Rawls and a shrinking liberty of conscience.
All of these issues set the stage for this article, although the scope herein is far more restrained. John Rawls, the preeminent liberal theorist of our time, locates his "political liberalism" as the culmination of 300 years of theorizing about the good society, with its roots in the seventeenth-century struggle for religious toleration noted above. More radically, however, Rawls makes the ambitious claim that "were justice as fairness to make an overlapping consensus possible it would complete and extend the movement of thought that began three centuries ago with the gradual acceptance of the principle of toleration and led to the nonconfessional state and equal liberty of conscience."(5) Such a bold statement of historical and contemporary import demands close scrutiny.
In this article, I argue that Rawls's "completion and extension" of liberty of conscience represents, instead, a retreat from the philosophical and political foundations of that movement. My exposition relies heavily on evidence from toleration debates in early modern England and America, which play such a formative historical role for Rawls.(6) Religious toleration represented one of the most longstanding and divisive political issues of the seventeenth century. Although tolerationists were arguing against the legal prohibition of certain forms of worship and not the more abstract notions of acceptable political justifications that animate Rawls's attention to public reason and the overlapping consensus, I suggest that their insights into the nature of belief and the bonds of political society shed light on Rawls's ambitious claims for his political liberalism.
Rawls's insistence on the use of public reason forces individuals with non-mainstream comprehensive doctrines to choose between several alternatives: (1) one may change the comprehensive doctrine to fit the conditions of publicity; (2) one may dissemble, manufacturing a "public" justification for political stances, thus disguising one's true motives; (3) through civil disobedience or other direct action, one may seek to change the parameters of public debate (to the end that a marginal position will eventually become widely accepted); or (4) a citizen may temporarily violate the strictures of public reason by advancing comprehensively derived views, so long as he or she follows such a violation with sufficient public reasons in due course. The first two of these solutions, however, run counter to the historical development of liberty of conscience that Rawls seeks to extend, and the third fails due to Rawls's pervasive emphasis on stability in Political Liberalism. The fourth possibility would, if valid, hold out the promise of effectively mediating between comprehensive doctrines and publicly reasonable political justifications. This position, however, misrepresents the nature of moral reasoning and comprehensive doctrines themselves. In conclusion, I argue that underlying Rawls's liberalism is, at best, a belief-action split that has historically worked against liberty of conscience; at worst, a scheme of repression and self-censorship which renders comprehensive doctrines meaningless.
Religious Toleration and Liberty of Conscience in the Rawlsian System(7)
Liberty of conscience is, for Rawls, firmly ensconced within the first principle of justice (TOJ, 61; PL, 5), and he provides two main routes to this liberty. The first utilizes the original position, in which individuals under a "veil of ignorance" choose principles of justice. Since no one knows which religious or moral beliefs he or she might hold in society, Rawls argues, and since all know the importance of such doctrines (through general knowledge about "the laws of human psychology" [TOJ, 137]), the participants must provide for liberty of conscience. "They cannot take chances with their liberty by permitting the dominant religious or moral doctrine to persecute or to suppress others if it wishes" (TOJ, 207; see also PL, 310-11). Rawls, however, admits that a solely analytical or strategic defense of liberty of conscience "is not an argument" (PL, 310-11). At a more philosophical level, liberty of conscience serves as a necessary prerequisite for individuals to exercise their moral powers, to develop, revise, and pursue their conceptions of the good over the course of a lifetime (PL, 335; also 310 - 15). Although liberty of conscience may be restricted in the interests of order and security (TOJ, 212-14; PL, 341), justice as fairness requires a broad tolerationist commitment in order to function meaningfully.(8)
Religious toleration and liberty of conscience also play a crucial historical role in Rawlsian liberalism. At the outset of Political Liberalism, Rawls locates early modern toleration debates as singularly formative of contemporary liberal societies. "The historical origin of political liberalism (and of liberalism more generally) is the Reformation and its aftermath, with the long controversies over religious toleration in the sixteenth and seventeenth centuries" (PL, xxiv). On this point, Rawls is clearly right. For example, John Dunn refers to religious toleration as the "single most important application" of Lockean theory, and Richard Ashcraft sees it as a sine qua non of the political movement in which Locke played an important role, "a core problem ... around which other related problems developed."(9) The importance of toleration debates for Rawls is difficult to overstate, since the presence of a variety of competing comprehensive doctrines in society sets the political agenda that his theory seeks to address. According to Rawls, the victory of toleration in the seventeenth century resulted in the acceptance not only of pluralism, but of reasonable pluralism (PL, xxiv-xxv); not simply doctrinal diversity in se, but the further claim that such diversity is an inescapable (and not lamentable) fact of human existence springing from the very nature of human reason? Designed for a society founded not upon "agreement on a general and comprehensive religious, philosophical, or moral doctrine" (PL, xxv) but on far more restrained notions such as political allegiance and loyalty, Rawls's political liberalism does not concern itself with "general problems of moral philosophy" (PL, xxviii).
For Rawls, the overlapping consensus and public reason play key roles in mediating between citizens' comprehensive doctrines and day-to-day political arguments. The exercise of political power is acceptable only if undertaken for reasons that all citizens, whatever their comprehensive doctrines, could affirm (TOJ, viii; sec. 3; PL, 137ff.) Political justice, for Rawls, is "freestanding" and not tied to any comprehensive doctrine; rather, it receives support from a variety of reasonable comprehensive doctrines (the overlapping consensus), each from its own perspective.(11) He makes quite clear that this overlapping consensus grounding the political conception of justice is not merely a modus vivendi (PL, 146-54; IPE, xliii) but a moral concept, a common ground necessary for the functioning of a political society made up of diverse individual and group views of the good.
The concept of public reason denotes the guidelines for inquiry that impose limits on political argument.(12) Since reasonable pluralism is a fact, and an overlapping consensus supporting a freestanding conception of justice exists or nearly exists between those with differing comprehensive doctrines, and since legitimate political power is consensual, citizens must justify political power solely by reference to political values and widely accessible forms of reasoning. In framing political arguments, Rawls asserts, the liberal citizen must appeal solely to elements of society's shared, freestanding political conception of justice. This insistence on political justifications is not merely a strategic counsel offered by Rawls, but a criterion of reciprocity, representing the duty of citizenship and "civic friendship" (PL, 217; IPE, li). It represents a recognition of the politics of reasonable pluralism.
Dilemmas for Religious or Non-Mainstream Comprehensive Doctrines
Were justice as fairness to make an overlapping consensus possible it would complete and extend the movement of thought that began three centuries ago with the gradual acceptance of the principle of toleration and led to the nonconfessional state and equal liberty of conscience. (PL, 154)
Many of the comprehensive doctrines held by citizens in liberal societies do indeed, as part of an overlapping consensus, promote the Rawlsian view of political justice. The three examples provided by Rawls, however (free faith, philosophical autonomy, and pluralism [PL, 145]), all share foundations which could be loosely termed "liberal." Although Rawls disavows claims to "comprehensive" liberalism, he does not attempt to show how marginal philosophical, religious, or political doctrines (e.g., varieties of participatory democracy, religious fundamentalism, or radical skepticism) could affirm the political conception of justice as do those comprehensive views making up the overlapping consensus. If one's comprehensive doctrine is not part of the overlapping consensus, one's ability to affirm such a doctrine in public life will be radically diminished once the limitations of public reason are imposed upon public debate. For example, Rawls rules out, a priori, a principled and comprehensive opposition to abortion. An extended quotation here seems necessary to illustrate the nature of this exclusion.
