Still intend “light to no posting,” but couldn’t resist extending dialogue at the League on “Playing With Constitutional Fire,” an informative and thoughtful post by lawyer Burt Likko that also inspired some useful discussion. My main comment was approximately as follows (I’ve done some post-“submit” proofing, and added some I hope helpful notes):
Well, thanks for indulging me, as I see now I got a little carried away ((Prior comment:
You ask, “Are we comfortable with a Constitution that allows this?” I think you mean “Are or would we be comfortable with a mode of interpretation of the Constitution that leads to this conclusion allowing establishment of religion?” Or do you mean, or also mean, “Are we actually comfortable with certain aspects of the Constitution as written that force us to resort to legal constructions whose rationality may seem other than obvious?”
I’m not sure how to take this matter further without delving into the mysteries of authority, obedience, and belief, the limits of language, the situation of the law under popular sovereignty, and the paradoxes of our established religion whose first tenet is that it is not an established religion.
We can creep up to the edge of such a potentially very distracting examination by noting that, if we can imagine that an internally quite logically consistent “literal approach” does already deny Incorporation, then in this way “the Constitution” already does or may (or can reasonably be construed to) “allow” local “Establishment.” Therefore, what the NC Establishers are really preparing to defy or nullify isn’t, from their point of view, “the Constitution,” but two sets of interpretations: a secondary set of interpretations regarding Incorporation via the 14th Amendment as we have discussed, and the set of primary interpretations that make doctrines like Incorporation possible in the first place, regarding Supreme Court jurisprudence within the constituted order, specifically the ability of the Supreme Court to choose one interpretation over another, and, ahem, establish a manner of speaking that implies a mode of compulsory belief.
So maybe the real question is whether we would be comfortable under some other system, or with the costs and risks of attempting a transition to it. As of now mostly not, it seems, but one aspect of the system as it is that the impossibility of the full and complete, uniform elaboration of its self-contradictory tenets is the only full and complete, uniform elaboration of its self-contradictory tenets. IRL, that means that there will always be someone proposing something whose implications are the complete overthrow of a system that exists only to the extent that we believe it exists independently of our belief in that existence independent of our beliefs. And so on.)) with paradoxes of civic religion on an abstract level. I don’t disagree with you on the practical-political question, but I also don’t presume that my agreement or disagreement matters to anyone practically-politically. I’m more interested in the theoretical questions.
So, on the latter score, we may be able to distinguish between a declaration of “establishment” and an actual or effective establishment.
The 1st Amendment even read as applying to Congress only ((…i.e., taken merely literally as a restraint on Congress alone, prior to any expansive reading of 14th Amendment Due Process in relation to the 1st as under the doctrine of Incorporation)), in combination with the No Religious Test Clause ((…of Article 6: “…[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States”)), would seem to make actual establishment virtually impossible at least for now, since a declared-established religion with no supporting legal or administrative structure would be an empty signifier. President Obama could declare the Navajo Way the official established religion of the United States, and the main effect would be on his political future, possibly involving the 25th Amendment, not on the actual status in law and society of the Navajo Way.
On the other hand, we could imagine a mass conversion of the American population to the Navajo Way, so that a Navajo Way president could easily fill all appointive offices with NWers, and pursue an agenda along with a compliantly NW Congress and NW Supreme Court that ensconced NW precepts as well as faithful NWers pursuing an NW agenda at every level of the federal government. Eventually, they might, by constitutionally valid process, partly nullify the 1st Amendment and Article 6, and, by some logic of Incorporation, fully elaborate NWism at state and local levels. Or they might not bother, since by NW philosophy it might not make any difference whether the state attached whatever signifiers to an effective, but undeclared, NW establishment.
In short, until there was a will to make a new religious establishment actual and effective, any declaration would just be words, but, if and when there is a will, it will find a way.
We can still abide presidents making references to “God,” and possibly, at least from conservative presidents, to “Judeo-Christian values,” but under conventional understandings of religion -as essentially pre-modern cultish or sectarian, dogmatic religious organization – that’s as far as we go. The difficulty comes with the recognition that modern secularism or pluralism or liberal democratic ideology, articulated in relation to pre-modern religion, is a successor or child of pre-modern theocratic religion, necessarily with many of religion’s or theocracy’s essential characteristics. In this sense the will has found its way, but the way involves what can be seen as a fundamental self-deceit – which we may not be able to presume is a bad thing, or which, if it is a bad thing, we may not be able to presume or show is the worst thing or an avoidable thing.
The NC people are, I suspect, attracted as much by the principle of nullification as they are by the idea of establishment. They may see themselves both to be affirming their religious freedom as well as restoring rationality on behalf of an originally Americanist libertarianism. Their “free exercise” extends, in their view, to the creation of a sanctified community. They themselves may generally also work from a conventional understanding of what “religion” really is. Some among them may, however, also view “humanism” or “secularism” or “secular liberalism” as religion under another public name.
Since Rousseau, schools of political philosophers and later of sociologists have recognized this possibly indispensable mass democratic ideology as a “civic religion.” ((Coinage of the term “civic religion,” or “civil religion” is credited to Rousseau in The Social Contract, but the concept has, arguably, been implicit and fundamental in political philosophy and politics at all since the origins of political philosophy and politics.)) The problem for the NCers is that this civic religion that does not know or acknowledge itself to be religious, or to be religious in the way that all of the lesser cultish religions are merely “religious” (rather than true and truly desirable for governance of a mass nation-state), would seem to amount to the actual established religion of the United States of America, not to mention the world America made. It is even “declared-established,” just not as a “religion.”
The would-be North Carolina establishers of a modified pre-modern Christian cult cannot rise without the True Civic Religion of American Constitutionalism under Holy Democratic Popular Sovereignty ((…realized political theological anismism in the age of nation-states)) falling that same little bit. But the True Civic Religion is powerful and pervasive. It would have a very long way to still to fall, even if the reactionary cult happens to seize control of a city council somewhere for long enough to have a few somewhat sectarian prayers said before sessions, or to put the emblems of the cult on the same level as a team mascot.
Semantics confuse this discussion further. The way different groups of Americans understand religion as a word, in addition to their varied emotional responses to the word, gives a wild range of stories about how it functions as an establishment (or not.) An established religion, as a concept, can be analogous to an organized religion for many people. That is not to say that there may not be a quantifiable difference, but the stories behind both concepts, particularly for the self identified non-affiliated religious, are intertwined.
A common self description is of course “spiritual but not religious.” While many of this group appear to be agnostic or interested in religious experience without commitment, there are also those who have a stringent fundamentalist/literalist vision of religious experience that makes it difficult for them to tolerate the social expression of religion as community. There is a flavor of American Civil Religion that goes with that, focusing on separatism and a distinct narrative of history and culture that functions as scripture. Actions which embody values of wealth, power and autonomy (according to the group narrative) are ritualized. While from the outside they are assumed to be part of a protestant Christian culture, they frequently identify religion as irrelevant, and are deeply suspicious of any self-reflection or critical thought as being in direct opposition to a “lifestyle” which is in fact, fraught with religious experience.