Educating Political Liberalism

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Educating Political Liberalism

C.J. Sentell

Spring 2007

Political liberalism fails in its aspiration to be above and beyond any comprehensive doctrine.

It fails in this aspiration precisely because political liberalism entails several contestable

commitments, some of the most prevalent features of which are revealed in disputes

concerning the curriculum of public schools. Accordingly, in this essay I examine political

liberalism as it bears upon issues of public education. My thesis is that political liberalism is

itself a comprehensive doctrine, however thin, which justifies and propagates itself most

clearly in arguments concerning the substantive normative commitments entailed by the

public school curriculum. This fact, moreover, neither necessarily adds nor detracts from the

contributions political liberalism stands to make with respect to issues of justifying the

legitimacy of coercion within contemporary democratic societies. Thus, I analyze in detail

three legal cases involving religious values operative within the public schools and show how

the substantive commitments of political liberalism work to resolve these cases. I conclude

the essay by suggesting that the above analysis points to the way in which political liberalism

is not so much a philosophical question as a legal one, and thus that the possibility of political

liberalism is immanent within the law.

The Scope of Political Liberalism

The aim of political liberalism is to account for the way in which citizens in modern

constitutional democracies are able to live in social harmony while fundamentally

disagreeing with one another at the level of comprehensive moral commitments. John Rawls,

of course, begins with the fact of reasonable pluralism, or the fact that in such democracies

there are many reasonable views about how to conduct ones moral and political life, and that

these views can co-exist even if they are in the end incompatible. Rawls begins with this fact

and then attempts to articulate an account of the way citizens can go about justifying laws

(the most important of which are coercive) using reasons that are acceptable to everyreasonable citizen regardless of their comprehensive worldview. Because of the central role

reasons plays in this account, Eberle argues that this project can also be understood as

justificatory liberalism, which contains two central commitments, namely, the value of

public justification when the coercive powers of the state are at issue and the respect for


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persons in their choices to understand the world in certain substantive, if ultimately

incommensurable, ways.1

Political liberalism, then, attempts to navigate a way between substantive moral

doctrines by providing a framework through which substantive disagreements can be

mediated and ameliorated justly. To the extent that this project provides such a framework,

its claims are structural rather than substantive, procedural rather than comprehensive. In this

way, political liberalism is meant to be prior to a citizens substantive moral commitments; it

is meant to function outside of any particular comprehensive doctrine, thereby providing the

means by which the substantive disagreements that involve coercive state actions are

justified. Rawls says that,

the idea of public reason is not a view about specific institutions or policies. Rather,

it is a view about the kinds of reasons on which citizens are to rest their political

cases in making their political justifications to one another when they support laws

and policies that invoke the coercive powers of government.2

In other words, political liberalism claims to be merely political in that it does not attempt to

answer the substantive questions of contemporary social life; it does not address or commit to

any one particular conception of the good, but rather attempts to articulate a set of constraints

within which citizens ought to operate when arguing for their preferred policies in the public

sphere. Thus, rather than taking a stand with respect to any particular issue, the content of

which is being politically contested, political liberalism attempts to articulate the method by

which such contents may be legitimately decided outside of all such contestations.

While this methodological aspiration of political liberalism is no doubt a noble one, it

is, ultimately and strictly speaking, a specious one. This is because every method entails

some degree of content, if only insofar as it defines what contents count as being proper to

the method. Political liberalism, then, cannot rigidly maintain the claim that it is outside of

all comprehensive doctrines precisely because it is itself a comprehensive doctrine to the

extent that it articulates the normative constraints that citizens ought to recognize and employ

in the course of justifying their preferred policies in public. Such constraints are themselves

substantive claims made upon the conduct of individuals, if only by the very fact that they are

normative and constraining. And while the attempt to shift the focus of concern to a level at

which substantive claims are excluded is commendable insofar as it works to obviate the

1 Eberle (2002), pg. 512 Rawls (2005), pg. 476


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open clash of those commitments in the political sphere, that attempt itself involves

substantive commitments to such values as toleration and pluralism, as well as the actual and

potential efficacy of reasoned discourse and justification in the space of political life. These

values can be and are in fact contested within contemporary political life, which ought to be

prima facie evidence of their lack of complete neutrality and substance.

In this way, it is incorrect to think of political liberalism as being a framework devoid

of substantive commitments, but rather that the commitments it does make are relatively thin

when compared to the thicker moral commitments that are entailed, for example, by Judaism

or Kantianism. So the substantiality of commitments between the political liberal and, say,

the fundamentalist Christian are commitments that differ only in degree and not in kind.

While the former set of commitments are relatively thin, the latter set are considerably

thicker in that they prescribe a set of norms whose comprehensiveness is such that it can

potentially regulate every aspect of an individuals conduct. And while political liberalism

indeed avoids making such comprehensive claims, the important point is that both entail

substantive commitment, however thick or thin they may be.

The Problem of Public Education

But, whether it be the coercive powers of the state or the coercive power of individuals, the

legitimacy of coercion remains a central problem for contemporary pluralistic democracies.

