A symposium on Erika Bachiochi's The Rights of Women: Reclaiming a Lost Vision.
Suppose that while browsing in the bookstore you run across a book called Great Left-handed Jurists in American History. Or maybe Great Bald Jurists in American History. These books will no doubt strike you as odd. What sense do these criteria make as a way of selecting legal figures for study? What does left-handedness, or baldness, have to do with jurisprudence, or with law?
The book I just finished reading has a different principle of selection, and a different title: Great Christian Jurists in American History. Edited by Daniel L. Dreisbach and Mark David Hall, the book consists of a series of succinct, instructive chapters presenting a variety of American political leaders, lawyers, judges, and scholars, ranging from colonial figures like John Winthrop and John Cotton to Founders like John Dickinson and James Wilson to still very active figures like Michael McConnell and Robert P. George. The book’s criterion of selection—its characters’ Christianity—and its title will not look so obviously odd or arbitrary, I suspect, because it seems prima facie plausible to suppose that Christianity might have some significant influence on what people think about or do with law.
That might be true. But is it? And if Christianity has influenced thinking about law in an American context, exactly how has that influence worked?
The question is complicated by the fact that some of the figures presented here have insisted that their Christian faith did not affect their performance as legal actors and thinkers. Justice Antonin Scalia would be the leading example: Scalia vigorously denied that his religious beliefs either should or did affect his work as a judge. (Despite this, Tom Berg’s essay suggests that Scalia’s Catholicism may have been a greater influence than the Justice acknowledged.) Gerard Bradley’s chapter on Robert George explains that George regards his positions on moral questions addressed by the law—questions such as religious freedom or the rights of the unborn—to be the product of reason, not of Christian revelation (although Bradley thoughtfully discusses a variety of ways in which Christianity has an “indirect” influence on George’s jurisprudential thinking).
In a chapter discussing the work of Mary Ann Glendon, Paolo Carozza comments that “the place of her Christian faith [in her scholarly work] is both pervasive and yet difficult to place and to describe.” The same might be said of some of the other characters in the book, and about the collected jurists considered in the aggregate. Still, let us see whether we can discern and describe any such influence.
The Content and Nature of Law
Christian faith seems to have influenced the positions of some of the jurists with respect to particular substantive issues, although not in any uniform or deterministic way. Slavery, and racial equality more generally, would be an obvious case. John Dickinson, raised by Quakers and a sort of Quaker fellow traveler throughout his life, freed his slaves and worked for abolition. John Jay opposed slavery as well as the unjust treatment of Native Americans. In each case, Christianity seems to have been an important influence. John Marshall Harlan (the first Justice Harlan) began his career as a Kentucky slaveholder and a caustic critic of the Thirteenth Amendment, but his lively Christian faith helped lead him to become an ardent opponent of racial segregation and the lone dissenter in Plessy v. Ferguson.
Even so, it would be implausible to suppose that Christianity prescribed racial equality in any inexorable way. As a Justice, Joseph Story’s record on slavery was decidedly mixed. In the antebellum period there were plenty of ostensibly Christian apologies for slavery (although, understandably, no pro-slavery apologists were selected for inclusion in this book). And would another overtly Christian jurist who is included, and who served on the Plessy Court—Justice David Brewer—have voted with the majority? Unfortunately (or perhaps fortunately) we cannot know for certain, as Brewer did not participate in the decision.
Another subject of likely Christian influence would be concern for “the least among us.” And indeed, some of the book’s central characters—John Winthrop, for example, or John Dickinson, or John Noonan—do seem to have been led by their faith to emphasize the law’s duties to the weak and poor. But the devout Justice Brewer went the other way; Linda Przybyszewski argues that Brewer’s faith led him to regard property as a sacred right, and thus to resist efforts to regulate business in behalf of workers.
We might suppose that Christianity would lead American jurists to be strong supporters of religious freedom. The supposition holds for some of the subjects: Roger Williams would be the most outspoken instance, but most of the early American Christian jurists supported liberty of conscience. Nathan Chapman’s illuminating chapter explains how Michael McConnell’s “reformed liberalism” supports a strong commitment to religious freedom. But then Glenn Moots’s chapter on John Cotton—a man who was both profoundly Christian and deeply thoughtful—shows that no such conclusion is inevitable. James Stoner probes the tensions in Joseph Story’s efforts to support both religious freedom and the primacy of Christianity.
If Christianity has not led to uniform conclusions on particular substantive issues, perhaps it has produced a distinctive jurisprudential view on the nature and function of law? But the book contradicts any such hypothesis. Thus, some of the Christian jurists consulted here lean to or articulate a natural law understanding (Robert George) while others (Antonin Scalia) are resolutely positivist; Harold Berman advocated a jurisprudence that would integrate natural law, positivist, and historicist approaches. Some have been led by their Christian faith to a personalist jurisprudence oriented to equity over formal rules, in part in order to allow for kinder treatment of the less privileged. John Noonan would be the outstanding example, as Charles Reid’s careful analysis shows, but Darren Staloff’s chapter on John Winthrop reveals similar tendencies, and similar motivations. And yet others among the Christian jurists (Scalia again, but also John Dickinson and John Marshall Harlan) have favored a more formalistic “rule of rules” approach.
