This entry continues the 'religious test' discussion. (Last installment here.) The Canadian writes,
I agree that there's no incoherence in a statement such as "(1) The Constitution guarantees freedom of religion and disallows religious tests. (2) The Constitution guarantees these things subject to the proviso that the religion in question is compatible with the principles of the American founding." But why is the most reasonable interpretation one that projects such a proviso on to the text? What are the criteria for a reasonable interpretation? On the one hand, a reasonable interpretation might be one that results in a constitution that reasonable people could accept. Naturally, if this is the criterion, no reasonable interpretation can produce a constitution that, in practice, would create a society where that same constitution would be destroyed. On the other hand, it might simply be one that's adequately supported by the textual evidence (and other evidence, e.g., reasonably hypotheses about the authors' intentions). Or maybe a reasonable interpretation is subject to both constraints. In any case there is a tension between the two. As you say, there's really no good textual evidence (or any other kind, as far as I know) to indicate that the Constitution really does implicitly limit the scope of religious freedom so as to preclude the freedom to practice traditional Islam, or that it limits the scope of 'No religious test' so as to allow for tests with respect to Islam. I'd argue that a reasonable interpretation in the second sense–the most reasonable one, in that sense–is unreasonable in the first sense.
"What are the criteria for a reasonable interpretation?" I agree that there is no evading this difficult question. One answer is that a reasonable interpretation is an internally coherent one. The First Amendment guarantees the "free exercise" of religion and "freedom of speech," inter alia. Now if "no religious test" (Article VI, section III) is interpreted in so latitudinarian a fashion as to allow Sharia-supporting Muslims to gain political power, then we are on the road to an internal contradiction. For these Muslims, once in power, will of course try to shut down the free exercise of religions other than Islam, and they will attempt to prohibit freedom of speech if it involves any criticism, no matter how respectful, of Muhammad or of any aspect of their religion. They will have used the Constitution to destroy the Constitution. They will have exploited our freedom of religion to eliminate freedom of religion, and our freedom of speech to eliminate freedom of speech.
It seems to me that the Constitution cannot be interpreted so as to allow the emergence of the following logical contradiction:
a) Under no circumstances shall (i) the freedom to practice the religion of one's choice (or to refrain from the practice of any religion) be prohibited by the government, or (ii) the freedom to express one's view publicly be abridged.
b) Under some circumstances (e.g., when enough Muslim fundamentalists gain power) the freedom of religion and the freedom of speech many be prohibited and abridged.
Note that the (a)-(b) dyad is logically inconsistent: the limbs cannot both be true. What we have here is a strict logical contradiction.
But to embrace a logical contradiction is the height of unreasonableness.
I conclude that to interpret the Constitution in such a way that it allows for the emergence of the above contradiction is unreasonable. The solution is obvious to me: one cannot allow a destructive political ideology such as Islam to count as a religion for purposes of Constitutional interpretation. I am conceding that Islam is a religion and not a mere political ideology masquerading as a religion, and I am conceding that it is a religion in its own right and not a Christian heresy; the point is that it is a religion-cum-political ideology that is incompatible with the principles and values of the American founding.
Therefore, Islam ought not count as a religion when it comes to interpreting the Constitution. It may well be a way to God for those brought up on it and who know no better way, and it deserves respect for that reason. But this is no reason to abstract from its totalitarian and theocratic political nature, a nature at war with our political principles.
The Canadian continues:
In any case, I think that for your argument you need the first notion of reasonable interpretation. But then there's a problem: Leftists, whose ideas about reasonable political principles are very different from ours, can now argue on a similar basis that we should just ignore the seemingly plain meaning of the Constitution in cases where it conflicts with their values. For instance, they can argue that since it's just not reasonable to let citizens buy AR-15s, the 2nd Amendment must be interpreted in such a way that citizens don't have that right. That seems worrisome. If there isn't even a generally agreed meaning for the constitution, the only way to politically resolve such disagreements is by some kind of debate over ultimate aims or values; but I know you agree with me that that isn't likely to happen either. So it seems wise to insist that the constitution's meaning is the meaning of the text, not the meaning that we think it would have or should have in order to be most reasonable. But then we're back to the problem that the text just doesn't seem to exclude Islamic freedom of religion, or to allow for a "religious test" in that case–or even to exclude the possibility that the Constitution is just internally inconsistent in some respects…
In many cases there is no "plain meaning." The meaning has to be 'excavated.' Does "establishment of religion" have a plain meaning in the First Amendment? (That's a rhetorical question.) "Congress shall make no law respecting an establishment of religion . . . ." The meaning is open to interpretation. Or take the Second Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Does 2A bear its meaning on its sleeve? Of course not. What is the Militia? Is the right individual or collective? Does the initial clause supply a reason, or the only reason, in justification of the right to keep and bear arms? I have argued elsewhere that it supplies a reason, not the only reason. I am sure many if not most would disagree.
