The Public Square

February 1993

Richard John Neuhaus

Copyright (c) 1993 First Things 30 (February 1993): 63-76.

The Ruling "We" Of The American Jewish Congress

Some writers on the First Amendment, including this editor, have long made the argument that there is but one religion clause. The purpose of the clause is to protect the "free exercise" of religion, and the "no establishment" provision is in the service of that purpose (see "A New Order of Religious Freedom," FT, February 1992). This approach is in sharp contrast to those who would pit the "two clauses" against one another. For example, Burt Neuborne, Professor of Law at New York University. Writing in Congress Monthly, the magazine of the American Jewish Congress, Neuborne exemplifies an extreme but very influential reading of the First Amendment on religion.

Neuborne notes that free exercise requires us to defend religious behavior even when we strongly disagree with it. "Witness the fact that we will correctly defend someone's religious right not to be vaccinated against a contagious disease." At the same time, Neuborne writes, "the Establishment clause requires us to be suspicious of religion, even hostile to it. . . . One clause says that religion is something to be cherished, while the other says that religion is something to be feared." Neuborne approvingly describes this as the genius of "a schizophrenic Constitution-one that pulls us in different directions, one that pulls in favor of religion in its Free Exercise clause and against religion in its Establishment clause."

The reason why "no establishment" is intended to inculcate fear and hostility toward religion, says Neuborne, is that religion, unlike politics, is not volitional. In addition, "What is both sublime and terrifying about religion is that it is essentially non-rational behavior. . . . You don't carry on a reasoned dialogue about your relationship with your God. Religion is there and you live it." And so it was that "the Founders inserted the Free Exercise clause, designed to shelter individuals who were driven to act by a force more powerful than law." Free exercise, according to Neuborne, "requires us to carve out a special niche of toleration" for such nonrational behavior. Religion is not only nonrational, but too many of its proponents are irrational. "Try," Neuborne writes, "having a reasoned discussion with Pat Buchanan or Pat Robertson."

A "prophylactic wall between church and state" is required to protect the public square from religion. Neuborne concludes: "We have not been ashamed to say that we cherish religion and will protect its private exercise to the very limit of reason-and perhaps a little beyond. Conversely, we have not been afraid to acknowledge that we fear public religion and that we are committed to preventing it from getting a toehold in the country's government."

Although others do not put it in such flat-footed language-they would not, for instance, come right out and say that "no establishment" requires hostility to religion-the views of Professor Neuborne are widely shared. They underlie and are sometimes explicitly stated in numerous court decisions. The problem with the Neuborne interpretation is that it flies in the face of the plain reading of the religion clause of the First Amendment. And it flies in the face of what we know to be the intention of the Founders (see, for example, William Lee Miller, The First Liberty, or John Noonan, The Believer and the Powers That Are). Neuborne's is truly a new born interpretation that has a provenance of no more than fifty years, its godfather being the formidable and self-described extreme separationist, Leo Pfeffer of the American Jewish Congress.

This extreme interpretation is certainly not held by all Jews nor by all Jewish organizations. In fact, one of the very encouraging developments of recent years is the growing skepticism of thoughtful Jews toward "strict separationism." (The Ethics and Public Policy Center in Washington, D.C. has just published a book-length collection of "revisionist" Jewish reflections on religion and public life: American Jews and the Separationist Faith, edited by David G. Dalin.) Nonetheless, the Pfefferian reading of the First Amendment, as represented by Neuborne and the Congress, is still the dominant view among American Jews, and in many of our courts.

Neuborne's contorted interpretation of the First Amendment is matched by his curious view that religion is nonrational. Admittedly, Neuborne's view is hardly novel, but it is sharply contested by innumerable Christians and Jews who understand the religious life indeed to be the carrying on of a "reasoned dialogue" with God-although they might not choose that precise language. Ironically, Neuborne's claim is that the Constitution "establishes" a brand of religion-espoused in both existentialist and traditionalist versions-that asserts that faith is a matter of blind and unreasoned submission to authority. That is not the religion of most Christians and most Jews. Further, Neuborne would "establish" a religion that is entirely individual and private, that is hermetically sealed off from the public sphere. That is certainly not the religion of Christians, Jews, and Muslims whose faith is emphatically communal and public in character.

