth Huber, Elizabeth Staton Idleman, and Daniel P. Meyer for their considerable contributions to this Review.

Text

[*991]

At the foundation of the American constitutional order is an intricate matrix of collective instincts and received traditions that sustain both the utility of our discourse and the stability of our institutions. In recent years, there has emerged from this matrix an intuition that the Religious Right's immoderate political ambitions, though not unlawful, in some sense transgress the rules of acceptable political participation. 1 Professors Isaac Kramnick 2 and R. Laurence Moore, 3 in their book The Godless Constitution, 4 set out to explain why this intuition is, in fact, correct. The authors essentially have two contentions. The first is that the Religious Right's historical claims regarding the alleged religious character of the Constitution, especially the claim that the Constitution mandates a Christian nation, are simply inaccurate. Instead, say Kramnick and Moore, the principal Framers of the Constitution intended to create, and did create, "a godless Constitution and a godless politics," 5 in which there would be "no religious parties in national politics" and "a person's religious convictions, or his lack of religious convictions, [would be]

1 The term "Religious Right" describes the national political mobilization of morally and theologically conservative Christians, especially fundamentalist or evangelical Protestants, for the purpose of influencing or occupying virtually all levels of American government, as exemplified today by the endeavors of the Christian Coalition. See generally Michael Lienesch, Redeeming America: Piety and Politics in the New Christian Right (1993); Joe Conason, The Religious Right's Quiet Revival: Pat Robertson's Coalition, 254 Nation 541 (1992). Aware of its imprecision and even its possible negative connotations, I use the term solely for convenience.

2 Richard J. Schwartz Professor of Government, Cornell University.

3 Professor of History, Cornell University.

4 Isaac Kramnick & R. Laurence Moore, The Godless Constitution: The Case Against Religious Correctness (1996). For slightly more spirited renditions of the book's main arguments, see Isaac Kramnick & R. Laurence Moore, Is the U.S. Constitution Godless?, Chron. Higher Educ., Mar. 29, 1996, at A68; Isaac Kramnick & R. Laurence Moore, In Godless We Trust: Why the Founding Fathers Created a Religion-Free Political Order, and Why We Shouldn't Change It, Wash. Post, Jan. 14, 1996, at C1.

5 Kramnick & Moore, supra note 4, at 22.

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irrelevant in judging the value of his political opinion or in assessing his qualifications to hold political office." 6 From this premise, the authors then arrive at their second contention: that the [*992] Religious Right's current efforts to superimpose its particular set of religious truths (its measure of "religious correctness") upon the political processes - upon the platforms of parties, upon the standards for public office, and upon the formulation of law and policy - violate the spirit, if not somehow the text, of our godless Constitution.

These contentions are rather provocative, to say the least. 7 In propounding them, Kramnick and Moore have essentially thrown down the gauntlet on the issue of religion and politics. Their book has marked significance for three audiences in particular. To the Religious Right, first and foremost, The Godless Constitution appears to pose a legitimate challenge about the historical record and its contemporary meaning, a challenge which the Religious Right, if self-respecting, must forthrightly address. Likewise, to the many Americans who do experience a sense of discomfort with the Religious Right, but who are unable to delineate precisely what rules of political participation have been violated, the book offers one explanation for their discomfort, and in so doing empowers these citizens to critically examine their own larger views toward the interaction of religion and politics. Finally, to governmental officials subject to the influences of the Religious Right, whether willingly or not, the book provides a conceptual framework in which to evaluate the propriety of those influences in relation to the interpretation and execution of their public obligations. 8 Merely by posing these challenges, Kramnick and Moore's book should prove to be a valuable addition to the ongoing debate over religion and politics. The quest for historical thoroughness and public informedness is critical to any political dialogue, and the emotive topic of religion and politics is certainly no exception.

But The Godless Constitution, for all its merit, is a deeply and irredeemably problematic book. For one thing, the authors' normative claim - that religious correctness is constitutionally out of bounds - is fundamentally at odds with our constitutional commitment to unrestrained religious participation in law and politics, no matter how offensive or imprudent its manifestations. For another thing, the distinction they draw between permissible and impermissible religious political expression is necessarily riddled with problems of logical coherence. At the same time, and more significant still, their basic notion that particular modes of religious expression should essentially be forbidden arguably conflicts with the very idea of a godless Constitution that is indifferent to religion. Finally, Kramnick and Moore's normative proposal, resting as it does on a theory of original un- [*993] derstanding, seems unjustifiably to disregard the nature of our contemporary constitutional situation, a situation which substantially explains and may even legitimize the Religious Right's political endeavors. Whether the Constitution may have once been godless, as the authors suggest, it is quite possible that the Constitution no longer merits such a designation.

In the following pages, each of these concerns will be pursued in greater depth. After briefly addressing the authors' historical thesis in Part I, the next two Parts will provide extended critiques of their normative thesis. Part II will approach their argument from the perspective of conventional constitutional theory, looking to traditional criteria

6 Id. at 23. The notion of a "godless" Constitution is not original with Kramnick and Moore. See, e.g., Martin E. Marty, On a Medial Moraine: Religious Dimensions of American Constitutionalism, 39 Emory L.J. 9, 13 (1990) ("The Constitution and like documents were not written to save souls, to make sad hearts glad, to build denominational communities or encourage them, to promote public or civic virtue, to invoke God or the gods, or to encourage morality… The Constitution itself is described best and simply as godless.").

7 Reaction to the book has been mixed. Compare Robert F. Drinan, Thinking About Government and God, Legal Times, Feb. 19, 1996, at 66 (arguing that the authors undervalue the historically symbiotic relationship between religion and government in the United States and thus fail to appreciate the extent to which their thesis, if taken literally, would undermine this necessary and beneficial relationship) with Sandi Dolbee, Founding Fathers' Wisdom: Why the Statesmen Separated Constitution and God, San Diego Union-Trib., Mar. 7, 1996, at 44 (uncritically lavishing praise on the book) with Alan R. Crippen II, Religion Is Essential to Social Order, St. Louis Post-Dispatch, Mar. 19, 1996, at 13B (severely criticizing the book, calling it "more ideology than … history").

8 Indeed, the book's publisher, W.W. Norton & Co., delivered more than 500 special editions of The Godless Constitution (embossed with the Religious Test Clause of Article VI) to members of Congress and Justices of the Supreme Court, among others. See Paul D. Colford, Judging a Book ..., L.A. Times, Jan. 26, 1996, at E9.

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such as positive constitutional law, logical coherence, and internal consistency. In turn, Part III will approach their argument from the perspective of constitutional change, asking to what extent the authors' normative thesis, even if satisfactory in terms of its historical footing and theoretical integrity, remains relevant given the contemporary state of constitutional interpretation.

I. The Historical Thesis: A Brief Overview and Analysis

The Godless Constitution is devoted in large part to an exposition of the authors' interpretation of the historical record. Of the book's eight chapters, six (chapters two through seven) are substantially historical in orientation, though Kramnick and Moore frequently pepper these chapters with elements of their normative argument as well. This first Part of the Review will briefly summarize and assess the authors' historical claims.

Kramnick and Moore's central historical argument is that, despite the Framers' individual concerns for religion and despite considerable advocacy for a Christian political order, "the principal architects of our national government envisioned a godless Constitution and a godless politics." 9 As might be expected, the authors are compelled to defend their thesis using a variety of circumstantial and contextual evidence. The Constitution, after all, does not contain a Godlessness Clause, and there is no Federalist paper entitled Concerning the Godlessness of the Constitution. Rather, the authors necessarily focus on the philosophical traditions from which the Framers drew, the writings and commentary of certain key statesmen of the founding era, the absence of explicit Christian references in the text of the Constitution, the Article VI prohibition on religious tests for public office, and the immediate reactions to the proposed Constitution during the period of ratification.

Regarding the Framers' political thought, for example, the authors explain that the Constitution was intended to embody and effectuate a radical break with many of the ideas of the received European and colonial traditions. Rather than embracing the ideal of the Christian commonwealth, wherein government aspires to be a worldly approximation of God's divine order, 10 the Framers looked principally to two competing traditions. [*994]

Those who crafted American national government as a secular institution...used the strong vision of separate spiritual and worldly realms found in the American religious thought of Roger Williams and the Baptists of the founding era. They also enlisted the English liberal tradition, which put at the center of its political philosophy individuals free of government, enjoying property and thinking and praying as they wished. From these two sources came America's Constitution in 1787… 11

In turn, the Constitution was designed not to create a political order that would generate virtuous citizens, 12 but rather "to be an instrument with which to structure the secular politics of individual interest and happiness." 13 Such a political order, in which morality and religion are pushed "outside the public political realm to a private realm of individual preference," 14 would thus be characterized by "intellectual and religious laissez-faire," a development

9 Kramnick & Moore, supra note 4, at 22.

10 Id. at 71.

11 Id. at 23-24. On their treatment of Roger Williams, see id. at 46-66.

12 Id. at 71-86.

13 Id. at 27; see also id. at 72-74.

In liberal Lockean social theory the function of government is purely negative… Government only protects life, liberty, and property. It keeps peace and order in a voluntaristic, individualistic society… No longer does government nurture and educate its subjects in the ways of virtue, or preside over the betterment or improvement of men and society. No longer does government defend and propagate moral and religious truths.

Id. at 73.

14 Id. at 75. The authors explain that this removal of religion from the political sphere "was not an act of irreverence… It was an act of confidence in religion." Id. at 24.

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which "paralleled...the victory of laissez-faire in the economy as well, the general removal of economic issues from the public realm of government and the state to a private realm of free and individualist capitalist competition." 15

Having expounded the Framers' philosophical commitments, Kramnick and Moore then point the reader to what they perceive to be two specific manifestations of these commitments in the design of the Constitution. First, they note the absence of explicit Christian references in our constitutional or paraconstitutional texts. The Federalist papers, for example, "fail to mention God anywhere," 16 and "God is nowhere to be found in the Constitution, which also has nothing to say about the social value of Christian belief or about the importance of religion for a moral public life." 17 Given a contrary received tradition and given the cultural context [*995] at the time, the authors conclude that the Constitution's "utter neglect of religion was no oversight; it was apparent to all." 18 Second, the authors note the inclusion of the Religious Test Clause of Article VI, which unconditionally decrees that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." 19 This provision, the authors imply, is virtually a self-evident expression of the Framers' intention to construct a godless Constitution and a godless political order. Though passionately debated among the states, most of which at that time did employ religious tests for voting or public office, among the Framers the Religious Test Clause was apparently rather uncontroversial. 20

Finally, Kramnick and Moore look to the nature of the response, largely from the Anti-Federalist camp, to the proposed Constitution during the ratification phase. According to the authors, "one of the most powerful criticisms of the Constitution when ratified and for succeeding decades was that it was indifferent to Christianity and God. It was denounced by many as a godless document, which is precisely what it is." 21 In "one of the most important public debates ever held in America over the place of religion in politics" 22 - a debate which they argue has been "underdocumented and underremembered" 23 - "the Constitution was bitterly attacked for its failure to mention God or Christianity." 24 The Religious Test Clause, in particular, "was seen by many opponents as the operative sign of the Constitution's...general godless quality, its seeming indifference to religion." 25 In short, whether or not

The political convictions of the men who struggled to ratify a godless Constitution were not products of personal godlessness… Almost everyone who participated in the debates about the Constitution shared a concern about the health of religion. The success of democracy depended upon a moral citizenry; and for most American thinkers of the eighteenth century, morality rested on some sort of religious convictions.

Id. at 44.

15 Id. at 84. The authors further argue that "it is crucial that these two developments be recognized as part of the same historical transformation ...." Id. "The United States was born at a moment in Western history when emancipatory fervor sought to free individuals from the restraint of both the medieval Christian commonwealth and the medieval mercantilist economy. The religious right today wants only half of the laissez-faire ideal to which the founders of this country adhered." Id. at 85.

16 Id. at 31.

17 Id. at 28; see also id. at 27 ("God and Christianity are nowhere to be found in the American Constitution, a reality that infuriated many at the time. The U.S. Constitution, drafted in 1787 and ratified in 1788, is a godless document.").

18 Id. at 27.

19 U.S. Const. art. VI, cl. 3.

20 See Kramnick & Moore, supra note 4, at 29-30. On the ratification debates, see id. at 30-42.

21 Id. at 23.

22 Id. at 28.

23 Id.

24 Id. at 27-28.

25 Id. at 33.

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the Constitution appears godless to us today, the authors conclude that it certainly appeared godless - and, thus, that we should infer that it was in fact godless - when it emerged from Philadelphia in 1787.

Kramnick and Moore proceed to illuminate their arguments with extended discussions of Thomas Jefferson, of the Baptists, and of selected episodes in American history in which the godless Constitution was purportedly challenged and vindicated. The importance of Jefferson, they claim, is that "no one better captured this moment of liberal ascendance when religious laissez-faire went hand in hand with the triumph of economic laissez-faire." 26 As for the Baptists, one of the authors' central themes is that it was they, as a denomination, who in the early Republic [*996] championed the Jeffersonian vision of a secular civil order, 27 and that many in the contemporary Religious Right are thus betraying not only the Framers, but their denominational forefathers as well. 28 Finally, the authors offer a few examples from the American historical experience in which religious correctness surfaced but, in the end, was unable to extirpate the godless Constitution. These include, most notably, the debate in the early 1800s over whether the federal postal system should operate on Sundays 29 as well as the post-Civil War debate, which lingered for several decades, over whether a Christian amendment should be added to the Constitution. 30 Despite these episodes, the authors conclude, "the godless Constitution has persisted. It did not die with the end of Sunday mail or with any of the other compromises that have been etched into our national symbols." 31

Having thus set forth Kramnick and Moore's historical thesis, it seems appropriate to add a few remarks, even though this Review is primarily interested in the contemporary normative implications of that thesis. First, while their interpretation appears to be a plausible one, surely it is not the only such interpretation, and, in all events, likely suffers from some degree of exaggeration. For one thing, the notion that among the Framers, or even the principal Framers, there was a strong, unitary consensus about the godlessness of the Constitution, let alone the godlessness of the derivative political order, seems much too simplistic. 32 Of course, oversimplicity in the search for intent is a problem inherent in all theories of original intent or understanding, 33 but the problem is especially acute in this instance given the concededly radical nature of the alleged intentions. The relationship between religion and the Constitution was necessarily more complex and nuanced than Kramnick and Moore's portrayal

26 Id. at 86. For their full coverage of Jefferson, see id. at 88-109. I decline to rehash their treatment of Jefferson for several reasons. His life and thought have been extensively covered by a multitude of historians and political and legal scholars; there is nothing to indicate that Kramnick and Moore have misportrayed Jefferson's work and thought; and, in all events, it is questionable whether Jefferson is anything more than illuminating - surely his thought is not representative either of the Framers as a whole (and his physical presence in France technically disqualifies him from the status of Framer) or of the relevant citizenry as a whole.

27 See id. at 118-21.

28 See id. at 127-30.

29 See id. at 132-43.

30 See id. at 144-48. As these episodes illustrate, the mass political mobilization of religious conservatives is not unprecedented; the modern Religious Right is merely the most recent manifestation of the phenomenon. See Ted G. Jelen, The Political Mobilization of Religious Beliefs 141-47 (1991) (discussing the apparent periodicity of conservative Christian politics); Dean M. Kelley, The Rationale for the Involvement of Religion in the Body Politic, in The Role of Religion in the Making of Public Policy 159, 160-65 (James E. Wood, Jr. & Derek Davis eds., 1991) (noting additional episodes).

