Document Type

Article

Publication Title

Fordham Law Review

Abstract

My investigation here arises within a certain context, namely, my past work on political contractualism as the most plausible theory of American constitutional law and more recent interpretive work on the role that theory plays in explaining and understanding the impact on American constitutional law of various struggles for human rights (including not only the struggles of religious minorities, but movements for racial justice, as well as feminism and, most recently, the gay/lesbian movement). The appeal of contractualism, as a theory of American constitutional law, is the central place it accords basic human rights like conscience and speech and the corresponding requirement it imposes that such rights may only be abridged on the ground of compelling arguments of what John Rawls called public reason. For example, from this perspective, both strands of the First Amendment's guarantees of religious liberty (free exercise and antiestablishment) protect the human right of conscience from abridgments and burdens not justified by arguments of public reason. In my recent work on social movements like abolitionism, the neoabolitionism of the NAACP, feminism, and gay rights, I have argued that such struggles for recognition of human and constitutional rights crucially elaborate a comparable structure of argument, calling both for recognition of basic human rights and criticism of abridgments of such rights unsupported by arguments of public reason. American feminism, for example, arose in the nineteenth century when the Grimke sisters (Angelina and Sarah) and Elizabeth Stanton not only argued that women's basic human rights had not been fairly recognized, but questioned whether conventional religio-cultural views to the contrary are supported by arguments of public reason. These interpretive investigations arise within the framework of a political theory, contractualism, the power of which was first taught to me as a Harvard undergraduate by my then-teacher, John Rawls. The powers of his mind and work have always remained with me, and this work hopefully will show how much thought, inspired by him, advances interpretive understanding of progressive developments and struggles central to the integrity of American constitutionalism. I will now explore how this general view clarifies the role that a conception of ethical religion ( drawing on Tolstoy and Gandhi) played in the civil rights movement brilliantly led by Martin Luther King, Jr. King, like Gandhi, must be understood not only as a person in himself, but as the leader of a nonviolent, mass movement of protest which he inspired. The brilliance of the historiography of Taylor Branch's Parting the Waters is that he studies King in this way, on the analogy of Jesus of Nazareth whom we know entirely through the words of the persons in the movement he inspired. I argue that the close study of King's life and work, including the social movement he led, reveals a highly personal and original interpretation of religion in terms of arguments of public reason accessible to all. Through this interpretation, King found a voice of moral authority that lives in history because that voice found a resonance in the voices of persons who were empowered to join a social movement that would give expression to their newly discovered voices.

First Page

2105

Volume

72

Publication Date

2004

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