Day: November 12, 2025

John McGinnis’s lead essay for this month’s Forum, “Nondelegation Without Chaos,” is a fine piece of work. But it doesn’t seem to address the essential problem with our imbalanced government: the inability of Congress to comply with the current—though widely ignored—1928 Supreme Court standard that the laws contain an “intelligible principle” that the courts can understand and apply. Instead, McGinnis has suggested a sensible but different procedure in which “the Court would require that Congress make policy choices.”

The trouble is that this new procedure looks pretty much like the old procedure. The difference is that now Congress would be required to “make policy choices” instead of following the current requirement that Congress supply an “intelligible principle” when it makes a law—an idea that the courts have more often praised than invoked.

The intelligible principle idea was introduced to guide the courts in whether or how to apply a particular law. The gentle suggestion was, essentially, to “tell us what this law was intended to do so we may apply it appropriately, but not further afield than what you (Congress) intended.” But even this simple rule has been ignored by Congress—as well as the Court—in later cases.

I have a hard time believing that a Congress that can’t state an “intelligible principle” for the legislation it is adopting would be able to make “policy choices,” which would seem to be an even higher standard.

In other words, the problem is not that the Courts have failed to make clear what they want Congress to do; it’s that Congress can’t—or hasn’t in the past been able to—state what it’s trying to achieve by a particular law, and thus how far the law extends in controlling the public’s activities.

The effect, then, is that the president, or any agency authorized to enforce the law, has greater freedom in enforcing the law than Congress likely intended. This is more than simply giving an agency or the president more power; it is an obvious separation of powers problem. Because Congress has not clarified the scope of the law, the president or the enforcement agency is able to “enforce” beyond what Congress intended.

When the Court has shown itself unwilling to strike down laws that violate the separation of powers standard, it has fallen into the “strict in theory, fatal in fact” fallacy, where the intelligible principle rule is a reasonable standard in theory, but ignored in fact. Indeed, it is hard to find a post-1928 case where the Court actually invoked the absence of an intelligible principle in invalidating a law. Schechter Poultry and Panama Refining, two cases which are often cited as based on the intelligible principle idea, both struck down laws because they were seen as straightforward unconstitutional delegations of legislative power by Congress lacking any standard at all—nothing as simple as lacking an intelligible principle. One case in which the test was actually invoked since 1928 occurred in 2001, in Whitman v. American Trucking Associations, where Justice Scalia found that a single word, “requisite,” was able to satisfy the intelligible principle test.

If history is any guide, Congress will continue to fail this test until something is done to penalize it for failing. The problem would not be solved by making the standards tougher to meet, unless the Court actually commits to enforcing them.

The danger here, and it is a serious one, is that Congress will continue adopting broadly framed or unframed legislation, which will enable the government to prosecute people it disfavors. If the law-abiding public will not be able to understand where the fences actually are, law enforcement officials will have excessive discretion in charging violations of the law. The government will become even more powerful and dangerous, and the public more vulnerable.

The problem, then, is not whether the intelligible principle non-delegation requirement is framed, but whether Congress will be able to apply it, and that remains doubtful.

Under McGinnis’s proposed standard, Congress will be required to make “policy choices.” It would help to have some examples of what a policy choice is, but it sounds a lot more specific than an “intelligible principle” and thus even more difficult for Congress to apply.

Thus, it would be sensible to assume that Congress will not be able to do any better in complying with the “policy choices” idea than with the intelligible principle.

Since we have a system of separated powers to preserve our liberties, it’s essential that the formal separation between the legislature and the executive remain in place. The greatest threat to the separation of powers today is the failure of Congress to be more specific in the legislation it develops. Broadly worded or unspecific laws will unwittingly provide even more power to the executive branch than it has already acquired.

Thus, if the McGinnis proposal is to address the failure of Congress to make more specific laws, it’s a fine idea, but it may only enhance the problem that already exists—the inability of Congress to abide by existing restrictions on the scope of the legislation it enacts.

Accordingly, if the Supreme Court is really interested in toughening the nondelegation rule—as it should be—the answer is with the Court itself. It must make clear to Congress that it will not enforce legislation that is not specific enough to meet any test, whether it’s the existing test of an intelligible principle or the McGinnis test of chosen policies.

