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Winter 2012

The Substance of Nothing

book cover imageThe Agnostic Age: Law, Religion, and the Constitution,
by Paul Horwitz.
New York: Oxford University Press, 2011. 352 pages. $65.

Bruce P. Frohnen

Any attempt at fairness in evaluating The Agnostic Age: Law, Religion, and the Constitution must start by recognizing the light touch and good will Paul Horwitz brings to a topic fraught with ponderous and cryptic argumentation, punctuated by outright acrimony. If the book fails in its goal of providing a means by which to pacify both sides in current, angry debates over the role of religion in American public life it is not for want of genuine, public-spirited effort.

The book’s title announces its goal as well as its theme. Ours, for Horwitz, is an “agnostic age” in that all of us live with the possibility of unbelief and within a culture dominated by secular concerns. Horwitz sees no tragedy in this, but rather open spaces and possibilities to be experienced and cherished—possibilities he wants to preserve by bringing peace through empathy to debates over religious freedom.

Central to Horwitz’s project is his conceptualization of agnosticism as more than refusal to decide whether there is a divinely rooted order to the universe. For him, an agnostic also seeks to enter into various religious understandings—to become, however temporarily and provisionally, a Buddhist or a Christian for the sake of the experiences and insights offered by these forms of belief. This empathetic immersion is the basis for Horwitz’s “constitutional agnosticism,” according to which the judge or legislator “attempts to enter imaginatively into the perspective of the religious claimant, asking what that claim would mean if it were true: what it should mean for the law if, for example, God truly requires a parent to withdraw his or her children from public school—or from potentially life-saving medical treatment.”

Horwitz promises no marked change in constitutional law as the outgrowth of his agnostic approach. Rather, the goal is greater possibility for compromise and a reduction in the level of acrimony within the legal sphere and public policy debates. Making only the most minute bow to the text of the Constitution, Horwitz concentrates on showing how empathetic judges deploying the scales of justice might place a heavier thumb on the side of individual beliefs in conflicts with state interests. In the end, then, his approach promises only a kinder and gentler version of the current liberal consensus he seeks to reform.

That consensus is not merely flawed. It is, at its base, a highly damaging fraud. It leaves out the beliefs and rational expectations of most Americans. And its narrow focus on conflicts between “the needs of the state” and “the call of a religious belief” (note Horwitz’s use of the singular) belies an extreme individualism that centralizes power and undermines the intermediary groups—with their own institutions, beliefs and practices—on which any decent public life is based.

Horwitz’s rendering of the liberal consensus is rooted in a common, liberal story of the progress of society from constant religious warfare and the violent, repressive imposition of religious orthodoxy by various premodern rulers to the assertion of individual rights in the philosophy of John Locke, the enshrinement of rights in the American Constitution, and the movement from orthodoxy-with-toleration to a true “liberalism of neutrality and equality in which there is not even an official orthodoxy” (as Horwitz quotes Steven D. Smith).

This story overlooks critical, well-established contrary evidence. First, as Harold Berman and Brian Tierney among others have shown, the origins of rights lie, not in abstract secular theorizing, but in the religious thought and practice of the middle ages, buttressed and spread by a plurality of legal (including ecclesiastical) jurisdictions that tamed the powers of kings. Second, as thinkers from philosopher Alexis de Tocqueville to sociologist Robert Nisbet have pointed out, the era of “enlightenment” saw, not liberation, but brutal political centralization and the elimination of the ecclesiastical sphere as part of the birth of modern tyranny. Third, and most relevant here, Horwitz overlooks the highly destructive means and bigoted intentions behind the shift from “orthodoxy-with-toleration” to “true liberalism.”

On the last point, and as Philip Hamburger shows in his Separation of Church and State, our current mania for separationism has its roots in a nineteenth-century campaign carried out by old-line Protestants, nativists, and secularists horrified at large-scale Catholic immigration and, in particular, the failure of Catholics to voluntarily attend publicly funded schools that taught Protestant religion and values. America at this time remained a predominantly localist and democratic policy, in which Catholics were able to translate their increasing numbers into political clout and gain local public support for their own schools. Neither side, to this point, had attempted to bring the federal courts into the fray. After all, the First Amendment forbade only a national church establishment.

By the late nineteenth century, however, those supporting “100% Americanism” had used legal and constitutional means to forbid public support for “sectarian” schools—by which they specifically meant and were understood to mean Catholic schools. To do so they propagated the civil religious myth of American constitutionalism as purely individualist and committed to strictly individual rights. They supposed and asserted that there was no conflict between this vision and public support for specifically Protestant public schools on the grounds that Protestantism was independent of “foreign” influences and hierarchies and so could not be a state-sponsored Church.

Thus, the liberal “consensus” was imposed in an attempt to maintain Protestant orthodoxy. It was aimed squarely at immigrants who sought to maintain their communal identities and faith in the new land. As mainline Protestantism lost sway, of course, Protestant orthodoxy gave way to contemporary secularist orthodoxy with its emphasis on individual beliefs and fear of religious communities. But the “constitutional” concern to protect individuals from religious influence this helped produce was not natural, rooted in the spread of some Lockean theory. It was the result of a conscious attempt to forcefully, totally assimilate communitarian American immigrants that continues to infest public discourse today.

