CONSTITUTIONALISM AND SECULARISM: THE NEED FOR PUBLIC REASON
Abstract
In order to sustain modernity, or to sustain public order as ordered liberty, one needs a considerable level of secularization. Constitutionalism exists only where political powers do not ground their public affecting decisions on transcendental concerns. People are buried in cemeteries not because it facilitates resurrection but for public health reasons.
Secularism as an institutional arrangement provides protection to a reason-based polity against a social “(dis)order’’ that is based on dictates of religious doctrine and heated passions. When constitutional law insists on secularism, it insists on the possibility of a reason-based political society. Secularism dictates (expresses the need) that legal choices be based on secular public reasons, i.e., reasons accessible to all, irrespective of their religious belief. Religiously grounded reasons have to be “translated.” For most translation theories the requirement of public reason is satisfied as long as the legislative reasons are presented and accepted on grounds reasonably accessible to all (i.e., which do not presuppose some act of faith or belief in scripture, where the
constitutional arrangement is not an act of faith).
For those who would reject the requirement of translation, it is personal “importance” that matters and all arguments are or might be equal, irrespective of their nature. This makes discourse meaningless. Without secular reason-giving, privileged knowledge like divine command that is accessible only to the believer will become acceptable and potentially mandatory. This undermines many things dear to constitutionalism, equality in particular. It undermines popular sovereignty as well in the sense that popular sovereignty presupposes that all members of the community have reasoning capacity that enables them to participate in political decision making.
Such equal participation is what makes popular sovereignty legitimate. The sovereignty of a people exercising its faculty of reasoning is the essence of constitutionalism that assumes secularism. But the relation between constitutionalism and secularism remains uncertain. Partly for pragmatic and historical reasons, existing modern liberal constitutions are not particularly clear on the relationship between constitutionalism and secularism: In fact, a number of constitutions allow for a state church and allow churches to retain some privilege of public power without necessarily undermining the liberal and democratic nature of those states. This uncertain, unprincipled position causes inconveniences, as it does not provide sufficient protection against the aggressive claims of strong religion. On the other hand it became increasingly discriminatory, especially in European countries with large migrant, predominantly Muslim communities. The religion-based practices of these communities are constantly criticized and restricted in the name of their incompatibility with secular values, while at the same time the allegedly secularist constitutional system allows preferential treatment to religions that have a historically recognized privileged place in the constitutional system.
The question remains open: Is secularism inherent in constitutionalism? In order to answer the question I look first to some proxies of secularism that are used to address the role of the state in a secularizing political community. This is followed by a discussion of the broader patrolling role of secularist concepts and how these core concepts can resist the challenge of strong religions and religions with a potential for reconquering the public sphere for their purposes. The last part of the paper discusses different non-secular foundations claimed in legislation that secularist jurisprudence has to refute in order to safeguard constitutionalism.
