I understand my primary task in this essay to be to take you inside the world of evangelical political reflection and engagement. Though I actually grew up Roman Catholic and attended the liberal Union Theological Seminary in New York, I am by now an evangelical insider, rooted deeply in red state mid-South America, a member of a Southern Baptist church (actually, an ordained minister), a teacher at a Tennessee Baptist university, and a columnist for the flagship Christianity Today magazine. Due to the blue state/red state, liberal/conservative boundary-crossing that has characterized my background, I am often called upon to interpret our divided internal “cultures” one to another. Trained to be fair-minded and judicious in my analysis and judgments (though not always successful in meeting the standards of my training), I seek to help bridge the culture wars divide that is tearing our nation apart.

As one deeply invested in American evangelicalism, most of my attention these days now goes to the internal conversation within evangelical life about our identity and mission, especially our social ethics and political engagement. In this essay I will focus extensively on problems I currently see with evangelical political engagement, addressing those from within the theological framework of evangelical Christianity and inviting others to listen in to what I am now saying to my fellow evangelicals.

On February 10, 1947, the United States Supreme Court handed down Everson v. Board of Education of Ewing Township. For scholars of the First Amendment, Everson marks the beginning of the Supreme Court's modern era with respect to church-state relations. It is easy enough to state the reason for the decision's prominence, for it was in Everson where the Establishment Clause was first “incorporated” through the Fourteenth Amendment and made applicable to the actions of all state and local governments. But just what did it mean to take the restraints on federal power that comprise the principle of no-establishment and to make them limits on the governments of the several states, as well as on the thousands of municipalities, counties, and school districts that dot the land? In Part II of these remarks, I will focus on what has occurred downstream of Everson over these event-filled sixty years. As the reader will see, I am of the belief that Everson's new deal has resulted in more good than harm for religious freedom. Still the record is mixed, as it is with most major developments. However, before going there, in Part I of this extended essay, I look back in time to recapture just what was in the bundle of restraints that all nine of the Justices in Everson said they were bringing forward via the Fourteenth Amendment and making newly binding on the many unsuspecting state and local officials.

The political rise of the religious right has brought to the fore the question of whether and to what extent religious values and beliefs should be taken into account when developing public policy. Policymakers have increasingly, or perhaps only more overtly, turned to religion for guidance on important public policy matters, such as abortion, stem cell research, and punishment, including the death penalty. Given the decidedly moral flavor of the debate over distributive justice, it is not surprising that many Americans and a growing number of policymakers have begun to look to religion for guidance on the question of how best to allocate tax burdens.

While tax scholars have long debated questions of equity and distributive justice, with one notable exception, they have largely ignored religious arguments. Given the large number of Americans who identify themselves as religious, to say nothing of most politicians, limiting the inquiry into tax equity to secular arguments runs the risk of relegating academic debate to the sidelines, as decision-makers look to the Bible and other religious texts for guidance and support.

These are heady times in America's law and religion conversation. On the campaign trail in 1999, then-candidate George W. Bush declared Jesus to be his favorite political philosopher. Since his election in 2001, legal commentators have criticized both President Bush and the Supreme Court for improperly basing their decisions on their sectarian Christian convictions. Though we pledge to be one nation under God, a recent characterization of the law and religion discourse sees America as two sub-nations divided by God. Moreover, debate concerning the intersection between law, politics and religion has moved from the law reviews to the New York Times Sunday Magazine, which has published over twenty feature-length articles on these issues since President Bush took office in 2001. Today, more than anytime in the past century, the ideas of an itinerant first-century preacher from Bethlehem are relevant to American law.

This comment on Chaim Saiman's illuminating comparison between rabbinic and Christian approaches to religious texts that are in some sense authoritative focuses on what we can fairly infer from the sharp difference he describes. I believe there is much more to be said on this fascinating topic, and I now write with large gaps in my understanding of relevant subjects. I concentrate here on the question whether the Christian view that Professor Saiman describes actually has strong logical implications for what one should regard as desirable interpretive and legislative strategies for the (secular) law of large diverse societies. On that crucial point, I am more skeptical than Saiman appears to be.

I begin with a few preliminary observations, and then pose some other questions about connections between religious perspectives and views about ordinary legal interpretation before tackling my main topic.

Jesus' Legal Theory—A Rabbinic Reading opens with a startling claim. The increasing number of legal scholars who have begun exploring the relationship between Christianity and American law in the past several years have neglected to consider the insights of Jesus himself. “[N]otably absent from this literature,” Professor Saiman writes, “is any extensive examination of Jesus, and his views about jurisprudence and legal theory. Despite the overall diversity of his writings, there is little discussion about what Jesus thought about law, lawyers, legal rules and the legal order.” What, the article asks, does Jesus' own legal theory look like?

