ROBERT P. GEORGE, CONSCIENCE AND ITS ENEMIES: CONFRONTING THE DOGMAS OF LIBERAL. SECULARISM. By Robert P. George. Wilmington: ISI Books. 2013.
THE MAN, THE BOOK, THE THEME, AND A PROPOSITION
Robert George is fearless and relentless. He is arguably the leading conservative academic public intellectual writing today. George, who holds the prestigious McCormick Chair in Jurisprudence at Princeton University and is an occasional visiting professor at Harvard Law School, is no one to be trifled with: he is dauntingly smart and a formidable debater, in print (as demonstrated powerfully by the book that is the subject of this review) or in person. (I have participated in public events in which George participated as a speaker or panelist.) He is astonishingly well versed in law, philosophy, history, religion, and public affairs. He writes with charm, grace, and wit. And he pulls no punches: George is widely known for his unreserved and unashamed defense of traditional moral values, religious conviction and religious freedom, marriage as the union of husband and wife, and the right to life of the unborn. He is a cheerful and genteel--but uncompromising--intellectual controversialist.
Professor George's Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism, is a broad-ranging defense of natural law, moral reasoning, traditional values, and religious liberty and a no-holds-barred attack on those who would assault these cherished things. The book is in part a collection of previously published essays on a wide variety of philosophical topics, contemporary public controversies, and notable public personalities ranging the spectrum from Harry Blackmun to G.E.M. Anscombe. Unlike so many "collection" books that strain to squeeze disparate essays under a contrived umbrella theme--we have all encountered such volumes, and sometimes labored to read them--Professor George succeeds in shaping a variety of specific topics into an overall unity of vision and purpose.
This is a book, fundamentally, about irreducible conflict and fundamental choices. As its tide suggests, the book focuses on the dual themes of conscience--what forms it, what values it should embrace, the relationship of conscience to true religious conviction--and, in George's arresting choice of terms, its enemies. A short review cannot possibly do justice to the full range of the book's twenty-eight chapters, each of which works well as a standalone essay. Much of what George has to say--about education, (1) about the good life, (2) about formation of moral values, (3) about contemporary policy debates over issues implicating fundamental values of rights and wrong (4)--I will leave more or less untouched. But not unappreciated: on all of these topics, and others, the book's essays are remarkably good. (5)
Instead, in this short review I will evaluate the book's global themes of conscience and conflict through the lens of three paradigmatic illustrations--cases of conflict specifically between religious conscience and the authority of the state. In each instance, the claim of conscience consists of the claimed right of individuals (or groups) to resist the authority of the state over their faith-driven conduct. In each instance, the claim involves a refusal, on grounds of religious conviction, to engage in conduct that the religious adherent considers either morally wrong in itself or that would constitute--in the religious adherent's scheme of things--participating in, assisting, endorsing, facilitating, or being the vehicle for the commission of a morally wrongful act by another.
But in each instance, something a bit more seems to be present as well. In each instance I will discuss, the claim of conscience also might be thought partly "symbolic"--a claimed conscientious objection precisely to the state's claim of authority to override religious conscience. It is conscientious resistance (at least in part) for the sake of vindicating the right of conscientious resistance itself--that is, for the sake of protecting the right actually to exercise the right of conscientious refusal in a specific situation. It is an act of standing on principle for the sake of standing on principle. It is, to coin a phrase, an assertion of "meta-conscience."
Similarly, on the other side of the conflict, in each case the claim of authority on behalf of the state is in part about the underlying substantive social policy that the state is seeking to command or enforce and which the conscientious resister seeks to avoid. But in each case there is actually something more going on: the claim of authority frequently reduces to the state's "symbolic" interest precisely in vindicating its own authority as against the claimed right to defy such authority. That is, it is a claim of state authority to prevail over claims of conscience largely for the sake either of authority itself or for the sake of (what amounts to the same thing) coercing compliance with, cooperation in, and assent to the state's ideology. It is a claimed power to compel conformity and assent, even where the state could accomplish its policy purposes without imposing such compulsions to act in violation of conscience. It is, to coin another phrase, an assertion of "meta-authority."