Political liberalism tries to answer the problem of coercion or why certain coercive acts are

legitimate whereas others are not by outlining a program of justification that circumscribes

legitimate coercion within a system of reason-giving which disqualifies reasons whose sole

source lies within the purview of a religious, moral, or otherwise contestable comprehensive

doctrine. Public education, however, poses a unique set of issues with respect to the account

political liberalism gives to justify state coercion for two reasons. First, public education, in

the course of its ordinary operations, invokes the very same contestable, substantive

normative claims that lie at the heart of political liberalism. Second, the public schools

primary audience consists of individuals whose full spectrum of rights are not yet realized or

recognized by the law. That is, public schools traffic in the worldviews of children, whose

status as rights-bearing citizens under the law is equivocal with respect to the authority of

their parents and the authority of the state. That the state has a right indeed, the Courts tend

to couch it even as a duty to educate its citizens so as to facilitate them becoming active,

contributing citizens of society is not often contested. When it is contested, however, parents


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have traditionally maintained an unequivocal right to withdraw their child from the public

schools and either enroll them in a private school or continue their education through home-

schooling. Either way, though, the state manages to impose some sort of educational

requirement for minors and children until they become adults themselves.

By its very definition, the public school system is the state transmission of state-

approved knowledge and values to a segment of its citizenry on a compulsory and ideally

non-discriminatory basis. According to its own aims, the public school system is meant to

educate students so that they might have an equal opportunity to succeed as citizens of a

democratic state. To achieve these aims, the school must educate its students into a certain

understanding of the world and their place within it. Such an education, as with perhaps all

education, necessarily involves integrating students into particular epistemological and

normative orders. In the case of public schools, this integration is accomplished by

inculcating those particular facts and values the state considers of fundamental civic

importance.

Again, it is important to note that the primary subjects of this inculcation are not full

rights-bearing citizens. The students of public schools consist almost exclusively of children

or minors who fall under the legal jurisdiction of an adult care-giver. While children are

typically granted the status of individual human beings, they are not granted the status of full

individual citizens, which are both entitled and able to exercise the full range of rights

available under the law. The completion of a childs potential package of rights, then,

crucially depends upon their parents or legal guardians. So, in public schooling, state power

is applied directly to individuals who are not full legal citizens, but who depend upon another

citizen to safeguard their rights in their stead. And when it comes to this citizen, too, the

state may legitimately continue to use its force to educate children against the wishes of the

childs parent or guardian. In public schools, therefore, state power is wielded directly and

coercively over children and adults alike.

Because these issues are so complex and contestable, questions of public education

often work their way through the legal system for final adjudication. On the importance of

the public schools, Justice Powell speaks for a Supreme Court majority when he says that

public education, like the police function, fulfills a most fundamental obligation of

government to its constituency. The importance of public schools in the preparation of

individuals for participation as citizens, and in the preservation of the values on which our


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society rests, long has been recognized by our decisions.3 Moreover, in Brown v. Board of

Education, Chief Justice Warren declares that education is perhaps the most important

function of state and local governmentsIt is the very foundation of good citizenship.

Today it is a principal instrument in awakening the child to cultural values, in preparing him

for later professional training, and in helping him to adjust normally to his environment.4 In

this way, the Court affirms the function of the public schools to be an assimilative force by

which diverse and conflicting elements in our society are brought together on a broad but

common ground and whose mission it is to inculcat[e] fundamental values necessary to the

maintenance of democratic political system.5

When the goals of public education are understood in this way, the question as to the

specific values that are to be inculcated gains particular focus with respect to the justificatory

program of political liberalism. Because the State exerts great authority and coercive power

through mandatory attendance requirements, and because of the students emulation of

teachers as role models and the childrens susceptibility to peer pressure, the Courts have

been particularly vigilant in mandating compliance with the religious clauses of the

Constitution.6

Two Clauses and The Curriculum

I would now like to consider these issues in more detail by examining several cases, each of

which represent an instance of the contestation of the substantive values of political

liberalism with respect to the two religious clauses as found within the U.S. Constitution.

While the Establishment clause prohibits the government from imposing certain religious

beliefs or practices upon its citizenry, the Exercise Clause prohibits the government from

barring, preventing, or otherwise discouraging the observance or adherence of certain

religious doctrines with respect to its citizens. Importantly, a strong simultaneous

interpretation of these clauses is impossible, i.e., a strict separationist reading of the

Establishment Clause is incompatible with an equally strict accommodationist view of the

3Ambach v. Norwick, 441 U.S. 68, 76 (1979). Note: With the exception of Ambach and Brown, in thisessay all references to cases in footnotes are given in terms of their legal citations, while the page numbers

at the end of the legal citation refer to the casebook from which they were drawn, namely, McConnell,

Garvey, and Berg (2002).4

347 U.S. 483, 493 (1954)5Ambach v. Norwick 441 U.S. 68, 77 (1979). Interestingly enough, the Court cites here, among others,

John Deweys philosophy of education as providing authoritative grounds for this understanding of the role

of public education.6Edwards v. Aguillard482 U.S. 578 (1987)


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Free Exercise Clause.7 That said, the courts have tended to resolve complaints on the basis of

either one of these two clauses, and the space between the two functions as the basis of a

thoroughgoing freedom of religion.

