4/4/2012—Yesterday, I gave a booktalk at Yale Law School, hosted by the irrepressible and charming Blair Kauffman, the librarian there. The commentator was Samuel Moyn, professor of European history at Columbia, and the author of The Last Utopia: Human Rights in History, who is visiting at Yale Law this semester.
Sam gave a respectful but skeptical review of the book and I am grateful for the attention from such a thoughtful person. Sam raised a number of important questions, which I set forth below and which I will not answer today. As I did at the talk itself, some of the points require engagement rather than some immediate defense. Of course I cannot replicate all of Sam’s points here. I will inform the virtual world when the recording of the exchange will be available online.
Sam asked what kind of “crisis” is the crisis in the Establishment Clause that the book purports to engage? Since the American people seem quite content with religion in the public square, is it just a crisis in legal doctrine? If so, how important is that, actually?
Doesn’t my higher law proposal for both Establishment Clause doctrine and secularism generally lead to the disappearance of the underlying commitment to government neutrality that I claim to be defending?
Doesn’t my higher law proposal lead to a pretense that is similar to the kind of pretense I criticize in regard to the Supreme Court’s refusal to enforce neutrality consistently?
Is my higher law proposal a strategy and a compromise or not? While I state plainly in the book that it is not, some language in the book suggests otherwise.
Isn’t the higher law that the book endorses merely a rhetorical emptiness that has no actual content? If so, doesn’t the proposal risk describing the mere appearance of consensus rather than helping to actually forge consensus? Nor is it clear that progressives still attach much meaning to the rhetoric of higher or natural law anyway.
Finally, morally serious secularism already exists. So where is the crisis in secularism that the book refers to and why would surrendering a commitment to traditional government neutrality be an improvement over what is present now?