31 Kramnick & Moore, supra note 4, at 143-44.

32 See Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L.J. 1085, 1133 (1995) (discussing the nineteenth century effort to add a Christian amendment to the Constitution and noting, in regard to a congressional committee statement that the Founders on church-state grounds thoroughly disapproved of religious references in the Constitution, that "the Founders had been anything but unanimous about the dangers of a union between church and state and had not intended to express any such nonestablishment value").

33 See infra notes 114-15 and accompanying text.

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suggests, 34 and [*997] their contrary interpretation, though not unqualified, 35 is intrinsically less compelling as a consequence of its simplicity.

To what extent, for example, is it accurate to cast the issue of godlessness in polar terms - either the Constitution is godless or it is not - or, relatedly, in terms of total victory and total defeat? The issue may very well have generated, as the authors suggest, "one of the most important public debates ever held in America over the place of religion in politics," 36 but is it then fair to conclude that "the advocates of a secular state won, and it is their Constitution we revere today"? 37 Perhaps the Constitution and its ratification embodied more of a stalemate - not a decisive resolution as such, but rather a recognition of a permanent tension in American constitutionalism - as manifested by its virtual silence on the matter of religion and the political order. After all, God may not be found in the words of the Constitution, but neither is godlessness expressly declared to be a constitutional principle. Moreover, it is also possible, especially given the Framers' capacity for compromise, that the religion clauses of the Constitution, including the Religious Test Clause, did not reflect some overarching principled philosophical stance on the godlessness of the political order, but merely comprised part of the Framers' pragmatic effort to create a functional national government. 38

In this regard, it is important to note that Kramnick and Moore leave unaddressed one of the most significant dimensions of the framing, namely, that the Constitution was designed in large part to constrain only the national government, and, in particular, that most matters concerning the relationship between religion and government were to be left to the states. As Professor Daniel Dreisbach explains, in his own assessment of Kramnick and Moore's book:

The Constitution's lack of a Christian designation had little to do with a radical secular agenda. Indeed, it had little to do with religion at all. The Constitution was silent on the subject of God and religion because there [*998] was a consensus that, despite the framers' personal preferences or beliefs, religion was a matter best left to individual citizens and their respective state governments (and most states in the founding era retained some form of religious establishment). The Constitution is "godless" insofar as it deferred to the states on all matters regarding religion and devotion to God. Relations between religion and civil government were already established in most state

34 See, e.g., Ellis Sandoz, A Government of Laws: Political Theory, Religion, and the American Founding (1990); William Lee Miller, The Moral Project of the American Founders, in Articles of Faith, Articles of Peace: The Religious Liberty Clauses and the American Public Philosophy 17, 37 (James Davison Hunter & Os Guinness eds., 1990) ("The distinctive, and perhaps also normative, feature of the American beginning was neither the religious underpinnings nor the emancipation from them but the combination."). Simplicity in relation to religion and the framing is sometimes a function of the ahistoricism of many commentators who necessarily view the past through the lens of the present. See Cushing Strout, The New Heavens and New Earth: Political Religion in America at xiii (1974) ("Many secularly-minded historians often forget that their own preferences for nonreligious thinking cannot simply be projected backward into the past."); Miller, supra, at 34 ("It is important to give...a mixed answer to the question about religion and the nation's founding because late twentieth-century Americans, riven with conscious and unconscious partisanship on these issues, make tendentious interpretations of the sort one wants to avoid - of the sort that run straight through the late twentieth-century debate about "church and state,' which debate, in and out of the courts, and on all sides, seems to be marked by nothing whatever but advocacy, invective, and polemic. Because the founders are important symbols of national values, citizens of a later time twist them in order to align those revered figures with their own convictions."); id. at 36 ("Whereas later believers look back at the founding through the screen of the evangelical revivals and of their own sympathies to find more piety than there was in early America, the cultured among the despisers look back through the screen of their unbelief to find only Thomas Jefferson and Tom Paine and more unabashed secularism than there really was.").

35 Cf. Kramnick & Moore, supra note 4, at 13 ("Our intent is not to prove that the tradition [of religious correctness] we oppose never existed in the mind of any respectable or learned American.").

36 Id. at 28.

37 Id.

38 See John F. Wilson, Religion, Government, and Power in the New American Nation, in Religion and American Politics: From the Colonial Period to the 1980s 77, 84-89 (Mark A. Noll ed., 1990); cf. Gerard V. Bradley, The No Religious Test Clause and the Constitution of Religious Liberty: A Machine That Has Gone of Itself, 37 Case W. Res. L. Rev. 674 (1987).

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constitutions and, the framers believed, it would be inappropriate for the federal regime to usurp state jurisdiction in this area. 39

Especially problematic in this respect is Kramnick and Moore's reliance on the Article VI Religious Test Clause. According to Dreisbach, "the Article VI test ban was not driven by a radical secular agenda or a renunciation of religious tests as a matter of principle." 40 Rather, "the framers believed, as a matter of federalism, that the Constitution denied the national government all jurisdiction over religion, including authority to administer religious tests." 41 In turn, many supported a prohibition against religious tests, not as a general expression of godless governance, but "because they valued religious tests required under state laws, and they feared a federal test might displace existing state test oaths and religious establishments." 42

It is difficult to say, of course, whether any of these counterarguments completely undermines Kramnick and Moore's historical thesis. Their account is, as noted, a plausible one, and they are certainly not alone in their advocacy of it. 43 But these competing arguments do, at the very least, raise [*999] suspicions about the authors' attempt to claim historical (or historiographical) definitiveness. In any event, it is not so much Kramnick and Moore's historical thesis that is truly questionable, but rather the contemporary normative significance which they attach to it. That topic is the focus of the remaining two Parts of this Review.

II. The Normative Thesis: A Conventional Critique

Kramnick and Moore's book, as suggested at the outset, has a certain intuitive resonance about it. In the view of many, there does seem to be something about the Religious Right's political forays that runs contrary to our principles of political decorum, perhaps even our constitutional spirit. 44 Yet constitutional theories, like collective

39 Daniel L. Dreisbach, Book Review, 38 J. Church & St. (forthcoming Summer 1996) (manuscript at 3, on file with author); see also Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 17-34 (1995) (making a comparable jurisdictional argument specifically in relation to the religion clauses); Lash, supra note 32, at 1089-99 (substantially concurring in this interpretation).

40 Dreisbach, supra note 39, at 3.

41 Id.

42 Id.; see also Walter Berns, Taking the Constitution Seriously 167 (1987) ("The proscription of religious tests in Article VI applied (at that time) only to national office or national trust, and any attempt to broaden its coverage to forbid state religious tests would almost surely have failed. It would have failed because, whatever the case with Jefferson, Madison, and Washington ..., the people and the politicians at the state level were not then disposed to join in some Lockean statement of disbelief, however disguised. It would have failed because the states, some of them, continued to have religious tests and displayed no willingness to forsake them."); Edwin S. Gaustad, Faith of Our Fathers: Religion and the New Nation 112-18 (1987) (noting precisely this disparity between an implicit disavowal of religion in the federal Constitution and the widespread practices overtly embracing religion among the states). For a more thorough analysis, see Daniel L. Dreisbach, The Constitution's Forgotten Religion Clause: Reflections on the Article VI Religious Test Ban, 38 J. Church & St. 261 (1996).

43 Professor Kathleen Sullivan has forcefully articulated a similar thesis, though her basis is the Establishment Clause and her interpretation, accordingly, would restrict only governmental action. See Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. Chi. L. Rev. 195, 197-98 (1992) (footnote omitted) ("The negative bar against establishment of religion implies the affirmative "establishment' of a civil order for the resolution of public moral disputes. Agreement on such a secular mechanism was the price of ending the war of all sects against all. Establishment of a civil public order was the social contract produced by religious truce. Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms. Religious grounds for resolving public moral disputes would rekindle inter-denominational strife that the Establishment Clause extinguished."); id. at 198 ("The bar against an establishment of religion entails the establishment of a civil order - the culture of liberal democracy - for resolving public moral disputes… Public affairs may no longer be conducted as the strongest faith would dictate. Minority religions gain from the truce not in the sense that their faiths now may be translated into public policy, but in the sense that no faith may be. Neither Bible nor Talmud may directly settle, for example, public controversy over whether abortion preserves liberty or ends life.").

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intuitions, often turn out to be less meaningful, and sometimes less benign, than they may first appear. Only upon closer examination, both of the operative premises and of the probable consequences, can the genuine value of such theories be assessed. It is the objective of this Part of the Review to demonstrate that The Godless Constitution, upon closer examination, is indeed problematic in both law and logic.

One of the most conspicuous difficulties with The Godless Constitution concerns Kramnick and Moore's casual movement from the historical premise that our Constitution is godless to the normative claim that this godless Constitution, proprio vigore, effectively restricts the involvement of religion in law and politics. It is my contention that this normative claim is indefensible as a matter of positive constitutional law - that is, constitutional text and its authoritative interpretation - and untenable as a matter of logic and practical application. It is further my contention that the authors' critique, in the end, may simply be an attempt to dress up an essentially theological condemnation of the Religious Right in constitutional garb, and, as such, amounts to a brand of religious correctness which violates the very godless Constitution they seek to vindicate.

In assessing Kramnick and Moore's efforts, it is first necessary to discern precisely what limitations, in their view, the Constitution imposes on religious political participation. The answer lies in their distinction between "a religiously informed politics and the politics of religious correctness." 45 A religiously informed politics, which is permissible and indeed [*1000] inevitable, 46 is one in which religion "claims no special privileges" 47 and "a person's religious faith, or lack thereof, should never be an issue." 48 Although "religious leaders are free to say whatever they like," 49 religiously informed perspectives may only "be heard...in a manner that raises those perspectives above the level of idle or coercive God talk." 50 Thus a religiously informed politics, exemplified by the mission of Martin Luther King, Jr., is one that potentially "makes people uncomfortable" - that "calls upon an unjust society...to transcend itself" and does not simply "have a particular set of sins with which to charge heretics" 51 or is not merely "an apology for wealth" 52 or the status quo. Reflecting upon the experience of nineteenth century America,

44 See Ted G. Jelen & Clyde Wilcox, Public Attitudes Toward Church and State 45-47, 51 (1995) (finding that 48% of non-elites surveyed responded that "Evangelicals/Religious Right" as a group has "too much influence" and that 12% of non-elites surveyed responded that this same group is "a threat to democracy"; finding that 50-90% of elites surveyed - academics, business, government, and media - responded that "Evangelicals/Religious Right" as a group has "too much influence" and that 29-75% of elites surveyed responded that this same group is "a threat to democracy"); see also Religious Right Lacks Wide Appeal, Poll Says, L.A. Times, Sept. 17, 1994, at B5 (citing a public opinion poll finding that 53% of those surveyed described the phenomenon of "people trying to use government to impose their own religious viewpoints on others" as a fairly serious or very serious problem, and 28% of those surveyed specifically described the influence of conservative religious groups as a serious problem).

45 Kramnick & Moore, supra note 4, at 124.

46 The authors correctly observe:

People who place religion at the center of their lives cannot take part in politics and yet act politically as if their religious beliefs did not matter. People do not split their personalities in this way. Even if churches or other religiously sponsored groups never took positions on partisan political issues, the people who belong to those organizations would vote in ways that reflected their religious beliefs. If the past proves anything, it proves that religious affiliation can affect a voter's attitudes on a broad range of issues that seemingly have nothing to do with religion.

Id. at 127.

47 Id. at 168; see also id. at 20 ("Religious leaders who enter politics can demand no more than the same treatment accorded to business leaders, hot dog vendors, and jubilant proponents of a "Queer America.'...American society especially invites a religious perspective in public debate. We only observe that if you want respect for your ideas, you have to earn it.").

48 Id. at 168.

49 Id. at 169.

50 Id. at 177.

51 Id. at 162.

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the authors explain that "religious political activism...worked best when it sought to aid the downtrodden, not to attack their values." 53

By contrast, the forbidden "politics of religious correctness" arises whenever a religious group "ties itself to political institutions and to topical political controversy," 54 or attempts to "legislatively dictate its conscience to other people when the only issue is that conscience's claim." 55 The line of permissible participation is crossed, according to the authors, when "religious leaders attempt to pass legislation by arguing that it is God's will,...[or] individuals run for office saying they do so with God's blessing,...[or] members of a religious lobby endorse candidates for office only because they claim to be born-again Christians." 56 Advocates of religious correctness such as these may have a tendency to feel "self-righteous," "imagining that [they are] doing God's work in the same way that Christians believed that Moses had once done God's work," 57 or perhaps "regarding [their] fellow citizens as sinners who should be ignored." 58 Ulti- [*1001] mately, the advancement of religious correctness "represents an approach to public policy that is damaging - damaging to the American Constitution, damaging to political debate, and damaging to American children whose social and educational needs are seriously misstated by the programs of religious correctness." 59

In terms of the significance of this distinction in the sphere of applied politics, the authors argue that

there is a difference between a Southern Baptist who is inclined to be conservative on many social issues...and a convention of Southern Baptists who have been lobbied by Baptist leaders to vote for conservative candidates because that is what Christians who read their Bible ought to do. Politics in a secular state means that there is no Christian position on whether tax cuts are a good or a bad idea, on whether the terms of congressmen ought to be limited, and [on] [sic] whether the capital gains tax ought to be lowered. There are ways in which Christians are influenced by their religion when they take stands on the question of abortion rights, of whether feeding the poor and homeless ought to be a government responsibility, and of whether the United States ought to support the state of Israel. But that influence leads to different conclusions. None of these conclusions represents the voice of God, not in political debate. 60

And while Kramnick and Moore concede, in the midst of pondering Roger Williams's contributions to church-state thought, that there is "difficulty...in specifying criteria that tell us when the religious biases of voters become an illegitimate injection of God into politics" 61 - and, indeed, that we as a people "have no consensus about criteria" 62 - nevertheless they insist that the distinction is there, reinforced by the spirit of the Constitution itself.

52 Id. at 161.

53 Id. at 123.

54 Id. at 21.

55 Id. at 130.

56 Id.; see also id. at 174 ("Religious correctness...refuses to recognize secularism as a fundamental principle of American government. It asks that we perpetuate in public rhetoric the notion that the United States is an instrument of divine providence. It objects any time values other than its version of Bible-based Christian values are accorded status in public policy decisions that government is trying to destroy religion.").

57 Id. at 124.

58 Id. at 127.

59 Id. at 14.

60 Id. at 127-28.

61 Id. at 61.

62 Id.

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Having presented in detail the contours of Kramnick and Moore's constitutional theory, it is at this point that the actual value or integrity of their thesis, detached from its intuitive mooring, must be called into serious question. At the outset, there should be some concern about the possible disjunction between what the Framers actually contemplated and what the authors here propose. After all, it does not necessarily follow that a Constitution influenced by Roger Williams and John Locke and devoid of references to God indicates an intention to outlaw religious correctness as Kramnick and Moore define it. Rather, such an interpretation is likely an imaginative extrapolation of the Framers' true intentions, a plausible extrapolation, to be sure, but also a rather liberal one. In turn, the normative import of the authors' thesis, if significant at all, may simply be diminished in proportion to any such disjunction.

