Echoing the prophet Isaiah, Dr. King dreamed of societal harmony and common understanding. Not only would “the glory of the Lord” be revealed, but “all flesh” would see the truth together. In today's America, this vision seems increasingly distant; some would say increasingly fantastic. From abortion to homosexuality to affirmative action, Americans are deeply divided on fundamental issues of morality and public policy. Combatants in an ongoing culture war, we disagree not only about specific issues, but also about the manner in which these issues should be considered, debated, and resolved. At bottom, we are divided because we disagree about the nature of moral and political truth and about how this truth should properly be determined. Far from seeing the truth together, we see separate truths that emerge from separate ways of thinking.

Our public life takes shape within a field of competing organizational forms. Corporations, assemblies, constitutions, and federations compete for our loyalties, providing models of proper human existence. Like the family, they seek to provide trustworthy and dependable relationships of power and authority that enable us to live, work, argue, and reconcile with each other. Many crucial decisions of our social life revolve finally around the choices we make as a society among these institutional forms and the means by which we evoke deep sentiments of legitimacy and trust to uphold them.

The primary forms of American public life emerged in the rejection of European monarchy and religious establishment. The Constitution replaced the Crown and the denomination came to replace the one true Church. Fundamental to this revolutionary transition were the emergence of covenantal forms of association and democratic assemblies as the constituent elements of legitimate public authority. Social life was not to be governed by hierarchical and patriarchal authority “from above” but by free agreements of the people forged in open public assemblies. This model of legitimate order flowed through both governmental and religious spheres in complex and interpenetrating ways.

It is commonplace for the English to regard their age and culture as “post-Christian.” What exactly is meant by this label is not always clear, but it seems meant to bespeak a hardheaded realism accompanied by a kind of wistfulness for a more certain, vibrant, robust past. So while supporting note is often taken of the low rate of church attendance in England, the sense of loss runs deeper, as if all that is left from the past is a kind of “domesticated pantheism” which somewhat ironically operates as a “bulwark against religion.” Reminders of this bygone culture are found in a countryside of handsome churches, cities landmarked by grand cathedrals, and a ceremonial clergy whose robes and scepters make for great spectacle and some good TV; but the churches are empty and the clergy are said to be mostly dispirited, effete, irrelevant, “enfeebled and unsure.” The term “post-Christian,” however, carries an even deeper charge insofar as it suggests something more about the state of English culture in the late twentieth century than simply the decay of the established Church as the institutional bearer of the main nourishment of Western civilization. In some sense, we are to suppose that, in England at least, the Christian world is dead and that the established Church of England remains but a many-branched museum, staffed with actors playing uncertain parts whose demise as a part of the apparatus of state is near at hand.

The religion of our father Abraham was the religion of a single believer. He was, as described by Thomas Jefferson, a sect of one person calling for recognition by the overwhelming majority. But even his descendants remained a tiny majority among the population of the area; they were aware of being a small people (Deut 7:7) in danger of being absorbed by the Canaanite culture in the neighborhood.

The danger of acculturation was felt not only from the majority, but equally felt from other minority cults and religions (Num. 33:55; Jos 23:13), whose religious practices set a negative example for Israel and its religion. The rule prohibiting any participation in foreign cults and marginalizing religious minorities in Israel's society (for example, Exod 34:11-17) presents itself as a conditio-sine-qua-non in the covenant with the God of Israel.

Icons of river frost
weep in the bleak fields
of the Republic.
Ghost Dance songs sweep the plains;
the eucharistic moon wanes.
All the trees are bare.

Southern proslavery writers recognized that the powerful imagery employed by abolitionist writers such as Harriet Beecher Stowe was among the abolitionists' most potent weapons in fighting slavery. Southern reviewers of Stowe's 1852 novel Uncle Tom's Cabin criticized Stowe most frequently for mischaracterizing the harshness of slavery. William Gilmore Simms, who published his novel Woodcraft as a proslavery answer to Stowe in 1854, thought her novel was a gross misrepresentation of the South:

There is a work of fiction, recently published by Mrs. Stowe, which is just now the rage with the abolitionists; the great error of which, throughout, consists in the accumulation of all the instances that can be found of cruelty or crime among the slaveholders. … She shows us a planter of Louisiana, as one of the most heartless, bloody, brutal, gross, loathsome and ignorant wretches under the sun. … [B]ut in doing so, she herself isolates him. She shows that he resides in a remote, and scarcely inaccessible swamp region, where his conduct comes under no human cognizance. How is society answerable for his offenses? How does he represent the condition and character of the slaveholder?

