Remote voting and a more “transparent” Court would likely lead in directions the founders explicitly sought to avoid.
This is the last in a series of essays exploring the origins and implications of the Supreme Court’s inability to deal with religion in a reasonable manner. The Court’s actions themselves are well-known and easily characterized. “No aid to religion” is the dogma. Eliminating all arguably public aid to or even approval of religion is the goal. From parochial school subsidies to public prayers, from Christmas displays to allowing religious organizations to set their own internal policies, to the structure of the family itself, practices originating long before the founding era have been sought out and destroyed in the name of “separation of church and state.”
My first essay explained the hyper-individualist ideology motivating this campaign against traditional American practices and culture. The second focused on what these decisions miss, namely the necessity of religious associations for American ordered liberty. In this final essay I point out the ultimate casualty of the war on religion in our public square: our common mind. That is, the historically grounded combination of beliefs and practices establishing reliable expectations and trust among people. One need not be conventionally religious to enter into this common mind, but must recognize an ordered universe, a stable human nature, and the prescriptive, normative value of social cooperation. With the progressive disintegration of America’s common mind, we are seeing the disintegration of that sense of connection and of the mutual forbearance essential to any self-governing people. Having undermined our understanding of public morality—our customary standards of right and wrong—we can no longer determine on our own how to behave. We must look to the state to codify and enforce standards of conduct in all aspects of our lives. Custom is replaced by coercion-backed rules, interpersonal relations with litigation, habit with regulation, freedom with reluctant obedience to law. As a consequence, law itself is increasingly understood as simply the dictates of those in power.
A Common Law Mind
More than 150 years ago, Tocqueville observed that Americans succeeded as a self-governing people by combining the spirit of religion with the spirit of liberty. A key element in this success was Americans’ shared understanding of the nature and limits of law. Americans had what can rightly be called a “common law mind,” according to which custom—overwhelmingly religiously-influenced custom—had an intrinsic legitimacy, subject to a common reason with the authority to correct abuses without tearing down society’s fundamental structures.
Tocqueville noted lawyers’ important role in maintaining ordered liberty. Our lawyers understood that their vocation was not to transform society in the name of some grand ideological principle, but to help those who had been harmed. Laws rose or fell, generally over long periods of time, on the basis of their adherence to long-established standards of right and wrong. Justice, in this context, was vindication of the reasonable expectations of the parties, affirming the importance of common understandings over ideological simplifications like “non-discrimination” or even “freedom of contract.”
To understand how we lost this common mind we first must understand how it was instantiated—how common assumptions were brought to bear in deciding specific disputes. Common law maxims were central to this. Today such guiding principles play little express role in judicial decision-making. Even related, concrete tools of statutory construction (“semantic canons”) that help judges read language in a consistent manner spent decades in ill-repute thanks to a largely spurious but rhetorically powerful article by the legal “realist” Karl Llewellyn. But maxims were essential elements of common law reasoning well into the 20th century.
Available in countless precedents and numerous volumes intended for lawyers’ education, maxims often were likened to principles of geometry and, a seeming contradiction, sometimes seen as practical principles established by long universal acceptance. In practice they were treated as generally accepted rules of thumb requiring no independent justification or proof. Sadly, 150 years of increasingly belligerent codification (reducing common law rules to pervasive statutes) and reductionism (treating precedents as raw material from which various arguments might be made for one’s client) have pushed maxims out of court, leaving regular Americans without the common presumptions necessary for social trust.
Maxims once made up a web of understandings about proper conduct and the nature and limits of legal remedies. Detailed explanation is beyond the limits of this essay, but basic maxims include: “No action arises on an immoral contract,” meaning, for example, that one gangster cannot sue another for cheating on a drug deal; and “Long time and long use, beyond the memory of man, suffices for right,” meaning that custom, when no law specifically contradicts it, establishes persons’ rights—for example to use a long-established path through someone else’s property to reach a public road or beach. No specific maxim answers all circumstances—the common law judge was not a potted plant. But maxims served as guides to find what was reasonable under given circumstances, and even for statutory interpretation where the law as written was incomplete or seemed to violate longstanding norms.
Positivism Against Law’s Moral Core
Positivism undermined our understanding of maxims. But positivism was part of a much larger and more destructive program aimed at eliminating the moral core of our legal system. That program had at its heart hostility toward tradition and, in particular, the public role of religion.
The judicial turning point for religion and the common law both came with the decisions handed down by the New Deal Supreme Court in Everson v. Board of Education and McCollum v. Board of Education in 1947 and 1948, respectively. These decisions asserted, then acted upon, Supreme Court power to read radical church/state separation into the First Amendment, then apply it to all institutions having what the Court deemed a public character.
It should no longer be necessary (though it is) to point out that references to a “wall of separation between church and state” exist nowhere in the Constitution, or that their separationist attitude was a small minority position at the time of the Constitution’s drafting. The phrase is found most famously in one of Thomas Jefferson’s letters; it can be found in the thought of the radical, marginal colonial figure Roger Williams, though in very few other places of note. The idea is found most prominently and problematically in the young James Madison’s Memorial and Remonstrance Against Religious Assessments. That pronouncement was directed at Virginia state legislation. Madison did not rely on it in the very different debates over the First Amendment—an Amendment explicitly limited to preventing Congressional action concerning religious liberty, leaving such issues to the states.
