Liberty, Prudence, Imperfection, and Law

“The Christian Nation Thesis: How It Is Right, and Why It Is Wrong,” By Bruce Frohnen

The Mayflower Compact, a document signed aboard the ship Mayflower in 1620, set forth principles of tolerance and liberty for the government of a new colony in the New World. Photo by Architect of the Capitol.

As the Obama administration continues its assault on the rights of religious groups, and Christians in particular, to conduct themselves in accordance with their beliefs, supporters of religious rights often are accused of subscribing to the conviction that ours is a Christian nation. Such a view is assumed by journalists and academics alike to be racist, sexist, homophobic, and intrinsically authoritarian. That the charge of intrinsic malevolence is false (whatever the views of some who subscribe to the idea of a Christian nation) should be obvious. As to the simple equation of opposition to aggressive secularization with “Christian nationhood,” there actually is some logic to the charge. But the logic is not sufficient to justify the charge. Moreover, the charge distracts us from the ways in which our nation truly is and is not Christian. For, culturally speaking, our roots are undeniably Christian, and this should matter for our laws and public policies. That said, ours is not a specifically Christian legal order; we cannot look to our laws and Constitution as bulwarks against the loss of our Christian culture. Americans who want to retain these crucial aspects of our way of life must work to retain and revive them for themselves, in the institutions and communities of daily life, where our Constitution intentionally left them.

Attacks on religious freedom often are justified on the grounds that our Constitution intends to “build a wall of separation between church and state” and that this requires the separation of religion from public life. In this secular vision of America, religious faith is a purely private endeavor—an unclean practice to be tolerated only when kept out of public sight. This extreme vision has no basis in the text and only very little basis, and that not highly relevant, in the history of our Constitution. Its natural opposite is the vision of America as a Christian nation. Like secularization, we could see the Christian nation as an ideal against which contemporary practice is to be measured, inevitably found wanting, and corrected through judicial fiat. Wherever beliefs that are held by prominent self-identified Christians are being undermined, on this view, it is incumbent upon the courts to strike down offending laws and/or actions to help us progress toward a more perfect society.

It is undeniable, on any rational basis, that our nation was founded by a religious people and with the intention of providing a stable, free government for a religious people. One could, of course, repeat the many quotations from various Founders to the effect that the Constitution is fit only for a moral and religious people and would be inadequate for any other. This was the considered opinion even of that supposedly cynical manipulator, James Madison. In Federalist Paper, No. 51, Madison laid out the need for ambition to “counteract ambition” so that the separation of powers might be maintained and tyranny prevented. Yet, Madison’s “auxiliary precautions” assumed a level of virtue higher than that available to most peoples. And our Founders explicitly linked virtue to recognition of a personal God and that God’s judgment of our actions in this life as we enter the next.

In this, Madison was carrying on the tradition on which settlement in the American colonies was based—that of a people governing itself under God. I refer, here, to the characterization by Willmoore Kendall and George Carey, in their Basic Symbols of the American Political Tradition, of the Mayflower Compact. In that document, the Calvinist dissenters who settled Plymouth colony called on God as a party to their compact among themselves to form a civil society to bind themselves to such laws and constitutions as they would find necessary to lead virtuous lives—that is, lives in keeping with God’s will for man. In this the Puritans carried on a tradition going back generations, by which they had formed church covenants enabling them to band together to lead pious lives under the suspicions and disabilities imposed by England’s established Anglican Church.

It has become almost obligatory to dismiss such American beginnings as “mere” history, by which is meant the irrelevant grunting of uncouth ancestors, which may have served a purpose at one time, but which we have “grown out of.” It is important to note, then, that the results of such views were not mere window dressing summed up as “ceremonial deism,” either during the early colonial period or even well into the republican era. The vision of America as a nation devoted to a specific conception of virtue and the good life, to be pursued and perpetuated through constitutional and legal means, fundamentally formed our founding era and even our Constitution.

The most important place to look for evidence of the Christian nature and purpose of America is in its unwritten constitution—that body of institutions, beliefs, and practices undergirding the written Constitution and making it effective among the people. Most importantly, the common law—that combination of custom and judicial decisions by which most people were governed most of the time until well into the twentieth century—was explicitly Christian. This customary law is rooted in presumptions (such as “no one should profit from his own misdeeds”) as well as customary rules (for example, only a promise for which there has been some kind of consideration is binding in contract). The rules grew up over time within a culture that was explicitly Christian, as did the presumptions or “maxims.” Indeed, many of the maxims were explicitly taken from religious literature and training and/or from that body of law laid down by the church prior to the Reformation through equitable decisions in England (“the king’s conscience”) and received into American common law. Well into the republican era, judges explicitly held that Christianity was part of the common law, for example, in People v. Ruggles, upholding a conviction of blasphemy on the grounds that such a crime is a breach of the peace, likely to cause violence among Americans.

We should add to this the fact that the Constitution does not form the “wall of separation between church and state” claimed by some secularists. Instead, the First Amendment forbids formation of, and only of, an established national church. It allowed retention of established churches in a number of states and was never used to strike down actions and practices in the states until after World War II.

All this is important. That said, however, we should not be looking to the Constitution for specific answers to the undeniably important issues of relations between religion and politics, especially the role of religion in public life, political life, and even governmental life so important to us today. First, a number of the framers of our Constitution were not Christian. Deists (Washington, Franklin, and Jefferson) as well as Unitarians like John Adams (who believe in a single, nontriune God) were prominent among our Founders. These men existed with comfort as full members of our political, social, and cultural order. They affirmed the necessity of religion for virtue. They might easily be seen as supporting a kind of general biblical faith as necessary for any good society to survive and flourish. They did not write into law or the Constitution any particular creed. Moreover, the Constitution itself simply does not address, one way or the other, how religion and public life should or should not mix within the various states.

What does this mean in practical terms for today’s arguments regarding religion in public life? Nothing earth shattering. It means merely that the Constitution, set up with the purpose of protecting the more fundamental institutions of family, church, local association, and state, does not answer questions of how we should lead our lives, including our public lives, within these institutions. Those questions are for us to answer for ourselves within these communities.

It should be obvious that recent Supreme Court decisions regarding same-sex marriage, forcing religious organizations to take actions against their faith (e.g., forcing charities like the Little Sisters of the Poor to allow their health care plan to be used to distribute contraceptives and “morning after” abortion pills) are rooted in the political preferences of particular judges, not in the American Constitution or religious tradition. The federal courts should be allowing the people in their states and communities to work out for themselves the proper role of religion in public life. That said, even without federal interference in local decisions (e.g., whether to have prayers in our public schools or at other events on public property and whether to allow the Ten Commandments to continue to be placed in courthouses), there would be serious debate.

Our culture is no longer predominantly Christian. It may be the case that most Americans remain religious and perhaps even practicing Christians of a sort. But we cannot look to the federal government to settle issues like that of school prayer. The proper response to conflicts resulting from the decrease in religious observance and decreased respect for and even tolerance of public expressions of faith is to discuss, argue over, and perhaps vote over, at the state and local level, what we should do within our particular communities. Only in this way can we reestablish some kind of voluntary consensus regarding the role of religion in our public lives—not the national public life, but the public lives of actual people within their actual communities.

 

Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

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