Suppose ... that we consider the question [of abortion in adult women] in terms of these three important political values: the due respect for human life, the ordered reproduction of political society over time ... and finally the equality of women as citizens. (There are, of course, other important political values besides these.) Now I believe any reasonable balance of these three values will give a woman a duly qualified right to decide whether or not to end her pregnancy during the first trimester. The reason for this is that at this early stage of pregnancy the political value of the equality of women is overriding.... Other political values, if tallied in, would not, I think, affect this conclusion. A reasonable balance may allow her such a right beyond this, at least in certain circumstances. [A]ny comprehensive doctrine that leads to a balance of political values excluding that duly qualified right [to abortion] in the first trimester is to that extent unreasonable.... Thus, assuming that this question is either a constitutional essential or a matter of basic justice, we would go against the ideal of public reason if we voted from a comprehensive doctrine that denied this right. (PL, 243-44)(13)
Rawls's sweeping dismissal of any grounds to dissent on so vital an issue of public policy raises the central issue of the relationship between public reason and comprehensive doctrines. What option does Rawls provide the individual with a marginal comprehensive doctrine - say, religious fundamentalism of a Christian, Jewish, or Islamic variety; even someone holding a prolife position - in the public sphere? How do these options reflect upon his ambitious claims about completing and extending the movement for liberty of conscience? As I noted above, Rawls seems to leave four possibilities open for such a citizen. I shall consider them in turn.
OPTION 1: ALTER ONE'S COMPREHENSIVE DOCTRINE
If an individual's comprehensive doctrine falls outside the overlapping consensus and thus fails to affirm the political conception, Rawls might insist that he or she change it. This is in some ways the most straightforward, if most drastic, solution: in other words, to become liberal (one might say, reasonable in the Rawlsian sense), rather than fundamentalist, Christian.(14) This option, however, is quite likely impossible from a psychological point of view. Due to the nature of belief, individuals are simply not able to change their comprehensive doctrines at will. Furthermore, this claim about human psychology represents one of the most fundamental arguments utilized in the early modern toleration debates to which Rawls attaches such importance.
The historical sources supporting this view of belief and understanding are voluminous, and they fill the toleration debates that Rawls sees as central to his version of liberal theory. Those seeking religious freedom argued that conscience and belief, the bases upon which religiously-based comprehensive doctrines are built, are functions not of the will but of the understanding. Thus it was a priori impossible to coerce belief, since belief change is not a voluntary act. Only reflection and persuasion, they argued, could bring about such an alteration.
During the 1640s and 1650s, a time of tremendous agitation on behalf of religious liberty in England, numerous voices made this very point. Such important figures in the history of religious freedom as Jeremy Taylor, William Walwyn, and Richard Overton all separated the understanding from the will and placed matters of religion in the former, thereby ruling out attempts at compulsion in matters of conscience.(15) One author found it "unreasonable, unlawful, and notoriously sinful ... to act contrary to, or differing from clear evidence, full persuasion, and light of both, or either of these principles, within [an individual]."(16) Leonard Busher declared quite simply that one could not "command faith."(17) In debates leading up to the Toleration Act of 1689, English advocates of toleration continued to press this point about the impossibility of forcing belief. The Duke of Buckingham found it "absurd to attempt to convince a man's judgment by anything, but by reason."(18) "It is not in our power to believe as we please,"said another author.(19) And what is not possible, one author noted, cannot be necessary.(20)
Locke's arguments for toleration are perhaps best-known, and restate these observations about the psychology of belief. "Such is the nature of the understanding," Locke wrote, "that it cannot be compelled to the belief of anything by outward force."(21) Political society concerns the "externals" of earthly life: individuals voluntarily agree to establish governments to preserve their lives, liberty, and estates and to ensure their common safety. Religion consists of "an inward persuasion of the mind," and salvation is an individual responsibility involving faith, reason, and revelation. It is thus empirically impossible to coerce belief on doctrinal matters, even had such attempts not been ruled out a priori by Locke's definition of politics. "To believe this or that to be true, does not depend upon our will."(22) Locke's contemporary William Penn similarly asserted that coercion in matters of religion does not work, due to the nature of belief. Persecution was a category mistake, since "the understanding can never be convinced by other arguments than what are adequate to her nature."(23) In the preface to his Great Case, Penn wrote of "faults purely intellectual" which external penalties were unable to alter.(24) "I do not intend, that any person or persons should be in the least harmed for the external exercise of their dissenting conscience in worship to God, though erroneous: for though their consciences be blind, yet they are not to be forced; such compulsion giveth no sight, neither do corporal punishments produce conviction."(25) Thus for Penn liberty of conscience was, in the truest sense of the word, reasonable: allowing individuals wide latitude to hold the beliefs of which they were persuaded, along with respect for the autonomous working of the human mind, accorded with the nature of human understanding and the exercise of human intellect.(26)
To be sure, early modern authors were opposing "corporal punishment" and not the philosophical arguments about public reason that Rawls proposes. The option of "altering one's comprehensive doctrine," though, does suggest belief change as the price of inclusion, so to speak, into full membership in political society. For Rawls, as we have seen, early modern toleration debates were instrumental in the historical and conceptual development of political liberalism. Those seeking religious liberty, however, argued that persuasion alone was the way to deal with the divisive issues raised by belief and conscience. If evidence (reason, revelation, or any combination of the two) persuaded one to hold a given belief, one would hold it. But altering one's view on the basis of a command (be it the command of a political ruler or the threat of exclusion from public life more generally) was impossible. One may be forced to act in certain ways, but beliefs themselves are beyond the power of individuals to change: only the persuasion of the senses (reason or revelation) can lead to a moral doctrine worthy of the name.
Perhaps, however, there is another possibility. Perhaps Rawls has rejected this view of conscience and persuasion, what we might call "evidentialism,"(27) in favor of a pure choice model of morality. Indeed, Rawls does say that people may change or revise their conceptions of the good "if they so desire" (PL, 30), that "each person is free to plan his life as he pleases" (TOJ, 447), and that citizens "regard themselves as self-authenticating sources of valid claims" (PL, 32). Michael Sandel argues that Rawls (and other deontological liberals) views comprehensive doctrines as strictly "choosable" like other market goods, and that justifications of morality, for Rawls, essentially boil down to "second-order desire."(28) If this is the case, these historical criticisms might not apply.
If Sandel is correct, if Rawlsian morality is pure desire, then it seems much closer to a will-based faculty. One could, conceivably, change one's doctrine, and the arguments about psychological impossibility would not hold.(29) But would this represent the completion and extension of liberty of conscience? After all, that movement attempted (and continues to attempt) to increase the areas of public life in which people were not penalized for the comprehensive doctrines that they did, in fact, hold. If this option is what Rawls has in mind - if he attempts to solve the clash between comprehensive doctrines and public reason by insisting on the eradication of non-mainstream doctrines - then he either requires a psychological impossibility or retreats from the aims of the movement for liberty of conscience.