But Everson and McCollum rested on neither constitutional text nor American history. They rested on, even as they entrenched among our judicial elites, a destructive secular fallacy. This fallacy holds that law has no proper religious basis, that it is possible to separate secular from religious purposes and assumptions, and that the remaining secular kernels can grow into meaningful, authoritative rules. Misappropriating language from a Calvinist vision of a religious society in which political arrangements are relatively unimportant, the secularist fallacy assumes that religion is merely a form of superstition, grounded in irrational historical practice. It culminates in the fantasy of “public reason,” spelled out most fully by John Rawls, in his doctrine of “overlapping consensus,” according to which everyone who argues for any particular law or policy must put forward only arguments that any and all who will be governed by said laws may find acceptable.
Thus, for example, because our nation includes atheists, the traditional family cannot be defended on Biblical grounds, or through moral argument rooted in religious tradition. More generally, arguments rooted in an understanding of natural law—of the existence of a natural order (whether decreed by God or not) that tells us how we ought to act—are all but forbidden. And as natural law goes, so go the common law maxims that apply it to human interactions.
Public reason is a myth. Being itself is normative in that we are by nature moral beings. That is, we are better and not coincidentally happier people when we act virtuously (with courage, magnanimity, and so on) than when we act viciously. Thus, laws and our opinions regarding what makes laws just and proper also are normative; they are rooted in both our permanent nature, which can be found through careful thought and study, and in cultural assumptions concerning right and wrong that help us address our historical circumstances. So, for example, all societies recognize murder—the killing of innocents without proper cause—as deeply wrong, even as they disagree, for reasons rooted in history and circumstance, over some of the elements making up innocence and proper cause. Moreover, determinations as to what is a proper “reason” rest on value-laden presumptions concerning what kind of evidence is worth considering—whether they be ideological assertions of equality or studies regarding the importance of intact two-parent families for healthy child development.
All laws rest on common understandings of, for example, self-defense or fraud. Beneath all written laws are important presumptions regarding what is natural to assume about a statute’s purpose and the language used. Most fundamental, here, is our common law’s Christian basis. This is not to say that our legal system is simply a product of Christian theology or Biblical teaching. Rather, it points to common law’s customary nature—its cultural roots and presumptions regarding rights and duties shaped by common beliefs and practices.
Customs and Faith
Decisions connecting Christianity with the common law were legion in the early republic and rooted, not in some narrow attempt to “impose religion,” but in the need to understand law in its proper context. A prime example from a somewhat later period (1889) is Riggs vs. Palmer, in which New York’s highest court held that a man who murdered his grandfather to secure an inheritance could not legally take that inheritance. The court found that, in drafting its testamentary law, the New York legislature could not have intended to allow a donee to inherit from a testator he had killed. Why not? Because the court recognized the fundamental maxim of the common law that “No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim on his own iniquity, or to acquire property by his own crime.”
Our common law always has assumed that, beneath their technical provisions, statutes carry with them the legislature’s intention to avoid rewarding conduct that violates our common understanding of right conduct. Today’s positivist lawyers may scoff at the idea of “bad conduct” not specifically defined by law. But law always has rested on cultural, in the end religious, assumptions as to right and wrong found most prominently and reliably in long-established common law maxims.
The alternative is not “the law as written,” but the law as manipulated according to judges’ preferences. The classic positivist case contradicting Riggs vs. Palmer—certainly in the casebook from which I teach public law—is Church of the Holy Trinity vs. United States. In that 1892 case the Court held that a law specifically forbidding importation of immigrants “under contract or agreement to perform labor or service of any kind in the United States” did not apply when the immigrant was a religious minister. Why not? Because America is a “Christian nation.” What distinguishes the Court’s reasoning, here, from that in Riggs is its determination not to read the law in relation to traditional maxims, but to rewrite it in accordance with its (in this case “pro-religion”) policy objectives.
Holy Trinity and decisions like it undermined the common law because the court imposed its will instead of following the language and tradition before it. Untethered from tradition, legal favoritism toward religion did not last long. Judges quickly latched onto the hyper-individualist assumptions popular among their peers and transformed religious liberty jurisprudence into anti-religious, anti-common law jurisprudence.
Everson and McCollum clothed positivism’s anti-religious animus in faux-constitutional language and empowered the courts to begin stripping the common law of the presumptions that gave it life. The legal and political results are well-known. Separationist decisions have torn down and rebuilt our public square to make it hostile toward religion. Worse, we have lost that trust in one another, and in the validity of traditional forms of conduct, on which real community relies. Within our supposedly limited, secularized government, courts increasingly police all our interactions to make certain no one is acting from “bad” motives—including those either too hostile or too friendly toward any particular religious belief. This leaves no room for either the spirit of religion or the spirit of liberty.
A return to “originalist” understandings of constitutional and other texts is an important part of the solution to our crumbling cultural consensus. Equally important, however, is a return to appreciation for the role religious associations play in fostering customs, institutions, and understandings essential to self-government. The loss of tradition is experienced as liberation by some, but that liberation leaves society in tatters and the individual adrift and vulnerable to domination by a state that is increasingly untethered to norms and institutions—including the law—that once cabined its power.
 Karl N. Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons of About How Statutes are to be Construed,” Vanderbilt Law Review, Vol. 3, No. 3 (April 1950), pp. 395-406.