If Christianity has not led its adherents to uniform views either on particular substantive issues like racial equality or on the nature of law, we should hardly be surprised. How could something as vast and diverse as the Christian tradition produce that sort of specific uniformity? Starting with certain elemental convictions—the powerful but terse affirmations of the Apostles’ Creed, say—Christianity has spread and flourished through centuries in a vast array of different cultures, languages, and political and legal systems. The variety of jurisprudential positions and specific substantive conclusions reached by different Christian jurists might be taken as a manifestation of the religion’s richness.
So then, does it follow that a book about “Great Christian Jurists” reflects a category mistake in the way that “Great Left-handed Jurists” would? Not necessarily. But the common or distinctive quality needs to be sought, it seems, in something other than, and more subtle than, substantive conclusions or jurisprudential positions. In what then?
Part of the answer, I think, is that there are some common assumptions that characterize most or all of these Christian jurists. Let me mention three. The first is the idea that law—like human life generally—operates and unfolds within some sort of providential plan or order. This seems to be a recurring theme in a number of chapters. The assumption could prompt a John Marshall Harlan to interpret the events of American history—including horrors like the Dred Scot decision and the Civil War—as the unfolding of a beneficent divine design. There are both parallels to but differences from the work of some modern constitutional scholars—Jack Balkin would be the conspicuous case—who likewise see an unfolding redemptive design in law, and who may even use theological vocabulary, but without the theological substance.
The assumption of a providential order can also be the basis for a kind of natural law view. For Aquinas, the providential design was the basis of the “eternal law,” which insofar as it was accessible to human reason was in turn the basis of “natural law.” Christian Founders including John Jay and James Wilson held views resonating with this conception. To be sure, as already noted, others among the jurists have proclaimed themselves legal positivists; but there may be more to such positivism than meets the eye. As I argued some years ago in a book called Law’s Quandary, a sort of implicit natural law understanding—or an understanding of law as a “brooding omnipresence in the sky,” as Holmes mockingly put it—pervades American legal practice, although that understanding is rarely acknowledged and is often formally denied. Even a professing positivist like Justice Scalia may reflect this background understanding—in insisting, for example, that even when the courts answer previously unresolved legal questions in unexpected ways, they are not making new law but instead are merely “declaring what the law is.”
A second common assumption—one that is mentioned again and again throughout the book—is a conception of human persons as innately possessed of freedom and worth, or “dignity.” Once again, this assumption does not lead to uniform conclusions on specific questions in constitutional or criminal law. But it has led the Christian jurists to resist both responsibility-denying determinism and also the Holmesian attitude reflected in “three generations of imbeciles are enough.” And the assumption has led these jurists to manifest a concern for the rights and moral worth of the unborn.
A third feature that shows up in a number of chapters is an awareness of the limitations—the fallenness—of human beings, and of human reason. As Daniel Dreisbach’s succinctly incisive introduction explains, this awareness inspired the Founders’ suspicion of unchecked power and their insistence on separating powers—a sensibility apparent as well in contemporary Christian jurists like Michael McConnell. In a similar vein, Mark David Hall explains how Reformed Christians like Roger Sherman were vigilant in observing and resisting whatever they regarded as oppressive or tyrannical government.
Taken together, these assumptions generate an overall attitude toward the project of law that resists opposing extremes: on the one hand, an excessive or deconstructive cynicism—one that would reduce the law to simply a manifestation of power based on class, race, or gender—and on the other hand a dangerous utopianism that would use law to achieve perfect justice but end up destroying human freedom. Again, Paolo Carozza’s description of Mary Ann Glendon might readily be generalized. Glendon’s work, Carozza says,
displays the paradoxical but characteristically Christian awareness of both human brokenness and fragility, and also the unfinished work of redemption already at work in the world, which is ever cause for hope. Always realistic, she is a conservative with no nostalgic illusions of a past to be recaptured. Equally, she indulges in no utopianism even as she affirms that law pursues a transcendent ideal . . . .
Law and Hope
The upshot of these Christian assumptions and sensibilities would be an orientation toward law that is cautiously hopeful. Some Christians, impressed with human fallenness, will incline more to caution; others will resonate more with the hope. And some periods or situations will call more for one or the other of those qualities.
Our current situation urgently demands both qualities, I think. But at least some of us, distressed by how rapidly so much in our culture and our legal institutions seems to be unraveling, need to be reminded of the virtue of hope. I know whereof I speak.
In this respect, the most inspiring passage in the book, for me at least, was Harold Berman’s account of his own conversion at the age of twenty-one. As John Witte explains, Berman was visiting Germany but realized that as a Jew it was not safe for him to stay. When Hitler invaded Poland, Berman caught a train for France. And then this, from Berman:
I thought that Hitler’s invasion of Poland would lead to the total destruction of human civilization. I felt as one would feel today if all the major powers were to become involved in a full-scale nuclear war. I was shattered—in total despair. There, alone on that train, Jesus Christ appeared to me in a vision. His face reminded me of one of the Russian icons that I would later see—heavily scarred and tragic—not suffering but bearing the marks of having suffered. I suddenly realized that I was not entitled to such despair, that it was not I, but another, God himself, who bore the burden of human destiny, and that it was rather for me to believe in him even though human history was at an end. When the train arrived in Paris early that morning, I walked straight to the Notre Dame cathedral, and I prayed a personal prayer to God for the first time in my life.
Berman’s faith saw him through the horrors that followed, and it sustained him through an extraordinarily long and productive career; even so, he continued to believe that the Western legal tradition was coming to an end. Who knows? Berman may have been right. But it needs to be remembered, at least by Christian jurists, that this judgment should not be the cause of despair. No one knows what is coming—but hope does and must remain.