The light of freedom

One of America’s greatest legal minds on the state of democracy. A conversation with Noah Feldman.

Noah Feldman is struggling to get a word in. The constitutional scholar accustomed to commanding lecture halls at Harvard is trying to start his testimony before the House Judiciary Committee during then-President Donald J. Trump’s 2019 impeachment hearings. But he’s being interrupted by procedural bickering. Months earlier, the thrice-diplomaed Rhodes Scholar had written in The New York Times that the nation faced a “genuine constitutional crisis.” He was now sitting before Congress to further explain precisely why. 

The subject of constitutional crisis is something Feldman has thought about quite a bit. His most recent book, “The Broken Constitution: Lincoln, Slavery, and the Refounding of America,” traces the way Abraham Lincoln interpreted the Constitution during the nation’s most acute period of constitutional peril.

We are not, thankfully, facing a civil war. But there’s a gnawing sense in the American psyche that if something’s not yet entirely rotten in the republic, it might still be worth checking on the proverbial expiration date. After all, partisan polarization is near a multidecade apex and trust in all three branches of government has never been lower since Gallup began asking such questions in the mid-1970s. 

The reality is that constitutional democracies are fragile, and they depend on citizens to continually protect and uphold them. This is a lesson Feldman learned firsthand during his work helping craft the Iraqi Constitution in the mid-aughts. And it’s a lesson he emphasized during a recent visit to the Wheatley Institute at Brigham Young University where he spoke to college students about both Lincoln’s work to uphold the Constitution and our duty to do the same today. 

We caught up with Feldman to discuss his book, his fascination with Latter-day Saints and his role in helping create Facebook’s Oversight Board, which acts as a sort of “supreme court” for the social media giant. This interview has been edited for length and clarity.

Historically, the reason that many religious groups did not want to take government funding was the fear that if the government giveth then the government might taketh away.

Deseret Magazine: Tell us about your new book.

Noah Feldman: When Lincoln became president, he faced challenges unlike those that any president before or after faced. He had a country collapsing, the Constitution had literally been snapped in two by the states that had seceded. He had to change his own preexisting interpretation of the Constitution to do what he had to do to keep the country together. And that’s what the book explores — his own thinking, the way other people reacted to him and what that meant for our Constitution.

DM: What prompted the thought that Lincoln is a uniquely constitutional thinker?

NF: Lincoln is the most influential president on the Constitution, for the precise reason that when he became president, the thing was split. So he had to invent the theory of what our Constitution should allow us to do when we are under such pressure. And then he set the precedent for every subsequent president who has had to think about what to do when the Constitution isn’t just operating on an everyday basis. And that’s what made him so influential.

DM: You have this phrase in the book: “rupture led to rupture.” What ruptures are you concerned about today?

NF: What I’m most worried about when I think about rupture or breakage in our Constitution is the idea of peaceful democratic transition. Our constitutional democracy has flourished because we created a system that solved the transition problem without having a king, by having elections every four years. We know that whoever wins the election gets to be president. And whoever loses doesn’t get to be president. As simplistic as that sounds, it’s not obvious. And it wasn’t obvious for most of human history. The more we know of what happened on January 6, 2021, the more we understand that there needs to be safe and smooth transitions when an election is decided. If you lose that, you’re in danger of losing the whole fundamental structure of democracy, all the other good stuff that we love. It didn’t rupture on January 6, because the person who won the election got to be president. But it could have ruptured. And that “could have” is what we need to take super seriously. 

DM: You have an interesting relationship with Latter-day Saints. How did that start?

NF: My connection to Latter-day Saints really started when I was in college (at Harvard). In my sophomore year, my roommate and I, who were both Modern Orthodox Jews, were put in a suite next to two sophomore Latter-day Saint guys who had just come back from their missions. Whoever did that knew what they were doing, because we were not like all of the other people in college, but we were a lot like each other. We were serious. We were studious. We were not partying, and we became really close and fast friends. I’m still friendly with them. As I started studying constitutional law, my specialty at the beginning of my career was law and religion. If you studied the history of law and religion in the United States, you heard this myth that we may have done certain things wrong as a country, but one of the things we’ve always done right is complete religious tolerance for all dissident and unusual groups, and there’s never been serious religious persecution. This has been repeated in Supreme Court opinions, in books and speeches, and it’s laughably false. One of the first books I wrote was about church and state, called “Divided by God,” and in it I devoted a chapter to the shameful history of the U.S. government at the national and state level, suppressing, repressing and persecuting the early church and Latter-day Saints to a degree that no other religious group has ever been subjected to in the history of the United States. That’s not a lost history to The Church of Jesus Christ of Latter-day Saints and its members, but it is essentially lost history to everybody else. And that’s launched me on a lifelong interest in the church, its relationship with the Constitution and its history. I find it endlessly rich. 

DM: A theme that has come up frequently with Latter-day Saint faith leaders is the importance of preserving religious freedom, and that there are threats to religious freedom in our current environment. Do you think those expressions of concern about religious liberty in our contemporary situation are correct? Are there some justifications?