The Pfefferian inversion of the religion clause that continues to be promoted by the American Jewish Congress subordinates "free exercise" (the end) to "no establishment" (a means to that end). It does so by establishing a religion that is in conflict with the religion espoused by the great majority of Americans, and by propounding a profoundly anti-democratic interpretation of our constitutional order. The Constitution requires, says Neuborne, "that we fear public religion and that we are committed to preventing it from getting a toehold in the country's government." This is inescapably an argument against democratic governance. If, as we know to be the case, most Americans claim to derive their moral discernments from religion-however confusedly they may do so-to exclude religion from the ordering of our public life is to exclude the discernments, judgments, and aspirations of the sovereign people from whom democracy derives its moral legitimacy.

Then there is the offputting snobbery in Neuborne's argument. "Try having a reasoned discussion with Pat Buchanan or Pat Robertson," he says. To which one might counter, "Try having a reasoned discussion with Burt Neuborne about, for instance, the nature of religion and public life." (The present writer is pleased to report that, in fact, he has had reasoned discussions with all three of the gentlemen in question.) Of those whom he calls "the religiously driven" Neuborne writes, "As individuals, we cherish and tolerate them; as political actors, we fear and control them." Really now. Who belongs to this "we" that presumes to "control" millions of Americans who, by Neuborne's definition, are "religiously driven"? Thoughtful Americans of all political and religious persuasions are fully justified in dismissing with scorn, and not a little resentment, the legally contorted and brazenly elitist presumption of Professor Neuborne and the American Jewish Congress.


In the 1970s all the beautiful people in Philadelphia took up Ira Einhorn, a guru of the children of the Age of Aquarius. "Philadelphia's favorite hippie son," he was called. The master of consciousness raising was for a time on the payroll of Episcopal Bishop Robert De Witt. Einhorn took up, in turn, Holly Maddux and killed her. In 1979 her bludgeoned body was found in a steamer trunk where it had been hidden for eighteen months. It was found just after Einhorn had been appointed a fellow at Harvard's Kennedy School of Government.

Michael Andrea Bernstein reflects on these sordid events in The American Scholar. He had known Maddux as a student. He had known, and he knows, the perverse ways of mind, now so prominent in the academy, that turn Einhorns and others of the Charles Manson ilk into cultural celebrities. Bernstein writes: "Certainly flaunting one's contempt for the constraints of normative, prosaic life, and finding a kind of liberation in the kinship between oneself and a mythologized image of the underground and the outlaw was hardly a novel gambit. Its conventions have been endlessly repeated as part of the rhetoric by which each generation stakes its claim to a radically fresh perception. The nineteenth century in particular bequeathed to us a legend whose governing maxim was crystallized in Thomas Mann's Doctor Faustus as: 'the artist is the brother of the criminal and the madman.' The unhappy corollary to this legacy, its 'underground' recasting as it were, became authoritative almost as quickly and with perhaps even more effectiveness: if the artist is akin to the criminal and the madman, then they, in turn, are themselves also artists. It is this paradigm within whose terms much of the modern imagination continues to be inscribed. Only it remains easier to commit a crime than a masterpiece, and so if the one proves unattainable the other is surely within the reach of the sufficiently hardened will."

The vicious sentiment is that of ressentiment, and its viciousness has only been magnified since envy was first termed one of the deadly sins. "Our recent culture continually trains us to develop an identificatory sympathy with whatever voice elects itself as the spokesman of a rebellion against 'bourgeois oppression.' Claiming to represent a constituency of the marginal and victimized is as canny a career move as any available in intellectual life today, and one of the mandatory gestures of that claim is an increasingly shrill dismissal of anti-apocalyptic, prudential modes of reasoning. This is a more paradoxical development than it may at first appear, if only because history would suggest that prosaic rationalism has hardly been the dominant motive in human affairs. Indeed, given the notable success, at both the political and the ideological levels, of the extremist and utopian strains in our thinking, it is the champions of normative quotidian rationality, not their polemical antagonists, who ought to exhibit the ressentiment characteristic of impotent failure."

