Book Review: Richards’s Fundamentalism in American Religion and Law

David A.J. Richards, Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, Cambridge University Press, 2010, $90.00.

When you read the words “This is a provocative book” in a review, you know you’re in the presence of a mixed compliment.  On the one hand, the critic will praise the book for saying something new, interesting, and potentially valuable about an important topic.  On the other, it signals that the critic thinks there is something deeply flawed, wrong, or misguided about the book, and has reached for polite language to damn it with faint praise.

With that said, let me be clear: In Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, David A.J. Richards has written a provocative book.

Its ungainly title gives a fair indication of its thesis, but Richards’ book is not so easily reducible.  This is not your average jeremiad.  Richards is not content simply to condemn an approach to both religion and constitutional interpretation that he finds dangerous.  Instead, he wants to diagnose it: to put it on the psychologist’s couch and toy with its innards.  Richards offers a vision of constitutional and religious critique as DSM-IV.

Fundamentalism, both in religion and in American constitutional law and particularly originalism, are “rooted in a patriarchal psychology,” Richards writes.  By patriarchy, he means “a hierarchy – a rule of priests,” in which “only the father has authority in religion, politics, or law.”  Its roots are both historical and personal.  It represents a tradition stretching back to ancient Rome, and taking in most especially the life and influence of St. Augustine, in which patriarchy “arises [from] traumatic breaks in personal relationships (including of sons from mothers).”  This leads to a fundamentally repressive approach to both law and religion.  Its opposite is “democracy, in which authority accords everyone a free and equal voice, a voice that both breaks out of the gender binary and contests hierarchy.”  More in anger than in sorrow, Richards argues that religious and constitutional patriarchs are, not to put too fine a point on it, sick, while those who favor “democracy” are healthy, integrated individuals.  His primary positive example is Barack Obama, who “has seen more deeply into and resisted originalism than any other American politician,” and whose “moral voice” has elicited a profound “resonance in the American people.”

Richards is bewildered by the popularity of fundamentalism in American religion and law.  He writes: “That such views should have gotten so far in American politics shows something troubling about American culture and psychology.”  And he executes the standard mental-ward maneuver for dealing with some delusional fool who insists that he is not insane: “That so many Americans cannot even see the problem defines, I believe, the problem.”

Just stating Richards’s thesis should be enough to demonstrate why the book is controversial.  That doesn’t do the book full justice, though.  Although the whole book employs his diagnostic frame, it makes many valuable contributions to the discussion along the way.  Nothing in his vision of American constitutionalism is especially new: it is a standard, 1970s-vintage picture of the expansion of human rights following the revolutionary developments of the 1960s, highly inflected by Rawlsian views on public reason under which “laws in the United States cannot rest solely on sectarian religious faith not reasonably shared in the society at large.”  We have seen this from Richards before, and he will make or lose no new converts here.

But Richards has some perspicuous criticisms of constitutional originalism.  And his section on what he calls the “substantive unreasonableness” of the “New Natural Law,” exemplified in the legal field by the work of Robert George, is the high point of the book, and should be read even by those who disagree with him vehemently.  He is also to be congratulated for critiquing religious fundamentalism from within a religious perspective and offering alternative readings of religious tradition, rather than simply dissecting it from the outside.  Finally, although much of the book seems to suggest a drastic approach to law and religion – after all, if rule by priests is the problem, it seems obvious that getting rid of the priests is the solution – he ultimately steps back from the brink, arguing for the importance of “guaranteeing the basic rights of the First Amendment to all religions, including fundamentalist ones.”

So there is much to admire and chew over in this book.  But there is something deeply sad about it as well.  The last three decades or so have seen ever more sympathetic and thoughtful attempts to engage with both religious fundamentalism and constitutional originalism.  In the first area, blunt invocations of “public reason” have become rarer, as we have come to appreciate the difficulty of separating public reason from religious and other priors.  In the second, originalism itself has evolved, and so have the responses to it.  In some cases, liberals have framed more thoughtful critiques of originalism, and in others they have absorbed some of its precepts into their own way of thinking.

To all of this, Richards responds mostly with incredulity and accusations of false consciousness.  In a recent review of a life of another writer of jeremiads, Christopher Lasch, Alan Wolfe writes that “Lasch loved to attack, but he always seemed surprised that the objects of his attack fought back.  In his own mind, he was the courageous teller of truths that no one wanted to hear; and so his critics must have been engaged in a prolonged attempt at denial.”  Perhaps this reaction is fundamental to the jeremiad form, because it describes Richards’s book equally well.  If his critics resist his conclusions, well, that proves he is right.  If they quarrel with his conclusion that they are just suffering from Mommy problems, their very denial only confirms his diagnosis.

