This paper considers the central normative claim of Martha Nussbaum’s Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, viz., that the U.S. Constitution’s religion clauses should be construed to provide equal (and extensive) protection to the vulnerable human faculty called conscience. The paper argues that Nussbaum’s argument from Rawlsian political liberalism that leads to her normative constitutional claim amounts, perversely, to an attempt to justify the controversial by the more controversial. The paper goes on to argue that while equality and conscience are concepts that are reasonably contested, Nussbaum illegitimately gives them priority over the also reasonably contested concept of the liberty of the church(es). The paper concludes by arguing, with the help of Jacques Maritain and William Galston, that the political sphere is better shaped (and limited) by robust respect for the equality of humans, freedom of conscience, and the liberty of the churches (and certain other groups), but without our either pretending that any of them is not reasonably contestable or attempting to mold churches (and certain other groups) in the image of the state. Along the way, the paper evaluates Nussbaum’s claim that Maritain was perhaps the first political liberal.
Constitutional Law | Jurisprudence | Public Law and Legal Theory
Date of this Version
Patrick McKinley Brennan, "Equality, Conscience, and the Liberty of the Church: Justifying the Controversiale per Controversialius" (April 2009). Villanova University School of Law Working Paper Series. Working Paper 126.