Still A Miss I Think

Some further words (from a commentator and my responses) on religion and politics are below the fold.

Update:  I have added some material from my interlocutor which, for irrelevant reasons, arrived after I posted.  They are in bold for ease of reference.)

Some read my remarks as suggesting that the religious should not participate in good faith in political discussions, or that they should affirmatively hide their commitments. It is not what I argued for, but I can see the interpretation as perfectly understandable. My position does not require anything of the sort, nor does it require that there be agreement on what we can call deep or fundamental values. I am also not saying that the only acceptable discourse is that of utilitarianism. (For one thing, that would leave me out – I am not a utilitarian.)   

The religious (and by that I mean those who ground their moral and/or political values and beliefs in religious doctrine – which encompasses a good deal more than fundamentalist Christians: it includes Catholics like the folks at Mirror of Justice, Jews, Buddhists, etc.) are welcome to the political world, provided they present themselves as members of a community which is, at the outset and by its nature, pluralistic as to values and culture, which includes religion. This means that an argument that God commands us to love one another is not am appropriate political argument. But argument from the principle of ‘love your neighbor’ is appropriate. The former is out because, by its nature, it precludes the possibility of even addressing those who are not co-religionists. The latter has a host of possible sources. It is not a terribly informative principle, but that is fine. The point is that there is and can be a great deal of agreement at or near the surface, and that is where the political discussion lies. It may well be that other sorts of political arrangements are consistent with any value foundation at all. I suppose some do argue for exclusionary, non-liberal polities, and non-democratic polities. But that is not this country and it is not the constitutional order we have. We are situated within liberal pluralistic democracy, and the terms of political association and discussion should reflect that and the limits which follow from it. (Yes, that means I think this is a topic applicable to other liberal democracies – it is not peculiar to the US.)

I did not read your remarks as exclusive of religious people, but of certain kinds of argument. The sort of arguments I have in mind are the sort that the Declaration of Independence makes, which is an argument from a Creator (for the belief in "unalienable" rights). Is the Declaration of Independence an "inappropriate" political argument? [I don’t think the Declaration is or contains a religious argument because it lacks any theological content. The phrase “endowed by our Creator” does not have any genuine content. It is not, after all, even a commitment to Christianity.] {I am simply baffled by the notion that the reference to a creator either has no content or is not religious.  There are lots of religions besides Christianity -- hence 'not even a committment ot Christianity' has no bearing on the matter.  It is my view that the Founders were not themselves committed (necessarily) to Christianity but were committed to at least a theistic grounding of rights -- this is an uncontroversial claim, I would think, unless one has an unusually narrow definition of theological content.} Which argument took its place in "the constitutional order we have?" Who are "we?" Certainly, the vast majority of Americans (whether they be Catholic or not, which is my faith tradition) would not be put off by my invocation of the Declaration of Independence as providing the fundamental argument for rights in "our constitutional order." Perhaps by the order "we have" you mean some Constitution that was not the Constitution of the founders, and is not recognized by the American people today. [I mean liberal pluralistic democracy, not the US Constitution itself. There is nothing in the Constitution plausibly bearing on this issue (other than mention of treason).] {If that's what you mean, then I have no idea why you would regard that as the constitutional order we have.  We have an actual constitution, and under any decent committment to the rule of law, it is instructive as to our constitutional order, whereas the philosophers of Cambridge are not.}  I never know what to do with such Platonic notions of "the constitutional order we have." Is this the sort of thing you mean by your phrase? If it is an a-historical and anti-democratic phrase, then your argument reduces to this: Contemporary philosophers and law professors don't understand or agree with the Declaration of Independence, which makes it, ipso facto, not a part of the constitutional order we have, nor a part of "appropriate" political discourse. Certainly, my notion of religious arguments as appropriate is consistent with the founding, and consistent with current practice, and consistent with Lincoln's Second Inaugural, and consistent with current public opinion. If there is some other authority to which I am meant to bow, I honestly do not know of it, and doubt I would wish to make obeisance.

I am not presenting even suggestions about what shod be a persuasive argument in the political arena. I would be astonished if it turned out that we could usefully categorize such arguments. My point is rather different. Purely religious arguments are out because they are improper in this arena – they are inconsistent with the nature of the project. They could still be persuasive (for the co-religionist or because they are nicely turned rhetoric). Nothing about that even suggests that utility arguments are persuasive or always persuasive (although if one never found them persuasive I would think that person insane). There is, and on my view should be, a wide range of (low-level) normative arguments which are found persuasive. The issue is the boundaries of appropriate argument. Where one thinks of reasonable in this technical sense, the matter can be so framed. Arguments which are reasonable are those consistent with project or the possibility of the political project. 

