by I spent some of the weekend rereading Steve Smith’s fine new book The Disenchantment of Secular Discourse. It made me think of two other works, both of which I think have been influenced by Steve. One is unpublished, so I won’t say too much about it: it’s Marc DeGirolami’s excellent work on what he calls “tragic minimalism” or “tragic historicism” in Religion Clause jurisprudence and theory. The other is my own forthcoming book, Constitutional Agnosticism, which argues that law and religion, both in theory and practice, is bedeviled by its inability to avoid confronting the question of religious truth, and advocates a so-called “agnostic turn” (although I have something in particular in mind when I use the word agnosticism) in thinking about law and religion. I also argue that although constitutional agnosticism may be a good step forward in thinking about law and religion, neither it nor any other theory of religious liberty can ultimately completely dissolve the tragic conflicts between religion and liberal democracy.
I sense a movement here, one that Steve certainly has been writing about for a while but one that may be gaining in popularity. It is a move toward a school of what we might call constitutional tragedians. These are individuals whose primary goal is not to seek overarching and perfectionist accounts of how to reconcile law and religion — although, as the Eisgruber/Sager book suggests, we are not lacking in such theories even today — or to argue that a happy ending is possible in this field, but rather to emphasize the unavoidably tragic nature of the conflict between law and religion. In some senses it is fatalist. But fatalism is not necessarily its goal. This school does believe that a perfect theory of religious freedom is impossible, as Steve once wrote. But its adherents vary in their sense of where we go from there. My own work certainly argues that some hope lies in constitutional agnosticism, although it does not believe there is perfect hope, and it suggests that any attempt to resolve church-state conflicts always leaves a tragic residue in its wake. And Steve’s book ends on a somewhat hopeful note, arguing that we might at least have better conversations about law and religion, and more broadly about religion and liberal democracy, once we abandon perfectionist illusions. Ultimately, ours is an argument for candor, humility, and a willingness to acknowledge and count the costs of any approach to religious liberty. It is pessimistic about perfection, but not utterly pessimistic that we can’t do better, or at least find a somewhat more honest and inclusive vocabulary with which to discuss these tragic dilemmas.
I doubt that this is truly new, just as I doubt that anything under the sun is truly new. But it strikes me as at least somewhat new, very much influenced by our times, and quite different from some other approaches to religious liberty, both in the past and even today. I hope it will provoke some rethinking and some productive discussion. I also suspect that it has ramifications beyond just the Religion Clauses, or even the Constitution itself, although given the close ties between religion and the development of liberal democracy, I think it has special resonance for our field.
Paul, nice to be counted in a nascent movement with two folks whose work I admire and which has influenced me. I agree with much that you say — in fact, part of my book project will be to consider the ways in which the approaches of ‘constitutional tragedians’ overlap and part ways. This exceeds the scope of a blog comment, but it may well be that the differences are strongest exactly in the ‘where we go from here’ component. Where your book will focus on agnosticism, mine will argue for historicism. Too much in these terms to explain here, but it’ll be great fun to work these differences out over the next few years together and in dialogue with the wonderful people working in this area.
Paul, wonderful phrase: “Ultimately, ours is an argument for candor, humility, and a willingness to acknowledge and count the costs of any approach to religious liberty.”
I hadn’t thought of myself as a “constitutional tragedian,” exactly– more as a sort of unintentional comedian, or at least comic figure. But I do hope that Paul’s general forecast is right. This afternoon I was rereading some Mark Noll, and this reinforced the fact that in this country’s history, religion and republicanism have interacted in remarkable, sometimes regrettable but often fruitful ways.
I’m afraid that this turbulent but productive partnership has to some extent unraveled in recent decades. It can be threatened from both sides– by secularists who distrust religion or at least religious influence in the public sphere, and by religionists who despite secularism or fear contamination through involvement in the public sphere. Our best hope, I think– our “last, best hope,” as Lincoln put it?– lies in finding ways of rehabilitating this partnership.
p.s., Steve Shiffrin has an interesting and highly critical post at the Mirror of Justice site on Ronald Dworkin’s new book, ‘Justice for Hedgehogs.’ I take Dworkin to be the arch-anti-tragedian of legal theory, and one who in one way or another has been extremely influential on the course of theorizing about the First Amendment generally and the Religion Clauses especially. His new book is the chef d’oeuvre of a career in liberal democratic theory that has been devoted to eliminating the tragic.