The more serious difficulties with their thesis lie not, however, in the disjunctions of history, but in the circumstances of the present. First and foremost, the authors' proposed restrictions on religious political participa- [*1002] tion, touted as a vindication of the true Constitution, are actually in direct conflict with several of that document's express provisions, especially as construed by the Supreme Court. The Establishment Clause, Free Exercise Clause, Free Speech Clause, and Petition Clause of the First Amendment, 63 as well as the equal protection guarantees of the Fifth and Fourteenth Amendments 64 and to some extent the Religious Test Clause of Article VI, absolutely prohibit any kind of restriction on, or discrimination against, religious participation in the political and legal processes. 65 By these and related provisions, moreover, the Constitution necessarily draws a distinction, not between categories of nongovernmental religious political participation (as do Kramnick and Moore), but rather between all manner of religious political participation (which is permissible) and the direct government

63 The First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I.

64 The Fourteenth Amendment provides in relevant part: "No state shall...deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, 1. In Bolling v. Sharpe, 347 U.S. 497 (1954), the Court held that the guarantee of equal protection also binds the federal government under the Fifth Amendment.

65 See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 115 S. Ct. 2510 (1995) (invalidating under the Free Speech Clause discrimination against religious speech and holding that the Establishment Clause did not justify such discrimination); Church of the Lukumi Babalu Aye v. City of Hialeah, 113 S. Ct. 2217, 2226-27 (1993) (reaffirming prohibition under the Establishment and Free Exercise Clauses against disfavoritism towards a particular religion or religion in general); Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (citations omitted) (noting that "the free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires" and that "the government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side in controversies over religious authority or dogma"); Carey v. Brown, 447 U.S. 455, 461-62 (1980) (holding that discrimination among speech-related activities in a public forum is subject to heightened scrutiny under the Equal Protection Clause); McDaniel v. Paty, 435 U.S. 618 (1978) (plurality opinion) (holding essentially that the Free Exercise Clause prohibits imposing disabilities on participants in the political process based on their religious status); Niemotko v. Maryland, 340 U.S. 268, 284 (1951) (Frankfurter, J., concurring in the judgment) ("To allow expression of religious views by some and deny the same privilege to others merely because they or their views are unpopular, even deeply so, is a denial of equal protection of the law forbidden by the Fourteenth Amendment."); Kelley, supra note 30, at 180 ("The United States Supreme Court has never held as a matter of law that it is improper, or a violation of the separation of church and state for religious leaders (or followers) to preach, teach, persuade, organize, agitate, or mobilize citizen support for (or against) public policies, or even for (or against) candidates for public office."); Sullivan, supra note 43, at 196 (noting that religious political activity of all manner "is fully protected by the right of free speech, as well as by the right of free exercise"). The Court has held that "the First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic." Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 537 (1980). Even virulent anti-religious expression, or religious expression that is itself virulent, is not totally outside the First Amendment. See Capital Square Review & Advisory Bd. v. Pinette, 115 S. Ct. 2440 (1995) (invalidating the exclusion from a public forum of a wooden cross, erected by the Ku Klux Klan); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 380 (1992) (invalidating a prohibition on expression that a speaker "knows or has reasonable grounds to know arouses "anger, alarm or resentment in others on the basis of race, color, creed, religion or gender'").

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establishment of religious doctrine or prejudice (which is not). 66 [*1003] To be sure, it is a distinction based upon the larger public-private distinction, which, although increasingly nebulous at the edges, 67 nevertheless remains central to American constitutionalism. 68 A failure to recognize this distinction - whether deliberate or not - is both tragic and dangerous to our constitutional order, especially when perpetrated, as sometimes happens, by federal officials themselves. 69

What this means in practical terms is that the Constitution is essentially indifferent to religious participation in law and politics. The Constitution restricts the interaction of religion and government only to the extent that the government has acted offensively, and leaves the management of religious participation wholly to the representative political processes. Perhaps the most forceful articulation of this core constitutional principle is Justice Brennan's concurrence in McDaniel v. Paty 70 : [*1004]

66 See Board of Educ. of Westside Community Sch. v. Mergens, 496 U.S. 226, 250 (1990) ("There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect."); see also Pinette, 115 S. Ct. at 2446 ("Private religious speech...is as fully protected under the Free Speech Clause as secular private expression."); Douglas Laycock, Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers, 81 Nw. U. L. Rev. 1, 9 (1986) (footnote omitted) ("Government speech in support of religion is forbidden even if it occurs on private property; private speech in support of religion is protected even if it occurs on public property. What matters is not the location of the speech, but the identity of the speaker.").

67 See generally John H. Garvey, Private Power and the Constitution, 10 Const. Comm. 311 (1993) (discussing the breakdown of the distinction and several resultant problems); Symposium, The Public/Private Distinction, 130 U. Pa. L. Rev. 1289 (1982).

68 Cf. Kramnick & Moore, supra note 4, at 75 (noting that liberal theory reconceived the public-private distinction).

69 An en banc majority of the Ninth Circuit, confusing the independent existence of a constitutional right with the identity and views of those who supported the law burdening the right, recently indicated its displeasure with the participation of certain religious groups in the legal and political processes. See Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc) (holding that a Washington statute prohibiting physicians from prescribing life-ending medication for use by terminally ill, competent adults who wish to hasten their own deaths violates the Due Process Clause of the Fourteenth Amendment); id. at 826 ("We are certainly not obligated to pile injury upon injury by holding that all of our citizens may be subjected to the prospect of needless pain, suffering, and degradation at the end of their lives, either because of our concern over Congress' failure to provide government-insured health care or alternatively in order to satisfy the moral or religious precepts of a portion of the population."); id. at 839 ("Those who believe strongly that death must come without physician assistance are free to follow that creed, be they doctors or patients. They are not free, however, to force their views, their religious convictions, or their philosophies on all the other members of a democratic society, and to compel those whose values differ with theirs to die painful, protracted, and agonizing deaths.").

Professor Laycock has expressed this point well:

The religion clauses regulate the state and not the church. The state can neither support nor oppose religion, but churches and religious citizens are as free as anyone else to support or oppose the state… When conservative ministers support Ronald Reagan and speak out on their social agenda; when Catholic bishops speak out on abortion, nuclear weapons, economic redistribution, and peace in Central America; or when rabbis speak out on behalf of Israel, someone on the other side of the political issue is sure to charge that these attempts to influence public policy violate separation of church and state. A moment's reflection on free speech and free exercise reveals the absurdity of that charge; only the metaphor of separation has given it credence. The same confusion appears in the lower court cases rejecting equal access. Once again, the free speech rights of religious citizens are denied in the name of separation of church and state.

Laycock, supra note 66, at 26-27 (footnotes omitted); see also Laurence H. Tribe, American Constitutional Law 14-14, at 1279- 83 (2d ed. 1988) (rejecting the notion that the Constitution, particularly the Establishment Clause, in any way limits religious political participation, even if divisive).

70 435 U.S. 618 (1978) (invalidating a Tennessee state constitutional provision prohibiting any member of the clergy from serving in the state legislature).

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That public debate of religious ideas, like any other, may arouse emotion, may incite, may foment religious divisiveness and strife does not rob it of constitutional protection. The mere fact that a purpose of the Establishment Clause is to reduce or eliminate religious divisiveness or strife, does not place religious discussion, association, or political participation in a status less preferred than rights of discussion, association, and political participation generally. "Adherents of particular faiths and individual churches frequently take strong positions on public issues including...vigorous advocacy of legal or constitutional positions. Of course, churches as much as secular bodies and private citizens have that right."

The State's goal of preventing sectarian bickering and strife may not be accomplished by regulating religious speech and political association. The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities. Government may not inquire into the religious beliefs and motivations of officeholders - it may not remove them from office merely for making public statements regarding religion, or question whether their legislative actions stem from religious conviction.

In short, government may not as a goal promote "safe thinking" with respect to religion and fence out from political participation those, such as ministers, whom it regards as overinvolved in religion. Religionists no less than members of any other group enjoy the full measure of protection afforded speech, association, and political activity generally. The Establishment Clause, properly understood, is a shield against any attempt by government to inhibit religion....It may not be used as a sword to justify repression of religion or its adherents from any aspect of public life.

Our decisions under the Establishment Clause prevent government from supporting or involving itself in religion or from becoming drawn into ecclesiastical disputes. These prohibitions naturally tend, as they were designed to, to avoid channeling political activity along religious lines and to reduce any tendency toward religious divisiveness in society. Beyond enforcing these prohibitions, however, government may not go. The antidote which the Constitution provides against zealots who would inject sectarianism into the political process is to subject their ideas to refutation in the marketplace of ideas and their platforms to rejection at the polls. With these safeguards, it is unlikely that they will succeed in inducing government to act along religiously divisive lines, and, with judicial enforcement of the Establishment Clause, any measure of success they achieve must be short-lived, at best. 71

In short, any limitation on the ability of religious individuals or institutions to influence the legal or political processes must arise from the operation [*1005] of those processes themselves, not from some ethereal constitutional spirit that roams the public square, consigned to the expungement of modern-day religious factionalists. With few exceptions, our commitment to limited government and the rule of law dictates that rights and restrictions not spelled out in the text of the Constitution are not cognizable. 72 In this instance, the Constitution places no such

71 Id. at 640-42 (Brennan, J., concurring in the judgment) (citations and footnotes omitted) (quoting Walz v. Tax Comm'n, 397 U.S. 664, 670 (1970)). For an extremely skeptical view of Brennan's rhetoric, see Richard S. Myers, The Supreme Court and the Privatization of Religion, 41 Cath. U. L. Rev. 19, 79 n.338 (1991) ("This is not the voice of a man who favors a public role for religion; in fact, he regards it as pathological.").

72 Notable exceptions include constitutional preemption, see Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 319 (1851) (holding that the Constitution itself, even absent an act of Congress, preempts certain state infringements on interstate commerce); unenumerated independent constitutional rights, see Planned Parenthood v. Casey, 505 U.S. 833, 847-48 (1992) (affirming that "liberty encompasses...more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution"); unenumerated corollary constitutional rights, see Wooley v. Maynard, 430 U.S. 705, 714 (1977) (holding that the right not to speak is complementary to the right to speak protected by the First Amendment); and unenumerated derivative constitutional rights, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) (holding that the Fourteenth Amendment protects a right of association in part because of its necessary relationship to the enumerated freedoms of speech and assembly). None of these exceptions is relevant here.

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restrictions on the ability of religious people and institutions to attempt to influence the law - and, quite to the contrary, guarantees their freedom to do so. 73

It should be noted in this regard that Kramnick and Moore do acknowledge correctly that "religious leaders are free to say whatever they like in this country and to enter politics if they like. There are very few religious actions in politics that are unconstitutional. There are simply religious actions that are wise and unwise, generous and ungenerous, informed and uninformed." 74 But this concession is irreconcilable with their normative claim that the Constitution does limit the ability of religious leaders (and religious participants generally) to "say whatever they like." The godless Constitution, according to the authors, plainly disallows certain claims about the religious correctness of one's positions or of a particular candidate or party platform. The affirmation of that disallowance is the raison d'etre of Kramnick and Moore's project. That the authors' stance is truly dissonant with our written Constitution is nowhere clearer than when they assert, in relation to the Southern Baptist Convention's apparent willingness to publicly condemn homosexuality on religious grounds, that "[a] state that can ban homosexuals solely because of their purported deviation from religiously grounded moral law and the Scriptures of a particular religious tradition, however widely that tradition is shared, can ban Jews and can ban Baptists." 75 This, of course, is absolutely wrong as a matter of positive constitutional law; we the people specifically ratified the First Amend- [*1006] ment to prohibit precisely this kind of governmental religious disfavoritism. 76

To a large part, this dissonance stems from the authors' refusal to confront the significance of the First Amendment - as a set of written limitations on governmental action - in relation to their normative theory. Early in the book, they reveal their intention not to "attempt to settle the judicial controversies that rage over the religious clauses of the First Amendment. The extensive attention given to these judicial debates has tended to obscure the more general theme that is the concern of the book; that is, the intentionally secular base on which the Constitution was placed." 77 But this maneuver is itself a source of obscuration, for it is through the religion clauses of the First Amendment, as well as Article VI and a host of structural mechanisms, that we formally established the ground rules for the relationship between religion and government, including the scope of religious political participation. To disregard the First Amendment in this manner is thus to lose sight of the actual, textual limitations the Constitution establishes for the maintenance of a predominantly secular state. It is all the more illegitimate when one then seeks to inject an assortment of additional, extratextual limitations into the constitutional mix. 78

This is not to say that religious political participation is constitutionally irrelevant. The Supreme Court has indicated, for example, that the undue or exclusive influence of recognizably religious interests on the substantive form of

73 Kramnick and Moore might argue, in response, that their disregard of the First Amendment is neither inadvertent nor irresponsible, but rather reflects their purpose of discerning what the Framers of the original, unamended Constitution intended, and that this intention should be central to our understanding of the Constitution today. This would not be a compelling response, however. For one thing, the First Amendment is virtually contemporaneous with the original Constitution, so that one may fairly presume philosophical consistency between the creation of each. See infra note 90 and accompanying text. For another thing, the First Amendment is just that, an amendment to the original document; if any inconsistency resulted, it is to the amendment, not the original document, that we are bound.

74 Kramnick & Moore, supra note 4, at 169.

75 Id. at 129.

76 If anything, it is more accurate to assert that a constitutional interpretation that can ban religious correctness in politics, however widely shared that interpretation, can also ban vigorous homosexual political participation. Cf. American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 329-30 (7th Cir. 1985) (cataloguing various twentieth century efforts to limit certain kinds of political and other expression based on perceived ideological or social harmfulness), aff'd, 475 U.S. 1001 (1986).

77 Kramnick & Moore, supra note 4, at 14.

78 This maneuver is especially illegitimate insofar as the authors do invoke the Constitution's religion clauses, apparently without regard to their earlier disclaimer. See id. at 130 (asserting that religious correctness is partly problematic because it threatens "the free exercise of religion"); id. at 166 (providing their interpretation of the First Amendment regarding religion in public schools).

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legislation may render that legislation, once enacted, violative of the Establishment Clause. 79 Nor is it to say that religious political participa- [*1007] tion is constitutionally exalted; the Constitution certainly does not mandate, for example, that such political participation may be totally without legal consequence 80 or that it may be exercised without regard for the civil rights of others. 81 But the notion, propounded by the authors, that the Constitution tacitly proscribes religious correctness is simply untenable under our regime of positive constitutional law. 82 We have, as it were, no Dormant Establishment Clause. The fate of religious correctness in our political order is left up

79 The effect of such influence, and especially the extent to which resulting law is nothing more than unmediated religious doctrine, may clearly be relevant under the Court's nonestablishment jurisprudence, as still grounded in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (citations omitted) (holding that, in order to satisfy the Establishment Clause, "the statute must have a secular legislative purpose;...its principal or primary effect must be one that neither advances nor inhibits religion...;[and] the statute must not foster "an excessive government entanglement with religion'") (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)). Thus, for example, the Court invalidated a Kentucky statute requiring the posting of the Ten Commandments in public schoolrooms because it evinced only religious purposes, see Stone v. Graham, 449 U.S. 39, 41-42 (1980) (per curiam), as well as a Louisiana statute requiring "balanced treatment" of creationism and evolutionary theory in public school instruction because that statute lacked a secular purpose and the primary purpose was the endorsement of religion, see Edwards v. Aguillard, 482 U.S. 578, 586-94 (1987). By contrast, the Court upheld the Hyde Amendment, which prohibits Medicaid reimbursement for abortions, noting that a statute does not violate "the Establishment Clause because it "happens to coincide or harmonize with the tenets of some or all religions.'" Harris v. McRae, 448 U.S. 297, 319-20 (1980) (quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961)); accord Bowen v. Kendrick, 487 U.S. 589, 604 n.8 (reaffirming this principle in upholding the constitutionality of the Adolescent Family Life Act); Clayton by Clayton v. Place, 884 F.2d 376, 380-81 (8th Cir. 1989) (citations omitted) ("We...find no support for the proposition that a rule, which otherwise conforms with Lemon, becomes unconstitutional due only to its harmony with the religious preferences of constituents or with the personal preferences of the officials taking action… We simply do not believe elected government officials are required to check at the door whatever religious background (or lack of it) they carry with them before they act on rules that are otherwise unobjectionable under the controlling Lemon standards. In addition to its unrealistic nature, this approach to constitutional analysis would have the effect of disenfranchising religious groups when they succeed in influencing secular decisions."), cert. denied, 494 U.S. 1081 (1990).

