The Lustre of Our Country: The American Experience of Religious Freedom.

The American Experience of Religious Freedom John T. Noonan, Jr. University of California Press, $35,430 pp.

That Judge John T. Noonan, Jr., should write a book whose hero is James Madison marks a certain moment in both American legal and Catholic intellectual history. Noonan's remarkable career has placed him at the center of both traditions. Currently sitting on the United States Court of Appeals for the Ninth Circuit, Noonan is a former chairholder at the Boalt Law School of the University of California at Berkeley, a member of the American Academy of Arts and Sciences as well as the Harvard Board of Overseers, and a towering figure in Catholic intellectual and legal circles. Recently, he has authored a sharp attack on the "right" to physician-assisted suicide and participated in the late Cardinal Joseph Bernardin's Catholic Common Ground initiative. His scholarly achievements defy casual summary, but a sustained interest in the development of Catholic doctrine has led to a series of important books on topics as disparate as bribes and annulments. In Rome for the heady days of the Second Vatican Council, Noonan also served as a primary scholarly adviser for the ill-fated papal commission that urged Paul VI to alter traditional Catholic teaching on artificial contraception.

But James Madison? As Noonan notes in the autobiographical, and moving, first chapter of The Lustre of Our Country, he began his scholarly career as a graduate student at The Catholic University in the 1940s, convinced that traditional church teaching on religious freedom was unassailable. A leading Catholic textbook of the time put the matter bluntly: "If there is only one true religion, and if its possession is the most important good in life for states as well as individuals, then the public profession, protection, and promotion of this religion, and the legal prohibition of all direct assaults upon it, becomes one of the most obvious and fundamental duties of the state." Popes and theologians agreed that error - that is, any non-Catholic belief - might be tolerated, but only out of charity. One afternoon, Noonan traveled to Maryland's Woodstock Jesuit Seminary where he argued the matter with John Courtney Murray. Murray's brilliance helped Noonan reassess his position, but also prompted doubt about the veracity of his faith.

How the Catholic idea that "error has no rights" became viewed not only as implausible but immoral - in the United States, in Rome, and much of the world - is Noonan's subject. He begins in his native Boston, "cradle of liberty," where Puritans fleeing religious persecution commenced flogging, banishing, and hanging Quakers. He then moves to Madison's battle (first in Virginia, then after the Philadelphia Constitutional Convention) to replace the idea of religious tolerance with that of free exercise. Subsequent chapters offer different angles on the same problem, including a survey of the nineteenth-century religious landscape written in the voice of a fictional sister of Alexis de Tocqueville, and an engaging mock memoir by an American military officer charged with rewriting the Japanese constitution after World War If. Another chapter - written in traditional expository prose - traces the tortured legal maneuverings that resulted in the Supreme Court's terming the opinions of a small religious sect "humbug." The book concludes with a riveting summary of debates on religious liberty (here we reencounter Noonan's old sparring partner, John Courtney Murray) at the Second Vatican Council.

For a scholar once concerned about Catholic triumphalism, this is triumphal history. Free exercise, Noonan begins, is an American invention, and "no false modesty" or "nervous fear of chauvinism" should obscure this fact. Not only is it the lustre of our country, but it is also, according to the book's press copy, "America's greatest moral contribution to the world."

Such blanket statements tempt even the most generous reviewer, but Noonan builds a convincing argument. Free exercise is a distinctive American contribution to modern life, and its presence in many of the constitutions written around the world during the past decade testify to its continued importance. Interfaith cooperation on civic affairs, as well as high rates of religious intermarriage, are both (in part) legacies of this two-hundred-year experiment. And the contemporary Catholic must acknowledge that the most important harbinger of John Paul II's persistent appeal to the primacy of human conscience is not, say, Gregory XVI who in 1832 termed "freedom of conscience" an "absurd and erroneous opinion," but James Madison, a devout Presbyterian deeply shaped by the Enlightenment. In this area, as in others, the more Christian response to the problem of religious pluralism came from outside Catholicism, even, at many moments, from outside Christianity itself.