I begin with the well-known case ofMozert v. Hawkins (1987). At issue in this case

was a decision by a Tennessee School Board to adopt a reader that contained selections

presenting a variety of normative and religious sources. One of the plaintiffs in this case,

Vicki Frost, was the mother of three children enrolled in Hawkins County public schools at

the time the reader was adopted. Frost complained that the reader offended her religious

beliefs, which were based on the word of God as found in the Christian Bible and formed

the totality of her beliefs.8 Her objections turned on the fact that her children were being

exposed to materials that were not explicitly consistent with, and even contrary to, her

declared worldview. For a while, the school board allowed Frosts children to opt out of the

reading program, but the board eventually declared that all students must participate. Suit

was subsequently filed on grounds that the board requirement violated the Free Exercise

Clause vis--vis the plaintiffs, who asserted that the constitutional question turned on the

repeated and flagrant nature of the offensive passages, i.e., that the reader was not, on the

whole, balanced enough in presenting materials of a normative or religious content.

Writing for the U.S. Court of Appeals, Chief Judge Lively said that the question to

be decided is whether a governmental requirement that a person be exposed to ideas he or she

finds objectionable on religious grounds constitutes a burden on the free exercise of that

persons religion as forbidden by the First Amendment.9

The Court found that, when the

students are not required to affirm or deny a belief or engage or refrain from engaging in a

practice prohibited or required by their religion, there did not exist an unconstitutional

burden under the Free Exercise Clause.10 That students could or might develop beliefs

contrary to their parents or guardians based on such exposure was not, in other words,

sufficient to establish an unconstitutional burden. Importantly, the way the Court framed the

decidable question in this case begged the question as to whether exposure to certain

materials constituted teaching or indoctrinating those materials as having a claim to truth.

Put differently, by framing the issue as one of mere exposure, the Court neglected a serious

7

Fallon (2004), pg. 728Mozert v. Hawkins 827 F.2d 1058 (6th Cir. 1987), pg. 672

9Ibid., pg. 67310Ibid, pg. 674


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question as to whether exposure constitutes teaching, and, if it is, whether it is possible to

teach something without teaching it as having a claim to truth. But the Court held that it was,

in fact, possible for the public schools to expose students to a variety of viewpoints without

affirming or implying that those viewpoints were true. Moreover, and even more strongly,

the Court couched the ability to present a wide range of diverging and even conflicting

viewpoints as part and parcel of its mission to instill the values essential to a democratic

society, which include tolerance of divergent political and religious viewpoints.11 This

tolerance, as established by the Supreme Court, is a civil tolerance, not a religious one.12

The distinction between religious and civil toleration is central to understanding the

way in which public schools may legitimately coerce students to being exposed to

comprehensive ideals different from their own or their parents. It is not that the schools are

teaching that all religions are of equal standing in the eyes of God. Rather, the schools

mission is to teach that, qua citizen, individuals must tolerate other individuals in their right

to believe whatever comprehensive moral or religious doctrine they may have been born into

or choose to associate with; this is civic toleration, or the toleration that is required by the fact

of reasonable pluralism. The state, in other words, is not in the business of educating its

citizens into the truth of any one particular comprehensive doctrine, but in the business of

educating its citizens into the truth of political liberalism to the extent that civic toleration is

required of citizens by the fact of reasonable pluralism. The distinction between civic and

religious toleration, Stephen Macedo claims, helps mark off the space on which to construct

a principled but politic liberalism: a liberalism grounded not in the authority of science per

se, but in shared standards of reason. It is not neutral in its effects, but it at least disallows

the use of political power to promote directly anyones contestable comprehensive ideals.13

So, while a core commitment of a religious believer may require her to deny the validity of

other religions, that commitment must itself be suspended in light of the commitments

entailed by the purposes of public schooling, which are grounded in a commitment to

inculcate the civic virtue of toleration in the public sphere.

It is precisely here, then, that the substantive commitments of political liberalism

emerge most clearly. While the public schools do not promote a specific religious or moral

ideology, they do promote the ideology of political liberalism and the pluralism that

11

Cf.Bethel School District v. Fraser, 478 U.S. 675 (1986), pg. 68812Mozert v. Hawkins 827 F.2d 1058 (6th Cir. 1987), pg. 67513 Macedo (1995), pg. 482


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underpins it. Now, of course, the substance of this ideology can be and, in fact, is contested.

Frost and the other plaintiffs of Mozertpresent one such contestation of the substantive

claims of political liberalism: they claimed that exposure to contrary viewpoints constituted a

violation of their right to freely exercise the religion of their choice. But, according to

political liberalism, the right to freely exercise ones religious and moral worldview is

legitimately circumscribed by the states right to promote the values necessary for the states

continued existence. With respect to Mozert, Macedo claims

that the source of the apparent unfairnessis a reasonable attempt to inculcate core

liberal values. The state is within the limits of its rightful authority. The bedrock

liberal insistence on toleration is a constraint on the range of religious practices that

can be tolerated. It is hard to see how schools could fulfill the core liberal civic

mission of inculcating toleration and other basic civic virtues without running afoul

of complaints about exposure to diversity. Since exposure to diversity is a

necessary means for teaching a basic civic virtue, it cannot support a fundamental

right to be exempted from an otherwise reasonable educational regime.14

Thus, there are times when the interests of the state may trump the rights of individuals to

freely exercise their religion. That is, when religious commitments interfere with or impede

the transmission of the central normative commitments of the liberal state, the state may

legitimately coerce individuals to drink from the common cup of political values.