So I deny the Canadian's assumption that the Constitution has a plain meaning that can just be 'read off' the text. There is no avoiding interpretation in the light of principles that are not themselves articulated in the Constitution. The Law of Non-Contradiction, for example, is not stated in the Constitution. We bring that principle to the text, and reasonably so.
Or consider the Principle of Charity in interpretation. To save keystrokes I won't formulate the principle. My astute readers know more or less what it is. Well, does "All men are created equal" in the Declaration have a plain meaning? There are benighted souls who think it implies the empirical equality of all human beings. But this violates the Principle of Charity since if the declaration in the Declaration were so interpreted it would come out false! The Charity principle, however, is not to be found in any of the founding documents; we bring it to the text and we do so reasonably.
There is no avoiding interpretation. The text does not have a plain meaning. The other extreme, however, is far worse. There are those who say that the Constitution means whatever SCOTUS says it means. But then there is no text; there is a tabula rasa upon which people in black robes write whatever they want. The most SCOTUS can do is decide upon an enforceable meaning among candidate possibilities that find support in the text. That alone is the reasonable view.
For example, are 2A rights collective or individual? It was decided that they are individual. SCOTUS in this decision came to the 'right' decision. Yes, my use of 'right' is tendentious. More on this problem below.
What I am saying, then, is that there is a text, not a tabula rasa; the text has a meaning; the meaning is not obvious; the meaning is subject to interpretation in the light of principles brought to the text.
But whose principles are these? Those of a reasonable person. But what constitutes reasonableness? Here is where the crunch comes, as my Canadian interlocutor fully appreciates. SCOTUS has the power to lay down the law and enforce an interpretation of the Constitution. But who has the power to decide what the principles of rationality are? Logically prior question: Are the principles of rationality matters of decision at all?
The Canadian concludes:
We might be back to a recurring deeper disagreement here. I don't think that any system of abstract principles and values is enough to provide a framework for a workable society. I think some kind of pre-rational or pre-conceptual horizon of meaning and practice and natural community is the basis; explicit principles and values have a role, but only when they're understood by everyone to operate within that specific cultural world. The principles of "no religious test" or "freedom of religion" were just fine when they were only being applied to a fairly small range of fairly similar religions, practiced by relatively similar people. (And, sure, there were always some who were not so similar–Africans, Amerindians–but they were small in number and had no real influence.) Once every religion on earth was included in American society, that was bound to create insoluble problems. Of course, one option is to simply say that there will be freedom of religion for a specific list of religions, and only those ones. But that seems contrary to other traditional American principles. I suspect that the very idea of "religion" that we in the west tend to take for granted is really an artefact of our specific religious and cultural heritage. There is probably no useful general account of "religion" across all human cultures. So it would be unwise to propose any kind of freedom for that kind of thing.
I agree that abstract principles and values are not enough. They have to reflect a (temporally) prior pre-conceptual shared understanding that is taken for granted. The principles and values cannot be imposed ab extra, but must be a sort of distillate or articulation on the conceptual plane of what is already tacitly understood and accepted at the pre-conceptual level. Otherwise we will argue about the principles.
Argument about first principles is the province of philosophy and is legitimate there. In philosophy, nothing is immune to scrutiny. I should think that 'nothing immune to scrutiny' is a constitutive rule of the philosophical 'game' or enterprise. But if our politics becomes a philosophical free-for-all, then we are in trouble.
There is no place for dogmas in philosophy. But in politics and religion we seem to need them. We need propositions that are unquestionably accepted.
For example, if we don't all accept that there is a sense in which we are all equal, equal as rights-possessors, then we are in deep trouble. And if we don't all accept that certain ideologies such as Islam are incompatible with the principles enshrined in the U. S. Constitution, then we are in deep trouble. Examples are easily multiplied.
I think we agree on why we are in the mess we are in. As you put it, "Once every religion on earth was included in American society, that was bound to create insoluble problems." But benign non-Christian religions such as Buddhism are not the problem. The problem is Islam. The solution is extreme vetting of immigrants from Muslim countries. "Of course, one option is to simply say that there will be freedom of religion for a specific list of religions, and only those ones. But that seems contrary to other traditional American principles."
I disagree. Which traditional American principle are you referring to? Don't tell me "freedom of religion." Islam is not a religion in a sense that could allow it to be on a list of acceptable religions given American principles.
Can a multi-cultural society flourish? There is reason to be skeptical. A society cannot flourish without shared principles and values. But the latter presuppose and grow out of a shared public culture. Acquiescence in and assimilation to that shared culture — Graeco-Roman and Judeo-Christian — must be demanded of all would-be immigrants. Otherwise we will break apart and become easy pickings for foreign aggressors.
I suspect it is already too late to turn things around peacefully. Civil war is a real possibility.