The celebratory tone of Noonan's assertions, though, clash with his savvy discussion of the legal relationship between church and nation. Even in a nation dedicated to religious freedom, Noonan concedes, national interests frequently trump religious concerns. In the nineteenth century the Supreme Court declared a Mormon religious practice - polygamy - unconstitutional. In the twentieth century the Court deemed draft resisters from certain religious backgrounds worthy of an exemption from military service, but handed other opponents of the war their induction notices. Administrators at the Internal Revenue Service withdrew Bob Jones University's tax exempt status, despite the claim of Bob Jones officials that Scripture required them to forbid interracial dating.

Free exercise, then, has limits. Inevitably, the exercise of religious belief depends on a cultural consensus, enforced by the government, of what constitutes legitimate religious practice. Catholic priests were allowed to drink wine at Mass despite 1920s Prohibition laws, but today's Native Americans are not permitted to use peyote.

Noonan understands these tensions quite well, but he is relatively sanguine about the situation. He rejects the thinking of more radical theologians, for example, who view the church as the only meaningful social unit and who are convinced that the entire project of a national "community" is as plausible as the Loch Ness monster. That church leaders and religious people have at various moments supported slavery, wars of conquest, and ruthless attacks on Native Americans only confirms, in this more radical view, the danger of church sympathy with national goals.

By contrast, Noonan admires the American civil religion that overlaps with that of specific churches and congregations, allowing believers to serve both Washington and God. Precisely this American sense that the nation is under God's judgment, Noonan argues, explains the success of nineteenth-century abolitionists and anti-Mormon agitators, as well as twentieth-century Prohibitionists and civil rights activists. These American "crusaders" - Noonan highlights abolitionist Theodore Parker and Martin Luther King, Jr. - usefully remind their fellow citizens that worship of God is more important than worship of nation. Once a crusade is completed, 'Americans have come again together without those dark and bitter hatreds and ancient grudges still carrying a religious label in many parts of the world."

Noonan's list of crusaders, though, is incomplete. The most notable religious crusade of the past thirty years has been a powerful, grassroots anti-abortion effort. This crusade - or, depending upon one's viewpoint, Roe v. Wade itself - has placed an agonizing, ongoing strain upon our moral and legal institutions. The result, thankfully, is hardly chaos or religious warfare, but religion's meaning for American politics in the current moment is not summarized by what Noonan cheerfully terms "turmoil and civic strength." Few readers of Commonweal, or other journals of opinion, will deny Martin Luther King, Jr.'s status as the most important American of the latter part of this century, and surely our most important Christian witness. But the verdict on Operation Rescue, or upon the many religious people convinced that abortion should remain legal, is less self-evident.

The issue is not Noonan's own position on abortion - he authored a characteristically prescient discussion of the issue as early as 1970. Instead, the issue is whether the abortion dispute disrupts the narrative Noonan sketches of religious movements reminding the government and its citizens of higher values, and then helping to shape a renewed national consensus on controversial issues. It's a reassuring story, but one that would have seemed less persuasive to someone watching William Lloyd Garrison gleefully burn his copy of a Constitution that allowed slavery in the 1840s, and one that seems implausible today to anyone listening to the most heated voices on either side of the abortion controversy.

None of this diminishes Noonan's achievement. The Lustre of Our Country will immediately take its place as the most readable and informed history of religious freedom in the United States, as well as an illuminating survey of how an American ideal becomes embodied outside American borders. But precisely because Noonan is so convincing on the merits of free exercise, few readers will raise a voice in defense of religious establishments. Barring a sudden rehabilitation of Gregory XVI, that argument is over.

A more pertinent question, should Noonan turn his apparently inexhaustible energy toward a sequel, is the relationship between religious convictions and the nation-state. Put bluntly: American Catholics are more affluent and far more powerful than at any other time in their history, but some Catholic theologians, and, one might argue, John Paul II, have denounced the American government more vehemently than at any point in recent memory. How should Catholics - and indeed all citizens - understand this? Not a simple question, obviously, but John Noonan's unique familiarity with both Catholic and American intellectual life suggests his ability to provide a compelling answer.

John McGreevy, the author of Parish Boundaries (University of Chicago), teaches history at the University of Notre Dame.