OPTION 2: DISSEMBLE
If it is not possible to alter one's comprehensive doctrine at will, and such a doctrine does not make up part of the overlapping consensus, one might dissemble, manufacturing a political reason for one's position when in fact such a position is derived entirely from a comprehensive doctrine. Let me clarify my use of the terms manufacture and dissemble: they apply when an individual either advances a political justification as definitive when in fact her intentions derive from a comprehensive doctrine, or advocates as definitive a justification he either does not believe or believes only marginally. In this case, an individual is not merely offering those who might hold different views additional reasons for supporting a given political action, but misrepresenting his or her reasons for supporting such action. In this case, the problem lies not so much in whether the "manufactured" reason is a "good" (persuasive, public) reason, but whether it is actually relevant to the individual putting it forward as his or her own. A clear contemporary example would lie in the individual whose opposition to abortion derives from religious doctrine, claiming that the potential citizenship of fetuses entitled them to constitutional protections of the right to life, and that this constitutional claim formed the basis of his or her prolife position.(30)
Now political deliberation has never been, nor need it be, an exercise in transparency. Certainly one might advocate a number of reasons for a given political action, some of which are more congenial to that individual than others. Rawls's aim in framing conditions of publicity is in some ways an admirable search for consensus about the ways in which political debate should proceed. His commitment to reciprocity and sincerity requires that "we sincerely believe that the reasons we offer for our political action may reasonably be accepted by other citizens as a justification of those actions" (IPE, xlvi). The issue of liberty of conscience arises, I suggest, when certain reasons are excluded a priori by the strictures of public reason. Given that we speak politically, not only to bring about public action but also to give voice to the values underlying our political views, Rawls's ambitious claims about completing and extending liberty of conscience must be cast into doubt if individuals feel compelled to advocate as definitive reasons they do not believe or that they find only marginally convincing.
By excluding such views from political debate, Rawls also likely encourages disingenuousness and a tendency toward obfuscation or at least duplicity.(31) Such dissembling would be contrary to Rawls's intentions, given his commitment to civility and reciprocity as a moral, not simply a legal, one (PL, 217); but dissembling or duplicity clearly represent potential outcomes in Rawlsian politics. If liberty of conscience is a necessary requirement for the exercise of moral powers, it seems difficult to conceive that the completion and extension of such liberty involves masking the moral foundations of individuals' political reasoning. We might not be surprised to see such masking condoned by theorists of the modus vivendi state, but it sits more awkwardly with Rawls's robust notions of citizenship, reciprocity, and liberty of conscience.
Like that surrounding the nature of belief, this general issue of duplicity and dissembling also animated early modern toleration debates. Unlike calls for the alteration of beliefs, which go against the entire historical trend supporting liberty of conscience in psychological terms, the potential for public dissembling drew the ire of proponents of religious freedom on ethical and political grounds, as producing a disingenuous citizenry. Compelling an individual into a state church, participants in these debates argued, forced individuals into hypocrisy by making them perform actions in which they did not believe. For early modern supporters of religious freedom, compulsion was seen as "the way to increase not the number of converts, but hypocrites."(32) Given that people hold certain beliefs, "severity and persecution may make conformists, but not converts."(33) Penn held that force can make hypocrites, but "never did it convert or preserve one soul to God."(34) For Locke, "in offering thus unto God Almighty such a worship as we esteem to be displeasing unto him, we add unto the number of our other sins, those also of hypocrisy.... A sweet religion indeed, that obliges men to dissemble, and tell lies both to God and man, for the salvation of their SOULS!"(35)
Although seventeenth-century authors saw the more specifically religious consequences of such dissembling as much in other- as this - worldly terms, the more general point regarding the undesirability of such disingenuous conduct remains. Forcing an individual into a mode of reasoning or public action that he or she does not accept, I suggest, represents a similar phenomenon to forcing individuals to affirm a religious or philosophical creed. Excluding individuals who refuse to so affirm from participating in the public life of their communities, tolerationists argued, led to dissembling and hypocrisy, and dissemblers and hypocrites were not good citizens.(36) I do not think the term "compelling" is too strong or misleading here: acceptance of public reason is, for Rawls, the price of inclusion into political debate. Without accepting its rhetorical constraints on argument, one is not admitted to the table of Rawlsian political dialogue. I return to this point at the conclusion of this essay, noting that Rawls seeks a far more sweeping (and, from the standpoint of religious liberty, troublesome) self-repression instead of legal prohibition to achieve the exclusion of comprehensive doctrines from public debate.
OPTION 3: ENGAGE IN SOME SORT OF DEMONSTRATIVE OR CONFRONTATIONAL ACTIVITY TO ATTEMPT TO CHANGE THE PARAMETERS OF PUBLIC DEBATE(37)
Civil disobedience, and other activities of its sort, attempt to make formerly marginal ideas part of mainstream political discourse. Rawls addresses the important role of civil disobedience and conscientious refusal in a Theory of Justice (TOJ, 363-91). While supporting the idea of protest to appeal to society's shared sense of justice, Rawls's definition of civil disobedience explicitly rules out action on the basis of comprehensive doctrines: civil disobedience is "a public, nonviolent conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government [in which] one invokes the commonly shared conception of justice that underlies the political order" (TOJ, 365). Conscientious refusal is a broader notion, consisting of "noncompliance ... not necessarily based on political principles; it may be founded on religious or other principles at variance with the constitutional order" (TOJ, 369). While supporting the right of individuals to engage in civil disobedience, however, Rawls ignores (or, implicitly; rules out) religiously based conscientious refusal: the single concrete example he provides "assume[s] that this [conscientious refusal] is based upon political and not upon religious and other principles" (TOJ, 377).
All mention of civil disobedience or conscientious refusal is absent from Political Liberalism. The focus instead is on stability, which constitutes a necessary precondition of political liberalism (PL, 38-40; 140-44).(38) The aim of insisting on public reason is largely to remove divisive and irreconcilable issues from politics (PL, 157), and the exclusion of highly contentious issues from Rawlsian politics is the price of political (and philosophical) stability. The emphasis on stability in Political Liberalism represents a departure from Rawls's earlier (if equivocal) support for such activities as civil disobedience or conscientious refusal. In Theory, Rawls noted that in a well-ordered society one need not worry excessively about the appearance of intolerant sects (TOJ, 219). In Political Liberalism, from Rawls's first mention of the formative role of sixteenth and seventeenth-century religious wars (PL, xxiv) to his discussion of the importance of securing citizens' compliance with just institutions (PL, 141) and the development of "trust and confidence" among citizens (PL, 86), one senses Rawls's anxiety about the stability of the political order. His discussion of the overlapping consensus is concerned with "how the well-ordered democratic society of justice as fairness may establish and preserve unity and stability given the reasonable pluralism characteristic of it" (PL, 133-34). Rawls's worrisome comments about the collapse of Weimar Germany, the rise of Hitler, and the ensuing Holocaust (IPE, lxi-lxii) further emphasize his concern about the failure of contemporary liberal societies to engage the support of political elites, not to mention their citizens more broadly.
Although political liberalism seeks to "bypass religion and philosophy's profoundest controversies," a major problem always remains "whenever someone insists... that certain questions are so fundamental that their being rightly settled justifies civil strife" (PL, 152). It seems likely, however, that fomenting a controlled amount of "civil strife," attempting to raise perceived injustices before an often-apathetic populace, is precisely what those engaging in civil disobedience or conscientious refusal are seeking; namely; the deliberate and purposive violation of accepted public standards often on the basis of a comprehensively derived critique of prevailing practices. Just prior to this discussion, Rawls suggests that such individuals are likely to favor "civil war" (PL, 151), thus ruling out any possibility of society countenancing their activities. There seems little room for principled resistance, or even symbolic protest, in Rawlsian theory. Here again, the departure from the tradition of conscience-based politics and dissent - which is replete with such principled action and which includes individuals and movements Rawls clearly admires (abolitionists and Martin Luther King, to name just two) - is striking.
OPTION 4: THE RAWLSIAN IDEAL
Restrict the utilization of one's comprehensive doctrine to elements that are in accord with public reason, allowing temporary violations of public reason only so long as they are followed with acceptable non-comprehensive justifications "in due course" (IPE, li).