Several questions emerge from this point. In light of affirming the right of the state

to inculcate virtues considered central to civic life, a question remains as to whether the

parents of children in public schools have a right to shield their children from such exposure

on a selective basis. Of course, parents can opt out of such inculcation altogether by

withdrawing their students from the public schools; importantly, if they could not do so, mere

exposure would, in turn, constitute an undue burden under the Free Exercise Clause.15 But

do parents have a right to selectively determine what values their child receives in public

school?16

Do parents, in other words, have the right to select some values at the exclusion of

others, such as requesting exemptions from certain course materials while deeming others

acceptable for consumption? Surely not, as this would be to exploit other citizens who pay

14

Macedo (1995), pg. 48515

Mozert v. Hawkins, 827 F.2d 1058 (6thCir.1987), citing Wisconsin v. Yoder, 406 U.S. 205 (1972), pg. 67416 This issue escaped legal adjudication in Mozertthrough the school boards overturning its previous

exemption and requiring attendance in the reading class.


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taxes to support an educational system so as to transmit the core liberal values of civic

toleration. Such shielding could, in effect, result in citizens who are either unaware or

disinclined to respect their fellow citizens when it comes to substantive differences in

worldviews, which is precisely what taxpayers fund the public schools to teach.

More specifically, however, do parents have the right to shield children from being

exposedto the fact of reasonable pluralism? This is exactly the question at issue in Mozert,

but in that case two distinct sets of rights are conflated. On the one hand, the question could

be framed so as to focus on the parent, and inquire whether the parentindeed has the right to

shield their child from the fact of reasonable pluralism. But, on the other hand, the answer

might change if it were framed so as to focus on the student and inquire whether the childhas

the right notto be so shielded. The law has a very difficult time dealing with this distinction,

which is why it is so often conflated, because the law tends to draw firm lines of demarcation

between children and adults in terms of age or other such criteria; in many ways, the rigidity

of the law obviates it accounting for the necessary differences between the maturity of

students as they progress through the educational system. The law, in other words, neglects

the way in which the process of education is precisely the process of the child becoming

adult. Education just is the emergence of the legal individual qua citizen, which makes the

emphasis on the rights of the child all the more important.

Where the parents right to raise their child according to their particular worldview

ends, and the childs right to be educated according to the facts of political existence in a

contemporary pluralistic society begins, is a question that perhaps the law is unable to answer

because it is a question concerning the emergence of the legal individual within the educative

process. There is an important sense in which, then, this question notabout the right of

adults to shield themselves or their children from such a fact, but about the right of children

to be exposed to such facts and the right of the state to enforce such exposure in the interests

of the child. The right of adults to shield themselves from diversity is an accepted right that

is exercised in a number of ways, not the least of which are found in the cultivated social

homogeneity of certain religious groups and the tendency and ability to surround oneself with

those media outlets with which we most closely agree. But the right of children to receive

exposure to the fact of reasonable pluralism is a more contested, but also a deeper, issue.

Now, in one sense, whether the child recognizes that they have such a right is beside

the point, because one of the purposes of the state is to ensure that certain rights are respected

and enforced, regardless of whether the bearer of the right is aware or agrees to have that


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majority of the Court found that this law was enacted on the clear basis of a religious

antagonism to the theory of evolution and that, on those religiously-motivated grounds, it

violated the Establishment Clause. Writing for the majority, Justice Fortas wrote that there

is and can be no doubt that the First Amendment does not permit the State to require that

teaching and learning must be tailored to the principles or prohibitions of any religious sect

or dogma.19

Because the legislative history was explicit in its antagonism to evolutionary

theory on the basis of it contradicting the Bible, the Court found that the exclusion of the

theory from the curriculum amounted to the establishment of a religious doctrine in the

public schools.

At stake in Edwards v. Aguillard(1987) was a similar issue, but this time Louisiana

legislators passed a law that required creation-science to be taught in the public schools if and

only if evolution-science was taught as well. In other words, if the public schools decided

not to teach evolution-science, then neither did they have to nor could they teach creation-

science. Based on the legislative record, the Balanced Treatment for Creation-Science and

Evolution-Science in Public School Instruction Act attempted to create a level playing field

for both theories within the schools. In other words, because neither creation-science nor

evolution-science were scientific facts, i.e., they were merely theories, they both required

equal consideration if either were to be taught. In this way, there was secular rationale for

the law in that it promoted academic freedom.20

The Court, however, flatly denied this

secular rationale.

