I found Noah Feldman’s suggestions for the relationship of church and state to be both unsatisfying and pernicious. The unsatisfying portion is that it is weakly argued and filled with wishful thinking in favor of his own opinion; he picks and chooses bits of history to support his case and argues that a “solution that will work must bind us to the past,” but there’s at least as much history which he cites that either disagrees with his narrative (early public schools that were teaching “sectarian Protestantism in disguise”) or which he says doesn’t approve of (19th century treatment of Catholics generally).
What’s pernicious for me is the strawmen he sets up of “values evangelicals” and “legal secularists.” Since I’m pretty sure Feldman would call me a legal secularist, I object more to that caricature than the other one. However, using his terminology, I think I’m values secularist; that is, I have strong moral values — that I’d describe as “progess,” “fairness,” and “compassion” — which I think should influence politics. (I suspect Antonin Scalia would consider himself, in Feldman’s terms, a legal evangelist.) Feldman leaves no place at the table for a atheist who wants to see moral arguments in politics or a religiously motivated person who wants to read the original meaning of the consitution. The reduction in his argument to these two sides lets him try to split the difference with his proposals, without addressing anything of substance.
Consider, in the context of the public debate over teaching evolution, this statement of Feldman’s:
Secularists who are confident in their views should expect to prevail on the basis of reason; evangelicals who wish to win the argument will discover that their arguments must extend beyond simple invocation of faith.
Like most secularists, I am confident that reason should have prevailed in curriculum disputes; it has not. I am sure there are many advocates of creationism who believe it is based on more than faith. Do Feldman’s proposals — encouraging the inclusion of explicit consideration of sincere religious belief but shutting off state funding of religious activities — really get us closer to any agreement here? I think not; I think they legitimize moving away from reason as a basis for argument and into a nasty, strict majoritarianism.
Sandra Day O’Connor is retiring; thus we will probably get an altered jurisprudence of the establishment clause. Feldman has a new book out which advocates for less state money but more political influence for religion; will the coincidence mean that he gets credit for what is at least half-likely to occur with a Bush appointment to the court?