Perhaps the strong claim elaborated in option 1 overstates Rawls's aim. Certainly such a strong form is far from compatible with his claim to political liberalism's place at the pinnacle of 300 years of liberty of conscience. In his support of abolitionists, Abraham Lincoln, and Martin Luther King, Jr., for example, Rawls seeks a more "inclusive" understanding of the limits of public reason, allowing individuals to violate public reason "provided they do this in ways that strengthen the ideal of public reason itself" (PL, 247). Rawls has subsequently formulated this "inclusive" view of public reason as a "proviso" allowing citizens to offer comprehensive reasons for political actions "provided that in due course public reasons, given by a reasonable political conception, are presented sufficient to support whatever the comprehensive doctrines are introduced to support" (IPE, li-lii). Public reason, then, seems simply to require that we supplement our comprehensive reasons with public ones.
This fourth option is also problematic, however, in a way that goes to the heart of the disjuncture between comprehensive doctrines that each, in their own way, affirm the political conception, and the political conception itself. Rawls assumes that the various components of a comprehensive doctrine are separable in such a way that an individual can draw "freestanding" political stances without the entire process of political justification becoming therefore "comprehensive." He views comprehensive views and political views as "two views... [which] can be divided into two parts, suitably related" (PL, 140). But it is not clear that any of the individuals Rawls uses as examples saw their political and comprehensive views as separable in the way he claims.(39) He admits that for abolitionists, in their historical context, "it was necessary to invoke the comprehensive grounds on which those values were widely seen to rest" (PL, 251). The abolitionists did not violate public reason, he claims, "provided they thought, or on reflection would have thought (as they certainly could have thought) that the comprehensive reasons they appealed to were required to give sufficient strength to the political conception to be subsequently realized" (PL, 251, emphasis added). King "could appeal - as the abolitionists could not - to the Constitution correctly understood" (PL, 250, emphasis added).(40)
But if abolitionists, properly, used comprehensive justifications to advance a political conception not even in existence at the time such justifications were employed, why should Rawls disallow such comprehensive grounds being brought to bear upon our own political debates? The answer seems to be that the contemporary United States is well ordered, or at least far better ordered, than that of the antebellum United States. Rawls argues that American society was not well ordered into the 1960s, that both the abolitionists and King spoke to "an unjust political society" (IPE, lii). For him to exclude religious rhetoric and justifications in the 1990s, however, raises the obvious question of precisely when during the past three decades American society became well ordered.(41) Rawls realizes the tenuous nature of the argument he is making, admitting that "much more would have to be said to make this suggestion at all convincing" (PL, 251).
Certainly the early modern tolerationists whom Rawls sees as building blocks of political liberalism did not restrict themselves to purely political reasons in advancing their own agenda, nor did they hasten to add public reasons "in due course." Although the arguments about dissembling and the nature of belief noted above (options 1 and 2) formed an important element of the argument for toleration, such arguments were largely couched in theological language: the argument about the nature of belief, for example, owes much to Paul's comment in Romans 14:23 that "whatever is not of faith is sin." Tolerationists marshaled an impressive Scriptural arsenal, and it was central to their argument for liberty of conscience. Roger Williams, in his disputations with John Cotton, made much use of the parable of wheat and tares. When weeds grew up in the wheatfield, Jesus had said, the sower told his servants to let them be, "lest while ye gather up the tares, ye root up also the wheat with them" (Matthew 13:29).(42) Advocates of toleration also pointed to Jesus' general rebuke of force, as well as his assertion that the Kingdom of God was not of this world, as arguments against compulsive religion.(43) In response to their opponents' exhortations to Christian unity, those seeking liberty of conscience stressed that unity was compatible with diverse outward forms of worship, and reminded their adversaries of Paul's simultaneous exhortation for Christians to proceed with one another in a spirit of meekness and charity.(44)
Tolerationists adduced further Pauline writings to emphasize the dichotomy between carnal and spiritual realms (II Corinthians 10:4, Ephesians 6:11-12); the necessity for personal conviction in religious belief (II Corinthians 1:24, Galatians 6:3-5, I Thessalonians 5:21); and the necessity that the godly be persecuted (II Timothy 3:12, II Peter 2:2). The author of The ancient bounds drew upon Paul's words in Ephesians 4:1-7 and Phillipians 3:16: there is one God, one faith, and one baptism, yet "unto every one of us is given grace according to the measure of the gift of Christ"; to which the author added, "I know there is but one truth, but this truth can not be so easily brought forth [without liberty of conscience]."(45) Therefore, Christians must bear with each other in humility, since Christ came to save sinners, not to destroy them (I Timothy 1: 13, 15).(46) Tolerationists repeatedly implied a question: Would Jesus approve of persecution?(47)
Tolerationists, then, sought a massive reconsideration of what it meant to be a Christian. True Christians do not coerce, but persuade; Christ left no authority to persecute; true Christians display meekness, humility, and charity; and, drawing on James's epistle, liberty of belief required liberty of action to be meaningful.(48) Early modern tolerationists did not bracket off their comprehensive doctrines, nor did they hasten to add public reasons to their comprehensively derived ones. Indeed, the two were considered inseparable, and both were brought to bear on this pressing issue of their day.(49) The entire seventeenth - century argument in favor of toleration aimed to show that such a policy was not only compatible with, but commanded by, Christian (and more specifically in the Anglo-American context, Protestant) values.
The comprehensive foundations of individuals' political views and the political views themselves are thus not so neatly separable as Rawls claims. One might more accurately define a comprehensive doctrine as a complex and integrally related (though not necessarily logically connected) set of precepts and principles influencing one's views on epistemology, human nature, ethics, and politics. On this view, the relationship between principles of a comprehensive doctrine and the social and political consequences of that doctrine does not resemble that between discrete planks of a political platform; but rather a relationship of meaning and value, intimately related to one's sense of self. Michael J. Perry argues that a citizen attempting to bracket religious convictions in favor of publicly accessible ones "would bracket - indeed ... annihilate - -herself. And doing that would preclude her - the particular person she is - from engaging in moral discourse with other members of the society."(50) To presume that elements compatible with public reason are neatly separable from more "comprehensive" ones misunderstands or misrepresents the nature of moral reasoning and political justification. One's comprehensive foundations may be left unspoken or implied, but they are no less implicated in the process of political decision-making.
Rawlsian liberalism, of course, commits us to privileging political values, appealing solely to public reason, in effect eradicating comprehensive doctrines from the public sphere. Despite his claims, this would likely rule out the theologically-laced rhetoric of Lincoln's Second Inaugural, since "public reason ... always applies to public and government officers in official forums" (PL, 252). Much of King's eloquent "Letter from Birmingham Jail," grounded as it is in Thomistic theology, seems unacceptable as well, since the "ideal of public reason hold[s] for citizens when they engage in political advocacy in the public forum" (PL, 215). Similarly, the scripturally based rhetoric of early modern tolerationists seems to find no home in Rawls's liberal society. If abolitionists, civil rights marchers, and Lincoln did not violate the "proviso," there seems no defensible argument for excluding prolife activists, which Rawls apparently wants to do (see PL, 243-44). The "proviso" makes Rawls's exclusion of comprehensive doctrines from public life kinder and gentler, but no less real.
