John T. Noonan Jr.
The Lustre of Our Country
The American Experience of Religious Freedom
University of California Press, 421 pp., $ 35
Since his appointment to the Ninth Circuit Court of Appeals in 1986, John Noonan has provided ample evidence that he is one of the most distinguished minds in our federal judiciary. Earlier, as a law professor at Berkeley and the author of major studies on the connections between religion and law, he demonstrated that he is, above all, a historian of ideas. That demonstration continues with his most recent work, The Lustre of Our Country, which is a personal summing up of Noonan's reflections on what he believes to be America's most innovative and audacious contribution to world history -- the free exercise of religion.
The book's title comes from Noonan's hero, James Madison, for whom "the whole burden of freedom was carried by the formula of free exercise." The First Amendment's commitment to the free exercise of religion, Madison wrote, "promised a lustre to our country." That commitment is expressed in merely sixteen words: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
But the interpretation of those words, more than any other aspect of contemporary jurisprudence, has cut to the heart of our understanding of the American experiment. Although his tone is generally irenic, Noonan leaves no doubt that the courts -- and the Supreme Court in particular -- have made a hash of the Religion Clause under the rubric of "church-state law."
An egregious error entrenched itself in the 1950s when the courts began speaking not of the Religion Clause but of two Religion Clauses -- the no- establishment clause and the free-exercise clause. Predictably, the error has been compounded again and again as the "two clauses" have been pitted against each other, almost always to the detriment of free exercise. But as Noonan notes, we are dealing with two prepositional phrases of one clause. "The first phrase assumed that establishments of religion existed as they did in fact exist in several of the states; the amendment restrained the power of Congress to affect them. The second phrase was absolute in its denial of federal legislative power to inhibit religious exercise." Over time, state establishments disappeared and the First Amendment was "incorporated" to apply also to the states, but always it should have been evident that there is one Religion Clause, devoted to the end of the free exercise of religion. No establishment is a stipulated means to serve that end. The jurisprudence of the last half century, however, has tended to turn the means into the end, repeatedly declaring that any connection, no matter how benign, between government and religion is a forbidden "establishment." The result is a court-imposed governmental indifference to religion that results in de facto governmental hostility to religion.
In regulating the activities of government, Noonan notes, the courts frequently pretend that they are not themselves part of government. But in fact, they are that part of the government that assumes that "the courts themselves are sacred." "Performing these tasks that they have determined to be allotted them by the First Amendment, the courts unself-consciously place themselves above any church or creed." And this is precisely what Madison was determined to avoid by declaring that citizens had a "prior obligation" and " natural right" to acknowledge a sovereignty higher than the sovereignty of the state. The genius of his innovation was to insist that, with respect to the exercise of that obligation and right, the government has no legitimate " cognizance."
The Founders were keenly aware that the free exercise of religion was qualitatively different from religious tolerance. "Tolerance," writes Noonan, "is a policy, an acceptance of religious difference because it's more trouble than it's worth to eliminate it, a prudential stance of wise statesmen. It is something else to inscribe in fundamental law an ideal of freedom for the human activity most potentially subversive of the existing order."
The free exercise of religion is most potentially subversive because it proclaims a sovereignty that "stands against the sovereignty of the state." Writes Noonan, "Each individual's religion 'wholly exempt' from social control? No qualifications whatever on the right and duty to pay homage to God as one sees fit? Surely, in the heat of battle, Madison exaggerates! No, his theological premises compel these radical conclusions."
The last point touches on a matter central to Noonan's argument, namely, that the free exercise of religion is, in the main, a religious achievement. This is explicitly proposed against the received wisdom that religious freedom -- usually construed as tolerance -- is the achievement of the secular Enlightenment against religion. In carrying this point, Noonan the historian is on impressive display.
The Lustre of Our Country is oddly contrived. It begins with an engaging autobiographical sketch of the Catholic author coming of age under the shadow of Puritan Boston. Noonan then examines the limits and contradictions embodied in the Puritan idea of religious freedom, to which he contrasts Madison's "original insight." A chapter is devoted to a fictional letter "discovered" by Noonan, written by Tocqueville's younger sister, who argues that her brother was right to view religion as "the foremost institution" of American democracy, but wrong in claiming that the " separation of church and state" is, in fact, the American reality. Employing various literary techniques, sometimes eccentric but always fascinating, Noonan retells key cases in which the Supreme Court has tied itself into knots by regulating religion, with the result that it ends up in ludicrous efforts to adjudicate the sincerity and truth of religious claims -- exactly the claims that Madison declared to be none of the government's business.
