AbsurdBeats

Martha Nussbaum has written a mediocre book. I am sorry to write this, insofar as she is a thoughtful writer working in the liberal tradition, but her new book, Liberty of Conscience, is not good. Worth reading—maybe—but by no means a vital contribution to the issue of religion in the public square.

Nussbaum is a philosopher and legal scholar; unsurprisingly, then, she approaches the question of religious liberty in the US less as a political matter than a Constitutional one. There is history, but of the history-of-ideas sort, emphasizing Roger Williams and James Madison rather than how indigenous people, colonists, and later, Americans, practice their religion on the ground. She covers various debates over establishment and free expression in the federal Constitutional Convention as well as some state debates. She also highlights particular 19th century events, such as the reaction to the newly-formed Church of Jesus Christ of Latter-Day Saints (aka Mormons) as well as to increased Catholic immigration. She then takes a tour of the usual 20th century Constitutional suspects, hitting on the role members of minority religions have played in expanding deference to non-majority (i.e., mainline Protestant) practices. Nussbaum makes clear her preference for the approach the Supreme Court used in Abington School District v. Schempp in general, and for the jurisprudence of Justice Sandra Day O’Connor in particular. She ends with a discussion of five current issues (the Pledge of Allegiance, gay marriage, evolution, imagination, and the fear of Muslims), and a professed optimism that liberty will out.

That is a very short summary of the book, and those with a particular interest in debates over Constitutional interpretation may be more (or perhaps, less) impressed than I with her argument. Such debates are not, however, a concern of mine. (Yes, I have opinions on this matter, but these are not bones on which I care to gnaw.) My unease with her narrative grew over the course of the book, culminating, upon entering chapter 8, in a kind of disbelief in her approach. But before I launch into full critical mode, I would like to mention a few irritations.

First, the book feels loose. I use her book Women and Human Development in one of my courses, and she mentions repeatedly that different portions were presented in various seminars, colloquia, and conferences; so, too, with Hiding from Humanity: she’s returning to and revising familiar material. She does mention in both her notes and in the acknowledgments section of Liberty various prior presentations of the material, but the chapters are noticeably drafty.

Which brings me to the second irritant: sloppy writing. Although I haven’t read all of her work, Martha Nussbaum does not strike me as either a sloppy thinker or writer. If this were your only exposure to her thinking, however, you might conclude otherwise. She rightly valorizes Roger Williams’s early advocacy of liberty of conscience and religion, and highlights excerpts of his 1644 Bloudy Tenent of Persecution which would earn a political candidate a media shellacking were she or he to repeat them today. Still, was Williams as influential as she proclaims? Yes, she mentions Locke, Kant, Smith, and Madison (though doesn’t have much good to say about Jefferson and not much about anyone else of that time), but Williams is given the primary credit for having influenced American sensibilities on religious liberty. Maybe. Yet Nussbaum is so effusive in her praise of him that I wonder who’s been downgraded to make room for all this promotion.

More trivially, she uses the term ‘reasonable’ more often than a reasonable person reasonably should; this is especially apparent in chapter 7. Now, this is problematic not only for aesthetic, um, reasons, but also because the constant invocations of what reasonable people may reasonably do elides the fact that reason is not always the overriding factor in peoples’ thoughts, feelings, or actions (something which she discusses, at length, in Hiding from Humanity). By the end of the chapter the references to reasonableness take on a skin of desperation, as if the repeated mentions themselves will pile up to bridge that gap between the unfortunate is and the promised land-of-reason ought.

(Most trivially? ‘In 1831, in another case very like that of Jonas Philips, another Jew, confusingly named Levi Philips. . . .’ [129] What?! Why the ‘confusingly named’? Lousy sentences are not unforgivable, but I bring this one up to highlight a certain slackness in editing. There are, alas, other examples.)

Third irritant: The presentation of history from the Northeast south and westward. This is a general bias in our national narrative, but for the love of pete, can’t SOMEone try to remember that some of the earliest Europeans to hit the continent were the Spanish? Yes, anti-Catholic sentiment was heightened in tandem with increased Catholic immigration, but is it just possible that, as (Protestant) settlers moved westward and encountered already-existing Spanish and mestizo—Catholic—populations, that hostility flared between these groups? I honestly don’t know, but could we at least expand our understanding of the history of American colonization to include Spanish (and French Catholic) settlers?

So much for the minor points. On to the truly problematic: her approach to secularists, and the discussions in chapter 8. But first, I need (okay: want) a beer. Part II follows.