Public Reason, Comprehensive Doctrines, and the Belief-Action Distinction
Rawls's conditions of publicity distinguish between comprehensive doctrines (belief structures) and political actions (action here encompassing political speech and argument). Rawls, after all, describes public reason not as reason itself but as "the reason of citizens as such" (PL, 213). In such an understanding, the priority of the political requires individuals to submerge or set aside their comprehensive doctrines when entering the public sphere. Although clearly one retains full liberty to believe any comprehensive doctrine one chooses, political debate must proceed along political lines. Such a belief-action distinction has a long history in the Anglo-American tradition. Unfortunately for Rawls and his ambitious claims about political liberalism and the culmination of liberty of conscience, this belief-action split has been directly opposed to tolerationist impulses, and frequently associated with the suppression of religious minorities. A few examples will clarify this point.
In seventeenth-century Massachusetts, claims of conscience and toleration occasioned a number of protracted debates between defenders of the "New England Way" (a close alliance, though not intermingling, of church and state) and those seeking religious liberty. At one point, Richard Saltonstall, one of the colony's founders, wrote to John Cotton (the colony's foremost religious leader) supporting moderation in exacting penalties for religious dissent. He raised the very issues of hypocrisy and dissembling mentioned in the previous section of this essay. Cotton's response is instructive, and evokes the belief-action distinction. "Better hypocrites than profane persons. Hypocrites give God his due in an outward form at least."(51) Clearly, Cotton and many others would admit, the exercise of political power does not change belief. But this psychological admission does not, in itself, justify individual liberty to act upon those beliefs.
Thomas Hobbes, stressing the important functions of sovereignty in regulating religious as well as political affairs, drew a clear distinction between belief and action, maintaining that although the freedom of private belief is unaffected by sovereign power, a sovereign may (and must) regulate public behavior, including religious behavior, in the interests of peace and security. Hobbes admits that conscience is beyond the reach of the sovereign, and that "no human law is intended to oblige the conscience of a man, but his actions only."(52) Regarding the civil religion and its legitimate determination of Scriptural interpretation and other canonical matters, Hobbes states that a "private man has always the liberty, because thought is free, to believe or not believe in his heart those acts that have been given out for miracles."(53) In matters of public profession, though, the sovereign must do all necessary for ensuring the people's security:
we are not every one, to make our own private reason, or conscience, but the public reason, that is, the reason of God's supreme lieutenant, judge; and indeed we have made him judge already, if we have given him a sovereign power, to do all that is necessary for our peace and defense... when it comes to confession of that faith, the private reason must submit to the public.(54)
In a sense, we might see the Rawlsian distinction between attachments to comprehensive doctrines and the restrictions of public reason in political debate as analogous to Hobbes's concern about the polarizing influence of private religious belief on political stability.(55) The Hobbesian system is in many ways a coherent response to civil war and the breakdown of sovereignty. Whether it (and the resonances we see in Rawlsian theory) represents an advance in the history of liberty of conscience is another question entirely.
The broader history of Anglo - American toleration debates, so important to Rawls, also sheds light on this issue of beliefs and actions Many proponents of religious liberty argued not only that conscience was impervious to coercion, according to the aforementioned psychological argument (option 1), but that a true understanding of liberty of conscience entailed both belief and action. The author of Divine observations held that "after we have examined [our beliefs], if your judgment restrains us the practice, we are never the nearer, for faith without works is dead."(56) Gerrard Winstanley used typically evocative language to stress the same point: "So long as I must not act, according to the freedom of my own spirit and power within me I am then in bondage, and my eyes are put out."(57) William Penn consistently sought to enlarge the concept of liberty of conscience to include religiously inspired conduct: "Liberty of conscience ... is this; namely, the free and uninterrupted exercise of our consciences, in that way of worship, we are most clearly persuaded, God requires us to serve him in ... which being, a matter of faith, we sin if we omit."(58) There is no Hobbesian distinction between belief and action here. Penn defined liberty of conscience as the "free and open profession of the duty to God, as man perceives it."(59)
This belief-action distinction also appears in Supreme Court jurisprudence. The first significant case dealing with this issue was Reynolds v. United States (1879). In Reynolds, the Court articulated the distinction between belief and action, ruling that the federal government was free to regulate religiously derived actions in the context of ensuring social order, provided such regulations did not proscribe beliefs or opinions. According to this reasoning, the state could legitimately prohibit polygamy (although it was a practice central to the religious beliefs of Mormons) because this regulation did not touch belief, but only action.
Such an understanding did not last. The belief-action dichotomy was chipped away over the course of the next century: for example, in Braunfield (1961) the Court recognized that both direct and indirect burdens had to be weighed in assessing the extent to which ability to practice religion (actions) could legitimately be impeded by secular law.(60) Sherbert v. Verner (1964) brought this change in legal reasoning full circle: states were disallowed from structuring even government benefits programs (in this case, unemployment compensation) in ways that burdened religious exercise. The nonreceipt of government benefits was no longer considered an indirect, but rather a significant and substantial, burden on free exercise, because it penalized an individual for the exercise of his or her conscience. Belief implied action, and punishment of action equaled punishment of belief. Of course, such an evolution in legal reasoning can be reversed as well: the belief-action distinction reappeared in Smith (1990) signaling a movement away from the trend of Braunfield and Sherbert. Indeed, the Court explicitly refers (Smith at 1559) to this very distinction in its opinion.(61)
Public Reason, Comprehensive Doctrines, and Repression
In Political Liberalism, Rawls states his view that "except for certain kinds of fundamentalism, all the main historical religions admit of such an account and thus may be seen as reasonable comprehensive doctrines" (PL, 170). He admits that "a society may... contain unreasonable and irrational, and even mad, comprehensive doctrines. In their case the problem is to contain them so that they do not undermine the unity and justice of society" (PL, xvi-xvii). Of course, Rawls's society protects a free press and religious worship, as do all liberal societies worth the name. Still, he seems to be calling for a vastly more far-reaching system of psychological restraint, suggesting that people ought not to hold certain comprehensive doctrines in the first place.
Rawls's examples of comprehensive doctrines and their relation to the overlapping consensus are illuminating here. In his view, a freestanding political conception of justice may receive support from a number of sources: religious doctrines that incorporate a commitment to toleration (e.g., Locke), philosophical ones emphasizing individual moral autonomy (e.g., Mill, Kant), or a more general commitment to pluralism (PL, 145).(62) These three examples are all clearly liberal at root. As I noted above, Rawls states outright that fundamentalism does not allow for an independent allegiance to the political order, and is not part of the overlapping consensus. In these scattered remarks, he implies a philosophical and political system far more radical and repressive than Hobbes, whose modus vivendi state was satisfied with minimal public activities that conformed to the will of the sovereign. Implicitly; that is, Rawls suggests that to believe or think in certain ways threatens the political order.
The possible role for any nonliberal, nonrational comprehensive doctrine progressively shrinks as a reader proceeds through Political Liberalism and Rawls repeatedly expands the scope of public reason. Initially, he claims that it applies only when constitutional essentials or matters of basic justice are at stake (PL, 214). Shortly thereafter, we find that the "ideal of public reason hold[s] for citizens when they engage in political advocacy in the public forum" (PL, 215). Finally; in a sweeping expansion of the scope of public reason, Rawls claims that voting on the basis of one's comprehensive doctrines is illegitimate.
On fundamental political questions the idea of public reason rejects common views of voting as a private and even personal matter. One view is that people may properly vote their preferences and interests, social and economic, not to mention their dislikes and hatreds. Another view, offhand quite different, is that people may vote what they see as right and true as their comprehensive convictions direct without taking into account public reasons. Yet both views are similar in that neither respects the limits of public reason in voting on matters of constitutional essentials and questions of basic justice (PL, 219).