Based on a earlier ruling, the Court found that the requirement to teach creation-

science alongside evolutionary theory did not identify any secular purpose that was not fully

served by [existing state law] before the enactment of the statute.21

In other words, the

Louisiana law did not grant teachers a flexibility that they did not already possess to

supplant the present science curriculum with the presentation of theories, besides evolution,

about the origin of life.22 By rejecting the secular rationale for the law, the Court instead

based its ruling on the understanding that the statute was in fact intended to undermine

evolutionary theory at every turn by promoting a distinctly religious counter-interpretation,

19

Epperson v. Arkansas, 393 U.S. 97, pg. 65920

Edwards v. Aguillard, 482 U.S. 578 (1987), pg. 66621Ibid., citing Wallace v. Jaffree, 472 U.S. 38 (1985), pg. 66722Edwards v. Aguillard, 482 U.S. 578 (1987), pg. 667


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namely, creationism. It is on this ground, then, that the Court ruled that the law violated the

Establishment Clause of the Constitution.

In bothEpperson andEdwards, then, the Court rejected the constitutionality of these

laws because they violated Establishment principles in analogous ways that sought to exclude

the theory of evolution from the public school curriculum on religiously motivated grounds.

But in a concurring opinion to Epperson, Justice Black cautioned against such an intention-

based ruling. He said that it may be instead that the peoples motive was merely that it

would be best to remove this controversial subject from its schools; there is no reason I can

imagine why a State is without power to withdraw from its curriculum any subject deemed

too emotional and controversial for its public schools.23 While Blacks point is well-taken

to the extent that intentions are dubious bases for interpreting anything, the legislative history

is entirely clear in that case.24

If it were not so clear, however, an interesting issue emerges

as to whether schools may legitimately exclude certain materials on the basis of their being

highly disputed or contested within the broader culture. This question turns on another point

Black raises in his opinion, namely, that the theory of evolution could quite conceivably be

construed as an explicitly anti-religious doctrine. If so construed, then teaching the theory of

evolution would itself be a violation of the Establishment Clause precisely because the First

Amendment mandates governmental neutrality between religion and religion, and between

religion and non-religion.25

Justice Blacks points remain relevant and demand attention. If secular science and

religion are indeed diametrically opposed bodies of belief, then secular science could

legitimately be considered an explicitly anti-religious body of knowledge. While having no

problem taking advantage of the benefits modern science has to offer, many fervent religious

believers (as well as scientists, for that matter!) take the crude distinction between science

and religion at strict face value. But whether this fact places such things as the theory of

evolution in direct opposition to religious beliefs is an entirely different question. Put

differently, just because religious believers take evolution to be contrary to their

comprehensive doctrine does not entail that evolution is, in fact, an anti-religious, and thus

23

Epperson v. Arkansas, 393 U.S. 97, pg. 66024

Just for fun, here is a sample of an advertisement that was circulated in support of the law: THE BIBLE

OR ATHEISM, WHICH? All atheists favor evolution. If you agree with atheism vote against Act No. 1.

If you agree with the Bible vote for Act No. 1The Gazette said Russian Bolshevists laughed at

Tennessee. True, and that sort will laugh at Arkansas. Who cares? Vote FOR ACT NO. 125Epperson v. Arkansas, 393 U.S. 97, pg. 659


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equally comprehensive, doctrine. Of course, in the majority opinions of both cases, the Court

skirted this question and invalidated the laws on slightly different grounds, namely, on

intentional grounds. So it remains to be seen whether the State may legitimately exclude a

scientific theory from the public schools just because it is controversial to religious believers

within the wider public. It is noteworthy that in Mozertthe question is one of exposure,

while in Epperson and Edwards the interesting question is one of lack of exposure, i.e.,

exclusion, namely, can the state legitimately exclude certain non-religious subjects from the

public schools on grounds that those subjects are too controversial or appear to be

irresolvable within contemporary political contexts? More specifically, can scientific

theories be excluded from the public school curriculum simply because they are contested

and therefore be considered to fall within the scope of a comprehensive moral, religious, or

philosophical doctrine? While the Court has thus far managed to avoid answering these

question directly, the reasoning in the exposure argument in Mozertcan be joined with other

lines of similar case law so as to point to an answer in the negative. And, if the answers are

indeed negative, as the political liberal also undoubtedly wants them to be, the further

question remains as to exactly why science is not taken to be a comprehensive doctrine

within political liberalism.

The political liberals argument in response to these questions might run as follows:

first, whether science is an anti-religious body of knowledge is a moot point if only because

the U.S. Constitution singles out religion, not science, for a special negative comportment

under the law: the state shall neither establish, nor impede the free exercise of, religion

insofar as it does not contravene the states compelling interests otherwise. That neither the

U.S. Constitution nor any significant body of case law establishes the same negative

comportment toward the sciences or any of their theories26 is enough to establish that religion

and religious belief are just special cases of belief and practice carved out within the law.

