By Mike Dorf
In my post on Monday, I promised to come back to a practical question raised by Steve Shiffrin's book, The Religious Left and Church/State Relations. Shiffrin argues that the religious left is better positioned than the secular left to contend with the religious right over church-state separation issues. Although Shiffrin does not make the argument, one might extend the logic to other issues as well. If the problem with public reason is that it fails to capture all of the sources of value that inform most Americans' judgments about basic issues of political justice, then we might expect public reason to fail not only with respect to church-state issues but also with respect to other issues. Thus, one might think that the best way to meet the arguments of the religious right on abortion and gay rights (to name the two social issues of greatest concern to the religious right) would be to send the religious left, rather than the secular left, into the arena to battle it out on theological grounds.
But whatever the appropriate domain of Shiffrin's argument, I want to question its likely efficacy by drawing an analogy to arguments about original understanding in constitutional law. Various conservative Supreme Court Justices often say that their views on constitutional issues are a product of the original understanding. There are two sorts of responses to these claims. One, which I'll call the "secular left" approach, would be to give reasons why the original understanding should not be determinative of contemporary meaning. A second, which I'll call the "religious left" approach, would be to meet the originalist arguments on their own terms.
Nice examples of the religious left approach to original understanding can be found in Justice O'Connor's dissent in City of Boerne v. Flores, Justice Souter's dissent in Alden v. Maine, and Justice Stevens' dissent in DC v. Heller. Rather than simply decrying the majority's reliance on original understanding in each of these cases, the dissenting Justices attempt to do the majority one better by showing how the majority's originalism is bad originalism. The parallel to Shiffrin's argument that the religious left should engage the religious right by showing how its theology is bad theology is striking.
How effective has the religious left strategy been in constitutional interpretation? I think it has been a complete failure--if the goal was to persuade the conservative originalists that their arguments based in original understanding do not support their politically conservative conclusions. On nearly all the important questions that make it to the Supreme Court's docket, the original understanding is sufficiently unclear or manipulable that it is very hard to say that a decision one way or the other is "correct" as a matter of original understanding. And when the liberals do have a nearly slam-dunk argument--as they do with respect to the constitutionality of race-based affirmative action--the conservatives simply stop talking about original understanding. (The conservatives also say very little about original understanding with respect to most free speech questions, but there is a fairly broad liberal/conservative consensus on the value of free speech, so no one on the Court has an incentive to note this.)
Now, moving back to the domain of public argument, is there any reason to think that the sorts of sources that figure in theological debates are less manipulable than the sources that figure in debates over the original understanding of the Constitution? The religious left can invoke "Thou Shalt Not Kill" to oppose the death penalty, but the religious right can support it with "A Life for a Life." On matters of church-state separation, the religious left can invoke "render unto Caesar that which is Caesars's and unto God that which is God's." The religious right can counter that ancient Israel as portrayed in the Bible was a theocracy, that prior to the Protestant Reformation (and really for quite a long time thereafter), church leaders exercised political power and vice-versa. My point is not that there aren't better and worse arguments based on religious sources but that people in all walks of life suffer from confirmation bias: Believing in the morality or immorality of the death penalty, or the necessity or folly of church-state separation, people will find in their holy books and traditions confirmation for their pre-existing views.
Thus, it seems highly unlikely that the religious left's arguments rooted in theology or Biblical exegesis will actually persuade people on the religious right. But that may not be their point. Perhaps their point is to persuade the religious middle? I want to acknowledge that possibility but also to suggest that there is another possible effect: By crowding out secular arguments for progressive results, the public debate will shift to terms more favorable to the religious right. Yes, one can cite chapter and verse for progressive policies, but the relevant holy texts were written a very long time ago in societies that do not share our values. More often than not, the religious conservatives, like the originalists in constitutional interpretation, will win if the battle is fought on their terms.
Shiffrin, who is not an originalist with respect to constitutional interpretation, quotes Gordon Wood to undermine the constitutional authority of the Founders: "Seeing Washington and Jefferson as slaveholders, men who bought, sold, and flogged slaves, has to change our conception of them. They don't belong to us today; they belong to the 18th century, to that coarse and brutal world that is so remote from our own." What's true of the 18th century is all the more true of the ancient world: The Bible condones slavery (and nothing in the New Testament questions it); it prescribes payment to the father and marriage to the victim as the "penalty" for rape; it commands the death penalty for gay sex; it condones wars of conquest; etc. It is possible to construe one's way around such provisions or to take an evolutionary approach to morality, but the basic texts are considerably more amenable to conservative or reactionary views, which is hardly surprising: they come from a much more coarse and brutal world than our own (one hopes).
The master's tools will never dismantle the master's house.