80 For example, religious charitable organizations, like nonreligious charitable organizations, may jeopardize their federal tax- preferred status if a substantial part of their activities involves "carrying on propaganda, or otherwise attempting, to influence legislation" or if they "participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office." 26 U.S.C. 501(c)(3) (1994); see Anne Berrill Carroll, Religion, Politics, and the IRS: Defining the Limits of Tax Law Controls on Political Expression by Churches, 76 Marq. L. Rev. 217 (1992).

81 Religious organizations are presumably subject, at least in the first instance, to the limitations on nongovernmental conspiratorial action undertaken to deprive others of civil rights as codified in provisions such as 42 U.S.C. 1985(1) (1994) (creating liability for conspiracies to prevent public officers from performing their duties); id. 1985(3) (1994) (creating liability for conspiracies to deprive persons of federal rights); and 18 U.S.C. 241 (1994) (criminalizing conspiracies to deprive persons of federal rights). Even here, however, the First Amendment religion clauses may limit the cognizability of such claims. See, e.g., O'Connor v. Diocese of Honolulu, 885 P.2d 361 (Haw. 1994) (applying the "ecclesiastical abstention doctrine" and affirming dismissal of an action against Catholic officials who excommunicated the plaintiff for the expression of his views); State v. Barclay, 708 P.2d 972 (Kan. 1985) (refusing, partly on constitutional grounds, to apply a state civil rights statute to the racially discriminatory conduct of a minister).

82 Of course, it is quite possible that our current First Amendment jurisprudence looks as it does precisely because there has never been anything quite like the Religious Right, and that had we had a tradition of religious parties, our jurisprudence might be quite different from its current formulation. Though not directly posed by Kramnick and Moore, this is an interesting hypothesis, one that may be tested in the coming years. See, e.g., Michael A. Berg, The Religious Right, Constitutional Values, and the Lemon Test, 1995 Ann. Surv. Am. L. 37 (proposing, in light of the recent political activism of the Religious Right, that Establishment Clause doctrine be retooled to allow courts to invalidate a wider range of legislation resulting from such activism); cf. Joseph Grinstein, Note, Jihad and the Constitution: The First Amendment Implications of Combating Religiously Motivated Terrorism, 105 Yale L.J. 1347 (1996) (proposing, in light of the arrival of religiously motivated terrorism in the United States, that Free Speech Clause doctrine be revised to accord the government greater latitude to punish criminally subversive religious speech that reasonably leads to overt acts against the political order).

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to us, the citizenry, in the responsible exercise of our own rights of speech, political participation, and voluntary religious association. 83 [*1008]

Even assuming, however, that Kramnick and Moore properly neglected both the Constitution's express provisions and the implications of those provisions, looking instead to its underlying political theory and historical context, here too their analysis runs into trouble. Consider, for example, their invocation of James Madison's Federalist No. 10. In the midst of discussing religious tests for office, the authors authoritatively cite The Federalist No. 10 as evidence of the Framers' concern over the divisive nature of religion, apparently as a likely reason for seeking a godless political order. They explain that "in the famous Federalist No. 10 Madison argues that zealous pursuit of religious opinions, far from leading men to "cooperate for their common good,' causes them to hate each other and disposes them "to vex and oppress each other.'" 84 Putting aside the general difficulties of using original intent, 85 and the specific difficulties of relying on the Federalist papers, 86 the authors were surely correct to note these words of Madison. However, Kramnick and Moore apparently closed the pages of the Federalist No. 10 too soon. Had they read further, they would not have missed Madison's point that the solution for factionalism, including religious factionalism, was not the elimination or exclusion of the factions or their causes, but rather their largely unrestricted competition in the political arena. 87

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good…

The inference to which we are brought is that the causes of faction cannot be removed and that relief is only to be sought in the means of controlling its effects.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger

83 See First Nat'l Bank v. Bellotti, 435 U.S. 765, 791 (1978) ("The people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments."). As Douglas Laycock has written:

Evangelicals and fundamentalists...are not required to remain silent or to confine their religious speech to private places, or to places without children. They are not required to follow the example of the adult bookstores and avoid or warn off listeners who might be offended by their beliefs. We should protect their right to speak as vigilantly as we protect the rights of political groups. Simultaneously, and with equal vigilance, we should fight the government's efforts to endorse or oppose them or any other religious groups, either openly or subtly.

Laycock, supra note 66, at 67. The arrangement in Singapore presents an interesting contrast. Professor Kent Greenawalt reports that Singapore has a "Maintenance of Religious Harmony Act" which "makes it a crime for a religious group or member thereof to carry "out activities to promote a political cause...under the guise of propagating...any religious belief.'" Kent Greenawalt, Private Consciences and Public Reasons 210 n.3 (1995). Needless to say, we do not live in Singapore and "such a law would...be a blatant violation of the First Amendment free exercise and free speech clauses in this country." Id. at 210-11 n.3.

84 Kramnick & Moore, supra note 4, at 31.

85 See infra notes 114-15 and accompanying text.

86 The difficulties associated with the authoritative use of the Federalist papers are many and serious. See generally Albert Furtwangler, The Authority of Publius: A Reading of The Federalist Papers (1984); James G. Wilson, The Most Sacred Text: The Supreme Court's Use of The Federalist Papers, 1985 B.Y.U. L. Rev. 65; James W. Ducayet, Note, Publius and Federalism: On the Use and Abuse of The Federalist in Constitutional Interpretation, 68 N.Y.U. L. Rev. 821 (1993).

87 They also would not have missed Madison's point that "the most common and durable source of factions" was not religion, but rather "the various and unequal distribution of property." The Federalist No. 10, at 124 (James Madison) (Isaac Kramnick ed., 1987).

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[*1009] of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed…

By what means is this object obtainable? …

…

A republic, by which I mean a government in which the scheme of representation takes place,...promises the cure for which we are seeking…

…

The influence of factious leaders may kindle a flame within their particular States but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source…

In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. 88

It is true, of course, that the contemporary landscape of representative politics, especially the scope of the modern- day franchise and structure of our party system, was not fully contemplated by Madison and his compatriots. But such considerations in and of themselves neither disaffirm Madison's understanding that factionalism, religious or otherwise, was plainly anticipated nor undermine his determination that such factionalism was to be addressed, not by elimination or exclusion, but rather by the operation of the representative political processes. 89 That we have since added the First Amendment religion clauses, which effectively constrain the political success of religious factions, only reinforces the constitutional embodiment of Madison's conception, particularly given that their principal draftsman was Madison himself. 90

Kramnick and Moore's theory, besides generating constitutional dissonance, is further untenable simply on grounds of logic and workability. A valid constitutional theory, after all, must not only be congruent with the text and design of the Constitution, but must also exhibit in its prescriptive dimensions a reasonable degree of coherence and administrability. This minimum, however, does not appear satisfied by the authors' proposal that [*1010] the

88 Id. at 125-28.

89 This point is reasserted, in a slightly different form, in The Federalist No. 51, at 321 (James Madison) (Isaac Kramnick ed., 1987) ("In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects."); see also Wilson, supra note 38, at 84-85 (discussing Madison's Federalist No. 10 on this point: "[Madison] recognized that religion provided one basis for a factionalism that could destroy a regime. He did not seek to eliminate the causes of faction (religion being one), because in his view the polity stood the best chance of survival if factions (including those based on religion) counterbalanced each other."). For a recent examination of the constitutional notion and contemporary prospect of constraining religious factionalism through various structural mechanisms, see Christopher L. Eisgruber, Madison's Wager: Religious Liberty in the Constitutional Order, 89 Nw. U. L. Rev. 347 (1995).

90 Cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131 (1991) (arguing that the Bill of Rights should be construed as embodying and advancing the principal structural concepts underlying the original Constitution).

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Constitution proscribes religious correctness yet permits a religiously informed politics, largely because that proposal rests on a distinction which, at bottom, is either illusory or meaningless. 91

At its most superficial and formalistic level, the distinction between a politics of religious correctness and a religiously informed politics does exhibit some coherence. Religious political participants cross the line whenever they expressly proclaim that their position, party, or candidate is one that God or any right-thinking believer would embrace, or that another's position, party, or candidate is one that God or any right-thinking believer would reject. According to the authors:

It is...legitimate to ask questions about the moral effects of almost any government policy - even a proposal to cut taxes… It is wrong to ridicule persons who professes [sic] to hold a political position because it is required by their understanding of God's will.

However, an argument in the political arena is merely that, a point of view that may be challenged by other points of view that reflect a different morality or a different prediction about the moral consequences of government policy. It is not legitimate for political leaders to mobilize religion in order to invest their argument about moral consequences with certainty, to imagine that their understanding of God's will should be shared by everyone… Politicians who run for office claiming God's backing and who urge voters to make their decisions on the basis of a candidate's religious beliefs are treading on ground that the Constitution did not want entered. 92

Once we move below the surface, however, the authors' distinction becomes unsustainable. For one thing, it proves to be illusory. Contrary to the authors' exposition, the element of divine sanction is at best one of [*1011] degree, not of kind. This is perhaps most clearly illustrated by the following statements, which one can imagine might be spoken by a candidate for public office:

My stance has God's blessing.

My stance is congruent with God's law.

My stance is congruent with Christian values.

My stance is congruent with the values of love and charity, as taught by Christ.

91 Part of the problem, also, is that Kramnick and Moore avoid the question of exactly what type of constitutional standard they envision - apparently some sort of gag rule - and exactly how this standard ought to be implemented or enforced. At least four possibilities exist. First, the authors might simply be noting that the Religious Right will never fully realize its agenda, for once in office the Constitution will limit its ability to appropriate the apparatus of government in the explicit service of religious ends, in which case no novel line-drawing or implementation problems would arise. See supra note 79 and accompanying text. Second, the authors might ultimately be proposing that our historical experiences and unwritten constitutionalism strongly indicate that religious correctness will always fail in the end, virtually as a matter of historical determinism, in which case the necessary lines have already been drawn and fate will be our enforcer. Some of the authors' remarks reflect this view - e.g., "The godless Constitution has persisted. It did not die ...." Kramnick & Moore, supra note 4, at 143 - but the notion of determinism is dubious and, in all events, there would presumably have been no need for the authors to have written a book. Third, the authors might be suggesting that religious political participants ought to be constrained by external means, in which case line-drawing would be a problem and some type of enforcer - some type of public square police - would actually have to be commissioned. Finally, the authors might be proposing that such participants restrain themselves in deference to the godless Constitution, in which case line-drawing would also be a problem but the enforcement would be through self-imposed gag rules.

92 Id. at 175-76. Apparently, religious political participants really tread on forbidden soil when such divine invocations are made on behalf of economically or socially conservative positions, as "apologies for wealth." Id. at 161; see also id. at 164-65 ("The religious right...runs the grave risk of creating opposition to organized Christianity not because of its brave stands taken to defend the oppressed of the earth but because of its pragmatic crusades to protect the self-interest of the white middle class. The white middle class has plenty of means to defend its political interests. It does not need the churches to act as its political lobby.").

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My stance is congruent with the values of love and charity, as found in the Western moral tradition, based in part on the teachings of Christ.

My stance is congruent with the values of love and charity.

My stance is congruent with traditional values.

My stance is congruent with family values.

Is it readily apparent which of these relatively simple statements suffers from religious correctness, and, more importantly, where one should draw the line between constitutionally permissible and impermissible political speech? In fact, all of them could be construed as invocations of divine sanction, especially if uttered in a certain context - say, a political rally at a church - and especially if each one also included a statement to the effect that one's opponent represented a contrary position. In turn, if one truly believed that invocations of divine sanction were, as the authors suggest, forbidden by the Constitution, then what principled basis would one have for not excluding them all from our political discourse? Perhaps there is such a basis, and it is simply not obvious from the exposition of their thesis. Or, perhaps, the reality is that religious correctness is not discernible in coherent terms, but is instead more like obscenity, determined by a conclusory declaration that "I know it when I see it." 93

Kramnick and Moore's distinction is also meaningless insofar as all religious people, like all nonreligious people, who cast a vote or back a candidate or support a political cause act because they believe their position to be the most correct. That some participants concurrently recognize the possibility of error or the prospect of co-truthful positions may set them apart by definition from the fundamentalist, but when the polls open or the political conventions convene - when it comes time actually to determine public policy and to make law - they necessarily proceed as if their position were correct. In other words, implicit in the political actions of most if not all religious people is a belief that one's position is the most congruent, as far as one can discern, with religious truth. To many, in fact, this is one's religious obligation. Whether or not one actually articulates this predicate belief - whether or not one actually announces that one's stance is the most accurate Christian position, for example - thus provides a largely meaningless distinction for the purpose of political participation. At best, it is a cosmetic distinction, which quite bluntly seems more like an [*1012] establishment of political correctness than a genuine elimination of religious correctness. 94

Kramnick and Moore do ultimately acknowledge, as they must, the unlikelihood that "there is a fully consistent way to implement the position [they] defend" and that "any position with respect to the question of religion and politics in the United States should remain supple and negotiable." 95 Yet, the confidence and certainty with which the authors actually propound their thesis, and the tenacity with which they cling to their distinction between permissible and impermissible religious expression, fundamentally belie this apparent acknowledgment of indeterminacy. To be sure, it is more than a bit ironic that, despite Kramnick and Moore's plea for suppleness and negotiability, they themselves devote much of their book to a merciless critique of the Religious Right, unflinchingly invoking black-

93 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (articulating this sentiment in the context of determining whether or not particular expression is constitutionally obscene). For a recent and helpful discussion of the significance of Justice Stewart's passage in Jacobellis, see Paul Gewirtz, On "I Know It When I See It," 105 Yale L.J. 1023 (1996).

94 A harder question may be whether there is something intrinsically inaccessible about religious claims vis-a-vis other claims. See, e.g., Abner S. Greene, The Political Balance of the Religion Clauses, 102 Yale L.J. 1611, 1619-23 (1993) (arguing that religious references in the legislative process, to the extent they invoke an inaccessible source of normative authority, are uniquely problematic). That is not Kramnick and Moore's thesis, however, and is most assuredly beyond the scope of this Review.