In short, the controversies on which I will focus are those in which there is a direct conflict as a matter of principle between the authority of the state to command and the freedom of the citizen to resist such a command as a matter of principle--head-to-head conflicts between abstract "conscience" and its "enemies." There is usually more to the conflict than that, of course. In each case, there is an underlying substantive issue that triggers the dispute between the claimants of conscience and the avatars of authority. But in each of the instances I will discuss, the dispute distills to conscience, for its own sake, versus authority, for its.
My thesis in this review builds on and is inspired in part by George's book: Where, or to the extent that, a conflict between conscience and authority reduces to a pure stand on principle by each side--sincere conscience for its sake versus authority for its--in a free society conscience should almost always win. The only time that claims of government authority should triumph over genuine claims of religious conscience is when religiously motivated conduct would produce essentially intolerable harm to others--harm of a kind and degree that would lead one to conclude (in effect, not literally) that it is inconceivable that a just and good God, rightly understood, possibly could have commanded such conduct, and that it is necessary for the state to reject the religious claim in order to prevent such intolerable harm to others. (6) That should be a highly unusual case. In most instances of claimed religious conduct, the stakes are not nearly so high. Frequently, they involve not much more than a claim of state authority to suppress the exercise of religious conscience simply because the state finds threatening in principle the idea of conscientious resistance to its commands. Where that is the case, I submit, there is only one possible answer. Sincere religious conscience should always prevail over claims of government authority that reduce to the asserted need to vindicate government authority for its own sake.
THE FLAG SALUTE CASES: GOBITIS AND BARNETTE
The perfect illustration of this proposition comes from the Jehovah's Witness "flag salute" cases of the 1940s. Minersville School District v. Gobitis, (7) decided in 1940, is arguably the worst Supreme Court majority opinion in a First Amendment case, ever. West Virginia State Board of Education v. Barnette, (8) decided in 1943 and repudiating Gobitis in substantial respects, is almost universally regarded as one of the very best First Amendment opinions ever produced by the Supreme Court. For framing the issue of conscience versus authority there is no better pairing of cases. (9)
In Gobitis, the Court upheld the expulsion from public school of a twelve-year-old girl, Lillian Gobitas, (10) and her ten-year-old brother, William, for refusing to make an affirmation of political faith that violated their family's Jehovah's Witness religious faith--saluting the flag and reciting the Pledge of Allegiance. (11) The Gobitis family's religious beliefs viewed such acts of affirmation and salute to be idolatrous--the compelled worship of another god rather than God, forbidden by the family's understanding of the Second Commandment of the Decalogue. (12) The Gobitises argued that compelling their children's participation in the flag salute violated both the Free Exercise of Religion and the Free Speech Clauses of the First Amendment.
Justice Felix Frankfurter's majority opinion--his first major constitutional opinion as a Justice (13)--rejected both arguments. His opinion starts this way, adopting a tone of solemnity tinged with a presumption of state power:
A grave responsibility confronts this Court whenever in course of litigation it must reconcile the conflicting claims of liberty and authority. But when the liberty invoked is liberty of conscience, and the authority is authority to safeguard the nation's fellowship, judicial conscience is put to its severest test. (14) For Frankfurter, the case presented a question not of immutable constitutional principle but one of balancing--of reconciling competing claims: "Our present task, then, as so often the case with courts, is to reconcile two rights in order to prevent either from destroying the other." (15)
On one side of this constitutional teeter-totter was religious liberty and conscience. But on the other side was, for Frankfurter, the true heavyweight: state authority. And not just any authority, but the government's authority to safeguard "the nation's fellowship," a characterization (somewhat ironically) heavy with quasi-religious overtones of its own. The balance to be...