This psychological approach even distorts his picture of his own hero, Barack Obama, whose “remarkable manhood” is “not internally divided by the gender binaries of more patriarchal men.”  If Obama represents something new in American law and politics, it is precisely because Obama rejects many of the right/wrong and right/left divisions that Richards clings to so tightly.  Mostly, though, Obama really just functions as a mirror here, reflecting back what Richards wants to see.  Richards writes: “There is reason to worry that even so democratic a man as Obama may for a mixture of prudential reasons and residual patriarchal anxieties not always lead in the ways his conscience may and should require (e.g., on gay marriage).”  Well, perhaps.  But maybe Obama actually holds different beliefs on gay marriage, and would reject any description of those beliefs as being a product of “residual patriarchal anxieties.”  Or maybe, in keeping with a whole generation of post-Warren Court constitutional thought, Obama thinks liberalism would be better served by focusing on democratic politics, and little things like health care, than by spending his limited resources on courts and human rights.  Not every change we can believe in has to be constitutional change, and it does Obama little justice to describe this view as stemming either from mere political pragmatism or residual psychological damage.

I find myself doubting that Richards’s psychological approach is either useful or offered in good faith.  His most pertinent criticisms of religious and constitutional fundamentalism – and he has many – don’t really require him to put his subjects on the couch.  So what does he gain by doing so?  He certainly doesn’t increase the chances of a healthy dialogue; telling someone that he’s crazy is unlikely to win him over.  He says that he wants people, “including persons of fundamentalist faith,” to “come into reasonable dialogue with others.”  Aside from the loaded implications of that word “reasonable,” which suggests that the “dialogue” can proceed only once the fundamentalists concede their own unreason, I doubt the conversation will be enhanced by treating fundamentalism as a psychological disorder.

Maybe Richards thinks that psychology is a more sensitive way to understand his adversaries.  But, as any warring couple in a marriage therapist’s office could tell you, psychology can also be a weapon.  (“Maybe your neurotic fear of commitment is what makes you such a lousy husband.”)  That’s the role psychology plays in this book.  This is not psychology as an opening move in a productive conversation; if it were, Richards would put himself on the couch too, and as something more than just an example of a healthy personality.  He wants to use psychology to understand fundamentalists, but only in the way that an FBI profiler wants to use psychology to understand a serial killer.  I find his diagnosis of fundamentalism compelling at times, wrongheaded at others; I don’t find it productive.

It is apparent that even his more supportive readers realize this as well.  He writes in the introduction that his former co-author Carol Gilligan, noting the tone of “moral indignation” that suffuses the book, “pressed [him] better to understand both the content and tone of [his] argument.”  It would seem this cautiously offered advice only convinced him his tone was justified.  He writes: “This book is itself an act of resistance – hence the tone of moral outrage, the impassioned voice, the contempt for those who perpetuate injustice and prejudice.”  He contrasts his own admirable “righteous fury” with the fundamentalists’ deluded “patriarchal rage.”  From where I sit, both of them lead to the same failure of dialogue, to the same unproductive results.

In the end, I must ask that standard editor’s question: Who is this book’s audience? Richards calls Fundamentalism in American Religion and Law a “call to resistance.”  But a book written in so dense and academic (if eloquent) a style is unlikely to rally the masses.  Nor, despite his valuable criticisms, is he likely to sway his adversaries; attributing their views to psychological hangovers puts paid to that possibility.  Obama himself doesn’t really fit within Richards’s own worldview, despite his attempts to paint him that way.  And Richards’s academic supporters, of course, already agree with him – although they may be pleased to learn that you don’t need to be crazy to oppose fundamentalism, but you must be crazy to support it.

In the end, then, this book is not a call to resistance at all.  It’s a cri de coeur: an argument that everything disagreeable that has occurred since roughly Watergate could be cured with a good fifty-minute hour on the couch.  I’m not convinced.  Richards makes many valuable points about both religious and constitutional fundamentalism in this rich book.  Ultimately, however, Fundamentalism in Religion and Law is more an act of self-justification than an effort to understand the other, let alone to engage with him.


Paul Horwitz is a professor of law at the University of Alabama School of Law.

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