Why should non-incarcerated Americans invest in the wellbeing of incarcerated Americans? To date, our public discourse about penal reform has avoided this question, focusing on pragmatic reasons for facilitating “prisoner reentry” and “reintegration” while shelving unresolved, and deeply contested, philosophical questions about criminal justice and punishment. As a result, we as a society have engaged in much data-driven policy talk about the economic costs and benefits of reducing recidivism, but little normative reflection about the rights and responsibilities held by incarcerated adults who are at once human beings, members of society, persons convicted of crimes, victims of inhumane punishment – and, often, survivors of poverty.

Thus, my first task is to clarify the individual and collective obligations that apply within our context of mass incarceration: the moral responsibilities that are held by and toward incarcerated Americans, non-incarcerated Americans, and our shared public institutions. My second task is to draw out implications for policy and discourse: to explain not only what reform measures we should prioritize, but how we should frame and assess them. In particular, I call for systemic changes that would provide all incarcerated Americans with opportunities to pursue higher education and to develop redemptive self-narratives; and I argue that we should frame and assess such measures not primarily as cost-saving devices, but as ethically significant efforts to secure capabilities that are essential to human flourishing and required by justice.

In setting forth these arguments, my purpose is to spark deeper ethical reflection about correctional reform, and specifically to invite meaningful engagement with one key normative question: What do we, as a civilized society with a history of social and penal injustice, owe incarcerated Americans? Ultimately, I wish to underscore that the people confined in our prisons have legitimate moral claims upon us – insofar as they remain human beings and members of society and, as such, bearers of rights as well as responsibilities. Equally, I wish to establish that, in our collective efforts to repair the harms of mass incarceration, we can and should empower those Americans most directly harmed by our penal system to lead the way in transforming it.

Contrary to the intent of deeply entrenched secularist policies in liberal states, which mandate that the privatization of religion is necessary to secure certain constitutional freedoms and liberties for all individuals, the public life of religion has flourished. Faced with mounting empirical evidence attesting to the dynamism and diversity of religion’s newfound presence in civil society, scholars have begun to question the continued efficacy of secularism as a method of political governance and as a tool for social organization. Scholarly responses to this phenomenon can be best described as divergent. Several scholars have suggested that, in order to preserve their constituents’ socio-legal equality, liberal states must reaffirm their commitment to secularism by rigorously enforcing prohibitions on public displays of faith. However, other scholars have pushed for the near-total abandonment of secularism, as they see its insistence on the circumscription of religion from the public sphere as disproportionately and arbitrarily targeting faiths deemed incompatible with “traditional” western values. Finally, still others have argued for a vision of liberal governance that venerates the participation of religious voices in matters of law and policy, so long as secularism’s institutional provisions for the separation between church and state can be preserved.

In recent years, this final approach to regulating the public life of religion in ostensibly secular liberal states has gained traction among political philosophers and legal academics alike. Yet as these scholars strive to make liberal states more responsive to the values-based needs and concerns of their devout constituents, a common refrain has emerged: that the “public use of reason” must serve as a bulwark against the excessive intrusion of religion into political and legal life. Under a regime of public reason, so the arguments go, devout citizens will be obliged to translate the religious content of their politically- and legally-motivated speech into secular language that can be readily comprehended by persons of other (or of no) faiths. This mode of governance endeavors to accommodate the vitality and complexity of religious values as well as preserve the agnosticism of the liberal state towards competing conceptions of the good – but, as my dissertation suggests, accomplishes neither. In this dissertation, I interrogate the seeming ease with which contemporary scholars appeal to discourses of reason to regulate the public life of religion in late liberal states. I argue that such language, first, compromises the capacity of devout citizens to contribute meaningfully to the law- and policy-making apparatuses in democratic governments and, second, undermines the value ascribed to demonstrations of personal piety by certain religions and their practitioners. More specifically, I determine that the processes by which devout citizens are granted membership in and access to the liberal state are deeply subjectifying. That is to say, by holding political representation and positive social accommodation hostage to secular standards of reason, the liberal state requires religious individuals to suppress or alter their relationships to their faiths in exchange for a stake in crafting the laws that shape the material and metaphysical conditions of their daily lives. This process ultimately strips religious values from faith-based public conduct and speech in service of the liberal state’s continued socio-legal stability.

This dissertation asks: First, how (and to what extent) do discourses of reason and rationality produce secular subjects in religiously plural liberal states? Second, if subject formation can be understood as an object or affect of secular liberal governance, how (if at all) can political or ethical agency be recovered for devout citizens? In crafting answers to these questions, I seek to bridge the ideological divide between critical theory and normative legal scholarship and, in doing so, I aim to provide an interdisciplinary account of how the complicated history of reason can be marshaled as a means for the inclusion of a broader range of ideological and cultural values within the liberal state.