The growing coerciveness of political correctness on the campus is not unrelated to the utopian impulse. Bernstein favors a somewhat revisionist view on where the new totalitarians are coming from. "Yet it is not really the case that the attempted imposition of an authoritarian and moralistic left-wing policy is owing to the seizure of power by a group of 'tenured radicals' carrying out a long-planned scheme, like subversive 'moles' infiltrating the British Secret Service in a Le Carrea novel. This image, suggested in such books as Roger Kimball's Tenured Radicals, seems to me to err by taking the self-description of the left-wing professoriate more seriously than it deserves. On the contrary, as more skeptical observers such as Camille Paglia have also begun to remark, the majority of today's vocal enforcers of political correctness were entirely conventional, indeed exemplarily docile graduate students and assistant professors during the sixties and seventies, too anxious for professional advancement to risk the slightest gesture of resistance. But the lure of the counterculture, which they rejected while students, exerted an appeal all the more powerful for having been set aside for so long, only for it to emerge with all the accumulated frustration of the intervening years once tenure guaranteed that there was no more risk involved. The problem is not tenured 'radicals,' it is tenured ex-nerds belatedly struggling to appropriate the glamour of the heroic rebels whose allure they were too cautious to heed at its moment of maximum appeal two decades earlier-a repetition, if you will, of the Philadelphia business community's enthrallment with Ira Einhorn, but if anything still more bizarre, because so out-of-phase with historical forces everywhere else outside academic life."

According to Bernstein, most of us are terribly confused about the meaning of repression and liberation in this society. "Perhaps the sharpest way to formulate my own position is to insist that, in our culture, it is neither sexuality nor the darkest urgings to violence and domination that are repressed. Exactly these issues constitute an enormous, if not actually the major, portion of our cultural conversation about the human psyche. What is repressed, though, is the force of the prosaic, the counter-authenticity of the texture and rhythm of our daily routines and decisions, the myriad of minute and careful adjustments that we are ready to offer in the interest of a habitable social world." Those who would resist utopian radicalisms must be prepared to be condemned as regressive and unfeeling. In a manner that is marvelous to behold, subscribing to the politics of victimization and resentment has become a prerequisite for being a nice person. The explanation, Bernstein suggests, is in the very nature of ressentiment. "Ressentiment combines anger, envy, and pride, the three most destructive of the still entirely pertinent medieval catalogue of sins, but it is the peculiarly modern hypocrisy to cloak such impulses in the language of social compassion." Bernstein says that he does not want to engage in "sixties bashing," and he really should not be accused of that. As he makes evident enough, the sixties are now-at least in the stiflingly precious world of the American academy.


Stephen Hart, a freelance sociologist, has done some extensive interviewing and offers the results in What Does the Lord Require? How Americans Think About Economic Justice (Oxford). Hart does not attempt to disguise his bias:

"My hope is that in coming years Christians and others who share egalitarian, communal, and democratic visions will join to support and assist in the creation of a better society and world: one where our capacities for love, community, creativity, self-determination, and participation in decision-making are nurtured; where human needs and relationships take priority over profits, market forces, and technology. People sharing these hopes will have varying views as to how they might become incarnate. In my view a quite radical-in some sense socialist-transformation of our economy will be required, along with noneconomic changes in our lives and communities."

In 1992, after every socialism that has ever been tried has been decisively discredited, Hart's wistful longings for the old order might seem absurdly obtuse, but he is not without reason in drawing comfort from the conversations he reports in his book. He observes that Christians of many varieties tend to be much more liberal (meaning egalitarian or "socialist") when they talk about economics in religious rather than secular terms. In his everyday participation in a relatively free market economy, a Christian may think he knows quite a lot about economics. But he is, more often than not, a capitalist with a bad conscience. Asked to view economics from "the biblical perspective," he goes on the moral defensive. There is no denying that the Bible seems to be downright obsessive about the sins of the rich against the poor. There is, for instance, that awkward business about the camel and the eye of the needle.