Years ago, we had a serious problem with the Chevron doctrine. That was an informal rule applied by the courts, which allowed administrative agencies to make rules and regulations if they could point to existing legislation that might be relevant to the question—not specifically intended to address the problem that an agency wanted to control, but somewhere within the general ballpark. This system was finally overturned by the Supreme Court in Loper Bright Industries v. Raimondo in 2024.

The problem today with excessive delegation is much the same, and can be addressed in the same way. Rather than changing the “intelligible principle” idea—which is simple, straightforward, and at least has the value of Supreme Court acceptance in the past—the Court should actually enforce it, and invalidate laws that fail to include an intelligible principle.

If the Court simply did that, it could solve a substantial part of the nondelegation problem today.

The debate about Islam’s compatibility with Western freedoms often seems to have reached an impasse. Everyone knows that most Muslims are not violent extremists or actively working to undermine liberty. Everyone also knows that Muslims are more likely than other communities to support (at least in principle) the coercive imposition of religious norms. Thus, we play the game of essence and accidents: is this or that anti-liberal tendency of a particular Muslim community the result of Islam’s deep essence or of more culturally contingent accidents?

I doubt such questions will ever be settled. Not because I think there is no right answer or that Islam doesn’t have an essence—as a Muslim, I am committed to thinking that there is, and it does—but because in a pluralistic society, we should not expect agreement on the essence of any religion. The various schools and sects of Islam disagree as to which beliefs follow from the tradition’s core theological and scriptural commitments; non-Muslims also disagree sharply as to how best to characterise those commitments.

This is not to deny that any progress can be made through examining Islamic theological commitments. Mustafa Akyol, for instance, draws on what Daniel Philpott calls “seeds of liberty” in the Islamic intellectual tradition to identify dynamics by which doctrine might develop in a more liberal direction. But the debate rarely takes full notice of the fact that its outcome will depend as much on how we interpret liberty as it does on how we interpret Islam. Liberalism is not a monolith, after all: where some versions hold that denying the reality of any of the fourteen or so genders that supposedly exist is tantamount to blasphemy, others think that liberty requires strong, traditional nuclear families to inculcate self-discipline among the populace.

Much academic theorising on the topic takes for granted the interpretation of liberalism defended in John Rawls’s 1993 Political Liberalism, which holds that the state must abstain from taking sides on controversial religious and philosophical questions. Because disagreement on such matters is inevitable, argued Rawls, politics should concern itself only with the “primary goods”—health, wealth, education, and personal freedom—supposedly desired by citizens of all faiths or none. Yet Muslims, like many conservative Christians and Jews, often suspect secularist versions of liberalism like Rawls’s of being rationalisations for the empty, materialist lifestyles they (sometimes rightly) perceive many non-Muslims in the West to be living. A whole industry of English-speaking Muslim influencers has sprung up, exposing what they take to be the metaphysical falsehoods underpinning state neutrality and secular progressivism.

But what if Rawls was wrong: what if a liberal state doesn’t have to be rigorously neutral about religion? I want to suggest that a better version of liberalism, with a far greater tendency to converge with important strands of the Islamic tradition of political thought, has been staring us in the face for seventy years. This version of liberalism is what American conservatives call fusionism. 

Fusionism—the fusion of religious traditionalism and classical liberalism—rejects neutrality. It holds that the state can and should favor and foster the religious life of its citizens, but that it must do so through non-coercive means. Why non-coercive? Because fusionism recognises that true religious worship is destroyed by coercion. A man who recites Hail Marys or performs Muslim prostrations at gunpoint isn’t praying for a bad reason: he isn’t praying at all. The natural law theorist Robert P. George describes this insight as resting on the “reflexivity” of the good of religion. Religious worship is, for George, essentially the free inner orientation of the soul towards God: no one else, as a matter of conceptual necessity, can coercively induce a person to enter this state. Thus, genuine worship does not exist if individuals perform the outward markers of religion out of fear, because the inner harmony of the soul with its creator is destroyed by the threat of force.

