Print
PDF FormatHow to get out of this mess? Carter’s solution is to reject the basic liberal-constitutionalist worldview. The problems of today’s religious communities stem from the “tendency of even a liberal political sovereign to become totalizing…. I do not argue that in a contest of wills, the religious side must always win. I do believe that there is a scary, totalitarian aspect to the suggestion that it should usually lose.” What is needed, instead, is a constitutional approach which makes allowances for communities of faith, with the goal of “nurturing the ability of our many religious communities to project their perhaps quite different normative understandings across the generations.” This means, at a minimum, the devolution of some constitutional authority from the federal to the state and local levels—which, in any event, was at the heart of the Founders’ constitutional doctrine. Above all, it means that judges, so accustomed to seeing themselves as a check on sovereign authority, must realize that they are also a part of the sovereign, and must therefore embrace a more respectful attitude toward religion, lest their insensitivity to the “repeated petitions” of a large segment of the population lead to its total disaffection from American democracy.
Carter’s solution, while commendable, misses the point. Short of constitutional amendment, the only thing which can prevent the alienation of America’s religious communities is a change of heart throughout the legal establishment—a rather unlikely prospect at a time when America is thriving, powerful, confident and enjoying greater internal harmony than most other nations. Neither American secular society nor the legal system at its core is about to abandon its worldview for fear that court rulings “might… contribute to the popular sense of a national sovereign that is out of control.” What is required, rather, is hard evidence that the current system is failing—that the dissent Carter foresees is in the offing, and not just one of many possible results of religious citizens’ disaffection. Examples of such evidence could include studies on past and current levels of political involvement among religious citizens, the increased enrollment in parochial schools, or the degree to which state court systems are reasserting their authority on religious communal issues.
Despite its limitations, The Dissent of the Governed should give pause to those who believe that the legal establishment in America can forever ignore the religious community. The desire to form communities, and the expectation that government will recognize the integrity of those communities, is fundamental to most religions. If religious citizens are consistently made to feel that the institutional deck is stacked against them, and that normal means of democratic expression are useless in preserving the life and values of their religious communities, it should come as no surprise if the debate over religion in America should one day move beyond the bounds of civil discourse—and enter darker, more turbulent waters.
Nathan J. Diament is political and legal affairs director for the Union of Orthodox Jewish Congregations of America.
