This morning I listened to part of a debate from last November between Noah Feldman and Michael McConnell on the question of whether religious freedom should receive special constitutional protection.  Noah’s position, increasingly familiar these days, asserted that the First Amendment’s special commitment to religious freedom derived from theistic premises that are no longer admissible in a liberal political order.  So although religious belief and expression will be protected under freedom of speech etc., there is now no justification for any special commitment to religious freedom.

I’m persuaded by half of this argument– namely, that it is difficult to justify a special commitment to religious freedom on purely secular premises.  (In fact, I’ve been making that argument for years now.)  So if religious freedom is to be justified, it seems that something like the traditional religious arguments will need to do some work.  But how can religious rationales do any work when they have been banned from the political and jurisprudential workplace?  Contra Feldman et. al, I don’t agree that the logic of liberalism necessarily excludes reliance on religious beliefs.  (I also wonder whether this claim is consistent with what Noah has written about the possibilities of democracy in Islamic countries.)  Still, illogical or not, it seems to be a fact that judges and scholars today usually don’t treat religious arguments as admissible.  So, what to do?

Here’s one suggestion– one that could use a lot of elaboration and refinement, but that may be worth raising for consideration.  The proposal, basically, is that special protection for religious freedom is a central part of the social contract, and that it would be both unjust and imprudent for government to violate that contract.

A quick qualification:  “Social contract” may not be the best metaphor here.  In fact I usually don’t find “social contract” reasoning at all cogent.  Given greater space and ability (both already exceeded in this post), I’d prefer to elaborate the theme more in terms of “consent,” along the lines of Alexander Bickel’s “The Morality of Consent.”  But “social contract” may do for now.  Let me explain.

We all participate (or decline to participate) in our political and social order based on some understanding of what its terms are– what government can expect of us, what we can expect of government, what we can expect government not to do.  These terms form a sort of “social contract,” but they are not derived from any thought experiment based on a fictional “state of nature” or “pre-political condition” or “original position.”  Rather, they are real terms, partly written but largely unwritten, that we perceive in our law, traditions, and practices.  The terms are subject to interpretation, of course, and no doubt they may change over time– occasionally through deliberately enacted law, more often through gradual and almost imperceptible cultural evolution.  Nonetheless, at any given time we have some sense of the terms of this implicit but quite real “social contract.”

So long as government honors the terms, we may feel some obligation to render our support and allegiance.  Conversely, if government disregards or violates the terms of the “contract,” our loyalty is betrayed and our commitment compromised.  We may come to perceive government no longer as representing us, but as an occupying power, and we may thus qualify or withhold our allegiance.

I would suggest (and I’m not sure that scholars like Feldman would disagree) that a special commitment to religious freedom has been a central part of this nation’s social contract.  Nor has that situation changed, I suspect.　 For many religious people, this term is still an essential one; but even nonreligious people might acknowledge that religious freedom has been and continues to be an understood term of the contract.  (So this is not, or not merely, an “originalist” argument.) People like Feldman may think that on modern secular premises, this particular contractual term probably wouldn’t or shouldn’t be adopted today.  Even if they are right, though, that observation does not alter the terms of the contract as it stands and is understood.  And violations of a central term– by the courts, say, . . . or the Administration– will be perceived by those who care about it as a betrayal and a fundamental injustice.

It’s true that people who remain committed to this particular term of the contract– to constitutional respect for religious freedom– may be acting on the basis of traditional theological rationales that many other citizens no longer accept.  In this way, the traditional rationales continue to influence our constitutional order.  But that influence works via citizens’ commitments and the terms of the social contract.  And secular liberals would be ill-advised to insist that every term of the contract must be supported by reasons that all citizens accept, since their own position and premises could be promptly disqualified by such a restriction.  (I know, I know . . . it’s what “reasonable” citizens would accept.  But if blatant question-begging is permitted, what’s the point of these exercises anyway?)

This rationale strikes me as promising in part because it is realistic.  It points to what is actually at stake, today, and it does not rely either on decades-old political decisions or on airy assumptions about what “reasonable” citizens could “in principle” agree to or about imaginary “overlapping consensuses.”  Still, it is a rough, unrefined suggestion.  I wish Bickel were around to improve it.

– Steve Smith