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New Books at Biddle: Martha Nussbaum’s “Liberty of Conscience”

October 08, 2008

In light of the fact that a number of courses at the law school focus on the relationship between law and religion, I offer a review of Martha Nussbaum’s most…


In light of the fact that a number of courses at the law school focus on the relationship between law and religion, I offer a review of Martha Nussbaum’s most recent contribution to the Church-State debate. 

In her most recent book, Liberty of Conscience: In Defense of America’s Tradition of Religious Liberty, Martha Nussbaum, the Ernst Freud Distinguished Service Professor of Law and Ethics at the University of Chicago Law School, looks historically at the religion clauses of the First Amendment. In her review of the book for the New York Times, Emily Bazelon observes that “as Nussbaum unpacks the court’s interpretation of the Constitution’s free exercise and establishment clauses, [Nussbaum’s] premise is that ‘equality is the glue that holds the two clauses together.”

A longtime enemy of elitism in a variety of guises, Nussbaum fiercely resists the power of a majority religion, aided and abetted by the state, to create an in-group while subordinating outsiders. Nussbaum anchors the countervailing equality tradition in the writings of Roger Williams and James Madison. Williams, who had extensive friendly dealings with the Narragansett Indians, wrote into the charter for the Rhode Island colony a right to freedom of conscience that shocked the British. He coined the phrase “soul rape” for the limiting of religious expression that does not violate civil law or harm others.

Nussbaum draws a straight line from Williams’s fusion of respect and fair play for religious groups to John Rawls’s vision of people choosing the basis of their common governance without knowing where they will be situated in the society that results. Williams and Rawls also agree that the state has a moral foundation that is religious for some people and nonreligious for others. Nussbaum finds this construct of “overlapping consensus” to be “a much more helpful idea to think with than the bare idea of ‘separation’” between church and state. However, Nussbaum does not read the establishment clause as erecting a wall that discounts the contributions of religion; this she sees as another “type of unfairness.” To read Bazelon’s entire review of the book, please click here.

Nussbaum gives an engaging and very readable survey of key US Supreme Court cases in their historical context. This is an ideal book for students and other readers new to this area of the law who want an engaging and coherent overview of the key issues in the area of law and religion in the early twenty-first century.

If you’re interested in learning more about Nussbaum’s ideas, she was recently interviewed by Bill Moyers about Liberty of Conscience. A video of the interview is available on the Bill Moyer’s Journal website. For a more personal interview, check out her conversation with Rosanna Greenstreet of the Guardian.