Jacob Levy’s Rationalism, Pluralism, and Freedom is, to understate matters considerably, an impressive achievement and a now-essential resource. It is comprehensive and clear, insightful and illuminating. I am honored and delighted to participate in this Symposium.
I am neither a political theorist nor an intellectual historian; I am an academic constitutional lawyer. As my friend and fellow Symposium-participant Will Baude observed in his own contribution, “federalism” and “religious freedom” are, “to an American constitutional lawyer . . . the two most obvious sites of the tension that [Jacob] discusses.” I agree, and because Will has already addressed helpfully the former I will direct my remarks at the latter.
For me, the point-of-entry into the subject of Jacob’s book was, probably, Harold Berman’s Law and Revolution: The Formation of the Western Legal Tradition (1983), which was a college graduation present from a family member for whom, I imagine, the word “law” in the title supplied the entire reason for the selection. Although I was reasonably (for an undergraduate) familiar with ancient, medieval, and late-medieval political thought, Berman’s work confronted me with, and sparked my interest in, what Jacob calls “the birth of intermediacy,” the “tremendous proliferation of formal organizations that were self-created, self-governing, or (often) both.” I was particularly intrigued by what Berman called the “Papal Revolution,” a “revolutionary change within the church and in the relation of the church to the secular authorities” which, among other things, included or at least accompanied (in Berman’s words) the “invention of the concept of the State,” the “creation of modern legal systems,” and even “the birth of the West.”
An idea that powerfully animated this Revolution, Berman contended, was libertas ecclesiae, “the freedom of the church”—that is, the “assertion of papal primacy over the entire Western church and of the independence of the church from secular control.” In my own writing, I have tried to draw on this idea—to retrieve and translate it—and to expound what I take to be a pluralist account of church-state relations and religious freedom in American law, account that emphasizes the place, role, rights, and jurisdiction of religious institutions. I’ve been inspired by Berman, Brian Tierney, John Courtney Murray, Mark DeWolfe Howe, Steven Smith, and—of course—Jacob Levy to think that such a project is possible and worth exploring.
In Part III of and the Conclusion to Rationalism, Pluralism & Freedom, Jacob engages, and applies his earlier-developed account to, many of the questions and kinds of questions that American religious-freedom scholars are wrestling with and that an account like my own has to address: To what extent should religious institutions be exempt from antidiscrimination laws and other regulations that might otherwise apply? How much effort should a liberal political community make—through direct regulation, licensing and accreditation requirements, access to public funding, tax policy, etc.—to bring the norms and internal practices of religious groups into congruence with those of liberal governments? Should the state police closely the education and formation of young people in religious communities and schools, and make sure that (in Jacob’s words) “they become the kind of people it needs them to be”? How (if at all) should the state deal with the reality of disagreement, division, and dissenters within religious communities and associations? And so on.
Jacob is right, it seems to me, to highlight, within the “liberal understanding of freedom,” the “pluralist emphasis on the freedom found within and protected by group life against the power of the state.” He is on firm ground when he insists that “[t]here is no social world without loss” and that “[s]ometimes we will not be able to have the morally best degree of freedom of association and the morally best degree of protection against local tyranny.” And, he correctly reminds us that “[w]e cannot . . . simply point to the moral loss suffered by some relatively powerless or disadvantaged person within an association, religion, or cultural group and conclude that the group constitutes a local tyranny that must be dissolved or overruled by the state.”
He is right about all this, I think, not because religious institutions (or other non-state associations) never act wrongly or never inflict hurt and harm. They do (sometimes), just as liberal states do (sometimes). As I see it—and Jacob’s book is helping me to think harder and, I hope, better about the matter—the liberal practice of respecting the rights of religious and other associations’ distinct, even if non-liberal, practices is not merely a matter of “governance best practices” or a strategy about how to allocate scarce enforcement or litigation resources. Instead, the practice reflects the fact that a (good) liberal, constitutional government accepts—and not grudgingly—as given the fact that reasonable people, associations, institutions, and communities disagree reasonably about things that matter. Such a government is not merely resigned, but resigned comfortably, to the “crooked timber of free society.”
To press the issue even more: I am strongly attached to what Mark DeWolfe Howe once called “the heart of the pluralistic thesis,” namely:
The conviction that government must recognize that it is not the sole possessor of sovereignty, and that private groups within the community are entitled to lead their own free lives and exercise within the area of their competence an authority so effective as to justify labeling it a sovereign authority. To make this assertion is to suggest that private groups have liberties similar to those of individuals and that those liberties, as such, are to be secured by law from governmental infringement.
Howe was commenting on the Supreme Court’s 1952 decision in Kedroff v. Saint Nicholas Cathedral, but his statement is timely and remains powerful. Going forward, as some understandings of the nondiscrimination norm and of the government’s power and obligation to enforce it result in increasingly calls for mandated or strongly incentivized “congruence,” I expect that renewed attention to, and fresh defenses of, this “pluralistic thesis” will be needed. And, Jacob’s study will be at the heart of the conversations.
Richard W. Garnett is the Paul J. Schierl / Fort Howard Corporation Professor of Law and Concurrent Professor of Political Science at the University of Notre Dame, where he teaches and writes about constitutional law, the First Amendment, religious freedom, and church-state relations. He received his B.A. in philosophy summa cum laude from Duke University in 1990 and his J.D. from Yale Law School in 1995. At Yale, he served as senior editor of the Yale Law Journal and as editor of the Yale Journal of Law & the Humanities. Before coming to Notre Dame, Garnett served as law clerk to the late Chief Justice William Rehnquist during October Term 1996 and to the late Chief Judge Richard S. Arnold of the United States Court of Appeals for the Eighth Circuit. He practiced law at the Washington, D.C. law firm of Miller, Cassidy, Larroca & Lewin, specializing in criminal defense, religious liberty, and education reform matters. He lives in South Bend, Indiana, with his wife, Professor Nicole Stelle Garnett, and four children, Margaret, Thomas, Elizabeth, and John.