NF: There are definitely justifications. I think the key is to see current religious liberty claims in relation to the claims of the 19th century and the mid-20th century. In the 19th century, the religious liberty claim was —  Please, may we live in peace to pursue our lives without being jailed, assassinated and attacked? That’s your baseline. If you think of Maslow’s hierarchy of needs, that’s the very bottom of the hierarchy. Do not kill me, please. That’s a claim that took a long time for the U.S. government to come around to, but I think it’s pretty broadly accepted today. In the 1960s and 1970s, the religious liberty claims were in the form of — Please allow our religious group an exemption from an otherwise neutral generally applicable law that burdens our religious exercise. That was very controversial. 

The new frontier in religious liberty — and we’re in this frontier — is the argument that if the state funds a secular function like education, it violates religious liberty if the state does not equally fund religious education. It’s an idea that is hotly contested, was in front of the Supreme Court last term and it will be back again. That’s a really interesting case because it goes to the question of what the government’s funding should be for. And historically, the reason that many religious groups did not want to take government funding was the fear that if the government giveth then the government might taketh away. You become beholden to the entity that’s funding you, and I have always thought that to be a wise concern. Very few people in life give you money without any strings attached, maybe your grandparents on a good day. The argument now runs, if we can establish a strong religious liberty claim, that says that the government has no authority to extract demands from us on the basis of the fact that it’s paying us, then we’re safe. 

I think there’s a tough empirical question there, that all religious institutions, especially higher education, have to think long and hard about. It’s difficult to run a higher education institution without federal funding, but it does come with strings attached.

Noah Feldman’s march against the current

DM: In Iraq, you were in a position to advise the development of their constitutional framework. How can our constitutional principles be beneficial to other cultures?

NF: There are components of our values that really are universal. The part of the Iraqi Constitution that works the best is the enshrining of both Islamic and democratic values, declaring that they are in fact compatible. Of course, that’s only possible if you interpret Islamic values in light of democracy and democracy in light of Islam, but they do that. This is not to say that the Iraqi Constitution is a success. It’s a failure because the country is deeply corrupt and impoverished, and there are many things that don’t work and those are partly the fault of the constitution. So it’s not like I’m making some grand claim on behalf of the Iraqi Constitution, far from it. 

But the point is that they made those values their own. They incorporated them in light of their own values. I think our concept of values can be really useful all over the world, in the sense that there’s a large functioning democracy with a billion-plus people in India, and there’s a large functioning democracy in Brazil with hundreds of millions of people. Those are places where the cultural norms, practices and economy are all pretty different from what we have. But people are still committed to some core constitutional ideas — fundamental rights, federalism, democratic elections. I’m not saying that any of those places are a utopia, and obviously we’re not a utopia either. But I think our values do have a lot of resonance, and they have a tremendous amount of broad applicability when we don’t try to impose them on people at the point of a gun.

DM: More and more of our lives are being played out online. Can you take a moment to explain some of the ways that you’ve engaged with, say, Facebook, to think about the structure in which ethics can take hold within private organizations?

NF: So much of what we say, collectively as a society, and also in the broader world, gets to people mediated by an algorithm on social media. And that means if we’re good at capturing that, like the Latter-day Saint moms on Instagram, I can get a very substantial following to promote my worldview for fun or seriously via the algorithm. But by the same token, if the algorithm and the people who own the algorithm don’t want to promote what you have to say, you’re done. You can’t reach anybody. 

The more we know of what happened on January 6, 2021, the more we understand that there needs to be safe and smooth transitions when an election is decided. If you lose that, you’re in danger of losing the whole fundamental structure of democracy.

So I was thinking about that in relation to free speech and had this thought: What Facebook needs is a Supreme Court. 

Our companies increasingly play roles that are analogous to the roles government used to play. Historically, the censor of our speech when it needed to be censored was often the government. That was a hard role for anybody to play, but especially for governments because people don’t always trust governments, rightly. So governments developed over time a social technology for addressing making censorship somewhat more fair and less self-serving, and that is a system of constitutional courts that interpret guarantees of free expression. 

I thought to myself has anyone done this in the private sector? And the short answer was, no, because we’re not accustomed to thinking of the private sector playing the role that it has come to play, for example, with relation to free speech. I worked with Facebook to build it. We architected it, and it’s done some significant things. It overturned Facebook’s initial deplatforming of President Trump, and told them they did it wrong. They did it on an ad hoc basis without principles and without goals. 

Almost immediately I started to get a lot of other clients, first from tech, and other social media clients working in areas with a lot of potential to do harm. They’re interested in trying to figure out ways to check themselves, and governance mechanisms that will help them avoid going down the wrong path. 

And it’s exactly the challenge that constitutional law has always been trying to solve. The model is Odysseus, who knows the siren song is going to be very beautiful and seduce him, and so he has himself bound to the mast so he won’t act on his temptation. And that’s a kind of thinking that has potential applicability, as more and more big businesses are doing things that have tremendous long-range consequences, in which the government is typically not regulating. 

We’re talking about people, how motives can be shaped and how people conceptualize their self-interest. And these are things that matter tremendously, both in the business world and in the private sector.  

Paul S. Edwards is the director of the Jack and Mary Lois Wheatley Institution of Brigham Young University. This story appears in the December issue of Deseret Magazine. Learn more about how to subscribe.