In the academic world, originalism has become the theory of constitutional interpretation to beat.
This is the last in a series of posts excerpting my speech at the Federalist National Convention, arguing that only religious freedom, not pervasive religious sentiment, is necessary to civic virtue under our constitutional order. Here I show that periods of greater religiosity do not coincide with greater constitutional fidelity:
One test of whether religion is necessary to preserve the constitutional order is whether periods of greater religiosity coincide with greater fidelity to the Constitution itself. And if we look at the course of American history, we do not find a high degree of correlation, let alone a causal connection, between periods of greater religiosity and fidelity to the Constitution. History also fails to show a positive correlation between secularism and constitutionality. Rather, it underscores the great dangers to our constitutional order can come from either religious enthusiasm or secular utopianism. Both share an ecstatic approach to politics that finds the Constitution inconvenient, as its constraints protect a society generated by the spontaneous order of freedom. It is not that only that the Constitution can be preserved by the liberal order it encourages, but it can be destabilized by demands for government-enforced morality that is too encompassing.
In a very interesting recent book, The Evangelical Origins of the Living Constitution, John Compton makes the persuasive case that living constitutionalism—the theory that upends our written Constitution—has its beginning in the evangelism that originated in the second great awakening. These evangelicals and their religious descendants became unhappy that the Constitution as written facilitated such vices as alcohol and gambling by protecting interstate commerce and vested rights in property. They therefore promoted legislation that empowered the federal government, as opposed to the states, to regulate morals despite the limitations of the enumerated powers. They also wanted to destroy property used for immoral purposes despite the protection of vested rights.
The precedents set by this movement became key for progressive arguments. Just as the Constitution could be transformed to permit moral reform on a grand scale, so it could justify federal control of the economy.
Even Adams’ quotation about the necessity of religion illustrates how claims of the importance of religion in politics can sometimes undermine constitutional fidelity. John Adams was a Federalist, and the Early Republic’s equivalent of a Federalist attack ad was that that Democratic Republicans were unreliable deists and scoffers of the faith. Thus, Adams’ quotation conjures up the culture war of the 1790s.
But sadly, during the same year Adams was playing up the bulwark afforded by his party’s religious values he signed into law the Alien and Sedition Acts. Even more than two hundred years later, this legislation still ranks as one of the most egregiously unconstitutional acts in our history. Thus, Adams’ earnest religiosity provided little assurance of constitutional fidelity.
Let me end with our current period and on a practical note. If I am right, we can revive a flourishing civic life by restoring the Constitution and not wait on a religious revival. Sociologists tell us that religious belief, at least as measured by adherence to organized religion, is declining. Yet enthusiasm for constitutional fidelity is rising. From the 1960s to the 1980s, a constitutional challenge such as that mounted against Obamacare would have been unimaginable even though religious belief was more widespread. Today, but not back then, a Republican President is required by his political base to nominate someone part of that culture of constitutional fidelity. And note that this culture created in no small part by the secular, civic association—the Federalist Society. We saw a remarkable instance of that culture’s power when President George W. Bush was forced to withdraw Harriet Miers, a candidate who had no proven record of sound constitutional interpretation.
As Obergefell reminds us, our legal culture is far from perfect but it is a lot better than in the years of the Warren or even the Burger Courts, when religious adherence was somewhat higher but support for interpreting the Constitution as written was feeble both academically and politically.
The reasons for this greater enthusiasm for constitutional fidelity lie in the fact that after the Reagan Administration, respect for free markets, federalism and limited government—matters at the core of our Constitutional order– generally grew even as the society has become less, not more religious. Thus our Constitution was not made for a people who must be faithful to a religion but instead a people who need to have the civic virtues to be faithful to the Constitution. And those virtues in turn are likely to be generated by following the Constitution as written. It is to that virtuous circle for civic virtue that we need to return.