Wednesday, July 06, 2005

Church and State ... A few years back, a friend asked me who the smartest person I'd ever met was. I paused for a minute and then blurted, "Noah Feldman."

Not surprisingly, my friend had no idea who he was. So I explained that Feldman graduated summa from Harvard, had a J.D. from Yale Law, had a doctorate from Oxford, had clerked on the Supreme Court, and, most impressively of all, had been a "Junior Fellow" at Harvard. (The Junior Fellow program is little known, but trust me when I say it's the most difficult position for a young scholar to get.) All of this, and Feldman was barely in his late twenties.

Since then identifying Feldman has become easier and easier. For one he's now a professor at NYU Law, and for another he's begun appearing on political talk shows.

Most recently, though, he authored the latest Times Magazine cover story, in which he modestly proposes "A Church-State Solution:"
Put simply, [my solution] is this: offer greater latitude for religious speech and symbols in public debate, but also impose a stricter ban on state financing of religious institutions and activities. This approach ... is drawn from the framers' vision and the historical experience of separating church and state in America. The framers might well have been mystified by courthouse statues depicting the Ten Commandments, but they would not have objected unless the monuments were built with public money. Having made a revolution over unfair taxation, they thought of government support in terms of dollars spent, not abstract symbols.
Clearly, there's a lot to unpack there. Feldman's proposal has direct implications for everything from school vouchers to congressional prayer. Meanwhile, there's probably not a single governmental function that it wouldn't indirectly effect.

Although Jack Balkin has criticized Feldman for not articulating those implications in full, I'm not convinced that, as Feldman himself put it in a response, a "full jurisprudence" is necessary.

The reason is that Feldman's solution isn't oriented towards the law so much as society. That is, he's not providing a new legal position on an old constitutional problem so much as attempting to persuade a democratic populus to resolve, politically, an intractable social dispute. And at the core of his attempt lies the novel suggestion that a) we consider the intersection of religion and government in terms of symbolic and monetary moments, and b) that we allow the former but not the latter.

Whether you agree with that secondary point, I think we'd do well to take his advice and look at the issue in terms of public funding and public expression. As Balkin notes the two can be blurred at times, but in general the two are vastly different beasts, and we should be discussing them as such.

Update: After a quick proofread I fear I may have lent the impression that I know Noah better than I do. When I was an undergrad and he was a Junior Fellow, we played basketball together on an intramural team. Aside from a brief discussion about an article he was writing then -- on Islamic law, I believe -- our conversations pretty much held to the sprightlier topics of jump shots and reverse dribbles.


Blogger Tim Rickards said...

I agree with your analysis and think a large part of the problem boils down to this: We're far too concerned with what other people’s beliefs and what they think about us.

Feldman's solution asks people to let others say what they believe without taking it so damn personally. And that's really hard to do, because we have to release our fear of the power (monetary, lobbying, governmental) that may lay behind someone else's words.

It’s hard because we don't believe that our governmental system will work these questions out fairly. And, generally speaking, no one feels truly represented in our government. Even the most obvious dominant group--white, Protestant males--feels left out and marginalized.

So who's really running the show? Who’s interests are being truly represented in Washington?

And does this lack of belief in the problem solving abilities of government constitute a crisis of faith or an artificially created example of diversionary politics?

7:12 PM  

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