But the law actually contains a positive endorsement of the sciences as well, and the sciences

are actually accepted as an integral aspect of public education. To cite but two examples, the

U.S. Constitution grants Congress the right to promote the Progress of Science and the

useful Arts,27

while the Tennessee State Constitution declares:

26

Note that one must be careful here, because there are certain scientific practices that the law has

prohibited for various ethical and political reasons. But, to my knowledge, no scientific theory qua theory

has received a legal prohibition against its being taught.27 U.S. Constitution, Article I, Section 8


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Knowledge, learning and virtue being essential to the preservation of republican

institutions, and the diffusion of the opportunities and advantages of education

throughout the different portions of the state being highly conducive to the promotion

of this end, it shall be the duty of the general assembly in all future periods of this

government to cherish literature and science.28

Thus, not only is education a state duty here, but an education into the sciences actually

comprises a centrally articulated aspect of that duty. So the law clearly distinguishes

between religion and religious belief, on the one hand, and science and scientific belief on the

other. The law regards the sciences as simply a separate case of knowledge claims, the

promulgation of which lies within the legitimate bounds of public education, while religion

simply and explicitly does not.

Legally, then, science is not necessarily anti-religious or atheistic precisely because

the law does not set religion and science in opposition to one another. That is, while religion

and science are indeed distinguished with the law, they are not placed in epistemological or

ideological opposition to one another either. Thus, it is incorrect to construe the legal

understanding of the sciences and their theories, however contestable with the public at large,

as being either opposed to religion or anti-religious or even atheistic. This is the point missed

by Scruton when he claims that the Establishment Clause in effect establishes secularism as

the religion of the state and that this obliges the state to chase religion out of the institutions

of society. With more rhetorical flourish, he continues:

Having absorbed those institutions, the state fumigates them against the religious bug.

But it does this religiously, seeking out all the nooks and crannies where religion

might take hold, and squirting them with ideological disinfectant. And because the

state controls the institutions where orthodoxies arise schools and universities it is

in effect making an establishment of religion. The religion is atheism; but atheism

pursued with a kind of vindictive vehemence that has all the marks of faith.29

This charge, moreover, can be pared down simply to a charge against science, i.e., that

science constitutes a form of religion. But this charge fails to understand two crucial points,

the first of which is that the law simply does not establish science as the ideological opposite

of religious sectarianism. And, more importantly, by arguing certain scientific theories

should be excluded from the public school curriculum on the basis of their being contested or

28 Tennessee State Constitution (1834), Article XI, Section 1029 Scruton (2007), pg. 5


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contestable, the state would be compelled to characterize the dispute over a scientific theory

such as evolution in terms of its indeterminacy within the public sphere, or, alternatively, as

being just another victim of the fact of reasonable pluralism. But, again, this line of

reasoning conflates two standards of validity and two areas of inquiry that the law explicitly

seeks to keep separate. It turns, in other words, upon couching the validity of evolution in

either religious criteria, or in a meta-criteria that encompasses both religious and scientific

claims, both of which are, of course, exactly notthe criteria the sciences employ to justify the

validity of its knowledge.

So here the substantive commitments of political liberalism emerge once again in the

prioritization of certain bodies of knowledge as central to the public interest. The value of

secular knowledge, of which the sciences form an integral part, is a value affirmed by

political liberalism. It is not that secular beliefs are necessarily anti-religious beliefs, but that

they are just different types of belief. Importantly, the political liberal must tread carefully

here, for as soon as secular knowledge is even slightly opposed to religious knowledge (if I

may use that term), their arguments may succumb to the First Amendments dictum that the

state shall remain neutral both with respect to claims of truth between religions as well as

between the religious and the non-religious. So the political liberal cannot maintain the claim

that scientific and otherwise secular knowledge is at all comparable or contrastable to

religious knowledge, if they are to avoid the current interpretation of the Establishment

Clause. Rather, secular and scientific knowledge must be construed on an entirely different

set of standards, which are internal to the sciences and are not contestable on grounds falling

outside the scope of the sciences. When so construed, the state does not have a right to

exclude certain subjects such as evolution from the curriculum on the basis of their public

contestation, and this is precisely because that contestation neglects the criteria by which the

theories are themselves judged valid. By its own criteria, for example, the theory of

evolution is neither contested by the scientific establishment nor set in explicit opposition to

religious doctrine.30

Thus, political liberalism affirms a commitment to the sciences as a

valid body of knowledge, distinct from any and all religious claims, that the state has

legitimate interest in transmitting through the public school curriculum.

30 Well, with respect to the latter, Richard Dawkins may be a notable exception.


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An Immanent Liberalism

Thus far I have argued that: 1) political liberalism is itself a comprehensive doctrine,

however thin, in that it not only places normative constraints on citizens in terms of the

validity of their reasons in the public sphere, but that it also entails certain substantive

commitments; 2) the curricular disputes surrounding public education constitutes a unique

site for identifying the substantive commitments of political liberalism because these

commitments are considered to be legitimately inculcated as part of the ends of public

education; and 3) the examples of such substantive commitments include, but are not limited

to, the values of pluralism and toleration, the importance of reasons acceptable outside of any

particular religious worldview, and the separation of the sciences as a distinct species of

knowledge which neither supports nor opposes religion. I would like to conclude this essay

by arguing that none of these claims does anything to undermine the efficacy of political

liberalism as a political theory because the political liberalism is not so much a philosophical

question as it is a legal one. It is because political liberalism is immanent within the law.