The first two substantive chapters of this dissertation endeavor to understand precisely what constitutes the concept of “reason” in relation to “religion.” These chapters work in tandem to elucidate not only how the secular state emerged conterminously with the political constitution of the rational citizen, but also how reason – nearly four centuries after the creation of the liberal state – still retains the latent power to affect the practice of religion in contemporary civil society, oftentimes adversely. Indeed, following an Introduction in which I situate this dissertation within contemporary literature on the public life of religious belief, Chapter Two examines the use of reason by John Locke, a political philosopher understood to be one of the initial and foremost proponents of a secular divide between public life and private belief. This chapter argues that as Locke sought to quell the religious warfare of the mid-seventeenth century, he advanced a vision of political life predicated on a deeply Protestant understanding of faith; properly practiced religion, on his account, was intended to be publicly circumspect and reverently oriented towards developing an inward spiritual connection with God. In this context, religious individuals emerged as rationalized citizens through the process of recognizing, and subsequently internalizing, the benefits that privatized religious belief bestowed upon the members of liberal states. Locke’s use of reason, in other words, performed constitutive and productive work on religious values.

In a similar vein, Chapter Three suggests that when contemporary scholars like Jürgen Habermas, John Rawls, and Robert Audi call upon the public use of reason to revamp the much-beleaguered policies of secularism in late liberal states, they uncritically reproduce the deeply Protestant vision of rationally practiced religion. Although these scholars strive to carve out a valued place for religious practice in civil society – a place that is both immune from state inference and respected for its moral or ethical perspectives – they nonetheless proscribe the full participation of devout citizens in the law- and policy-making apparatuses of the liberal state. They do so by mandating that religiously-motivated speech be “cooperatively translated” to align with secular notions of the public good. This process of translation, this chapter argues, represents a powerful discursive phenomenon that entails the willful forgetting – and then the latent reproduction – of the coercion and subjectification that marked much of the rise of secular liberalism.

The next two chapters demonstrate how the theoretical tensions elucidated in the first two chapters play out in contemporary religious practices, but also how these practices – particularly with respect to their interactions with the law – can be fraught sites for resisting secular constructions of reason and rehabilitating religious values. Chapter Four interrogates Justice Antonin Scalia’s assertion in Employment Division v. Smith that the law must uphold the belief-action distinction in order to preserve democratic norms and, second, the affect that this distinction had on Alfred Smith’s relationship with his faith. I argue that as Smith responded to the law’s repeated requests for justification as to why his religious convictions ought to exempt him from the criminal regulation of peyote, he experienced a profound sense of legal, political, and spiritual disempowerment. – a disempowerment compounded by the erasure of the complexities of his faith in both the decision and aftermath of Smith. I argue that one way for religious individuals to challenge the affective power of reason is to practice what I call testimonial resistance, in that discursive appeals can be made to histories that are powerful and subject-forming, as a way to illuminate how reason is complicit in these histories.

Chapter Five argues that, if Employment Division v. Smith provided a path forward from the affective quality of reason, contemporary religious freedom cases, like Masterpiece Cakeshop, demonstrate the manner in which the law, in its discursive use of reason, can retain and reconstitute its power. Serving both a generative and cumulative purpose, this chapter draws from the elements of this dissertation’s preceding chapters in order to argue that contemporary religious freedom cases – even in their uses of testimonial resistance – are conditioned by the slippery and discursive nature of reason. Even if cases like Masterpiece Cakeshop, and those that will follow in its footsteps, appear to secure greater religious freedom for its subject, the inner logic of the law nonetheless serves to reconstitute, reformulate, and re-entrench the project of Lockean secularism for all who come before it.

This dissertation argues that the democratic goal of collective sovereignty requires a particularistic, imagined sense of association among members of the demos, and that American egalitarians’ rejection of that idea has profoundly shaped the trajectory of American citizenship since the late 1960s. It develops an analytical framework of “holistic democratic citizenship,” which treats citizenship in contemporary democracies as a composite status of five historically-accreted elements (political participation, rights, equality, intersubjective identification, and perpetuation), and reconstructs an American intellectual tradition of “democratic nationalism,” which prominently attempted to promote holistic citizenship through a nationally-scaled narrative of peoplehood between the first and second Reconstructions.

The inclusive ideal of nationhood championed by democratic nationalists promoted, in particular, the holistic components of intersubjective identification and perpetuation, encouraging Americans to imagine themselves in terms of an expansively-defined national demos. The dissertation argues that in the wake of American egalitarians’ broad rejection of nationalism since the 1960s, newer theorizations of citizenship tend to detach its formal elements (participation, rights, and equality) from location within temporally-continuous settings of intersubjective identification, undermining the epistemic and psychological preconditions of collective sovereignty, and depriving egalitarians of the conceptual resources needed to contextualize, motivate, and render legible the work of democratic inclusion in the United States.