Here again, anti-religious prejudice is merely question-begging: religious arguments, when persuasive, are either persuasive due to group-think ("co-religionsists") or to "nicely turned rhetoric". [I don’t know what you have in mind by anti-religious prejudice, but that is likely beside the point. I am not arguing about what is persuasive.] {I use prejudcie here to pointedly characterize the presumption that people who work within a religious framework are not thinking, whereas people who maintain, say, a lifelong committment to libertarianism (a minority view among political philosophers, neither forbidden nor compelled by reason, just like a belief in a creator) are being "reasonable."}  Whereas a nice Rawlsian argument relies on cold, conclusive "reason." Except for the Kantianism. Oh, but the later Rawls abandoned Kant, you say. Fine, with what did he replace him? The agreement of co-religionists--the confident presumption that most right-thinking people should find nothing objectionable in his views and would simply applaud when he finished. This is how things largely went in Cambridge, which is why you will find nary an argument in The Law of Peoples--what point arguing?

The reasonable surely can and does include a good deal of what may be religiously motivated argument, and, indeed, argument cloaked in religious rhetoric. The argument is not, however, theological – it remains situated within the ‘secular’ world because it calls to values that are there for the secular as well. 

Does this mean that Justice Kennedy's "mystery of life" argument in Casey (duplicated in Lawrence) constitutes an "appropriate" or "reasonable" argument, because, while redolent of religion, it is sufficiently content free to pass muster? I do not see how values that are found in the secular world count as secular merely because seculars have them. I probably possess values and attitudes that are contrary to a proper understanding of my Catholic faith. These would become "Catholic" values on your view, since there are there for this Catholic. [I think you have misread my point. The values are not secular because held by the non-religious, they are secular (a stand in for appropriate) because they can be reached (or grounded if you prefer) in sources other than theological.] {I don't think I miss your point -- I dispute that oen should consider values claimed (but undefended) by seculars as secular.  This is why it is relevant that there just are not persuasive secular accounts of rights to emerge from secularism -- seculars claiming to value rights need to justify them if they are to be called secular values, unless values become secular just because secular people hold them.  This is precisely the challenge raised by Perry's and Waldron's work.  It may well be surmountable, but surmountable does not equal surmounted.}

Turning to what I think is a small point – the evidence concerning the presumed immorality of pain: I am a little hard put to understand the nature of objection to the point.  One reaction is to take the question as suggesting that, for all we know, pain might be presumptively good, or that there is some debate about limiting pain. I think that is probably not the point of the query, however. I suspect instead that what is bothering the person is the suggestion that pain (or pleasure) are it as far as mortal foundation, and what would be the evidence for that? Let me take this in two parts. Let me start with the question of whether pain is presumptively bad, and then look at whether pain is foundational to evil.

The objection is this: I asked you why any of this evidence that could be adduced (as you do below) constitutes evidence of "moral" relevance. That people recoil at pain is certainly true. So do foeti, frogs, and earthworms. The moral weight to give to that response if far from obvious in any of the three cases. [It does not matter. The point was that there is a presumption against infliction of pain, and we get that from paying attention to a variety of sources. That is evidence. I am not committing to anything much in the way of metaethics by this claim. So I suspect what is going on here is you take me to be saying more than I am.] {You are claiming that this evidence is evidence about "presumptions" (I used "obligations," but we are talking about the same thing).  Evidence that pain is painful is not evidence that its infliction should be presumptively avoided, that is too rich a claim unless you think analytically that pain as a concept entails some presumption of avoidence.  Then the argument needs no proof -- pain just is something we avoid inflicting.  There might be all sorts of reasons not to care about pain -- merely knowing that you or I or the cow I'd like to eat for lunch will recoil from pain tells me nothing about how to behave.}   The moral import of pain needs to be justified by something beyond our experience of pain, and by something beyond psychology. If it is true that people in general do not like pain, does it follow from that that I am obliged to avoid giving pain? Why? At a minimum, one needs some sort of account of obligation itself before data about recoiling from pain can be said to give rise to obligation. If the point is that pain will be more appealing as a reason, because it requires shallower agreement than any religious premises, I don't disagree. But one is not obliged to seek, ex ante, shallow agreement. That is, it is not inappropriate, to marshal deeper agreement. It will not likely succeed, and it should not run afoul of the establishment clause (if one is a public official) but these qualifications do not have much to do with the inappropriateness of explicitly religious arguments.

The evidence that pain is presumptively evil starts with the fact that human beings and every other animal I can think of recoils from pain, actively seeks to avoid pain, and rarely wander about inflicting it for its own sake. But there is plenty of evidence of other kinds as well. For the Christian cultists, Jesus condemns hurting others, so there is that. The bible no where commands that sentient entities be tortured for the purpose of torture (although it is a non-trivial undertaking to explain what god otherwise intends by hell or evil). My claim was not that pain is evil, tout court, full stop end of the story. My claim was that we have plenty of easily identifiable evil, identifiable without any common deep commitment. An example is infliction of pain. It is presumptively evil. Eugene sets Tiberius on fire, one wants an explanation.  Eugene sets a piece of wood on fire, and an explanation is not demanded. That feature of normal human psychology counts for a good deal. In my view, the evidence relevant to moral issues is heterogeneous: some of it comes from chemistry and some from biology and some from psychology and some from philosophy and etc. Others, obviously, have rather different views about competent evidence on the topic, although I cannot recall any sane at the moment who discount these sources as entirely irrelevant to moral evaluation of conduct. 