Of course the Bible was written in a traditional and premodern social situation in which economics was almost entirely a zero-sum proposition. The rich were, generally speaking, rich at the expense of the poor being poor. That, as Mr. Hart demonstrates, is what most American Christians take to be "the biblical perspective." In our day, there are sophisticated moral arguments for the market economy, such as Pope John Paul II's 1991 encyclical Centesimus Annus. And of course the discussion of the connections between Christianity and capitalism go back farther, as witness the immense literature generated by Max Weber's thesis about capitalism and the Protestant ethic. But Hart is surely right in suggesting that such analyses have left most American Christians quite untouched. Latter-day socialists are consoled by the thought that even conservative evangelicals and Catholics resonate to the pronouncements of liberal church bureaucracies that pose as prophets against profits.

There is nothing especially new in What Does the Lord Require? But it does usefully highlight the enormous difficulties faced by those who would move Christians who are social and moral conservatives toward a wholehearted embrace of economic freedom. This writer is something of an expert on the subject. For example, in a recent radio interview on his book Doing Well and Doing Good: The Challenge to the Christian Capitalist, the host began with this: "You write in favor of the free market. How can you morally justify greed, selfishness, and the exploitation of the poor by the rich?" At first we thought she was just being provocative, but it turned out that she appeared to be genuinely puzzled. Stephen Hart's interviews help us understand why we should not be puzzled by her puzzlement. A good many American Christians, perhaps most of them, are Sunday socialists. They are not likely to accommodate Mr. Hart and others who yearn for the socialist version of "a better society and world" by applying their Sunday bad conscience to their weekday business. But it is at least arguable that their Sunday socialism prevents them from being more reflective and responsible capitalists.


More than a year after the Clarence Thomas hearings, the polls have significantly changed. Now most Americans say that they think Anita Hill was telling the truth. This despite the fact that, in the intervening period, the only new information on the affair was a longish article in The American Spectator which produced information that severely challenged the veracity and motives of Ms. Hill. The change in public opinion was apparently effected by nothing more than the media's repeated lionizing of Ms. Hill as the victim-champion of the sexual harassment cause. Feminists and their media friends have apparently succeeded in convincing a generation of American children that the only black man on the Supreme Court is a dirty-minded exploiter of female innocence. They must be very proud of themselves.

Reviewing a spate of books on the Thomas hearings, the influential legal scholar Ronald Dworkin concludes that Ms. Hill "acted out of allegiance not to race or class or sex, but only to humanity and the ideals of law." Of course. Dworkin is critical of those blacks who thought racial solidarity should have prevented Ms. Hill from attacking Justice Thomas. It seems that now that there are so many articulate blacks who dissent from liberal orthodoxies whites need no longer "privilege" what is said by blacks. Put differently, discerning whites will decide which blacks are expressing authentically black views. It is similar to feminist organizations such as NOW saying that they support women in politics, meaning women who represent what feminist organizations define as the women's position. Most of the media continue to go along with the practice of talking about "women's organizations," ignoring groups such as Concerned Women of America that have many times the membership of organizations such as NOW.

About the same time as the first anniversary of the Thomas hearings, Randy Daniels was appointed a deputy mayor of New York City. He was forced to withdraw when a Barbara Wood made public her claim that five years earlier he had sexually harassed her on the job. The New York Times editorially opined that, since Mayor Dinkins knew about the allegations hours in advance of the appointment, he should never have made it. Daniels is guilty until proven innocent, and in these circumstances there is no way of proving oneself innocent. That is the state of a certain style of tortuously perverted liberalism in our time.

Like Anita Hill, Ms. Wood did not bring formal charges at the time the harassment allegedly took place. They both explain that they wanted to avoid the "humiliation" to which they would have been subjected had they brought charges. Years later, however, they feel free to humiliate and defame the men involved, in the course of which they are turned into celebrities by the putative custodians of women's rights. The new rules of the game, reversing centuries of thought about the nature of justice, dictate that the benefit of the doubt is given to the accuser rather than the accused.