On the "subversive" dimension of free exercise, Noonan recalls four " crusades" -- the abolition of slavery, the war against Mormon polygamy, the prohibition of alcohol, and the civil-rights movement under the leadership of Martin Luther King Jr. Curiously, he does not include a fifth crusade, that against the abortion license of Roe v. Wade, on which he has written elsewhere with great persuasive effect. In all this, Noonan leaves no doubt that the free exercise of religion is an idea potentially dangerous to the state. Yet Madison and most of the other Founders believed that the entire constitutional order, this novus ordo seclorum, was contingent upon taking that risk. Noonan worries that we Americans, with the courts in the lead, may now have lost our nerve for it. Implicit in that loss of nerve, he suggests, is an acceptance of Durkheim's view that religion is essentially a function of society, something to be used and tolerated to the extent that it serves "the sacred society."
Nonetheless, Noonan is by no means ready to give up. For all the missteps along the way, the American commitment to the free exercise of religion is still, he insists, a "success." Against what he views as the false humility of many Americans, he urges a forthright acknowledgment that religious freedom is this country's foremost contribution to the world's understanding of just government. In advancing that claim, he devotes chapters to four contrasting case studies: the French Revolution's affirmation and betrayal of the American idea of religious freedom; the American imposition of the idea on a defeated Japan; Russia's current and deeply flawed efforts to incorporate the idea; and the American influence in the Second Vatican Council's teaching on religious liberty.
The Lustre of Our Country is erudite and instructive, frequently whimsical and typically wise. Yet I expect that other readers will share my frustration with aspects of its argument. At times, Noonan seems to conflate freedom of religion with freedom of conscience. There are similarities, to be sure, there are also big differences. Freedom of conscience is easily reduced to radical individualism, ending up with what Noonan rightly deplores as the courts' common depiction of religion as a private aberration, to be tolerated insofar as it does not interfere with government purposes. This conflation also invites the subsuming of religious freedom into constitutional guarantees of freedom of speech and other provisions that ignore religion's necessarily subversive witness to a higher sovereignty. Noonan is apparently unhappy with the Supreme Court's recent striking down of the Religious Freedom Restoration Act -- a decision that many viewed as tantamount to a repeal of the Religion Clause -- but he offers no suggestion of other legislative remedies for judicial hostility to religion, a matter of some importance, as Congress is now working on another effort to produce such legislation.
Throughout the book, the reader is provoked to speculate about the assumptions underlying Noonan's judicial philosophy. He is clearly a " textualist," and also an "originalist," in his devotion to the radical intention of those responsible for the First Amendment. Yet at other times he seems to want judges to act as philosopher kings. His epilogue proposes "Ten Commandments" for people who deal with religious freedom, including the admonition that "you shall know that no person, man or woman, historian or law professor or constitutional commentator or judge, is neutral in this matter." Fair enough. Noonan is right to insist that, where religion is concerned, imagination and empathy are required. "Can a judge be a pilgrim?" he asks. He answers in the affirmative. But as a judge, he should strive to read the law, to be objective, and, yes, to be neutral. Safety from judicial usurpation rests not so much in having judges who are better philosophers as in having judges who recognize that, as Madison would say, there are questions beyond their "cognizance."
Both suggestive and problematic is Noonan's persistent drawing of parallels between judicial interpretation and John Henry Newman's theory of "the development of doctrine." In this connection, he offers an extended treatment of the development of Catholic teaching on religious freedom at Vatican Council II. Clearly, Noonan has no use for the exponents of a "living Constitution," who declare, in effect, that the Constitution is dead because it means whatever the courts say it means. Just as clearly, there are parallels between what judges do and what church councils do. Both are involved in trying to comprehend a "sacred text" as it relates to current problems and understandings.
A crucial difference, however, and a difference one wishes Judge Noonan addressed more directly, is that church councils -- at least in the Catholic understanding of things -- are promised the guidance of the Holy Spirit.
But let me not leave the wrong impression. The questions and arguments provoked by The Lustre of Our Country testify to its great achievement. Judge Noonan understands, as very few judges and constitutional scholars do, the founding genius of the American experiment. He understands those sixteen words in the First Amendment -- and persuasively explains why they continue to be this country's most innovative, audacious, and promising contribution to the world's understanding of the right ordering of political society.
A Roman Catholic priest in the archdiocese of New York, Richard John Neuhaus is editor in chief of First Things.