Now, if your only point is that one should say as many things as one can (which might well be everything relevant to the public sphere) in terms accessible to the broadest possible audience, I would not disagree with that. If your argument entails that the Declaration of Independence is in any way, shape, or form "inappropriate" then I still can't tell where you're coming from in claiming that your view reflects the constitutional order we have, since it's clear your view is not the view of the Framers nor of the civil polity at any point in its history. [Well, no, that is wrong. Historically, as we seem to be driven there even though it is not quite to the point, the US polity has often been much less overtly religious and much more hostile to religious involvement in political affairs than the current state of affairs. Furthermore, the religions views of the Founders are, to be blunt, completely beside the point.] {To be blunt, if you regard our constitutional order as a creation not of our Constitution or history, then our Constitution and history are beside the point.  This strikes me as a most curious view of "our constitutional order."  As to whether there have been periods more hostile to religion -- sure, the KKK (see Philip Hamburger's recent book on separationof church and state) certainly whipped up enthusiasm for the 20th century jurisprudence of the Establishment Clause -- nevertheless, that jurisprudence has never had the strength of its convictions because it didn't have popular support.  Hence we have upheld tax exemptions for religious institutions, we keep God on the coin (though this perhaps will seem content free to you, as not even Christian) and of course the Court simply punted on the Pledge issue.  As that raging conservative William O. Douglas put it in Zorak, our nation is a religious one whose institutions presuppose religion -- but this surely isn't relevant to the constitutional order we have, either.} This is so even if such a view seems to be entailed by certain pronouncements by the Judiciary that they in fact will not carry to their fulfillment such as their stated jurisprudence of the last several decades on the establishment clause. To wit, that the founders wanted government to be neutral as between religion and irreligion, rather than as among the various religions; the free exercise clause surely protects atheists from any oppression of what they do, but it does not, historically, protect them (if one needed "protecting") from the employment of religious arguments by their fellow citizens, or from Thanksgiving proclamations' (the first of which was made by Washington himself, and which have been made in an unbroken chain since) being made by their Presidents. Thus, our Constitutional order in no way rules out the Declaration of Independence, or Lincoln's Second Inaugural. It does rule out any attempt to force people to agree (in their minds and their consciences) with the Declaration of Independence, or with Lincoln's Second Inaugural. But those great works themselves constitute great works within this constitutional order we have, religious content and all.

I want to end my part in this debate with a few final points. First, a number of comments have wandered into the field of what is and is not persuasive. That may have been Volokh’s topic – I don’t think it was – but it certainly is not mine. I am not arguing that invocation of God is unpersuasive or that a utility calculation is persuasive. Second, I have been concerned two issues (1) the boundaries of appropriate political argument, and (2) whether moral and political values are subject to reasoned argument. As to the latter, I think Volokh was not writing with his usual care about that topic and said things which are mistaken as a consequence. As to the former, the central point I have tried to make is that direct invocation of religious belief is not appropriate in a constitutional order of the kind found here, viz., a liberal democracy (or liberal pluralistic democracy). I have not argued that the US Constitution forbids such arguments – it doesn’t. I have not argued that historically important actors have not been motivated by religious views, nor that the religious should be barred from political participation, nor that the religious are unreasonable or unreasoning. The US is not special in this context, and the considerations of particular relevance here concern political regimes of a particular sort, including numerous European and other states. Third, the central example I was interested in is whether an argument of the form ‘God condemns eating shrimp and for that reason shrimp eating should be a crime’ is an argument which should be granted purchase as an appropriate argument in political discussion. One way to put my view is that arguments of that sort are, at best, disrespectful, and, more accurately, aim at the destruction of the possibility of political authority. Fifth, I suppose there is the possibility of political authority, and that such authority is not simply and reducibly the good.

{Here the Declaration of Independence serves nicely; it is an argument that God forbids the denial of certain rights; no better or further argument has proven significant in the history of our Republic; it is an argument first advanced by Locke, who could not see a secular way through to making the claim.  I welcome secular arguments for rights -- it would be nice if there were a good one.  So far, the consensus is we are still waiting.  Nothing in the form of the Declaration's argument differs from your shrimp eating case, so far as I can see.  And so far as I can see, nothing in the Declaration is disrespectful or in any way aimed at the destruction of the possibility of political authority.  If your response to this continues to be that the Declaration is non-religious while your shrimp argument is a religious argument, I will continue to be baffled by the distinction you seem to find there.]

I do not think that religious belief is ‘un-reason’ in any interesting sense. Unless one has managed to complete a foundationalist epistemology, belief on faith is part of thinking.