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11:00 PM, Jan 21, 1996 • By JEREMY RABKIN
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What Kramnick and Moore want to demonstrate is not that Christian conservatives are poor scholars but that their ambitions are beyond the bounds of what our constitutional traditions can tolerate. In a more forthright era, this charge was described as "un-Americanism." Kramnick and Moore settle for saying that religious conservatives today are in a direct line of descent from the people who denounced Jefferson. But in the end, their charge against the contemporary religious right is not really a matter of history but of ideology. To make the charge plausible, they must ignore history and present today's religious conservatives without any reference to the immediate historical background of present-day controversies.

First, the authors never acknowledge the constitutional novelty that has hdped to provoke the contemporary "religious right." The peculiar wording of the First Amendment -- "Congress shall make no law respecting an establishment of religion" -- was quite deliberately crafted to appeal not only to Jeffersonians, but to those of"the opposing tradition." The prohibition applied only to the federal government, and the phrasing was designed to prohibit Congress not only from establishing a national religion but equally from interfering with existing religious establishments in the states (which endured in some states well into the 19th century). It is only since World War II that the Supreme Court has decided to enforce the "non-establishment" prohibition on states and localities. The rationale for doing this (that the Fourteenth Amendment had somehow intended to apply the whole bill of rights to the states) is quite weak on historical grounds. The court itself has never ventured any serious justification for this approach. Yet, since the late 1960s, it has lowered standing barriers to legal claims against "establishment" in a way it has prudently declined to do for any other constitutional claim.

In recent decades, therefore, the Jeffersonian outlook has been given an intrusive legal reach it simply never had in all of previous American history. It is one thing to dispute whether the federal government should deliver the mails on the Sabbath (as Jeffersonians insisted it should in the early 19th century). It is rather a different thing to unleash federal courts on every schoolhouse in the land that posts the Ten Commandments in the hallways or against every local public park that accommodates a Christmas display in December. It may be true that what the courts are enforcing parallels, in some sense, the strict separationism endorsed by Jefferson. But Jefferson never thought to urge that central authorities be brought in to correct the failings of every little village in Virginia.

There is a much deeper point, however, about which the authors are equally silent. Even strict separationists like Jefferson never doubted the authority of government to enforce basic moral norms. Contemporary liberalism has challenged traditional understandings about a whole range of moral norms, on the grounds that they are improper impositions of religious belief or unnecessarily repressive. Abortion is, of course, the most notorious example. Kramnick and Moore say that "in a democratic society abortion advocates and abortion foes can legitimately debate the issue."

In the contemporary United States, however, the issue cannot be settled by or dinary democratic debate. The "abortion advocates" have their views enforced by judicial edicts -- so that, at one stroke in 1973, the United States was given the most permissive abortion laws in the Western world. And Kramnick and Moore, while treading lightly around the basic fa ct, do seem to endorse this system: "In light of the godless Constitution," they say, it is "unacceptable... for government policy in any way to privilege or codify religious belief in ways that preempt pluralist democratic process."

In other words, for the sake of "pluralist democratic process," policy preferences of religious believers may need to be forcibly withdrawn from democratic process. Krarnnick and Moore cannot quite bring themselves to attribute this remarkable doctrine to Jefferson, but they do not acknowledge how far it stretches anything that Jefferson could actually have endorsed. Kramnick and Moore want to rescue Jefferson's anticlerical enthusiasm and leave the rest of his liberalism back in the 18th century.