95 Kramnick & Moore, supra note 4, at 168.

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and-white rules of what is proper and improper in the public square, all based on a somewhat questionable interpretation of the Constitution. 96

Neither the irony nor the dissonance of The Godless Constitution is confined, however, only to the book's minor points. Indeed, Kramnick and Moore's model of proper religious participation is not irredeemably problematic merely because it conflicts with positive constitutional law or rests on a logically troubling distinction. To some extent, these shortcomings can likely be mitigated. The real problem, in the end, is that the authors' thesis is inherently self- contradictory. If our Constitution is truly godless and our constitutional order truly secular - if the Framers in fact "drafted a secular document that made the operation of government indifferent to religion" 97 and "crafted a constitutional order that intended to make a person's religious convictions...irrelevant in judging the value of his political opinion" 98 - then the last thing one would anticipate is that the Constitution itself should dictate the relative propriety of religiously informed political opinions, let alone embrace a vision of what does and does not constitute a legitimate stance for religious participants to take on specific issues. A godless Constitution may not favor religious correctness in the form of divine invocations, as Kramnick and Moore propose, but it surely does not favor religious correctness in the form of dictating the positions and the expression of religious political participants.

Yet this is precisely the thrust of the authors' normative proposal. Not only do they interpret the godless Constitution as placing limits on religious political expression - no invocations of divine sanction, for example - but they actually argue that the Constitution essentially embraces a [*1013] vision of proper religion and improper religion. Proper religion, if you recall, is that which makes people uncomfortable in its quest to aid the poor and downtrodden; improper religion, by comparison, is that which merely defends the socioeconomic status quo, "protecting the self-interest of the white middle class." 99 The authors even go so far as to suggest that the Constitution envisions a particular exegetical or hermeneutical view of religious (especially Christian) doctrine and scripture. One of the principal reasons they find invocations of divine sanction so problematic, in fact, is because the apparent indeterminacy of scripture means that no single position can be labeled "Christian" to the exclusion of others. 100 This, they suggest, may even be "the heart of the offense to American politics presented by politicians who claim to know what God wants." 101 When all is said and done, then, Kramnick and Moore's "godless" Constitution would appear to have quite a bit to say about religion after all - about its manifestation in politics, about the positions its adherents take on particular issues, and even about the interpretation of its sacred texts - matters to which an authentically godless Constitution should ultimately be indifferent.

96 The authors do not exclusively target the Religious Right, noting that "what is conventionally labeled the religious right is not the sole contemporary manifestation of religious correctness." Id. at 167. But they acknowledge that they "have treated people associated with the Christian Coalition as principal opponents." Id.

97 Id. at 176.

98 Id. at 23.

99 Id. at 164; see also id. at 130 ("A witness for Christ is intended to affect people's conscience, not to energize political sloganeering."); id. at 155 ("Faith, to be blunt, is irrelevant to many of the political causes that [Pat] Robertson has forcefully championed.").

100 See supra text accompanying note 60; see also Kramnick & Moore, supra note 4, at 164 (asserting that Patrick Buchanan's position on homosexuality "cannot be taken seriously even on its own terms" because "Christians cannot agree about what the Bible says, indeed have never agreed").

101 Id. at 164. The authors continue:

People who belong to America's major religious traditions hold different views on social policies, and wherever there is something approaching a moral consensus it is one shared by all people of good will. You don't have to be a theist to condemn murder and to love your children. And to be a Christian does not commit you to the view that abortion is murder and that Hillary Clinton is a bitch.

Id. Theirs is an interesting view on Christian ethics and ecumenicism, but the implication (given the thesis of the book) that this view is somehow imbedded in our unwritten Constitution is frankly rather bizarre.

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Kramnick and Moore's constitutional theory is thus untenable, whether as a matter of positive constitutional law, logical coherence and administrability, or mere internal consistency. This does not mean, of course, that the Religious Right has committed no transgressions. To be sure, its brand of political participation may often be deemed impolite and even imprudent; at some points, intolerant and exclusionary. As such, it may very well violate free-standing principles of liberal democracy, 102 defy [*1014] principles of political prudence, 103 threaten social cohesion, 104 and offend the theology of the participants. 105 But standing alone these are not cognizable sins against the Constitution, godless or otherwise. Indeed, there may even be a certain silliness and arrogance in articulating the view that God subscribes to one's political ticket, but - lest the business of government itself come to a halt - silliness and arrogance are not, and have never been, constitutional offenses. 106

Rather, the Constitution relegates the fate of religious correctness to the political sphere and to the operation of the representative political processes, subject to various substantive and structural principles of the written Constitution and to the collective prudence of the participants. Within this sphere, it may very well be that religion best serves the political and social order by its antagonism or resistance - by "making people uncomfortable," 107 as Kramnick and Moore describe it. 108 Whether or not this is the case, the First Amendment secures the right to fulfill this

102 There is a rich and robust literature on this question that Kramnick and Moore, somewhat surprisingly, do not engage. See, e.g., Greenawalt, supra note 83; Kent Greenawalt, Religious Convictions and Political Choice (1988) [hereinafter Greenawalt, Religious Convictions]; Michael J. Perry, Love and Power: The Role of Religion and Morality in American Politics (1991); John Rawls, Political Liberalism (1993); Robert Audi, The Separation of Church and State and the Obligations of Citizenship, 18 Phil. & Pub. Aff. 259 (1989); Sanford Levinson, Religious Language and the Public Square, 105 Harv. L. Rev. 2061 (1992) (reviewing Perry, supra); Sullivan, supra note 43; Symposium, The Role of Religion in Public Debate in a Liberal Society, 30 San Diego L. Rev. 643 (1993). Recent or forthcoming works of note include Michael J. Perry, Religion in Politics: Constitutional and Moral Perspectives (forthcoming 1997), and Ronald F. Thiemann, Religion in Public Life: A Dilemma for Democracy (1996).

103 See, e.g., Mark Tushnet, The Limits of the Involvement of Religion in the Body Politic, in The Role of Religion in the Making of Public Policy, supra note 30, at 191 (concluding that the principal limitation on overt religious argumentation in the public sphere is prudence, and critiquing the liberal democratic theories of Kent Greenawalt and Robert Audi); The Williamsburg Charter, in Articles of Faith, Articles of Peace, supra note 34, at 127, 143 (urging, in the name of prudence and civility, that religious political participants not "bring to politics a misplaced absoluteness that idolizes politics, "Satanizes' their enemies and politicizes their own faith"); see also Richard P. McBrien, Caesar's Coin: Religion and Politics in America 168 (1987) ("Exclusive appeals to the Bible or to the teaching authority of the Catholic Church are the weakest forms of public argument in a religiously pluralist society. They are not even completely effective, as public opinion surveys demonstrate, when directed toward members of one's own religious community.").

104 See Stephen Holmes, Gag Rules or the Politics of Omission, in Constitutionalism and Democracy 19 (Jon Elster & Rune Slagstad eds., 1988) (addressing the functions and propriety of gag rules in political and legal discourse, with particular attention to religious matters).

105 See, e.g., Thomas C. Berg, Church-State Relations and the Social Ethics of Reinhold Neibuhr, 73 N.C. L. Rev. 1567 (1995) (setting forth Reinhold Neibuhr's view towards religious political participation, which welcomes such participation but imposes on the participants an obligation of humility derived in part from religious doctrine itself).

106 The silliness doctrine, at least as applied to governmental conduct, occupies a distinct niche in our constitutional jurisprudence. See, e.g., Hottinger v. Pope County, Ark., 971 F.2d 127, 129 (8th Cir. 1992) (concluding that a municipal grooming policy "may be mistaken or even silly, but it doesn't violate the Fourteenth Amendment"); Hart Book Stores v. Edmisten, 612 F.2d 821, 835 (4th Cir. 1979) (citation omitted) (noting that the "concern is not...with questions of the practical ineptitude of legislation nor even with the possibility of its sheer silliness or asininity in a social or philosophical sense, but with whether it violates specific rights secured by the Constitution"), cert. denied, 447 U.S. 929 (1980). In 1965, Justice Stewart apparently announced the doctrine's high-water mark, proposing that even "uncommonly silly" laws may still be constitutional. Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). That Justice Stewart was writing in dissent, however, leaves the actual breadth of the doctrine uncertain.

107 Kramnick & Moore, supra note 4, at 162.

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function. 109 It may also be, within this sphere, that certain religious influences [*1015] are likely to be more useful or compatible than others. 110 If so, the less useful or less compatible will necessarily dwindle, for the Constitution guarantees no right to political success. 111 And as for the religious influences that do shape legislation or other legal decisions, so be it; the First Amendment mandates only that such laws, once enacted, reflect something more than unmediated theological doctrine or religious favoritism. These, in the end, are the Constitution's ground rules for religious involvement in law and politics. There is simply no constitutional bar on religious correctness. 112

Having stated the ground rules, can it be confidently said that religious correctness has in fact been controlled by the operation of the representative political processes? The answer - as Kramnick and Moore themselves recount - is yes. The authors conclude that "over the long years of American history the party of religious correctness has lost most of the major wars." 113 Yet the godless Constitution was vindicated in such instances not because the immoderate religious participants were told to curb their speech, but because the other participants and their representatives ultimately did not buy their wares. From this perspective, Kramnick and Moore's own illustrations of the periodic rise and fall of religious correctness are really their undoing. In turn, their modern-day attempt to constitutionalize the putative sins of the Religious Right - to bring the judgment of Roger Williams and the Framers upon politically opportunistic religious conservatives - is not only unwarranted in terms of constitutional theory, as demonstrated above, but is also unwarranted in terms of our national experience over the last two centuries.

III. The Normative Thesis Revisited: An Inquiry into the Significance of ConstitutionalChange

Without diminishing the importance of the foregoing critique, there is, I believe, an even deeper issue at stake today in the relationship between the meaning of a godless Constitution and the propriety of immoderate religious political participation. The issue, put simply, is whether the Constitution can still be considered godless in light of the present state of constitutional interpretation. This Part addresses that issue and its obvious relationship to the viability of Kramnick and Moore's normative thesis. [*1016]

108 See, e.g., Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion 36-41 (1993) (proposing that religions serve as autonomous intermediate institutions that empower their adherents to challenge the state); Marci A. Hamilton, The First Amendment's Challenge Function and the Confusion in the Supreme Court's Contemporary Free Exercise Jurisprudence, 29 Ga. L. Rev. 81, 93-94 (1994) (similar).

109 In fact, it is arguably the case that the Religious Right, despite its excesses, has fulfilled this function. See Robert Wuthnow, The Religious Right and Symbolic Politics, in The Role of Religion in the Making of Public Policy, supra note 30, at 81, 88 (concluding that the Religious Right, to its credit, has enhanced the awareness of the public, its representatives, and the media to a number of issues).

110 See, e.g., Daniel O. Conkle, Different Religions, Different Politics: Evaluating the Role of Competing Religious Traditions in American Politics and Law, 10 J.L. & Religion 1 (1994).

111 Cf. Evans v. Romer, 882 P.2d 1335, 1343 (Colo. 1994) (en banc) ("The United States Supreme Court has repeatedly held that the individual's right to profess or practice certain moral or religious beliefs does not entail a right to have government itself reinforce or follow those beliefs or practices."), aff'd on other grounds, 1996 WL 262293 (U.S. May 20, 1996).

112 Nor is there a constitutional bar on economic correctness, even though the Framers plainly favored certain economic arrangements over others, see Kramnick & Moore, supra note 4, at 84-87 (discussing "the triumph of economic laissez-faire"), nor on political-philosophical correctness, even though the Framers plainly favored certain governmental arrangements over others, see U.S. Const. arts. I-IV. In short, while there is great wisdom in much of the Framers' thinking, there is little to recommend the idea that the Framers' specific preferences should foreclose entire avenues of reasoning about the Constitution, whether the subject is religion, economics, or governance.

113 Kramnick & Moore, supra note 4, at 14. The authors then add: "It lost because it was wrong, not because Americans despise religion." Id.

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It should be clear, from all that has been said so far, that their theory is essentially rooted in original intent or original understanding. Such interpretive theories are, of course, presumptively subject to a now-familiar litany of vulnerabilities. 114 Many of these relate to the actual discernment of the intent; others center on foundational questions such as constitutional legitimacy or fidelity. 115 Kramnick and Moore's invocation of original intent, I contend, is problematic for quite a different reason: the very enterprise of constitutional interpretation - the process by which the meaning of our Constitution is discerned - has in recent decades undergone a significant methodological transformation that directly bears upon the legitimacy of the Religious Right and thus the contemporary relevance of Kramnick and Moore's constitutional theory.

Specifically, my thesis is this: if constitutional godlessness means anything, it is that the Constitution, absent plain indication to the contrary, does not privilege a particular moral-religious code and does not purport to answer questions that require reference to such a code; 116 that certain of the Supreme Court's interpretations of the Constitution, paradigmatically its decision in Roe v. Wade, 117 have adjudged such questions, thereby necessitating such reference; and that, as a consequence, the Court has effectively abrogated the godlessness of our Constitution - it has undone the Framers' handiwork so admired by Kramnick and Moore - and in so doing has essentially reopened the matter of the moral-religious foundations of our constitutional order. In turn, the Religious Right's political efforts, including its attempt to flood the political arena with religious dogma, may not only be constitutionally permitted but constitutionally warranted, even if Kramnick and Moore's normative claims are otherwise accepted at face value.

This is a controversial thesis, to be sure, and it may be useful at the outset to offer two qualifying remarks. First, though not lacking independent significance, this thesis is most significant to the extent one believes, along with Kramnick and Moore, that we do or should have a godless Con- [*1017] stitution. In essence it asks what such a commitment fully entails, and whether our current state of constitutional interpretation is genuinely congruent with that commitment. Second, though it necessarily challenges the legitimacy of Roe, its own validity should not hinge on one's view of abortion or of a right to abortion. Roe is a methodologically disastrous opinion; to deny this is to deny the fundamental framework of American constitutionalism and the basic principles legitimating judicial review. The thesis propounded here merely asks that we confront the possibility that Roe changed the rules of constitutional interpretation in a way that materially altered the place of hard-core religious advocacy in our political order. It asks, in short, whether Roe v. Wade unilaterally undermined the godless Constitution, and, if so, where the Religious Right and like political participants stand today. With these points in mind, let us turn to an exposition of the thesis, beginning with the Roe decision.

114 See generally Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781 (1983).

115 For the latest round of academic debate, see Symposium, Originalism, Democracy, and the Constitution, 19 Harv. J.L. & Pub. Pol'y 237 (1996) (containing several articles addressing the theoretical, conceptual, and practical difficulties inherent in much originalism).

116 This seems to be congruent with Kramnick and Moore's broad depiction of Locke's liberal social theory, which the Framers embraced. See, e.g., Kramnick & Moore, supra note 4, at 73 (noting that, under liberal Lockean theory, "no longer does government defend and propagate moral and religious truths"). The authors, in response, would likely draw a distinction between the minimum moral determinations that the liberal state must make in order to maintain civil order - e.g., a general prohibition against homicide - and the type of determination at work in Roe v. Wade, such as whether a fetus is a rights-bearer within the constitutional order. Any such distinction in the case of abortion, however, presupposes some moral status of the fetus, and surely there is nothing minimalist or laissez-faire about that. See Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy 100-03 (1996) (noting that a minimalist form of liberalism is not capable of resolving the question of fetal personhood, and that the Court in Roe, despite what it claimed, "did not replace Texas' theory of life with a neutral stance, but with a different theory of its own").

