The Senate is free to process judicial nominations however its members so choose, and mental gymnastics are not required.
What the Court Misses: Religion, Community, and the Bases of Ordered Liberty
In my last essay, I argued that the Supreme Court’s determination to treat religion as a purely personal expression denies our true nature, undermines religious community, and leaves us open to forms of ersatz community (and religion) dangerous to republican self-government. I will address the destructive capacity of courts’ anti-religious atomism to our common law in my third and final essay. Here I discuss the relationship between religion and the American tradition of ordered liberty. Our constitutional order was founded on an understanding, rooted in experience, that people develop the character and habits of association necessary for ordered liberty within local associations, and that central among these associations is the religious community. Court hostility toward these associations, rooted in a rejection of long, sustained historical practice, has undermined our capacity for self-rule.
It has long been obligatory for academics to mock Dwight Eisenhower’s statement that “our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.”  Like John Adams’ statement that “Our Constitution was made only for a moral and religious people,” such quotations are taken as, at best, formulaic utterances of “ceremonial deism.” Especially because they lack specific doctrinal content, courts take these kinds of statements, like “In God We Trust” on the coinage, as both legally and culturally empty, hence properly ignored as leftovers of a more primitive time. In fact, however, they reference the traditional understanding that our nation is rooted in religious practices that vary by locality and that the federal government has a duty to protect in all their variety.
It would be easy to reference a multiplicity of court decisions referencing the importance of religion to the American constitutional order, noting the Christian character of our common law, rejecting polygamy as hostile to America’s religion-grounded culture, and upholding government accommodation to and support for religious institutions and practices. Sadly, all of these historical examples are rejected by today’s judges and commentators on the mistaken, if not far-fetched, grounds that the 1st and 14th Amendments dictate a strict separation of religion from public life.
Courts today view religious issues and conflicts through the clouded lens of radical, atomistic individualism. In effect, they refuse to defend religious liberty because they reject religion’s true nature as a community in which one develops character through participation in common rituals and social activities rooted in common standards of behavior and a common conception of the Divine. In place of religion judges today place the individual “conscience,” guided by they know or care not what. Consequently, they issue decisions that undermine our tradition of common law, civil social order, and ordered liberty. Rather than enter the swamp of current Religion Clause jurisprudence, here I lay out the traditional understanding of the American constitutional order and the place of religious community within it. This order predates the Constitution and was flourished in the society that produced both the 1st and 14th Amendments; ignoring it distorts the language of the Constitution and courts’ attitudes toward religious communities.
America was built on religious community. The Pilgrims bound themselves to one another and their God through a political compact, securing social order for themselves in an otherwise lawless New World. Frontier families in the West built on this tradition by habitually establishing churches and hiring ministers almost immediately after choosing a sheriff and building saloons. Just as communities established the law and created gathering places to build new friendships, churches were always integral parts of new communities. No village was long without a church or a church building, which typically also served as the place for public schooling and town meetings. The symbolism of the church at the center of American acts of deliberation and self-rule can hardly be overstated. Americans made religion central to their public life. And this religiously-rooted public life made possible the common ground for strangers to work together and become neighbors. Without self-organizing churches, America never would have developed its tradition of individual liberty in light of self-ruling communities.
America’s early settlers often sprang from dissenting Calvinist communities in England whose members had “covenanted” with one another to cooperate and live godly lives together. As the Pilgrims’ Mayflower Compact put it, members bound themselves before God
to enact, constitute, and frame such just and equal laws … as shall be thought most meet and convenient for the general good of the Colony, unto which we promise all due submission and obedience.
Whether in Plymouth Colony or the frontier West, founding a township was a serious, communal act that meant re-forging the ties which tradition had set into members’ hearts, and this has always included religion. Founding a new community, especially on the frontier or in the wilderness, is an act of faith rendered easier by faith in God.
Townships’ religious, governmental, economic, and civic institutions all overlapped in membership and function. As a result, the township was an integrated whole that left much room for individuality and low-level conflict while forging common commitment to the common good. America’s townships worked because they were in effect networks of local associations in which people ruled and were ruled in turn.
