Religion and Politics

Noah Feldman has a challenging review of Jay Sekulow’s book on the religion of the Supreme Court in the Feb 20 issue of TNR. He argues that the Constitution’s prohibition of religious oaths means a subordination of religious to political conviction: “To move beyond Locke, the Framers had to do more than embrace the idea of a formal distinction between religion and government. They also had to accept the hypothesis that men swearing an oath to support the Constitution would put that duty ahead of any particular commitments entailed by their religious faith. That is why the religious test clause appears immediately after the requirement that every public servant in the country, whether state or federal, must swear or affirm support for the Constitution.”

Feldman suggests that many evangelicals brings their faith to bear on politics indirectly, through the formation of values: “According to one influential version of the evangelical position, the believer must draw on his inner faith in order to form his essential ‘values.’ These values derive from religious dogma, but they are not identical to it. Framed at a brother level of generality – the dignity of the human person, say, or the sanctity of life – these values can then be brought into the public realm for purposes of political debate and policy-making.” Feldman sees nothing Constitutionally threatening in this evangelical viewpoint.

He claims, however, that Sekulow advocates a “theocratic” position in which faith is brought more directly to bear on policy-making, and though he concedes that it is “perfectly plausible, from a religious standpoint, to make the argument that God’s law comes first, and that the believer is obligated to apply it, whatever the secular legal order nominally requires,” he concludes that as a Constitutional matter “the usurpation of constitutional reasoning by religious reasoning is very troubling indeed.” If the Constitution is to work, Americans must be confident that “officers of the United States can be trusted to uphold their oath to support the Constitution, and not some alternative source of authority, sacred or profane, other-worldly or this-worldly.”