117 410 U.S. 113 (1973).

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Roe v. Wade was clearly significant from a substantive vantage point, holding, as it did, that the acts of procuring and performing abortions are substantially protected by the Constitution. Much of the real significance of Roe, however, was methodological. Stated simply, it fundamentally changed the rules of the game.

Prior to Roe, two principles - both grounded in the constitutional primacy of representative democratic lawmaking and the institutional limitations of judicial review - seemed beyond serious question. First, if a court, exercising the power of constitutional review, finds it necessary to invalidate a product of a formally representative democratic process, then the decision it renders must be readily justifiable in terms of conventional constitutional authority - original intent or understanding, a plausible reading of constitutional text, the Supreme Court's body of precedent, the history and traditions of the people, extant social moral consensus, or, perhaps, consensus within relevant professions such as medicine, philosophy, or theology. 118 Second, if a court, exercising the power of constitutional review, finds it necessary to invalidate a product of a formally representative democratic process, then the decision it renders should maximize, as far as is realistic, the remaining possibility of deliberation and acceptable resolution of the issue through the representative democratic process itself, especially when the constitutional basis for invalidation had been heretofore unannounced. 119 One might also add a corollary third

118 When called upon to construe and apply a provision of the Constitution of the United States, we must look not merely to its language but to its historical origin, and to those decisions of this court in which its meaning and the scope of its operation have received deliberate consideration." Missouri v. Illinois, 180 U.S. 208, 219 (1901); see also Palmer v. Thompson, 403 U.S. 217, 226 (1971) (looking to history, text, and precedent); Dimick v. Schiedt, 293 U.S. 474, 490-91 (1935) (looking to history and text); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413-15 (1819) (looking to text, structure, and original intent and usage).

119 This is merely a corollary, governing the decisional stage, to related prudential principles that govern the antecedent jurisdictional and adjudicatory functions of the federal courts. At the jurisdictional stage, for example, the Supreme Court has long held that federal courts should abstain from the exercise of their jurisdiction where the necessity of deciding a federal constitutional question hinges on the resolution of a difficult and unsettled question of state law. See Harman v. Forssenius, 380 U.S. 528, 534-35 (1965); Railroad Comm'n v. Pullman Co., 312 U.S. 496, 501 (1941); Martha A. Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. Pa. L. Rev. 1071 (1974). Such abstention is necessary "in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication." Harman, 380 U.S. at 534. Likewise, at the adjudicatory stage, the Court has long held that "constitutional issues affecting legislation will not be determined in friendly, nonadversary proceedings; in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be applied; if the record presents some other ground upon which the case may be disposed of; at the instance of one who fails to show that he is injured by the statute's operation, or who has availed himself of its benefits; or if a construction of the statute is fairly possible by which the question may be avoided." Rescue Army v. Municipal Court of L.A., 331 U.S. 549, 569 (1947) (citing Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring)); see Lisa A. Kloppenberg, Avoiding Constitutional Questions, 35 B.C. L. Rev. 1003 (1994). Applying these antecedent doctrines to the decisional stage thus yields the doctrine stated here: where jurisdiction may not be declined and where a constitutional question must be adjudicated, the resulting decision should disturb the extant legal landscape as little as possible and leave the resolution of the matter as much as possible to the relevant nonjudicial decisionmaker, especially the representative political processes. Cf. Ashwander, 297 U.S. at 347 (Brandeis, J., concurring) ("The Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'") (quoting Liverpool, N.Y. & Phila. S.S. Co. v. Emigration Comm'rs, 113 U.S. 33, 39 (1885)).

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principle: when [*1018] the issue at stake is highly controversial, and especially when the controversy corresponds to deeply held moral positions, the need to adhere to the above two principles is most acute. 120

In Roe v. Wade, the Court saw fit to disregard both foundational principles, a feat which is all the more extraordinary given that Roe clearly implicated the corollary third principle's mandate that their adherence be maximized. As for the need for conventional constitutional authority, the decision is simply inadequate. 121 As others have noted, Justice Blackmun's opinion is largely indefensible in terms of precedent, 122 text, 123 original understanding, 124 tradition, 125 and consistency with either public senti- [*1019] ment 126 or relevant professional opinion, 127 let alone in terms of internal logic, 128 doctrinal adequacy, 129 and overall congruence

120 The basis for this third principle can essentially be found in the Court's explanation for the related adjudicatory limitation on addressing constitutional questions, discussed supra note 119. "The policy's ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system." Rescue Army, 331 U.S. at 571-72.

121 See John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 947 (1973) (Roe v. Wade is "a very bad decision...because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.").

122 See Philip Bobbitt, Constitutional Fate: A Theory of the Constitution 159 (1982) (concluding that the opinion in Roe is "a doctrinal fiasco" because "the two principal propositions on which it rests are neither derived from precedent nor elaborated from larger policies that may be thought to underly [sic] such precedent"); Richard A. Epstein, Substantive Due Process By Any Other Name: The Abortion Cases, 1973 Sup. Ct. Rev. 159, 170 ("It is difficult to see how the concept of privacy linked the cases cited by the Court, much less to explain the result in the abortion cases."). To be sure, the Court had upheld a similar statute against a vagueness challenge less than two years before Roe. See United States v. Vuitch, 402 U.S. 62, 68-73 (1971) (holding that a District of Columbia criminal abortion statute was not unconstitutionally vague, though expressly not addressing the issue of substantive due process).

123 See Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480, 480 (1990) (footnote omitted) ("Roe v. Wade is an unpersuasive opinion, and the root of its unpersuasiveness is the Supreme Court's failure to ground its decision, that abortion is a fundamental right, in the text of the Constitution.").

124 See Roe, 410 U.S. at 174 (Rehnquist, J., dissenting) (citation omitted) ("The fact that a majority of the States...have had restrictions on abortions for at least a century is a strong indication...that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental.'"); Ely, supra note 121, at 927-28 (footnote omitted) ("The Court in Roe suggests an inference of neither sort - from the intent of the framers, or from the governmental system contemplated by the Constitution - in support of the constitutional right to an abortion.").

125 See Roe, 410 U.S. at 177 (Rehnquist, J., dissenting) ("There apparently was no question concerning the validity of...[then- existing state abortion laws] when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.").

126 See Lynn D. Wardle, "Time Enough": Webster v. Reproductive Health Services and the Prudent Pace of Justice, 41 Fla. L. Rev. 881, 941-42 (1989) (footnote omitted) ("The consensus in public opinion surveys, over time and over the broad range of polls, reveals that the American people do not support the Roe abortion privacy doctrine of unrestricted (for any reason) previability abortion. Indeed, the polls reveal a national consensus against deregulation of previability abortion and against "private choice' abortion, except in the three hard cases.").

127 See Roe, 410 U.S. at 159 (noting specifically in relation to "the difficult question of when life begins" that "those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus").

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with the extant constitutional order. 130 And while the substance of Roe may well be retrospectively justifiable by resort to relatively sophisticated theories of constitutional justice, 131 that prospect is basically irrelevant to an assessment of Justice Blackmun's opinion. For the Court itself relied on no such theory, but instead put to one side the conventional modes of constitutional justifi- [*1020] cation, resting its decision instead upon fundamental ethical determinations about the nature of human life and human liberty. 132

As for the second principle - that of maximizing the resolutional potential of the representative democratic processes - here, too, the Roe decision would appear to be quite deviant. As now-Justice Ginsburg observes,

Roe v. Wade...invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators' court. In 1973, when Roe issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures "toward liberalization of abortion statutes." 133

128 See Christopher L. Eisgruber, The Fourteenth Amendment's Constitution, 69 S. Cal. L. Rev. 47, 95-96 (1995) (footnotes omitted) ("The flaws in Justice Blackmun's opinion are legion and familiar: the largely irrelevant survey of abortion's history in the western world; the waffling indecision about the abortion right's textual foundation; the dismissive refusal to discuss whether the state might have an interest in fetal life from the moment of conception; the focus upon the doctor's interests; the failure adequately to describe the woman's interests; and, finally, the flat prescription of a complex, quasi-statutory regulatory framework, including a blatantly circular justification for making viability the point at which the state acquired an interest in fetal life."); Ely, supra note 121 (noting generally the logical shortcomings and inconsistency of the decision).

129 See Ely, supra note 121, at 922 (footnote omitted) (noting that "confusing signals are emitted, particularly with respect to the nature of the doctor's responsibilities and the permissible scope of health regulations after the first trimester"); id. at 924 (questioning the viability standard); Epstein, supra note 122, at 180-84 (criticizing the trimester analysis).

130 See Geoffrey C. Hazard, Jr., Rising Above Principle, 135 U. Pa. L. Rev. 153, 166 (1986) ("Roe is justly subject to criticism on grounds of legitimacy not just because it went beyond precedent, but because it can fairly be said that it went too far beyond precedent. Roe tried to effectuate through the medium of a single judicial decision a greater change in the law than is permitted under our constitutional system."); see also Robert A. Burt, The Constitution of the Family, 1979 Sup. Ct. Rev. 329, 373 (noting the unjustifiability of the Roe decision when viewed in social and political context). Nor is Roe defensible in terms of the principles of representative democracy. While it was then true (and is still substantially true) that "compared with men, very few women sit in our legislatures," it was also then true (and is still true) that "no fetuses sit in our legislatures." Ely, supra note 121, at 933.

131 See, e.g., Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 154-68 (1993) (arguing that the freedom to choose or not to choose an abortion implicates religious freedom); Sheldon Gelman, "Life" and "Liberty": Their Original Meaning, Historical Antecedents, and Current Significance in the Debate Over Abortion Rights, 78 Minn. L. Rev. 585 (1994) (arguing that an abortion right is constitutionally defensible under Lockean theory); Koppelman, supra note 123 (arguing that prohibitions on abortion subject women to involuntary servitude in violation of the Thirteenth Amendment); Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 955, 1016-28 (1984) (proposing a sex-based equality analysis of abortion laws). For a more comprehensive constitutional theory with significant implications for the question of the abortion right, see James E. Fleming, Securing Deliberative Autonomy, 48 Stan. L. Rev. 1 (1995); James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211 (1993).

132 See Michael J. Perry, Morality, Politics, and Law 175 (1988):

I strongly doubt that sensitive application of the constitutional principle of due process can support the conclusion that a state may not outlaw previability abortions of any sort. Such a conclusion seems to me to require a premise - that the protection of fetal life is not a good of sufficient importance - obviously not entailed by that principle. Moreover, because the issue the premise addresses - the value of fetal life - is so widely contested in American society, and, further, because the issue is one as to which people of good will and high intelligence (among others) seem irresolvably to disagree, it is not at all clear that the premise is an appropriate basis for constitutional judgment. To the contrary, reliance on the premise as a basis for constitutional judgment seems plainly imperial.

To note that conventional constitutional authority did not support the Roe decision is not to repudiate the concept of a constitutional right to privacy or of unenumerated rights in general; it is merely to point out that not even that concept, let alone more immediate forms of authority, satisfactorily undergirded Justice Blackmun's opinion. See Ely, supra note 121, at 927-33.

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In other words, "by making such an extensive change, the Court foreclosed the usual opportunities for assimilation, feedback, modification, and possible retreat - opportunities that are afforded in a decisional process involving shorter and more cautious doctrinal steps." 134 Moreover, because the constitutional rationale for Roe - a privacy- based right to abortion - had not, except in the broadest of terms, been previously articulated by the Court, 135 its choice to forsake the representative political processes through the suddenness and scope of its decision was all the less warranted and all the more indefensible. 136

From the general perspective of constitutional legitimacy, these departures from settled principles were, and remain, quite serious. Anyone committed to the fundamentals of American constitutionalism cannot help but find the Court's methodology deeply unsettling. In relation to the Religious Right, however, there is additional two-fold significance to the Roe decision. First, the result of Roe itself - now manifested as constitutional [*1021] law - literally spawned the contemporary right-to-life movement. 137 As Stephen Carter notes:

For many religious conservatives, Roe was like a cold shower. All at once, the nascent pro-life movement...exploded into the national prominence. The very same Christian fundamentalists who had preached for decades that their followers should ignore the secular world, and perhaps not even vote, looked around and decided that the secular world was on the verge of destroying the tight religious cocoons in which they had bound their communities. 138

More specifically, Roe's elevation of abortion to a constitutional plane, and its effective preclusion of most serious state legislative deliberation, more or less ensured that abortion would become a national issue and that abortion- related activism, whether for or against, would become nationalized in both its organization and its efforts. That this constitutionalization entailed the creation of an abortion right, near absolute for at least the first trimester, only further ensured that this national debate would be polarized and that many of the participants would assume inflexible stances. 139

133 Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1205 (1992) (footnote omitted) (quoting Roe, 410 U.S. at 140). But see Laurence H. Tribe, Abortion: The Clash of Absolutes 49-51 (new paperback ed. 1992) (challenging the liberalization thesis).

134 Hazard, supra note 130, at 166; see also Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 379-82 (1985) (addressing the legal and political consequences of Roe at the state legislative level). For a different perspective, see Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577, 658-68 (1993) (arguing that Roe brought about significant public debate that included meaningful participation by state legislatures).

135 See supra note 122 and accompanying text (noting the lack of precedent and that the Court had upheld a similar statute just two terms prior to Roe).

136 Professor Ely observes that "[a] plausible narrower basis of decision, that of vagueness, is brushed aside in the rush toward broader ground." Ely, supra note 121, at 922.

137 See Tribe, supra note 133, at 16 ("The main consequence of the decision in Roe...was to galvanize a right-to-life movement that had...predated Roe in nascent form but that gained cohesion largely by virtue of the Supreme Court's ruling."); Garry Wills, Under God: Religion and American Politics 320-24 (1990) (tracing the intellectual roots of the modern evangelical-fundamentalist pro-life movement, and in turn the Religious Right itself, to the work of Francis Schaeffer in response to the Roe decision); Elizabeth Mensch & Alan Freeman, The Politics of Virtue: Animals, Theology and Abortion, 25 Ga. L. Rev. 923, 1118-20 (1991) (describing the emergence of an organized pro-life movement).

138 Carter, supra note 108, at 58 (footnote omitted). Professor Carter views Roe as causing a shift of a different (though related) sort, namely, the decline in acceptability of religious political participation altogether. See id. at 57-66.

139 See Mensch & Freeman, supra note 137, at 932 ("The effect of Roe's "rights' formulation of the issue was to render that process of moral dialogue abruptly irrelevant for law-making purposes… People troubled by the moral/religious implications of abortion as an absolute right even throughout the second trimester (which at the time was not viewed as moral compromise) became hardened absolutists in their opposition to all abortion - compromise became more, not less, unthinkable."); see also Holmes, supra note 104, at 52 (describing this interpretation).

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It is, in fact, within this milieu of nationalized and polarized moral debate that the Religious Right, as we recognize it today, essentially came of age. 140 Indeed, while it would be incorrect to attribute the modern ascendancy of the Religious Right, like any political movement, to only one or two factors, 141 few will deny that the issue of abortion has been central to that ascendancy. This was certainly the view from within the movement, 142 [*1022] and many observers have corroborated this account. 143 Thus the initial and practical significance of Roe in relation to the Religious Right was one of galvanization, and specifically the creation of certain conditions that induced many religious conservatives, who otherwise tended to abstain from politics, to enter into a nationalized and polarized controversy over a specific moral issue.