In a feature article on these developments, the Times observes: "On the first anniversary of the Thomas-Hill hearings, many advocates for women are pushing for a more nuanced approach to a complex issue. For example, they prefer to acknowledge that there are gradations of offenses-complimenting an employee's outfit is different from pressuring her for sex-and so different ways of responding to those offenses should be available." That is a relief. Telling someone that she (or he) looks nice today is not an "offense" tantamount to rape. It is not necessarily cause for the ruination of a person's reputation and career. A very nuanced approach indeed.

A colleague reports seeing this graffiti in a campus men's room: "P.C. Quandary: Would Clarence Thomas have been guilty of sexual harassment if he had described to Anita Hill the contents of the Robert Mapplethorpe exhibit?" Behind the humor is a serious question. The Mapplethorpe photographs sponsored by the National Endowment for the Arts were far more explicitly vulgar than anything that Ms. Hill claims that Justice Thomas told her about a pornographic movie he had supposedly seen. According to a twisted orthodoxy now widespread, the government must fund the public exhibition of materials that it may be a criminal offense to discuss in private.

Nobody should dispute the proposition that unwelcome and persistent sexual innuendoes and advances are to be condemned, especially when they are directed at subordinates on the job. Senator Bob Packwood, for example, would seem to have no excuse-except perhaps that he reasonably expected that feminists whom he served so well on other scores would continue to excuse him on this one.

From time immemorial women have been holding off importunate men, and not a few men have been holding off women (one thinks, for instance, of Joseph and Potiphar's wife). If out of the current confusion comes a higher standard of what constitutes respectful behavior between the sexes, everybody will benefit. At present, however, the confusion is producing pervasive anxiety and what is tantamount to an invitation to extortion. An offense that is entirely in the eye of the accuser and is not subject to reasonable definition simply cannot be fairly adjudicated in public. Most important, the presumption of guilt until proven innocent-especially when innocence cannot be proven-assaults the most elementary idea of justice. Those who would protest injustice have a particular stake in not vitiating the idea of justice.


Sources: Burt Neuborne on the First Amendment's religion clause(s), Congress Monthly, November/December 1992. Michael Andrea Bernstein on "Murder and the Utopian Moment" in The American Scholar, Spring 1992. Ronald Dworkin on Anita Hill case in New York Times Book Review, October 25, 1992; on New York City sexual harassment case, New York Times, November 2, 1992. Christopher Lasch on Robert Bellah et al., New Oxford Review, May 1992. Gertrude Himmelfarb on deconstruction in The American Scholar, Summer 1992. Christopher Hitchens on Mother Teresa, The Nation, April 13, 1992. William Sodt on Reinhold Niebuhr, The Acceptable Year, August 15, 1992. On government monitoring of kosher foods, Washington Post, September 23, 1992. Michael Bourdeaux and Kent Hill reply to Jean Mayland, London Times, August 5, 1992. Bishop Loris Capovilla on Vatican II, Catholic World Report, September/October 1992. The Rev. Adele Stiles Resmer on ethical decisions in The Bulletin of Lutheran Theological Seminary, Gettysburg, Pa., Summer 1992. Arthur W. Frank on physician-assisted suicide, Christian Century, October 7, 1992. Correction on position taken by the Eastern North Dakota Synod, The Lutheran, September 1992. On the ethics industry, Los Angeles Times, October 18, 1992. Book note on A. N. Wilson's Jesus in New York magazine, September 14, 1992. On English Muslims against Jesus puppet, Sunday Telegraph (London) October 18, 1992. On lesbian nuptials, Journeys, Autumn 1992. Newsweek on murdering cops, whites, homosexuals, etc., November 9, 1992. Father Fred Kammer on "private" charity, catholic trends, October 24, 1992. Story of Dan and Marjorie Maguire reported in the Milwaukee Sentinel, October 27, 1992. New Oxford Review readership survey, November 1992. On the World Council of Churches, Christian Century, October 28, 1992. On public perception of clergy ethics, Princeton Religion Research Center, emerging trends, October 1992. On Canadian Council of Churches' opposition to religious broadcasts, Ottawa Citizen, August 7, 1992. Suzanne Gordon on feminism in The American Prospect, Summer 1992. Help-wanted ad for "activist," Newark Star-Ledger, October 21, 1992.