Prof. Kerr comments on my remarks concerning Volokh on religion and political argument:
What is your support for the claim that the political community is founded on essentially secular grounds, such that religious arguments are not legitimate? Is that a descriptive, historical claim? Is it an argument about the Constitution? The Establishment Clause? The Enlightenment? Or is that a normative claim? Your argument seems to hinge on this assumption, but many people disagree with it and (as best I can tell) you have not provided any basis for it.
Kerr makes a very good point (actually, several of them). I could dodge by saying I was just trying to lay out the argument for concern about explicitly religious political argument, and did not endorse it, but that would hardly be true. I was, but I also think something like it is right, and so was advocating as well. So, to answer Kerr’s points:
(1) An historical case can be made (for those thinking that original political commitments are decisive). Although there is no serious doubt that the country and its political leadership did not have any developed wholly secular political theory, it is also the case that there is a good argument that the views are fundamentally deist, and so do not invoke biblical foundations. I should add immediately that the case is hardly decisive, and the evidence, as I understand it, is quite muddled. There is nothing unreasonable about rejecting my interpretation of the historical point, however.
The historical point is important in relation to the degree one is committed to originalist political theory as controlling legitimate political engagements. Within the context of Constitutional law, originalism in various forms has a good deal of attraction, a good deal to be said for itself. It is, however, unclear why one’s approach to interpretation of the Constitution should have any special role to play in determining the bounds of legitimate political discourse, which is not, after all, legal argument.
Finally, on this point, I do not think the historical question is either decisive or even very important. I think the argument can and should run independent of the settled views of historians about the founding population. It is more properly a problem within liberal political theory as theory, which I turn to below. Hence, the fairly narrow range of tolerated religious views at the founding is not a matter I think significant, but it is a potential problem for those who believe that legitimate political argument is tied to history.
(2) The argument against direct religious political argument does not have to have an historical foundation (i.e., it does not have to be an account of originalist political theory). I take the question to be directed at the bounds of legitimate political engagement for those now in this liberal political democracy. For present purposes, I think that is fundamentally a normative question. (Pretty plainly political argument in fact is directly based on religious sources, which has led to the question of propriety.) I think the aim is to provide a foundation for argument that the actions of the state are, in some non-prudential sense, binding. For that to happen, the grounds of decision-making need to connect to common sources of authority. Those lie, I think, very near the surface of things, not deep. To the extent feasible, political argument should tie to those kinds of grounds, i.e., to grounds which are open to agreement by contending factions without the necessity of abandoning their respective fundamental moral beliefs. All of which is a somewhat inarticulate Rawlsian account.
I do think that such an account of political relations flows out of Enlightenment philosophy and political theory. But I can’t say if that does or should matter.