Of course, this account is merely an explanation; it neither subjectively nor objectively legitimizes the Religious Right's chosen political path, particularly its injection of religious dogma or religious correctness into contemporary law and politics. After all, had the Constitution itself specifically offered no protection to the human fetus (e.g., by a clear textual declaration), then Roe's articulation to that effect would presumably not have been constitutionally controversial, or at least not constitutionally illegitimate, even if morally repugnant to some members of the political community. To be sure, it is the Court's concomitant disregard for conventional constitutional authority (embodied in the first principle stated above), especially given the gravity of the moral issues at stake, that completes the significance of the Roe decision.

Specifically, my contention is that the methodological shift occasioned by Roe - especially the Court's apparent substantial reliance on extraconstitutional sources of moral authority - effectively initiated a debate about the fundamental normative foundations and commitments of American constitutional law. More precisely, it reopened such a debate, at least insofar as such matters have been exactly the sort that necessitate ratification under Article V or, in the case of the framing itself, a full-blown constitu-

tional convention. Roe v. Wade was, after all, no ordinary decision. Among

other things, it called for a determination of whether or not the human

fetus is a person, a rights-bearer, under our Constitution. 144 Whatever

else it may be, this is a foundational moral determination that, if not

in fact irreducibly religious in nature, 145 absolutely cannot be made with-

140 See Mensch & Freeman, supra note 137, at 932 ("So long as Roe seemed securely in place, that absolutism too easily took on the character of moral "high-ground,' at no political cost. Undeniably, that phenomenon helped mobilize religious support for Reagan and the "new right' generally.").

141 For a relatively comprehensive quantitative analysis of the many possible factors, see Jelen, supra note 30; see also The New Christian Right: Mobilization and Legitimation (Robert C. Liebman & Robert Wuthnow eds., 1983).

142 Along with school prayer, the issue of abortion - and in particular, the Roe decision - was regularly cited as the top priority of the early mobilization of religious conservatives in the late 1970s. Matthew C. Moen, The Christian Right and Congress 12 (1989). Professor Moen further notes, however, that "the reason that those particular issues were singled out among the others by interviewees is not entirely clear." Id. Moen himself rejects a strong causal relationship between either issue and the rise of the Christian Right. See id. at 13.

143 Tribe, supra note 133, at 147 ("By 1976 opposition to abortion was on its way to becoming a main vehicle for the rise in political influence of Protestant fundamentalism in the United States."); see also James Davison Hunter, American Evangelicalism: Conservative Religion and the Quandary of Modernity 103 (1983) (discussing the reaction to Roe by the American religious community). The dynamics of the causal relationship are, of course, another matter. Professors Mensch and Freeman, for example, suggest that the pro-life movement, or at least its rhetoric, "was exploited by a manipulated Republican right wing." Mensch & Freeman, supra note 137, at 1119. For a more complete analysis of the political dynamics, see Bruce Nesmith, The New Republican Coalition: The Reagan Campaign and White Evangelicals (1994).

144 See Epstein, supra note 122, at 172-80 (addressing the importance of this inquiry).

145 See, e.g., Dworkin, supra note 131, at 15, 154-57 (arguing that such a determination, being a judgment about the intrinsic value of human life, is inherently religious, though then reasoning that this status restricts the government's legislative

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[*1023] out substantial resort to an ethical system located outside the Constitution

itself. 146

Yet, one would think that a godless Constitution, let alone a written godless Constitution, would not permit its interpreters to make such determinations under its authority, especially without any corresponding conventional basis in text, original understanding, intent, tradition, and the like. 147 Instead, one would think that matters of this sort, addressing foundational ethical questions by reference to extraconstitutional normative authority, would be deemed essentially noncognizable or nonjusticiable - and, as a consequence, in most instances would be left to the representative political processes. 148 Nonjusticiability in this sense is not so much a struc- [*1024] tural limitation

prerogative); David W. Louisell, Does the Constitution Require a Purely Secular Society?, 26 Cath. U. L. Rev. 20, 27 (1976) (concluding that "the Court, under the pretext of disclaiming theological approaches, has fallen into a subjective theologism of its own replacing the historic and venerable theologies of the Western traditions" and that "the Court indulged not only in the abjured speculation [as to when human life begins], but in dogmatic value judgments of its own"); Tom Stacy, Death, Privacy, and the Free Exercise of Religion, 77 Cornell L. Rev. 490, 563 & n.263 (1992) (citing a variety of authorities arguing that it is, at least in part, a religious determination). Cf. generally Michael J. Perry, The Idea of Human Rights: Is the Idea of Human Rights Ineliminably Religious?, in Problems and Conflicts Between Law and Morality in a Free Society 55 (James E. Wood, Jr. & Derek Davis eds., 1994). The constitutional inquiry into personhood, at least in the abortion context, cannot be divorced from the ethical inquiry into when human life begins; and this latter inquiry cannot be deemed nonreligious in its nature, except perhaps within a truly secular ethical system (which is a rare phenomenon indeed). See Mensch & Freeman, supra note 137, at 1103 n.681; id. at 1120 (observing that "the claims rooted in analytic philosophy are ultimately rooted either in consensus (which does not exist on this issue) or on a natural law that is surreptitiously hidden from view"); id. at 1129-31 (further developing this point). To adopt a biological definition of life, for example, does not, for most people, generate normative authority, while to say that personhood is a legal question, not a religious question, is simply to beg the normative question.

146 See, e.g., Greenawalt, Religious Convictions, supra note 102, at 126 (concluding that "shared premises and publicly accessible reasons cannot resolve the points at which a fetus is entitled to particular degrees of moral consideration or what should be done in case of uncertainty"); cf. also Stephen L. Carter, The Separation of Church and Self, 46 SMU L. Rev. 585, 590 (1992) (noting that in "the abortion debate, it should be plain that there is no escape from the imposition of morality" and, moreover, that "if the decision that the fetus is a person is inherently religious, so is the decision that the fetus is not"); Thomas Nagel, The Supreme Court and Political Philosophy, 56 N.Y.U. L. Rev. 519, 523-24 (1981) (noting the extreme moral uncertainty and division in regard to abortion).

147 See supra note 116.

148 Justice Scalia, for one, has suggested that the question of fetal personhood, insofar as it necessitates an inquiry into when human life begins, is essentially a nonjusticiable question. See Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 520 (1990) (Scalia, J., concurring) ("The Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution - not, that is, without volunteering a judicial answer to the nonjusticiable question of when human life begins."). Professor Jed Rubenfeld disagrees, arguing that "the Constitution lodges in the judiciary the ultimate responsibility to oversee state determinations of personhood." Jed Rubenfeld, On the Legal Status of the Proposition that "Life Begins at Conception," 43 Stan. L. Rev. 599, 616 (1991).

To see why this is so, suppose a state declared that personhood ends at sixty-five and on that basis withdrew all protection of life, liberty, and property from individuals over that age. Or suppose an overpopulated state embarked on a campaign of infanticide, supporting its measures with the determination that human life did not begin until age five. Personhood is not and cannot be a "political question." It is a question, indeed the question, of who holds legal rights. When the rights at stake are constitutional, state legislatures plainly are not entitled to the last word.

Id.

Rubenfeld's critique is not completely convincing, however. The prospect of gericidal or infanticidal state laws is frightening indeed, but it does not automatically follow that the federal judiciary has the power to entertain the specific question of personhood. Justiciability is not simply a function of moral repugnance. The prospect of state constitutional provisions calling for pure monarchy or direct democracy, for example, is also frightening in its own way, but it does not follow that federal courts may then entertain challenges to such provisions under, say, the Guarantee Clause. See U.S. Const. art. IV, 4 ("The United States shall guarantee to every State in this Union a Republican Form of Government."); Luther v. Borden, 48 U.S. (7 How.) 1, 39-42 (1849) (holding the Congress, not the judiciary, has the responsibility of enforcing the Guarantee Clause). Rubenfeld also

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imposed by the constitutional separation of powers, as is often its significance in modern jurisprudence, 149 but rather a substantive limitation stemming from the normative neutrality of the godless Constitution and, in turn, from the relative competence and authority of the states to address such questions under a godless constitutional regime. 150 In [*1025] other words, such questions are off limits not because the standard conditions for

exaggerates the matter. The nonjusticiability of the specific personhood question would not necessarily bar a due process or equal protection analysis of some other facet of the statute. See Baker v. Carr, 369 U.S. 186 (1962) (holding legislative apportionment nonjusticiable under the Guarantee Clause but actionable under the Equal Protection Clause). Either of Rubenfeld's hypothetical laws might be independently problematic under such an analysis, even under a standard of mere rationality. In this regard, it is interesting to note that Justice Blackmun's original draft opinion in Roe v. Wade sought to invalidate Texas's abortion statute solely on vagueness grounds. See Bernard Schwartz, The Unpublished Opinions of the Burger Court 89-90, 116-18 (1988).

149 See generally Charles Alan Wright, Law of Federal Courts 14 (5th ed. 1994).

150 This substantive limitation is broadly reflected in a trilogy of First Amendment doctrines that prohibit the government, whether federal or state, from undertaking certain inquiries into the nature of religious precepts or principles. The first of these doctrines forbids inquiry into the truth or falsity of one's religious beliefs. See, e.g., United States v. Ballard, 322 U.S. 78, 86-88 (1944) (setting forth the doctrine); Church of Scientology Flag Serv. Org. v. City of Clearwater, 2 F.3d 1514, 1545 (11th Cir. 1993) ("The First Amendment precludes civil authorities from evaluating the truth or falsity of religious beliefs."), cert. denied, 115 S. Ct. 54 (1994); Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984) (restating the doctrine and noting that "the judiciary is singularly ill- equipped to sit in judgment on the verity of an adherent's religious beliefs"); Callahan v. Woods, 658 F.2d 679, 685 (9th Cir. 1981) ("In applying the free exercise clause of the First Amendment, courts may not inquire into the truth, validity, or reasonableness of a claimant's religious beliefs.").

The second doctrine forbids the independent interpretation of religious doctrine. See, e.g., Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 716 (1981) (noting that such an inquiry "is not within the judicial function and judicial competence" insofar as "courts are not arbiters of scriptural interpretation"); Nayak v. MCA, Inc., 911 F.2d 1082, 1083 (5th Cir. 1990) ("The plaintiff asked the court to decide the "correct' interpretation of the life of Christ. This is not a justiciable question before a federal court."), cert. denied, 498 U.S. 1087 (1991); Teterud v. Burns, 522 F.2d 357, 360 (8th Cir. 1975) ("It is not the province of government officials or court to determine religious orthodoxy."); Baumgartner v. First Church of Christ, Scientist, 490 N.E.2d 1319, 1324, 1325 (Ill. App. Ct.) (holding that a claim which "would require the court to extensively investigate and evaluate religious tenets and doctrines" is "not a justiciable controversy" insofar as "the first amendment precludes such an intrusive inquiry by the civil courts into religious matters"), cert. denied, 479 U.S. 915 (1986); see also Employment Div. v. Smith, 494 U.S. 872, 886-88 & n.4 (1990) (noting that it is inappropriate "for judges to determine the "centrality' of religious beliefs" in a free exercise inquiry and suggesting that the use of a "substantial burden" test as part of such an inquiry may be equally impermissible); Smith v. Fair Employment & Hous. Comm'n, 51 Cal. Rptr. 2d 700, 727-29 (Cal. 1996) (Mosk, J., concurring) (concluding that the Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. 2000bb to 2000bb-4 (1994)), is unconstitutional precisely because, contrary to Smith, 494 U.S. at 886-88 & n.4, it requires courts to determine whether a claimant's religious conduct is substantially burdened, thus necessitating an inquiry into the nature of her religious belief).

The third doctrine, often closely tied to the second, forbids inquiry into the internal decisionmaking or governance of religious entities, especially those of a hierarchical nature. See Ira M. Ellman, Driven from the Tribunal: Judicial Resolution of Internal Church Disputes, 69 Cal. L. Rev. 1378 (1981). This last doctrine, sometimes termed the Ecclesiastical Abstention Doctrine, often arises in conjunction with property disputes, with claims of allegedly tortious conduct, such as wrongful excommunication or clergly malpractice, and with contractual or discrimination claims related to clerical employment. See, e.g., Jones v. Wolf, 443 U.S. 595, 602 (1979) (citations omitted) ("The First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice. As a corollary to this commandment, the Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization."); Serbian E. Orthodox Diocese for the U.S. & Can. v. Milivojevich, 426 U.S. 696, 709 (1976) ("Where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them."); Paul v. Watchtower Bible & Tract Soc'y of N.Y., 819 F.2d 875, 878 & n.1 (9th Cir.) (restating the doctrine), cert. denied, 484 U.S. 926 (1987); Rayburn v. General Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985) (dismissing an employment discrimination suit, brought by an unsuccessful applicant for a pastoral position at a church, insofar as the "introduction of

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nonjusticiability appear satisfied - although, as the Roe Court basically conceded, 151 there were no judicially discoverable and manageable standards for resolving the question of when life begins in relation to fetal personhood 152 - but rather because the godless Constitution itself disallows the government, including the federal judiciary, from rendering such determinations under the pretense of constitutional interpretation. 153 This principle is especially significant if, as was suggested in Part I, the godless Constitution was ultimately a jurisdictional limitation on the national government's authority to address questions of an essentially religious nature, thereby leaving such matters to the states. 154 Viewed in this light, the Court's effective abrogation of the states' legal authority in the realm of abortion is all the more problematic.

That the Court in Roe did work a fundamental methodological shift in constitutional interpretation - and that it apparently did tread on substantive ground that the Constitution did not want entered - is evident not only from the content of the decision itself, but also from the decision's fallout over the subsequent two decades. On the scholarly front, the reaction to Roe was substantially one of dismay over the apparent repudiation of the [*1026] guiding principles of constitutional interpretation. 155 On the conservative religious front, the reaction was even more

government standards to the selection of spiritual leaders would significantly, and perniciously, rearrange the relationship between church and state"), cert. denied, 478 U.S. 1020 (1986); Grunwald v. Bornfreund, 696 F. Supp. 838, 840 (E.D.N.Y. 1988) (declining to enjoin an allegedly unlawful excommunication because "federal courts will not interfere with the decisions of a religious body adjudicating the relationships of members in that body; as a matter of jurisprudence federal courts will defer to the decision of the religious body" and "it is contrary to the first amendment for a court, either federal or state, to engage in an examination of ecclesiastical doctrine, and unless such examination cannot be avoided, a court must defer to the decisions of a religious body"); Paul J. Morken, Church Discipline and Civil Tort Claims: Should Eccesiastical Tribunals Be Immune?, 28 Idaho L. Rev. 93, 97-120 (1991) (providing an extensive discussion of the nature and historical foundations of the Ecclesiastical Abstention Doctrine).

Moreover, to the extent that a court must examine claims that brush up against religious doctrine or internal religious governance, the Supreme Court has indicated, in terms that are highly relevant to the notion of normative neutrality discussed in the text, that the court should apply "neutral principles of law," that is, principles which entail a "purely secular" analysis based on "objective, well-established concepts" of law. Jones, 443 U.S. at 602-04; see David J. Young & Steven W. Tigges, Into the Religious Thicket - Constitutional Limits on Civil Court Jurisdiction over Ecclesiastical Disputes, 47 Ohio St. L.J. 475, 496-99 (1986) (reviewing Jones and assessing the "neutral principles" analysis). Whether this analysis is applicable beyond disputes concerning church property, which was the nature of the controversy in Jones, is not entirely clear. See id. at 498-99 (noting the uncertainty).