In the course of researching the attitudes of nineteenth-century rabbis about American slavery, David Cobin found that the name Sabato Morais featured prominently among rabbis who had publicly expressed strong anti-slavery sentiments. This information sent Cobin to the American Jewish History Library where some of Morais's papers are archived to find original documents on the matter. There he found sermons from 1861 to 1862 with English script title pages and text all written in Pitman Shorthand, presumably by Morais himself. One of these, an undated document entitled The Slavery of the Bible, described as a lecture, seemed to be exactly on point. Cobin's first hurdle, however, was transcribing Morais's lecture. After a significant search he found Dorothy Roberts, who had become an expert on Civil War Pitman Shorthand specifically in order to engage in this kind of scholarly transcription. It was soon clear, however, that transcribing a more than one hundred and forty year-old shorthand written for oneself was not a simple matter. There were obsolete words, partial words, undecipherable words, words left out, references to obscure incidents, incomplete quotations, and words in multiple languages. Cobin enlisted the collaboration of his colleague Earl Schwartz as co-editor, and together they partnered in the transcription process with Dorothy Roberts. Roberts transcribed the shorthand as best she could. Cobin and Schwartz then researched the history, filled in the Judaic references and mined old dictionaries and their own imaginations for language of the times to fit the words Roberts could not fully transcribe. Roberts always made the final decision on the appropriateness of the editors' suggestions in light of the shorthand. This work yielded the transcribed lecture, The Slavery in the Bible that indeed spoke about slavery in the time of the Bible, but not about American slavery. Morais's focus was on a humane form of slavery in contrast to slavery in Sparta and Rome. Unlike Rabbi Morris Raphall's discourse on The Bible View of Slavery January 15, 1861 that was used by Southerners as a defense of slavery, Morais's lecture provided little material to fuel the conflagration then raging. The editors have concluded that Morais's lecture was likely delivered as a response to Raphall's widely publicized discourse. The Slavery of the Bible is included with the four transcribed Sabbath sermons published here.

The “[Torah] scholar” and the “scientist” thus part ways

The Torah scholar and the Jurist both supplement each other's work

At the beginning of the 1950s (or thereabouts) Rabbi Yitzhak (Isaac) ha-Levi Herzog, Ashkenazi Rabbi of the State of Israel and a researcher of Jewish law, delivered a lecture to a group of lawyers. He opened with the following comments:

Contemporary conflicts over efforts to expand the role of Islamic law in the national legal system of Indonesia are so intense that they undermine reasoned public debate about this question. They are part of a long-standing polemic, not only about the role of Shariah in Indonesia generally but about the specific question of whether the Jakarta Charter, which references obligations to obey Islamic law, should be restored as part of the Constitution. This article is an attempt to revive the neglected academic discourse on the role of Islamic jurisprudence in Indonesian law, and to move beyond the confused polemics to a thoughtful consideration of where Islamic law fits in a non-Islamic state such as Indonesia. Because Indonesia is a secular state, the Shariah as a whole is not enforced by the state, but the Shariah has a significant meaning for Muslims in Indonesia because it provides the norms distinguishing the obligatory and recommended from those actions which are neutral, disapproved and prohibited in Muslims' lives. Moreover, some elements of Islamic jurisprudence in personal law have been absorbed into positive law in Indonesia through the decisions of religious courts, which have existed since the Dutch colonialism,3 as currently regulated by Law No. 7/1989. The Compilation of Islamic Law No. 1/1991 essentially functions as the legal code for all Muslims who must resort to the religious courts for the adjudication of disputes involving marriage, divorce, inheritance and waqf. Thus, consideration of the propriety of attempts to extend Islamic law to matters of property and of contract is appropriate at this time.

Ukraine's “Orange Revolution” in 2004-05 captivated an international audience. Western reporting on this “democratic moment” focused on Victor Yuschenko's eventual hard-fought victory, labeling it an indication of Ukraine's commitment to breaking ties with its Soviet socialist past and to establishing itself fully as a capitalist market economy. In the shrinking global economy, Ukraine, suddenly, was a hot commodity. Yet, in the flurry of rhetoric about a former Soviet state achieving independence and sovereignty, moving from a socialist past to a capitalist future, few seemed directly to address the issue of private property. There seemed to be very little mention, though, at least in the popular media, of the shape of a right to private property in Ukrainian law. This was surprising in view of the fact that this is a basic prerequisite to a market economy. In fact, Ukrainian law does offer some minimal guidance concerning this important concept.

In the article The Use of Natural Law in Early Calvinist Resistance Theory, David VanDrunen, Robert B. Strimple Associate Professor of Systematic Theology and Christian Ethics at Westminster Seminary (California), analyzes natural law as it appeared in the writings of several sixteenth—century resistance theorists—John Knox, Christopher Goodman, John Ponet, Theodore Beza, Francois Hotman, and the unknown writer of Vindiciae contra Tyrannos. Van Drunen's article is much needed, since Richard Tuck, in his otherwise astute 1979 study on natural law, does not adequately address Reformation-era developments, focusing instead on Thomas Hobbes, Samuel Pufendorf, and other seventeenth-century theorists. Nevertheless, I take issue with Van Drunen's assertion that these writers were all “committed to the theology of Calvin” and were “early Calvinist resistance theorists.” One could make the case that most of these writers were, but there is one notable exception: English reformer, humanist, bishop, and polemicist John Ponet.