This article was a contribution to the 2010 Religious Legal Theory symposium held at St. John's Law School.
John Rawls famously argued that citizens in a just democracy have a moral duty to ensure that “the principles and policies they advocate and vote for can be supported by the political values of public reason.” This so-called “duty of civility” obligates us to cast our votes on “constitutional questions and matters of basic justice” for reasons that we can explain in terms of the public good and the “ideals and principles expressed by society’s conception of political justice.” Rawls contrasts these public reasons with “nonpublic reasons”—such as “comprehensive religious and philosophical doctrines”—which he claims cannot legitimize acts of political coercion. And yet our Constitution singles out and protects certain paradigmatic kinds of nonpublic reasoning, at least in the private sphere (the Free Exercise Clause), and, arguably, in the political sphere as well (the Test Oath Clause). This paper attempts to justify these constitutional protections by offering a structural account of the essential role that nonpublic reasons play in the progress and evolution of a liberal democratic state.
Many thoughtful and influential scholars—Charles Taylor, Alasdair MacIntyre, Michael Walzer, and Michael Sandel, to name a few—have written on the place of nonpublic reasons in democratic debate, and Kent Greenawalt has devoted two entire books to the subject. To my knowledge, however, none of them have advanced, at least directly, the thesis I present here. I suggest that, within the processes of democratic evolution, nonpublic reasoning can function in much the same way that the phenomenon of mutation does in the evolution of species. That is, nonpublic reasoning can be a source of diverse, nonconformist, and nonlinear thinking; it may produce ideas that are true Kuhnian paradigm shifts, and thus cannot be explained or justified in terms of the existing framework of public reasons. Seen in this light, Rawls’s moral “duty of civility”—while it promotes discourse and tolerance—may also stunt the kinds of deep innovation necessary to keep a democratic state vital and responsive to an evolving civic and moral culture.
In concluding, I suggest that thinking about the religion clauses in these terms may ultimately give us greater insight into the constitutional value of nonpublic reasons, which, in turn, may help us better understand the structural dimensions (as distinct from the human rights dimensions) of the freedom of conscience.
- Nonpublic Reasons,
- Liberty of Conscience,
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