Those who come before a judge do not really know before whom they stand. The person who presides over the courtroom, cloaked in the solemn black robes of his or her office, is in that moment less an individual than a symbol of democratic values and an instrument of state power. In recognition of that power and authority, all rise as the judge enters the courtroom and takes the seat, elevated above everyone else in the room, from which justice will be dispensed. It is the hope of all, and the conviction of most, that this individual will do his or her job well, dispensing what is perhaps our most precious social good—justice. What no one knows, what no one is even permitted to ask, is the character of the person wearing that robe and the ways in which that individual's personal qualities will affect the performance of his or her duties.

I first met John Noonan at a Law Review dinner when I was a year or so out of law school and he was a third year student. Chance placed us at the same table, and the conversation—naturally—proved to be more interesting than the speeches. When I came home and reported on the occasion to my wife, it developed that she was already acquainted with John Noonan. When they were teenagers, he had been a particularly suave and glamorous summer inhabitant of a beach resort where one of her friends also spent summers.

Not long after the Law Review dinner, John graduated and went to Washington, and we left Boston, first for New Jersey and then for Notre Dame. I heard nothing more of John until one day when Joe O'Meara, the formidable dean of the Notre Dame Law School, showed me an article from the 1955 volume of the Journal of Legal Education called Value References in the Teaching of Negligence. The author had looked at all the Torts casebooks he could find, and earlier editions of many of them; at all the relevant case write-ups from the Harvard Law Review and the Yale Law Journal; at a number of law school examinations; and at all the issue sheets used by Harvard's Board of Student Advisors in supervising their moot court, the Ames Competition. He had found the value concerns in great disarray, and not much relied on anyhow. It was clear that teaching about negligence involved analysis of rules and not much else. The author (of course, it was John) admitted reluctantly that neither philosophy nor theology nor social science provided any principles that would be of much use in deciding negligence cases, but he expressed a rather wistful hope that more facts might lead to a more effective application of values to these cases. “More facts” was to be a major distinguishing quality in the rest of his work.

Judge Noonan's book, Persons and Masks of the Law, written a decade before he became judge, stirred up both hope and skepticism. On the one hand, readers felt drawn to what today might be called a kinder, gentler vision of judging. It is a vision that insists on viewing people in their full and connected humanity, rather than as the abstracted and partial legal constructs that filter through the laws of evidence and trial court decisions to the briefs and arguments that appellate judges see. On the other hand, some readers expressed concern that the richer contextualization Noonan had modeled could not, by itself, determine particular outcomes. Those contextualizing facts require interpretation and ordering. Furthermore, for every detail seeming to point in one direction, another detail pointing to an opposite outcome is likely to be available. In other words, contextualization risks either endless regression or arbitrary truncation. Despite the polite controversy—some of the politeness no doubt due to the fact that at the time Noonan was a professor and in no danger of wreaking any contextualist havoc on the Rule of Law—his book did ensconce the trope of “empathy.”

“Where is the standard of review in Judge Noonan's opinion?” The question has been posed—I am confident—more than once. I first heard it when I clerked for Judge Noonan, from a friend clerking elsewhere on the Ninth Circuit. My friend wanted to know by what standard of review Judge Noonan had reached his result. “It's not there,” I replied, “and come to think of it, it never is.” “Well,” retorted my friend, “how can that be? In our chambers, the standard of review decides the case.”

That little exchange (which is not apocryphal) rendered me speechless and thus got me thinking about the fetters that bind judges. While I disdained such a facile incantation—indeed, caricature—of the judicial “can't,” I accepted that while appellate courts rarely stand on the shoulders of giants, they do not sit as though the trial court (or agency) never rendered a decision. If appellate courts are not to be second trial courts, there must be some deference to the earlier proceeding, and that might usefully be designated the standard of review.

The papers that follow were presented on April 27, 1996, at a conference entitled “Religious Freedom, Modern Democracy, and the Common Good” and devoted to Franklin I. Gamwell's The Meaning of Religious Freedom: Modern Politics and the Democratic Resolution (Albany: SUNY, 1995). The conference was sponsored by the Lilly Endowment and held at Eden Theological Seminary in St. Louis.