Public reason also applies, as we have seen, to "public and government officers in official forums" (PL, 252). Acting politically on the basis of comprehensive doctrines violates the "duty of civility" (PL, 253). In the case of political "stand-offs" such as abortion, "if... citizens invoke the grounding reasons of their comprehensive views, then the principle of reciprocity is violated" (IPE, lv).
In essence Rawls seems to insist upon "liberal" comprehensive doctrines or no comprehensive doctrines at all. If one can refer meaningfully to the philosophical and theological bases of one's political views neither in the privacy of the voting booth nor in the public square, it is difficult to see how Rawls's system is compatible with a historically informed understanding of liberty of conscience. If this represents, not merely the completion but the extension of such liberty, it is a truly unorthodox notion of extension.
It seems ironic, then, that Rawls's "completion and extension" of liberty of conscience actually involves constricting the ability of individuals to affirm publicly and act upon the moral, theological, and ethical foundations of their political stances. Historically; the expansion of liberty of conscience has resulted in a steadily increasing sphere in which religious and conscientious concerns were removed as bases for punishment or the denial of public benefits and citizenship rights. Such a process was halting and bitterly contested, but has over the past three centuries led to an expansive notion of conscience and the importance of allowing citizens to follow its dictates. For example, the Toleration Act of 1689 exempted Protestant Dissenters from English penal laws, under certain conditions: this was not merely the end of one era (that of persecution and a program of religious uniformity) but the beginning of a movement for broader religious liberty.(63) Shortly thereafter, Quakers were successful, after years of political struggle, in achieving the right to make affirmations, rather than swear oaths, in legal proceedings. Such a struggle was one step removed from persecution, but it involved the ability to exercise one's conscientious beliefs in a public setting without penalties.(64) In the nineteenth century, Parliament finally repealed the Test Act, which had prevented English Catholics and non-Trinitarian Protestants, not to mention Jews, from serving in public office. Individuals had not been, strictly speaking, "persecuted" under the Test Act. They were, however, denied full participation in public life on account of their beliefs.
The American strategy for pursuing religious liberty involved disestablishment, rather than an official church with legal toleration of dissenters. The aim and historical struggle, though, has involved similar issues: moving from a minimal understanding of the requirements of religious freedom (one compatible with a belief-action distinction) to the more expansive notions embodied in Sherbert and the Religious Freedom Restoration Act of 1993, which sought to address the perceived retreat on religious liberty present in Smith.(65) Were Rawls to defend his liberalism as modus vivendi, a la Charles Larmore or Judith Shklar,(66) or as a story among stories, a la Richard Rorty,(67) his radical restriction of citizens' private beliefs would perhaps not pose a problem, in that this great disconnection between theoretical or historical claims and practical outcomes would not be so glaring. While disavowing "comprehensive" liberalism, however, Rawls explicitly rejects the idea of a "mere modus vivendi" (PL, 146-54), seeks to make the overlapping consensus a moral notion, and makes the ambitious claim noted above about "complet[ing] and extend[ing]" the movement for liberty of conscience dating back to the sixteenth and seventeenth centuries. Rawls's restrictive, repressive system might be justified on the basis of political order, or any number of other pressing considerations, and Rawls does imply some of these in his persistent focus on stability. He hardly offers, though, a completion and extension of 300 years of struggle for liberty of conscience. On those terms, we might reasonably expect something more than the sterile middle ground of political liberalism, purged of all claims to action on the basis of conscience.
A previous version of this essay was presented at the 1996 Annual Meeting of the American Political Science Association, where I received constructive commentary from Robert Kraynak and Graham Maddox. In addition, I thank Bernard Yack, Booth Fowler, Beth Angell, Kevin den Dulk, John Meyer, Sam Nelson, Johann Sommerville, and several anonymous Review of Politics referees for their helpful criticism.
1. Consider just two examples. William Prynne saw Independent church government as destroying Protestant unity, "a seminary of schisms ... a floodgate to let in an inundation of all manner of heresies, errors, sects, religions, destructive opinions, libertinism and lawlessness among us" (Prynne, Twelve considerable and serious considerations touching church-government [London, 1644], p. 7). If a magistrate could not coerce in matters of religion, the argument went, it was difficult to see how compulsion could be acceptable in any area of human endeavor: "if liberty be granted in [heresy], we know no cause why men that can in such a handsome way pretend conscience for it, should be denied liberty to run into excess and riot" (Church of Scotland, A solemn testimony against toleration [Edinburgh, 1649], p. 7).
2. Alexis de Tocqueville, Democracy in America, ed. Phillips Bradley (New York: Vintage,  1945), vol. I, chap. 17, pp. 310-25.
3. See, for example, Robert Bellah et al., Habits of the Heart: Individualism and Commitment in American Life (New York: Harper and Row, 1985); Alasdair Macho tyre, After Virtue: A Study in Moral Theory (Notre Dame, IN: University of Notre Dame Press, 1981); Christopher Lasch, The Culture of Narcissism: American Life in an Age of Diminishing Expectations (New York: Norton, 1979); Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); and Charles Colson, Against the Night: Living in the New Dark Ages (Ann Arbor, MI: Servant, 1989).
4. For the more theoretical aspects of this issue, see Robert Booth Fowler, Unconventional Partners: Religion and Liberal Culture in the United States (Grand Rapids, MI: Eerdmans, 1989); Michael J. Perry, Love and Power: the Role of Religion and Morality in American Politics (New York: Oxford University Press, 1991); Kent Greenawalt, Religious Convictions and Political Choice (New York: Oxford University Press, 1988); and the seminal study Christ and Culture by H. Richard Niebuhr (New York: Harper and Brothers, 1951). For more straightforwardly political treatments in the accommodationist mode, see Stephen L. Carter, The Culture of Disbelief.' How American Law and Politics Trivialize Religious Devotion (New York: Anchor/Doubleday, 1993); Ralph Reed, Politically Incorrect: The Emerging Faith Factor in American Politics (Dallas, TX: Word, 1994); and Richard John Neuhaus, The Naked Public square: Religion and Democracy in America (Grand Rapids, MI: Eerdmans, 1984).
5. Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 154, emphasis added. Hereafter, I shall refer to Rawls' two main works parenthetically, as TOJ and PL (A Theory of Justice [Cambridge, MA: Harvard University Press, 1971]), and the "Introduction to the Paperback Edition" of Political Liberalism (New York: Columbia University Press, 1996) as IPE.
6. Clearly Rawls is attempting to broaden the notion of conscience in order to secure liberal freedoms, and we should not expect him wholly to echo the commitments of early modern thinkers. If his system requires repudiating basic arguments for liberty of conscience, however, his ambitious assertion must certainly be cast into doubt.
7. These two terms, religious toleration and liberty of conscience, are of course not necessarily synonymous. Many scholars note that "toleration" carries an inherent note of condescension or indulgence, while liberty of conscience refers more to a natural rights-type of prepolitical argument. Thus liberty of conscience is a far more expansive notion than toleration, and theoretically involves a claim of (natural or other) right as opposed to the mere "permission" often associated with toleration. In another respect, however, regardless of the claimed status of the right to free exercise of religion, arguments about such liberty are always situated in a political context and depend upon state acquiescence to come about.
For some general discussions, see W.E Adeney, "Toleration," in Encyclopedia of Religion and Ethics, ed. James Hastings (New York: Charles Scribner's Sons, 1925), 12: 360-69; J. B. Bury, A History of Freedom of Thought (Oxford: Oxford University Press, 1913), p. 72; Maurice Cranston, "Toleration," in The Encyclopedia of Philosophy, ed. Paul Edwards (New York: Macmillan, 1967), 8: 143-46; and John Horton, "Toleration," in The Blackwell Encyclopedia of Political Thought, ed. David Miller (Oxford: Basil Blackwell, 1991).