The distinction that political liberalism attempts to draw between public reasons and

reasons grounded within a particular comprehensive (and specifically religious) doctrine is

legitimate precisely because, within the scope of its theory, it tracks a similar division that is

actually articulated in constitutional law. It attempts, in other words, to demarcate the scope

of the secular and the sectarian along roughly the same lines as found in the U.S.

Constitution. The most obvious example of this is the way the U.S. Constitution explicitly

recognizes the religious as a special category of belief under the law. This is to say that,

above and beyond generic protections of free speech and association, the U.S. Constitution

singles out religious belief to receive special attention with respect to state establishment and

state infringement. By declaring that Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof, the Constitution

recognizes that the substantive moral claims articulated through religious doctrines call for a

unique comportment vis--vis the state. In this way, political liberalism seeks to disentangle

the political-legal structures of democratic governance from the substantive religious

commitments of its citizens in much the same way as the U.S. Constitution does.

Indeed, by claiming that the theoretical efficacy of political liberalism is based upon

the existence of certain distinctions within the law, I am suggesting that if there were no such

distinctions within the law, then the opening salvo of the political liberals argument to

require the justification of coercive laws be based publicly accessible reasons, or at least to


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disallow reasons based solely within a particular religious doctrine, would be unwarranted.

But, since such a distinction is drawn by constitutional law as constitutive of the

governments proper comportment to religion, such a distinction is legitimately drawn in

articulating a more general theoretical framework of the way in which religious

comprehensive doctrines may bear upon a citizens comportment to government.

In this sense, then, the question of political liberalism is often posed in way that

confuses the relationship between the aims of political theory and the practices of political

life. Put differently, whether political liberalism and its constitutive characterization of

public reasons is a correct one or not is often taken to turn on purely philosophical grounds.

In other words, philosophers take the question Is political liberalism adequate qua

theoretical depiction of the practices of twenty-first century Western constitutional

democracies? to be an especially philosophical question that depends upon the consistency

and sufficiency of its various theoretical articulations. Thus taken, for example, the

philosophical problems with the account Rawls gives with respect to the public reasons are

meant to undermine the validity and efficacy of his project. If his account of public reason is

sufficiently fraught with problems, so the argument goes, then Rawls cannot get his project of

the ground, so to speak, and the account thus ultimately fails on sufficiency requirements.

But framing the question of political liberalism in this way is wrongheaded because it

mistakes the directions of influence operative within and between political theory and

practice. This way of posing the question of political liberalism seeks to justify the existing

political apparatus with a fully-realized philosophical theory, as if that apparatus depended

upon the theory to be legitimate.

I argue, rather, that political liberalism is immanent within the law. More precisely,

the possibility of political liberalism is immanent within the law. That the law creates the

space within which reasons are able to legitimize coercive laws in a constitutional democracy

is the extent to which political liberalism is a fact. But to the extent that there are actual and

identifiable contravening ends at work in the process of creating and enforcing such coercive

laws, political liberalism is a fiction. Both of these conditions are at work within each and

every political decision codified into law, thus making political liberalism simultaneously a

fact and a fiction. No law is ever enacted solely on the basis of its rationality; there are

always interests and motives at work beyond the scope of rational argumentation. Instances

of this fact abound in contemporary political life, and I can only gesture to them at this point

in my argument.


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The central blind-spot of political liberalism as a theory, then, is the way it

understands the legitimacy of coercion within a strictly discursive scope. The problem with

placing the question of legitimacy within the context of public reasons alone is that reason

carries with it the connotation of impartiality and non-coercion. In other words, when one

talks about reason-giving, one typically talks about it in terms of evidence and argument that

could be accepted by all on the basis of free consent. In this sense, reasons imply the absence

of literal force. (Of course, one may speak of the force of reasons in terms of a logic of

compulsion that obliges one to assent or reject certain claims, but this force is of a patently

different nature.) Moreover, talking about reasons and reason-giving tends to confuse the

issue about the direction of influence between rationality and legitimacy, namely, whether the

rationality of the process make decisions legitimate, or whether the legitimacy of the process

make decisions rational. When political liberalism is understood as being immanent within

the law, the tendency and desire to assume the former is balanced by a recognition of the

empirical prevalence of that latter. Reasons are used for achieving ends. They are tools

people employ at the level of discourse to justify the conclusions that best fit their interests

and beliefs. The reasons individuals give for or against a public policy, in other words, are

not given outside of the consideration of the ends those individuals would like to see realized.

Reason-giving is not fishing in the dark, it is not the uninterested or experimental deployment

of arguments for the edification of others. Reason-giving, especially political reason-giving,

concerns belief in that the reasons one gives are inextricably linked to what one believes or

what one wants to believe as true.

To say that political liberalism is immanent within the law is just to say that political

liberalism is an attempt to capture and distill within a theoretical framework the actual

conditions of political, legal life in the constitutional democracy that is the United States.