151 Roe, 410 U.S. at 159 ("We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.").

152 The lack of such standards is one of the conditions of nonjusticiability as set out in Baker v. Carr, 369 U.S. 186, 217 (1962); cf. also id. (stating another condition as "the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion").

153 Cf. Ely, supra note 121, at 943 (footnote omitted) ("The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court's business.").

154 See supra notes 39-42 and accompanying text. Accordingly, such a disallowance would not bar a state government from rendering this sort of determination pursuant to its own legal authority. Even in the wake of the Fourteenth Amendment and the process of incorporation, questions that otherwise might be nonjusticiable as a matter of federal constitutional law would presumably still remain within the competence and authority of the states. See supra note 125.

155 See, e.g., Archibald Cox, The Role of the Supreme Court in American Government 113 (1976) (concluding that Roe offered no "precept of sufficient abstractness to lift the ruling above the level of a political judgment"); Ely, supra note 121; Epstein, supra note 122, at 184-85 ("Roe v. Wade is symptomatic of the analytical poverty possible in constitutional litigation… In the end we must criticize both Mr. Justice Blackmun in Roe v. Wade and the entire method of constitutional interpretation that allows the Supreme Court in the name of Due Process both to "define' and to "balance' interests on the major social and political issues of our time."). These initial critiques were later followed by pleas for judicial restraint and a return to a more sustainable or

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telling. To many religious citizens - citizens who may have viewed our Constitution as being godless in a meaningful sense - it seemed as if the Court in Roe had "tried to put itself in God's place" by "decreeing that life is a gift of the state." 156 Perhaps the most significant indication of the Court's deviance, however, is found in its unusually self- conscious, almost repentant obsession with interpretive methodology over the ensuing years, especially within the realm of substantive due process and, most conspicuously, within the realm of abortion. 157 Nowhere is this more evident than in the 1992 abortion decision of Planned Parenthood v. Casey. 158 The principal opinion in Casey not only resolved the case at hand, but also found it necessary to explain the source of the Court's legitimacy, 159 to virtually concede that the Roe decision, standing alone, was insupportable as a matter of constitutional principle, 160 and to attempt to replace the reasoning of Roe - or, rather, to fill the absence of [*1027] reasoning in Roe - with a respectable constitutional foundation. 161 Far from expressions of confidence, these maneuvers seem more like acts of repentance and reconciliation - signs that something had indeed gone terribly wrong nearly twenty years prior. 162

legitimate interpretive methodology, which some today believe to be a strict textualism or a jurisprudence of original intent or understanding. See, e.g., Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990).

156 John Price, America at the Crossroads 87 (1976), quoted in Hunter, supra note 143, at 110.

157 See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) ("As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open ended."); Bowers v. Hardwick, 478 U.S. 186, 194 (1986) (flatly refusing to expand privacy doctrine to encompass male homosexual sodomy, based in part on its concern that "the Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution").

158 505 U.S. 833 (1992).

159 See id. at 865 ("As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands."); id. at 865-66 ("The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation."); id. at 868 ("It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time.").

160 See id. at 864 (declining to overrule Roe in part on the principle that "a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided"); id. at 869 ("A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law.").

161 The Court indicated that the right to abortion is related to an ideal of equality. See id. at 856 (suggesting that the constitutional right to abortion is not necessarily grounded in privacy as such, but rather in the "ability of women to participate equally in the economic and social life of the Nation"); id. at 896-97 (explaining that "the Constitution protects individuals, men and women alike, from unjustified state interference" and noting its "rejection of the common-law understanding of a woman's role within the family"); Tribe, supra note 133, at 255-56; Erin Daly, Reconsidering Abortion Law: Liberty, Equality, and the New Rhetoric of Planned Parenthood v. Casey, 45 Am. U. L. Rev. 77 (1995).

162 Whether the Court actually changed its interpretative methodology or constitutional conception, as it did its reading of Roe, is not entirely clear. See Eisgruber, supra note 128, at 98-101. For an extremely critical assessment of Casey, see Paul B. Linton, Planned Parenthood v. Casey: The Flight from Reason in the Supreme Court, 13 St. Louis U. Pub. L. Rev. 15 (1993).

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From the perspective of citizens whose moral or religious understanding of abortion happened to differ from that of the Court in Roe, as well as from the perspective of citizens who believed the Constitution did not embrace a particular moral-religious code, the transgressions were obvious. In reaching its holding (which many did consider erroneous), the Court transcended conventional constitutional authority and decided a fundamental ethical-religious matter, without due regard for the relative competence of the representative political processes and, correspondingly, without due regard for competing moral traditions and the meaningful inclusion of religious influences in the determination of legal norms. In so doing, the Court unilaterally convened a de facto constitutional convention, the only problem being that it overlooked Article V and omitted We the People from the roster of delegates. Ever since, with virtually no success, the Court has essentially been attempting to bring this convention to a close. Consider in this regard the following passage from Casey:

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown [v. Board of Education] and Roe. 163

These are not words of ordinary constitutional interpretation, but rather of amendment and ratification. 164 That the Court should reference Brown v. [*1028] Board of Education 165 is particularly significant in this respect. For there, too, the Court essentially effected a sea change in constitutional doctrine. In the case of Brown, however, the mandate for such change was already upon the Court. Not only was there a discernible basis in the Constitution itself for meaningful equality - if not inherent in the founding principles, then certainly ratified as the Reconstruction Amendments 166 - but Brown was arguably merely the synthesis and recognition of larger changes that had already been established in the American constitutional order. 167 There was, by contrast, no such mandate available to the Court in Roe. There was no undeniable source of constitutional authority, 168 no prior and defined

163 Casey, 505 U.S. at 866-67.

164 Moreover, it is probably not coincidental that the actual substance of Casey - i.e., the abortion doctrine that actually emerges from the decision - is what would likely emerge from a ratifying convention if indeed a constitutional amendment on abortion were effected. See Neal Devins, The Countermajoritarian Paradox, 93 Mich. L. Rev. 1433, 1456 n.93 (1995) (reviewing David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994)) (noting that "Casey's middle-ground approach to both abortion rights and broad state regulatory authority, without question, matched public opinion").

165 347 U.S. 483 (1954).

166 See U.S. Const. amend. XIII (prohibiting slavery and involuntary servitude except as a criminal punishment); id. amend. XIV, 1 (guaranteeing citizenship, nonabridgment of privileges and immunities, nondeprivation of life, liberty, and property without due process of law, and equal protection of the laws); id. amend. XV (prohibiting denial or abridgment of the right to vote on account of race, color, or previous condition of servitude). For a view that the equality mandate was inherent in the founding, see Michael W. McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?, 25 Loy. L.A. L. Rev. 1159 (1992).

167 See Bruce Ackerman, We the People: Foundations 133-50 (1991).

168 See Ely, supra note 121, at 927 (noting that "the Court often resolves difficult moral questions, and difficult questions yield controversial answers" but that the Constitution "simply says nothing, clear or fuzzy, about abortion").

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shift in the content or context of the nation's social and ethical thought, and no obvious justification, in all events, for denying and displacing the authority and competence of the political processes. 169

In turn, the Court's decision in Roe effectively invited American citizens, especially those whose deeply held beliefs appeared to be constitutionally disestablished in favor of some other unarticulated ethical-religious system, to proceed as if the moral foundation of our constitutional order was more or less open to reconsideration and reconceptualization. The rules of legitimate religious political participation, whether constitutionally or self-imposed, were necessarily set aside, just as the Court in Roe set aside its constitutionally and self-imposed rules of legitimacy and normative neutrality. And the deeper significance of Roe, then, is not simply that it explains the Religious Right's emergence, but that it may actually legitimize the Religious Right's political efforts - including the deployment of religious correctness in the political sphere - notwithstanding Kramnick and Moore's thesis that such efforts violate the spirit of the Constitution as originally devised. 170 Though perhaps godless in its genesis, the Constitution [*1029] after Roe v. Wade may no longer warrant such a designation, and no longer can religious political participants be told authoritatively that religious claims of moral certainty and even divine sanction are inappropriate in the public square.

With respect to The Godless Constitution, what is most surprising is the extent to which the authors attempt to avoid the question of constitutional change altogether. Two of the authors' premises, in particular, are critical in this regard. First, though recognizing that the functions of both government and religion have changed over the past several centuries, 171 they assert that "the Constitution has endured virtually unchanged over two hundred years." 172 Second, in relation specifically to the controversy over abortion, the authors write:

In a democratic society abortion advocates and abortion foes can passionately debate the issue in the political arenas where public policy is crafted, be they legislative, administrative, or judicial. In these debates moral and religious convictions will and should play a prominent part. What is unacceptable...in light of the godless Constitution is for religious certainty ever to trump politics and for government policy in any way to privilege or codify religious belief in ways that preempt a pluralist democratic process. 173

Both of these premises, however, are extremely disputable, especially when read together in the context of the actual abortion debate and the Supreme Court's constitutionalization of the abortion issue. For one thing, the Constitution has changed significantly over the past two centuries, if not in text - e.g., the Reconstruction Amendments - then certainly in meaning and even interpretive methodology. Whether such changes have been desirable or faithful to the Framers' vision is a difficult question, but, except in the narrowest or most abstract of senses or unless one is speaking of comparative constitutional history, the notion that the United States

169 Professor Eisgruber observes that "if formal amendments or other historical events have altered the Constitution's purpose, those events might have changed not only the Constitution's meaning but also the methods by which its meaning should be determined. Interpretive considerations, such as the intentions of the Framers, might be irrelevant today even if they were crucially important at some earlier stage in the Constitution's history." Eisgruber, supra note 128, at 47. In Roe, the Court effected such a change in both constitutional meaning and constitutional methodology, but did so without satisfaction of the antecedent conditions noted by Professor Eisgruber.

170 For a contrary view, see Ruti Teitel, A Critique of Religion as Politics in the Public Sphere, 78 Cornell L. Rev. 747, 768 (1993) (footnotes omitted) ("Controversy over constitutional treatment of religious claims surfaces in the ongoing debate over abortion. Although the substantive question of abortion rights has dominated the rights jurisdiction debate, one can also understand the abortion debate in the context of a broader debate over the role of religion in constitutional and legislative decisionmaking. Roe v. Wade raised but did not resolve the role of religion in constitutional interpretation. The dilemma over abortion raises the question of the proper standards of judicial review over state interests that promote religious values over other individual rights.").

171 See Kramnick & Moore, supra note 4, at 59. Likewise, they recognize, while pondering what Roger Williams might think today, that "principled people change their minds when they confront new circumstances." Id.

172 Id. at 26.

173 Id. at 176.

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Constitution has endured virtually unchanged since its creation cannot be maintained. In turn, it is hardly surprising that Kramnick and Moore, to the extent they operate from that notion, would overlook the significance of Roe v. Wade and a host of other factors that directly concern the place of religion in our contemporary constitutional order.

As for the authors' portrayal of the abortion debate, here also there is a near-total detachment from the practical reality of the matter. By constitutionalizing the abortion issue, the Roe decision basically foreclosed "the political arenas where public policy is crafted" - and in so doing left religious citizens with the options of litigating, seeking a constitutional amendment, or attempting to permeate the political sphere to such an extent that they might directly determine the content of residual legislation, the candi- [*1030] dates for public office, and, eventually, the nominees to the federal judiciary. 174 Such efforts may amount to religious correctness and they may in some sense be inadvisable, but they comprise, without question, the logical response to Roe. To criticize such efforts as intrinsically improper is to deny them their context and thus their potential legitimacy. That the authors in their treatment of abortion should then declare that it "is unacceptable...in light of the godless constitution...for government policy in any way to privilege or codify religious belief in ways that preempt a pluralist democratic process" only underscores their disregard for the reality of the situation. Such an admonition, if proper at all, should be directed in the first instance at the Supreme Court, not at those who are merely responding, albeit excessively, to the Court's unilateral abrogation of the principle that our Constitution should indeed, in a meaningful sense, be godless. 175

Conclusion

In the final analysis, The Godless Constitution must be seen for what it is - a remonstrance against the political excesses of the Religious Right, wrapped in a particular and possibly exaggerated reading of the historical record. To be sure, the constitutional-historical claims of the Religious Right have tended to be suspiciously self-serving and exceedingly narrow, and in this regard the authors' book provides a useful counterpoise. 176 Perhaps Kramnick and Moore's most helpful claim, however, is that religious citizens themselves bear a unique responsibility to confront the apparent trespasses, both theological and political, of movements such as the Religious Right. This appears to be an unavoidably correct claim, and Kramnick and Moore have rightly perceived its significance.

But it is not a claim that derives from the Constitution, and the authors err when they attempt to augment it with the "spirit" of our political covenant. It is not difficult to think of particular groups or viewpoints that each of us believes to be out of place, or out of bounds, in the political process. So it has been since the beginning of the Republic. The Constitu- [*1031] tion, however, is indifferent to such antipathies. Indeed it virtually guarantees that the unwelcome, the impolitic, and the intrusive will always have a seat at the political table. That religious groups or viewpoints, especially those mobilized on a national scale like the Religious Right, may pose peculiar dangers to our political order is an important concern, but it does not rise to the level of a constitutional concern. The Constitution ultimately entrusts We the People, whether directly or by our representatives, with the final

174 See Tribe, supra note 133, at 16-17. For a survey of the political responses to Roe, see Barbara H. Craig & David M. O'Brien, Abortion and American Politics (1993). Roe also left such citizens with the options of lawful protest and civil disobedience. Like the options enumerated in the text, these, too, have become reality. Continuing the action-reaction cycle, there have in turn been several legal counterresponses. See, e.g., Freedom of Access to Clinic Entrances Act of 1994, Pub. L. No. 103-259, 108 Stat. 694 (1994) (codified as amended at 18 U.S.C. 248); National Org. for Women v. Scheidler, 114 S. Ct. 798 (1994) (addressing a claim under RICO, 18 U.S.C. 1962(c)); Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993) (addressing a claim under the deprivation clause of 42 U.S.C. 1985(3)); Libertad v. Welch, 53 F.3d 428 (1st Cir. 1995) (addressing a claim under the hindrance clause of 42 U.S.C. 1985(3)); Courtland L. Reichman, Comment, Federal Remedies for Abortion Protest: Discordance of First Principles, 44 Emory L.J. 773 (1995).

175 But cf. Ely, supra note 121, at 949 (admonishing that those who understand the obvious point that an interpretive principle that "lacks connection with any value the Constitution marks as special," and thus "is not a constitutional principle and the Court has no business imposing it," must, by their silence, "share in the blame for the [Roe] decision").

176 For similar but manifestly more ideological efforts, see Robert Boston, The Most Dangerous Man in America? Pat Robertson and the Rise of the Christian Coalition (1996); Robert Boston, Why the Religious Right Is Wrong About Separation of Church & State (1993).

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responsibility of judging the propriety and merit of religious activism in the political sphere, no matter how unseemly or unwarranted that activism may be.

University of Notre Dame Copyright (c) 1996 Notre Dame Law Review

End of Document

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