Horwitz wishes to be more open to religious beliefs and “situated selves” than the typical liberal secularist, but he shares the fundamentally secularist concern that cultural identities be thinned out to allow for peaceful coexistence in a liberal, agnostic society. The model for his agnosticism, including its constitutional form, is the “negative capability” espoused by John Keats, whose model artist “‘manages to project himself sympathetically into the positions occupied by his many and varied characters[,] . . . to be all of them and none of them, to be everywhere and nowhere.’” This is all well and good—for an author. But people are not mere literary characters; they are living, thinking beings with stories of their own that are rooted in traditions—traditions Horwitz explicitly rejects.

Nowhere are the dangers of such a superficial methodology more apparent than in Horwitz’s motif of Abraham and Isaac. He returns repeatedly to the Old Testament story of the patriarch Abraham, who hears God command him to sacrifice his beloved son, Isaac, on whom his hopes for a patrimony depend, for the sake of which he entered his covenant with God. Seeking to emphasize the radical nature of the conflict between religious belief and political values, Horwitz urges that the constitutionally agnostic judge must admit the possibility of a real latter-day Abraham. The judge must enter into the religious claimant’s belief that he is called to ceremonially kill his son, accepting the possibility of a genuine order from God to engage in human sacrifice.

Personally rejecting human sacrifice, Horwitz offers no clear argument as to why his constitutional agnostic judge would reject it. Instead he explicitly rules out appeal to the most likely barrier to human sacrifice in our society—tradition, or the actual story and context of people’s lives and faiths. He rejects both the Judaic and the Christian responses to the problem of a latter-day Abraham because it clarifies God’s “inscrutability.” Jews recognize in the story God’s rejection of human sacrifice and Christians see the promise of Christ, both ruling out a genuine call to such conduct today. Horwitz, however, sees, and would allow his judge to see, only the specific belief of a particular, idiosyncratic and perhaps homicidal person.

Our traditions, historically, have balanced respect for public order and the institutional requirements of our way of life against Americans’ commitment to individual and corporate freedom and deeply ingrained fear of political power, especially at the national level. As to the inescapable facts of bigotry and intolerance, secularism’s own history should disqualify its proponents from the common pretense that only religious belief can be the ground of bad conduct. Moreover, and despite Horwitz’s claims to the contrary, there are solid, long and well-stated reasons for religious believers to accept rights for dissenters—reasons rooted in a human dignity one has trouble recognizing in the thin, buffered self Horwitz takes as his model. But to extend the sphere of toleration to the “right” to human sacrifice is, thank goodness, a non-starter.

The real question is whether even the most extreme practices will continue to be non-starters in a culture that increasingly disdains the wisdom of tradition, squandering the bank and capital of the ages in the self-satisfied belief that the past, because it contains much that is wrong, could not constitute a guide to what is right. If Horwitz can give no reason why human sacrifice is wrong (though he assures us he would not support it), then what prevents it, save our decreasing cultural inertia? As we change our definition of marriage to suit current tastes, is there any reason why it should be limited in terms of the number of wives or husbands, for example? And if not, do we have any right to object to the impact of polygamy, for example, on the rights of women? What of the age of consent? Incest and statutory rape laws? We’ve already seen one horrific case in Germany in which a father, one Adolf Bergbauer, who over many years molested and held captive both his daughter and the several children he fathered by her, escaped a rape conviction because a judge refused to “simply” accept the daughter’s testimony that she had not “asked for it” by flirting with the father. Is this the direction in which we want to go?

But Horwitz deserves more of an answer than a parade of horribles—relevant as it is, given his subjectivism. Rather, it is important to note that the United States once did a relatively good job of managing the difficult task of allowing its peoples to pursue meaningful lives within a diverse nation. A broadly biblical, but by no means evangelically Christian federal nation left room in states and localities for a wide variety of communities of faith through a combination of federalism, limited government, and respect for the rights of full persons and the associations that gave meaning to their lives.

Injustices were done. But commitment to the due process of law allowed individuals and associations to defend themselves legally, recognition of the demands of human dignity fostered meaningful reform consistent with that dignity, and a multiplicity of authorities—religious, social, and conflicting political jurisdictions—provided limits to state power and avenues of influence for local aid. It was far from perfect, but a further shoring up of an agnostic secularism can only keep us headed in the wrong direction for ourselves and our communities. 

Bruce P. Frohnen is an Associate Professor of Law at Ohio Northern University, Pettit College of Law and a Senior Fellow of the Russell Kirk Center.

Posted: February 19, 2012

All great systems, ethical or political, attain their ascendency over the minds of men by virtue of their appeal to the imagination; and when they cease to touch the chords of wonder and mystery and hope, their power is lost, and men look elsewhere for some set of principles by which they may be guided.

Russell Kirk

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