Many fusionists generalise this argument against religious coercion to apply to any kind of coercive promotion of virtue. For Frank Meyer, whose 1962 In Defense of Freedom summed up fusionism for America’s postwar conservative movement, no self-regarding acts of moral goodness—abstention from excessive intoxication, sexual chastity, the interior cultivation of love and charity towards one’s neighbour—can be produced by force. Just as performing religious rites out of fear is not genuine worship, abstaining from hedonistic or self-disintegrating behaviour out of fear is not genuine temperance. The point applies, for Meyer, to all the virtues. This does not mean fusionism has no interest in the effect of vice on public order, or that it denies the claim that a moral citizenry is an important precondition for a free republic. But it holds that correcting private vices through force is a self-defeating enterprise.

Thus, the journalist E. J. Dionne sums up fusionism as “utilizing libertarian means … to traditionalist ends.” The goal is to produce virtuous and pious individuals; the means is to free up and facilitate individuals, families, and religious congregations to pursue virtue as best they can. Kevin Vallier, probably the most sophisticated contemporary fusionist, argues that fusionism rests on a claim about the “liberty-virtue relationship.” According to fusionists, this relationship is symbiotic. Indeed, for Meyer, freedom is a necessary precondition for virtue to exist at all. Fusionism has been the dominant position of the mainstream American right since Meyer popularised the idea. And far from being a “dead consensus,” Vallier has shown that fusionism is a living paradigm, stimulating the development of important new insights into issues like the dynamics of collective action problems and the “moral ecology” by which social norms influence ethical choices.

What does all this have to do with Islam? Perhaps surprisingly, the fusionist argument about liberty and virtue turns out to be essentially identical to one of the best Muslim theological arguments for religious freedom. The Sudanese-born scholar of Islamic jurisprudence and human rights law, Abdullahi An-Na’im, who now works in the US, argues in his 2009 book Islam and the Secular State that the government must abstain from imposing sharia rulings through civil law. He rests his case not on the Rawlsian claim that Islam (like all religions) should be privatized, but on the argument that effectively promoting Islam in fact requires the protection of personal liberty, including the liberty of Muslims to sin, where doing so does not undermine public order. An-Na’im argues that for Muslims to follow sharia rulings only out of fear of state coercion is to degrade their souls. The subject who complies with this jurisprudence only out of fear of state compulsion is an automaton, a puppet of the ruling authority, not a virtuous Muslim citizen.

For An-Na’im, the goal is not to sideline or marginalise sharia, but to make it a lived reality in individuals’ lives rather than an imposition of the dead hand of the state. Respecting religious and personal freedom ensures that Muslims “are able to live by their own belief in Islam as a matter of religious obligation, not as the outcome of coercion by the state.” The so-called “Islamic state” promoted by groups like the Muslim Brotherhood (to say nothing of more extreme varieties like those of Al-Qaeda or ISIS) is, for An-Na’im, a recipe only for religious hypocrisy. Hypocrisy, or nifaq in Arabic, is, An-Na’im notes, “categorically and repeatedly condemned by the Qur’an” as one of the greatest and most wicked of sins. Liberty helps free Muslims from this snare. Libertarian means, traditionalist (Islamic) ends.

This is not the place to assess An-Na’im’s argument on its theological merits, and this is no part of my intention. But the significance of his intervention cannot be denied. Illustratively, Gözde Hussain’s recent academic treatment of Islam and liberalism identifies An-Na’im’s strategy as one of the most promising routes from the Islamic intellectual tradition to liberal pluralism. His approach, for Hussain, maintains a commitment to theological doctrines seen by most Muslims as central while yielding conclusions congenial to a principled affirmation of liberty.

Hussain thinks An-Na’im will get Muslims to Rawls. I think he will get us to Frank Meyer. If the reason is not already apparent, consider the fact that An-Nai’m’s fear of nifaq is essentially the same as Meyer’s worry about inauthentic virtue and George’s concern about religious hypocrisy. Indeed, their language is strikingly similar. An-Na’im argues that religious practice “must be completely voluntary according to personal pious intention … which is necessarily invalidated by coercive enforcement.” Compare this to George’s claim that “communion with God … cannot, in the nature of the thing, be established by coercion”, which can “only damage the possibility of an authentic religious faith”. Here, the “reformist” Muslim and the Christian theorist of natural law are singing from the same hymn sheet.