Gamwell's constructive proposal is significant not as a further nuance on settled ways of understanding the relation of religion and politics in the United States, but rather as an explicit attempt to unsettle the current consensus in approaching this issue itself. As Gamwell shows, the contemporary discussion is dominated by so-called separationist and religionist understandings that alike assume, rather than argue, that religion is “nonrational.” He engages positions representing the entire spectrum of such understandings, including the “privatist” view of John Rawls, the “partisan” view of John Courtney Murray, and the “pluralist” view of Kent Greenawalt, in order to demonstrate that such a nonrational approach makes it impossible democratically not only to assert, but also to give coherent meaning to the political principle of religious freedom.

How can people who disagree about what it means to be a human being agree about what it means to be a citizen? The question Franklin I. Gamwell's The Meaning of Religious Freedom seeks to answer concerns the proper relationship between religious pluralism and modern politics. The question may be put either from a religious perspective (How can people who have incompatible religious convictions possibly coexist as members of the same political society?) or from a political perspective (In a pluralistic society, what constitutional principle can allow people of different religious convictions to live together in harmony?).

Insofar as the beliefs of different religions involve discrepant “comprehensive convictions” regarding the meaning of authentic human life, including, therefore, authentic forms of political association, state approval of religious pluralism would seem to be, as Gamwell rightly observes, “a prescription for political instability or civil war.” (8) The principle of religious freedom—meaning thereby the political principle “in accord with which a plurality of legitimate religions internal to a political community is consistent with its unity” (10)—is, therefore, “all implications taken into account, the only constitutional principle.” (162) What, then, is the proper understanding of religious freedom?

Professor Gamwell's book presents an ambitious and sophisticated argument, and I have to say at the outset that it is a daunting assignment for me to comment on the book. My difficulty is eased somewhat, though, by the fact that this conference has a separate panel with the expertise, and the assignment, to address the philosophical questions raised by the book. The job I've been given is a little easier—it is to talk about the significance of the book for constitutional jurisprudence—and so I can leave the very tough philosophical problems to those better equipped to deal with them. Of course, my job would be easier still if I'd been asked to comment on the book from the perspective of gardening, say, or perhaps tennis; then I could report that this is an admirable book but it isn't about gardening or tennis, and leave it at that. Well, as it turns out, I want to respond to my actual assignment by making a similar sort of claim: Professor Gamwell has written an admirable book, but it isn't about constitutional jurisprudence. Gamwell is not really concerned, in other words, with the same problems that provoke debates among judges, lawyers, and litigants.

Here, at the very beginning of our conference, it may be useful for me to restate summarily some of the main themes in The Meaning of Religious Freedom as I understand them. Professor Gamwell begins with what he calls “the modern political problematic.” Regarded from a religious point of view, the problematic is how a religious person (who, in accordance with the author's definition of religion as an answer to “the comprehensive question,” might be a systematic atheist) can logically avoid either denying the political relevance of his faith and spurning public debate; or else entering into public debate, but insisting without argument on the truth of that faith and in that way seeking, at least implicitly, its official establishment. Regarded from a political point of view, the problematic is: how can religious people, with their nonrational faiths, be admitted into the political realm—a realm open to all regardless of diverse faiths and therefore necessarily based on the rational powers we all have in common—without fatally compromising the principled openness of public life? It is a crucial premise of Professor Gamwell's argument that a mere modus vivendi cannot be an adequate answer to this problematic; only a theory of justice will suffice.

Franklin I. Gamwell's book, The Meaning of Religious Freedom, sets forth a theory that, if followed, would require some response (change) in education (from educators). Among other things, a philosophy of education should indicate curricula choices and instructional practices that follow from, or would lead to, a theory such as Gamwell's. John Dewey, the preeminent 20th Century American philosopher, to whom Gamwell refers numerous times, believed that “[e]ducation is the laboratory in which philosophic[al] distinctions become concrete and are tested.” I will raise some questions that are not so much criticisms of Gamwell's argument as they are attempts to start a discussion about what the theory would require from education.

Gamwell makes it clear that his argument, and the definitions from which it works, is “formal,” that is, not tied to any particular set of circumstances, let alone the United States, because he does not want to privilege or preclude at the outset any, what he calls, “candidate answers.” (13) His argument is compact and intricate. He earlier gave an outline of the argument in a paper on “Religion and Reason in American Politics” read at a conference in 1986. His concern is that there is a tendency to treat religion as inconsistent with politics, indeed as adversarial, and as non-rational, or not liable to criticism. (This is the same concern that Stephen Carter addresses in The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, though Carter's treatment is “popularized,” not formal, and, in my judgement, is superficial).