8. Toleration as necessary for human development is echoed by David A. J. Richards, who asserts that "conscience and the social contract rest ... on an underlying political ideal of the moral sovereignty of the people." He also suggests Rawls's reasoning from the original position: "Each person would reasonably demand [the inalienable right to conscience] as a protection of freedom and rationality, the highest - order good." See Richards, Toleration and the Constitution (New York: Oxford University Press, 1986), pp. 98, 101.
9. Dunn, "'Bright Enough for all our Purposes': John Locke's Conception of a Civilized Society," Notes and Records of the Royal Society of London 43 (1989): 136; Ashcraft, Revolutionary Politics and Locke's 'Two Treatises of Government' (Princeton: Princeton University Press, 1986), p. 9.
10. Here Rawls echoes Madison in Federalist, No. 10. A commitment to political liberty, along with a proper understanding of the workings of the human mind, makes diverse conceptions of the good a fact of social life. As Madison put it, "As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed" (The Federalist Papers, ed. Clinton Rossiter [New York, 1961], p. 78).
11. Rawls often vacillates between posing the overlapping consensus as an ideal (PL, 154) and using it as a descriptive term. On balance, though, his account seems to indicate that Rawls thinks that an overlapping consensus, if an imperfect one, obtains in mature liberal democracies.
12. Public reason is analogous to Bruce Ackerman's "Neutrality Principle." As Ackerman puts it, "nobody has the right to vindicate political authority by asserting a privileged insight into the moral universe which is denied the rest of us" (Social Justice in the Liberal State [New Haven and London: Yale University Press, 1980], pp. 10-11).
13. Rawls has since attempted to downplay the significance of this quotation (IPE, lv-lvi note 31), denying that it represents "an argument for a right to abortion in the first trimester" (Iv). Nothing in his disclaimer, however, alters the substance of the argument of this essay.
14. E. A. Goemer accuses Rawlsian liberals of insisting on just this transformation, the adoption of "rationalistic liberal ethics," in his critique of Eamonn Callan's version of liberal political education. See "Forcing the Free to be Correctly Free," Review of Politics 58 (1996): 38; Callan, "Political Liberalism and Political Education," Review of Politics 58 (1996): 5-33.
15. Taylor, Theologike ekletike (London, 1647), chap. 13; Walwyn, The compassionate Samaritan (London, 1644), "Reason 1"; A prediction of Mr. Edwards his conversion and recantation (London, 1646), 3-4; [Overtoni, A remonstrance of many thousand citizens (London, 1646). See also The ancient bounds, or liberty of conscience (London, 1645), chap. 6.
16. Twelve weighty queries of great concernment (London, 1646), p. 3.
17. Religion's peace (London,  1646), reprinted in Tracts on Liberty of Conscience and Persecution, 1614-1661, ed. Edward B. Underhill (London, 1846), p. 17.
18. Buckingham, A short discourse on the reasonableness of men's having a religion (London, 1685), p. 20.
19. A discourse of toleration (London, 1691), p. 6. For further examples of this point see, The plea of the harmless oppressed, against the cruel oppressor (London, 1688), pp. 1-2; The great case of toleration stated (London, 1688), p. 4.
20. An expedient for peace (London, 1688), p. 3.
21. Locke, Letter Concerning Toleration, ed. James Tully (Indianapolis: Hackett,  1983), p. 27.
22. Ibid., p. 46.
23. 'To Lord Arlington" (1669), Works (A Collection of the Works of William Penn, 2 vols [London, 1726]), I: 153; also reprinted in PWP (The Papers of William Penn [5 vols. I, ed. Mary Maples Dunn, Richard S. Dunn, Richard A. Ryerson, Scott M. Wilds; asst. editor Jean R. Soderlund [Philadelphia: University of Pennsylvania Press, 1981-1986]), I: 89-97. See also "Narrative of the sufferings of Quakers in the Isle of Ely," PWP, I: 225.
24. The Great Case of Liberty of Conscience (1670), Works, I: 444, 452.
25. A brief examination and state of liberty spiritual (1681), Works, II: 697.
26. In Some free reflections upon occasion of the public discourse (London, 1687), Penn argues that we can only hold convictions by "sensible proof, or rational demonstration" (p. 5) [this, for him, would include revelation]. See also, finally; Penn's appropriately-titled The reasonableness of toleration (London, 1687), pp. 911, for a concise synthesis of this "reasonability" and its relation to the points made in this paragraph.
27. The term is Nicholas Wolterstorff's. See his "Locke's Philosophy of Religion," in The Cambridge Companion to Locke, ed. Vere Chappell (New York: Cambridge University Press, 1994). I thank Kevin den Dulk for bringing this citation and Wolterstorff's terminology to my attention.
28. See Sandel, Liberalism and the Limits of Justice, p. 163; more generally, pp. 154-64. Sandel's more specific critique of Rawls on this issue is found in "Freedom of Conscience or Freedom of Choice?," in Articles of Faith, Articles of Peace: The Religious Liberty Clauses and the American Public Philosophy, ed. James Davison Hunter and Os Guiness (Washington, DC: Brookings Institution, 1990), pp. 74-92.
29. I should add that, in my own view, although Rawls's terminology of pleasing and desiring is oblique in these passages, he does not conceive of comprehensive doctrines on the purely market metaphor imputed to him by Sandel. Even the example of conversion (PL, 30) does not prove Sandel's charge, since conversion operates on a persuasion model. Instead, the importance of choice in conceptions of the good seems, for Rawls, to involve safeguarding the working of the human mind and the fact of reasonable pluralism in the social and political realms. Rawls focuses on the political manifestations of belief, at which level the language of choice seems apt.
30. I distinguish this definition of manufacturing reasons from the individual who states outright his or her comprehensively derived position, and then proceeds to provide public reasons for the same position. This course of action would fall under Rawls's "proviso," what I call option 4, and I discuss it in turn.
31. It seems likely that, as Kenneth A. Strike suggests, political liberals' unwillingness or inability to distinguish between the content of comprehensive doctrines - taking instead the more drastic step of barring all from public debate - contributes to the likelihood of this dissembling. Rawls and others perhaps evince too much fear about the likely impact of comprehensive doctrines in politics (which, after all, are all around us in actual political debates), and underestimate the ability of individuals with different comprehensive doctrines to engage in what Strike calls "argumentative reciprocity." As Strike further argues, such a dialogic approach to moral and religious rhetoric in political debate would distinguish (as Rawls apparently does not) between "arguing from the perspective of a comprehensive doctrine and seeking to advantage its adherents." Without endorsing his approach in toro, I am inclined also to agree with Strike that such a context-based, dialogic approach to finding an emergent overlapping consensus, rather than insisting upon a strictly freestanding (putatively existing) one, better respects freedom of conscience. See Strike, "Must Liberal Citizens Be Reasonable?" Review of Politics 58 (1996): 41-51.
32. Toleration justified (London, 1645), p. 5.
33. [Richard Burthogge], Prudential reasons for repealing the penal laws against all recusancy, and for a general toleration (London, 1687), p. 5.
34. "To the council and senate of the city of Embden" (1674), Works, I: 610; for the inner nature of religion see No Cross, No Crown (1668), Works, I: 272-440, esp. chap. 6.