The first part of the dissertation provides a historical and theoretical framework for the second part’s discussion of three contemporary anxieties of democratic membership surrounding immigration, race, and inequality. Chapter One traces democratic nationalism’s rise in the Civil War and Reconstruction era and its decline in the civil rights era, explaining the historical process by which American egalitarians’ democratic aspirations became fused to, and then broken from, a nationalist vision of the demos. Chapter Two introduces the framework of holistic democratic citizenship, showing how the components of participation, rights, equality, intersubjective identification, and a sense of shared futurity contribute to a complex whole, and how monolithically conservative understandings of nationalism motivate a corrosive formalism and disaggregative tendency in citizenship theory.

Part Two analyzes three contemporary anxieties of membership through the historical tradition of democratic nationalism and the analytical framework of holistic democratic citizenship. Chapter Three analyzes debates over the fate of unauthorized denizens residing in the U.S., defending a political (not economic or humanitarian) approach which resists calls for open borders or differentiated citizenship in favor of democratic principles which instead imply that full inclusion on political grounds is owed to a specific class of migrants.

Chapter Four analyzes historical and contemporary debates over the possibility of interracial solidarity on a national scale, which is directly connected to support for a policy of integration. The chapter argues that in the absence of a nationally-scaled form of identification, racial egalitarians can only fall back on formalistic, one-sided views of citizenship that eschew the politics of integration and ironically reinforce the same racialized boundaries that already obscure patterns of mutual responsibility among citizens.

Chapter Five discusses the anti-tax politics of the conservative movement in the context of contemporary economic inequality. It traces the market naturalism of the new right to a view of citizenship which rejects identification, and argues that this rejection of identification is ironically mirrored by the depoliticized view of political economy that prevails among liberal politicians. These intellectual and discursive changes, traceable to the decline of democratic nationalism in the 1960s, help to explain the unrivaled position of economistic visions of citizenship in an era of spiraling inequality.

The conclusion describes possible futures for democratic citizenship in the U.S. in light of past attempts at national “reconstitution” in both a legal and an ethical sense. The conclusion argues that the avoidance of further democratic decay requires citizens to revive particularistic yet inclusive accounts of their shared democratic life.

The dissertation’s historical narrative and analytical framework contribute to ongoing debates over nationalism, American identity, democracy, and citizenship; as well as immigration, race, and economic inequality. It develops a non-cultural defense of bounded solidarity that differs from both liberal nationalism and constitutional patriotism, while merging the intellectual-historical literature on postwar American “fracture” with political-theoretical analysis of the changing nature of democratic citizenship under globalization.

This dissertation argues that self-definition should be an important guiding value for the politics of recognition and identifies three principles essential to such a politics: self-definition, responsiveness, and internal contestation. Government officials and other authorities who seek to correct social and political inequality with policies of recognition should use the principles I propose to guide their efforts. We should expect injustice to persist even in the face of widespread, honest efforts to practice recognition as justly as possible, but we must still strive for just practices that support the positive potentials of recognition by respecting both equality and freedom. These principles are drawn from a detailed examination of three central examples of recognition in practice. I examine (1) the Canadian government’s 1988 apology for internment and dispossession of Japanese Canadians in the 1940s, (2) the development of the Canadian Museum of Civilization’s exhibits of Aboriginal history and culture from the 1980s to early 2000s, and (3) the development of the National Museum of the American Indian’s inaugural exhibits in the 1990s and 2000s. These practices of recognition illustrate the importance of self-definition and suggest the above principles practice. As a work of contextual political theory, this dissertation develops normative principles by bringing conceptual conversations in the theoretical world together with evocative contemporary political examples.

This dissertation explores the concept of audience in contemporary theories of legal interpretation, examining the varied roles that nonjudicial legal actors play in interpreting, constructing, and applying statutes and the Constitution. So defined, legal audiences include both those who are actively engaged with, as well as those who are passively affected by, legal rules, in addition to those outside the formal legal system but who nevertheless assert claims about legal meaning. Orienting legal interpretation around nonjudicial legal audiences provides an important contrast to predominant approaches in American public law legal theory, which tend to situate acts of legal interpretation as practices primarily for judges. Prominent debates in both constitutional and statutory interpretation are often most concerned with providing accounts about the proper role of unelected and politically unaccountable judges when interpreting democratically promulgated constitutional and statutory texts. Instead, this dissertation focuses on how the content of the law is also developed as a collaborative endeavor between judges as authors about rules for legal interpretation, and the relevant legal audiences who bring the law to life, through their implementations, applications, and interpretations. In particular, the dissertation analyzes the distinctive conversational, confrontational, and cooperative dynamics that develop between courts and other legal audiences involved in making claims about the meaning of law.