An-Na’im has unwittingly planted the seeds of a Muslim fusionism. Like fusionism, his Islamic liberalism rejects state neutrality about religion, whether in its Rawlsian form or in any other. Like fusionism, his liberalism rests on a claim about the liberty-virtue relationship. And also like fusionism, it proposes libertarian means to traditionalist and religious ends.

Though An-Na’im does not provide a detailed schema for religion-state relations, he clearly rejects the idea “that the state can or should be completely neutral”, seemingly allowing for measures that favor faith as long as they also respect personal freedom. Fusionism, whether Muslim or otherwise, does not supply a neat and comprehensive blueprint for how the state should interact with religious organisations. Rather, it establishes broad parameters within which societies may legitimately vary, depending on local circumstances and prudential judgement. On the one hand, fusionism rejects the claim that the state has no legitimate interest in promoting religious virtue; on the other, it rejects any attempt to secure this interest through coercive measures. The compulsory church attendance endorsed by some “Christian nationalists,” along with laws against apostasy from Islam or intrusive Saudi-style “morality police,” are all ruled out.

Yet the government might fund religious organisations or symbolically endorse them without violating the fusionist stricture against religious coercion. Europe’s mild and tolerant established churches, and the non-denominational prayers of pre-1960s American public schools, both fit comfortably within fusionist parameters (though whether it would be prudent for the US Supreme Court to overturn its post-war application of the Establishment Clause to the states is an entirely different question, to which fusionism, as such, deliberately supplies no definite answer). Muslim countries embracing fusionism would enjoy a similar “margin of appreciation” with respect to public morality. While not banning the private consumption of alcohol, Muslim fusionists could legitimately seek to limit the public advertisement of intoxicants.

Obviously, there are challenges for Muslim fusionism to resolve. As Akyol argues, the acceptance among theologically committed Muslims of liberalism of any kind will probably depend on the adoption of some kind of teleological conception of sharia, such that medieval rulings on issues like apostasy can be revisited if they no longer serve the purposes for which they were intended.

But in the meantime, at the level of practical politics, Muslims need fusionism. Many Muslims in the West are clearly seeking a theological rationale for a principled reconciliation with the commitment to pluralism and religious liberty of the societies in which they live (and which are in many cases now the only ones they have ever known). Secular and progressive versions of liberalism manifestly, and understandably, lack appeal. Fusionism, however, allows religiously conservative Muslims to have it both ways: the state has a legitimate interest in religion and should not be neutral about the nature of human flourishing, but it can express this interest in ways compatible with the kind of religious and personal freedoms to which the modern West is committed.

Western Muslims need fusionism—and the West, too, needs Muslim fusionism. Almost all the anxieties about Islam’s “compatibility” with Western societies ultimately boil down to the theologico-political problem of liberty. If Muslims can commit themselves in principle to the equal liberty of all citizens with respect to religious practice, conversion, and proselytisation, and to respecting personal freedom even when used for vicious ends, no one with sense will object to their holding traditional beliefs about family and sexuality that are shared with members of the other Abrahamic faiths. My fear is that without this principled reconciliation, Muslim life in the West will remain a pragmatic modus vivendi—and Muslims will continue to be suspected, sometimes justly, of being “resident aliens” whose real loyalty is to something or somewhere else. Where large, settled Muslim populations exist, fusionism offers the best hope of convincing them that a free mosque in a free state is not a compromise but a feature of the best regime.

Finally, Muslim nations also need fusionism. Many of these countries are, as Philpott has illustrated, stuck in a sterile stand-off between authoritarian “Islamists” and the partisans of a Jacobin brand of secularism that sees deep religious commitment as at best suspicious and at worst a threat to the state’s existence. But perhaps the answer isn’t a better secularism but a better conception of liberty. The answers Muslims are seeking might just be found by engaging with the fusionist synthesis of liberty and virtue.

This article is loosely adapted from a talk delivered at a private event hosted by the Philopatridian Society at Chapman University in September 2025.