35. Letter Concerning Toleration, p. 27.
36. See also Busher, Religions peace [Underhill, Tracts on Liberty of Conscience, 22]; Walwyn, A whisper in the ear of Mr. Thomas Edwards, minister (London, 1646), p. 5; The plea of the harmless oppressed, p. 9; A discourse of Toleration, p. 6; Paston, A discourse of penal laws in matters of religion (London, 1688), pp. 32-33.
37. I thank Sam Nelson for suggesting this possibility to me.
38. Rawls emphasizes in the "Introduction to the Paperback Edition" that "stability" refers always to "stability for the right reasons," that is, citizens acting from a conception of justice and not merely participating in modus vivendi arrangements (IPE, xxxix-xliii).
39. This circular and hypothetical Rawlsian speculation appears in the "Introduction to the Paperback edition." There, Rawls admits that "I do not know whether the Abolitionists and King ever fulfilled the proviso. But whether they did or not, they could have. And, had they known the idea of public reason and shared its ideal, they would have" (iii, n. 27). This puzzling statement seems to boil down to the claim that if the Abolitionists and King had agreed with Rawls ("known the idea of public reason and shared its ideal"), they would have agreed with Rawls ("fulfilled the proviso").
40. Given that for Rawls "the constitution is not what the Court says it is... it is what the people acting constitutionally through the other branches eventually allow the Court to say it is" (PL, 237), we are left wondering to what exactly Rawls thinks King was appealing.
41. One might also wonder whether Rawls considers the United States to be "stable for the right reasons" even in 1998, given the expansive criteria for such a designation - public financing of elections, a "decent distribution of income," "society as employer of last resort," and basic health care for all citizens - he lays out in the Introduction to the Paperback Edition of Political Liberalism (IPE, lvi-lvii).
42. The parable of tares and wheat was also used by, inter alia, [Henry Robinson], Liberty of conscience (London, 1644), p. 55; and [Overton], The arraignment of Mr. Persecution (London, 1645), p. 24.
43. For the renunciation of force, see Jesus' response to Peter's assault on the High Priest's servant, Matthew 26:52; and his rebuke of James and John for their suggestion to call down heavenly fire on the Samaritan village, Luke 9:54-55. For the otherworldliness of Christ's kingdom, see John 6:15 and 18:36; and, more generally, the injunction to preach and convert (not coerce) in Jesus' Great Commission, Matthew 28:19-20 and Mark 16:15-20. These Scriptures appear repeatedly in the tolerationist literature: see, for just several examples, John Saltmarsh, Dawnings of light (London, 1646), chap. 2; John the Baptist, forerunner of Christ Jesus, or, a necessity for liberty of conscience (London, 1644), chaps. 1-5, 7, 8, 13-15; [Robinson], Liberty of conscience, passim.
44. See Romans 15:1-2, II Timothy 2:24-26, 1 Corinthians 1:10; Ephesians 4. These Scriptures are cited in Bloudy tenent, pt. 1; Saltmarsh, A new quaere (London, 1646); Dawnings of light, p. 4ff; [Robinson], Liberty of conscience; John Vernon, The swords abuse asserted (London, 1648), p. 10.
45. [Francis Rous], The ancient bounds, or liberty of conscience, "A light to the work," pp. 30-31.
46. Busher, Religion's peace, p. 8; [Rous], Ancient bounds, p. 15; Twelve queries, no. 7.
47. "Suppose Jesus Christ himself should come again personally, and live amongst us upon earth, I would very fain be assured, how he might be free of being persecuted, and crucified again, according to the principles of such government, if he should either work miracles, or teach, or speak anything besides the rule of man's inventions" ([Robinson], Liberty of Conscience, p. 43).
48. The only truly "secular" justification offered for toleration was the argument about prosperity and trade, that persecution harmed the nation's civil interest and ability to enjoy the benefits of all citizens' labors. (Often such authors pointed to the prosperity of the Low Countries as a way of making this point.) See, e.g., John Vernon, The swords abuse asserted (London, 1648), p. 14; John Goodwin, Truth and innocency triumphing together (London, 1648), pp. 40, 54; Toleration justified (London, 1645), p. 6; John Musgrave, The conscience pleading for its own liberty (London, 1647), pp. 13-14. This line of argument was hardly the most prominent used by early modern tolerationists, however.
49. Antitolerationists, for their part, did not object in the least to the use of religious imagery and rhetoric in public debate: they simply had a different religious imagery and rhetoric.
50. Perry, Morality, Politics, and the Law: A Bicentennial Essay (New York: Oxford University Press, 1988), pp. 72-73.
51. In Thomas Hutchinson, ed., The History of the Colony and Province of Massachusetts-bay, 3 vols. (Cambridge, MA: Harvard University Press, [1756-1758], 1936), II: 132.
52. Hobbes, Elements of Law, ed. Ferdinand Tonnies (New York: Barnes and Noble,  1969), p. 114.
53. Hobbes, Leviathan, ed. Edwin Curley (Indianapolis: Hackett,  1994), p. 300.
54. Hobbes, Leviathan, p. 300.
55. Especially, that is, when we consider the emphasis Rawls places on stability and security (see above, option 3).
56. Divine Observations (London, 1645), p. 5.
57. Winstanley Fire in the Bush (1650), in The Works of Gerrard Winstanley, ed.
George H. Sabine (New York: Russell and Russell, 1965), p. 469.
58. Great Case, Works, I: 445 (emphasis added).
59. A Persuasive to Moderation (1686), Works, II: 729 (emphasis added).
60. Of course we must remember that the Court upheld the Pennsylvania Sunday closing law in Braunfield, making clear that direct or indirect burdens in and of themselves would not be determinative in deciding the legality of a statute. This led to the free exercise "balancing" process, in which the state had to establish compelling interest and show that its proposed course represented the least possible infringement of religious exercise.
61. For a helpful overview of the evolution of religion clause jurisprudence, see Ronald B. Flowers, The Godless Court? Supreme Court Decisions on Church-State Relationships (Louisville, KY: Westminster/John Knox Press, 1994).
62. Again, Ackerman echoes Rawls's liberal reasoning: one might accept the Neutrality Principle on grounds of skepticism, support for the freedom to experiment with different conceptions of the good, an independent affirmation of "autonomous deliberation" (Social Justice, p. 11), or a concern about the corrupting influence of political power. As with Rawls's three examples, all of Ackerman's possible grounds are, broadly speaking, liberal.
63. For the historical development of progressively more expansive notions of liberty, see Gordon J. Schochet, "From Persecution to 'Toleration"'; and R.K. Webb, "From Toleration to Religious Liberty," both in Liberty Secured? Britain Before and After 1688, ed. J.R. Jones (Stanford: Stanford University Press, 1992).
64. See Ethyn Williams Kirby, "The Quakers' Efforts to Secure Civil and Religious Liberty, 1660-96," Journal of Modern History 7 (1935): 401-421.
65. The Religious Freedom Restoration Act reinstated the compelling government interest-least possible infringement standard in free exercise issues. Although the act was recently struck down by the Supreme Court, its passage by overwhelming majorities in both houses of the U.S. Congress demonstrates the broad support the act commanded. For a fuller explication, see Flowers, Godless Court.
66. Larmore, Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987), esp. pp. 69-77; Shklar, Ordinary Vices (Cambridge, MA: Harvard University Press, 1984); "The Liberalism of Fear," in Liberalism and the Moral Life, ed. Nancy Rosenblum (Cambridge, MA: Harvard University Press, 1989), pp. 21-38.
67. See, e.g., Rorty Contingency, Irony, Solidarity (Cambridge: Cambridge University Press, 1989).
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|Date:||Mar 22, 1998|
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