Conversely, and generally, the legal structure of the U.S. is precisely one in which the

normative constraints and substantive commitments of political liberalism form the operative

basis of constitutional law. In this way, the actuality of political liberalism emerges from the

legal code and its interpretations by courts. In this way, the existence and character of public

reasons is not an interesting philosophical question if only because Rawls was simply right to

say that such a reason would look much like a reasoned, average opinion of a supreme

court.31

It is not that such opinions just happen to fulfill the criteria of what public reason is

31 Rawls (2005), pg. 254


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or would be, if only the philosophers could get their theories right. Rather, public reasons

exist insofar as they are found within the arguments that define the scope of constitutionality

within the law. In this way, the character and criteria of public reasons emerge in a

supervenient relation between the aims of particular laws and their constitutional status as

decided by the courts, supreme and otherwise. That they emerge this way, moreover, is due

to a strict correlation between court opinions (and the law they produce) and the concrete

personal, social, and economic disputes that arise in the course of contemporary political life.

So the question as to the existence and character of public reasons is answered within

the law precisely because the law is, ipso facto, just what public reason is. The law is a

necessary condition for delimiting the scope of the public sphere, and the negotiations and

disputations that occur within that sphere are reasonable or not according to the criteria

utilized in the processes of adjudication. Thus, there is no criteria to establish in advance as

to what a public reason is or can be; rather, such criteria emerge in the actual contestations

and adjudications of political values within the law. Neither is there such a thing as public

reason in general; rather, there are only particular reasons given in public here and there for

particular political ends. Rather than being a concept, then, public reason is a phenomenon to

be studied, tracked, and engaged where it occurs within the law. To speak with Benhabib, if

political liberalism is immanent within the law, then the contestations of the limits and values

of political liberalism are iterations that further define its scope, efficacy, and legitimacy. In

its development, the law iterates the metes and bounds of a political liberalism always in the

making; its iterations are invocations that are also revocations, she says, [t]hey not only

change established understandings but also transform what passes as the valid or established

view of an authoritative precedent.32

And because each iteration involves making sense of

an authoritative original in a new and different context, the law, and the disputes that arise in

the course of the life of the law, serve as the priviledged site of contestation over the values

embedded within the political organization of a state. 33

So the reasons that are offered, rejected, and deployed within the course of political

life arepublic reasons to the extent that they gain legal traction within the court systems vis-

-vis the complaint, standing, relevant jurisdictional factors, etc. While at times this traction

is the cause of certain political movements, at other times it is caused by a particular political

movement among and within communities. Now, obviously, there are always going to be

32 Benhabib (2006), pg. 4833Ibid.


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mistakes of reasoning. There are always going to be bad decisions and fallacious or

otherwise non sequitur arguments. But this does nothing to the fact that, within the law,

there exist reasons and arguments that assert claims over certain sectors of the public sphere.

And while these reasons and arguments are often contested, the law remains the space in

which reasons are deployed in a public voice and for a public audience. There are mistakes

in political and legal reason-giving just as much as there are mistakes in, say, philosophical

reason-giving. But the difference between these mistakes, however, is that the former

become the law while the latter become the literature. It is because political reason-giving

becomes the law, then, that those reasons count as public reasons; and it is because the law

adjudicated by the Supreme Court is the supreme law of the land that constitutes it as a

privileged site of public reasoning.

The normative constraints which political liberalism attempts to embed within the

notion of public reason are themselves open to contestation, and the law and the courts are

precisely those places where those constraints are adjudicated in the processes of

contestation. Thus, there is no a priori way to determine what is and what is not going to

count as a public reason. This determination gets played out in the actual political processes

of debating, creating, and enacting law. Leading up to the law are many candidates for

public reason, but they achieve this status only after being codified into law either through

the act of a legislator, the ruling of a court, or the decree of the executive. In this way, there

is not a theoretical architecture to work out to perfection before political liberalism can be

actualized. Liberalism is being actualized to the extent that the reasons given for any

particular act of coercion are legitimately embodied within the law, and it is being thwarted

to the extent that such reasons mask the selective emphases and underlying aims of those

who wish to coerce others under the aegis of state power.

In short, citizens of contemporary democratic nations, and particularly the United

States, are already committed to political liberalism to the extent that the law is already

committed to political liberalism. The values that are transmitted through the system of

public education in these states, moreover, constitutes one of the primary locations where

such values operate openly and coercively, thus making them most susceptible to

contestation. Disputes over such values ought to be welcomed and engaged precisely

because they draw out explicit and specific instances in which the scope and substance of

political liberalism remains to be established.


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Works Cited

Benhabib, Seyla. (2006). Another Cosmopolitanism. New York: Oxford University Press.

Eberle, Christopher J. (2002). Religious Conviction in Liberal Politics. Cambridge:Cambridge University Press.

Fallon, Richard H. (2004). The Dynamic Constitution: An Introduction to American

Constitutional Law. New York: Cambridge University Press.

Macedo, Stephen. (1995). Liberal Civic Education and Religious Fundamentalism: The

Case of God v. John Rawls. Ethics 105 (April 1995), pgs. 468-496.

McConnell, Michael W., Garvey, John H., Berg, Thomas C. (2002). Religion and the

Constitution. New York: Aspen Law and Business.

Rawls, John. (2005). Political Liberalism. New York: Columbia University Press.

Scruton, Roger. (2007). Freedom of Religion. Address and paper given at Vanderbilt

UniversityDemocracy and Moral Conviction Public Lecture Series and Seminar.

Educating Political Liberalism

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