Americans’ habit of voluntarism—of stepping forward to help clear that road, put out that fire, or take in that orphan—was ingrained in part by the necessities of life on the frontier. But history is full of instances where frontier peoples chose the path of communal failure by being selfish and cruel. The signal failure of the much more secular Virginia colony in its early days prompted issuance of the 1610 “Articles, Laws, and Orders, Divine, Politic, and Martial for the Colony in Virginia,” imposing harsh rules and penalties—as well as a strict religious regimen—on the colonists.
American voluntarism was culturally, which is to say religiously, rooted. Voluntarism was not just a matter of sermonizing, though sermons there were, in church, in court, and from the office of mayor or sheriff. There was a rhythm and structure to life, with religious association and good works at its center. Public prayers, days of fasting and thanksgiving, church festivals, churches’ central location and role in the town, all bound members together and forged instincts of cooperation.
Americans in their communities shared a set of common assumptions about what made for a good life and a good person. People knew what to expect from one another and understood their various roles in their common life. This is not the same thing as serfs who “know their place” in a fixed hierarchy. American equality, as Tocqueville understood, meant that laws applied equally to all citizens and each citizen helped constitute the associations making up the community. Moreover, even among supposedly pliant Catholics, there was an emphasis on the individual person, created in the image of God, who was a full member of a parish or congregation, with complementary rights and duties.
Long after independence, there remained substantial institutional and even “governmental” supports for religion’s central role in town life. School materials were unabashedly religious until well into the 20th century. Ministers were respected members of the community, and often its leaders (though, in an early expression of separation of church and state, Puritan ministers were not allowed to hold public office in colonial New England). And the law was unabashedly moralistic. “Blue laws” enforced sabbath observance. Laws against extra-marital sex protected the family. Laws against vagrancy, public blasphemy and drunkenness guarded the civic square’s role as a place for respectful engagement. The common law—that set of customs and usages enforced by courts, especially in cases of conflict—was deeply embedded in a Christian civilization that left much room for religious dissenters, members of differing religious communities, and the occasional atheist, but steadfastly upheld common standards of public conduct. Atheists were tolerated, but not allowed to shut out religion even where and when they found it intolerably offensive.
Low-level conflict regarding community goals, corruption, and the limits of social control were common. Because our country always has respected the freedom to travel, the right to exit was important in maintaining freedom and order. More disruptive was the influx of millions of Irish Catholics during the 19th century. Until the 1840s, a mix of compromise and separation had maintained townships’ character. Different groups tended to form their own towns and, when circumstances brought them together in the same town, to split public support and emphasize common beliefs. Indeed, the American Constitution was written with this kind of unity-in-diversity in mind. That document steadfastly refused to take any position on state or local religious establishments, forbidding federal interference with religion in the states even as it approved federal promotion of religious education in the territories.
The Irish Catholic influx after the Potato Famine was more disruptive than previous waves of immigration because of its size and pre-existing ethnic and religious tensions. A number of important Protestant leaders sought to maintain their own overwhelmingly Protestant publicly funded schools while denying public support for Catholic schools. In the end, though not without conflict, most states and localities forged working compromises by which Catholic schools received lesser forms of support such as textbooks, help with transportation and the like. But the idea had been broached that public schools should be “non-sectarian.” And, while in most of America this came to mean only greater cooperation in matters like crafting public prayers, the idea of “separation of church and state”—nowhere in our Constitution—gained institutional momentum with the rise of Progressivism late in the 19th century.
It was this mistaken, not to say intentionally crabbed, understanding of religious liberty that underlay later 20th century judicial decisions undermining religious liberty. Many came to see independent thought as something exercised only by Protestants free from “papist” loyalties; as time went on, elites came to see it as something constantly threatened by the slightest favoritism toward any influential religious system or community by any institution vaguely “public.” As a consequence courts today seek, not just “separation of church and state” but transformation of American culture and society. This includes upending longstanding common law presumptions, in the name of an individual conscience radically separated from its social and religious context. A veritable judicial war on religious community has been waged ever since. It is to this conflict I turn in my third and final essay.
 Criticism on this subject is often frankly quite sloppy. See for example Patrick Henry, “’And I Don’t Care What It Is’: The Tradition-History of a Civil Religion,” Journal of the American Academy of Religion, Vol. 49, No. 1 (Mar., 1981), pp. 35-49, where Henry misquotes Eisenhower’s “famous/notorious remark” in charging Eisenhower with engaging in American Civil Religion.