Christianity and Liberalism before the Fall

Nathan Chapman (Georgia) has posted a very interesting new paper on SSRN, Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause. His paper relates to a specific, historical example of federal funding for religious schools, but has implications for much broader Establishment Clause issues as well.

Chapman explains that, for much of the 19th Century, the federal government gave significant financial support to Christian missionary schools that educated Native Americans. Even more: virtually no one saw the financial support of these schools as an Establishment Clause problem. Evidently, Americans at the time–or at least the elites whose opinions mattered–did not perceive public support for instruction in Christian morality as a constitutional issue. That is so, Chapman argues, because elites at the time did not perceive basic Christian morality as sectarian and threatening in the way their counterparts do today. Borrowing from sociologist Charles Taylor, Chapman writes that “elite white Americans shared a ‘social imaginary’—or social paradigm—of ‘civilization’ that merged education, republicanism, and at least a modicum of Christianity.”

This is an extremely important insight for understanding American culture, and, therefore, American law. Historically, Americans have seen Christianity, especially its Protestant iteration, as consistent with liberalism and progress. Writing in the 1830s, Tocqueville observed that in the Old World, everyone understood that Christianity and liberty were rivals; but Americans had so completely run the two together in their minds that it was impossible for them to conceive of the one without the other. The conflict between Christianity and liberty that informs today’s culture wars simply did not exist for most of our history. As a consequence, the issues that preoccupy us today had little salience.

Of course, things are very different now. Maybe something went wrong, or maybe, as Patrick Deneen argues, the conflict was always there, waiting to hatch out. Anyhow, American elites today, especially legal elites, do not see Christianity and liberty as natural allies. This makes “translating” (Chapman’s term) the nineteenth-century practice into contemporary constitutional law rather tricky–even assuming translation is appropriate. The Establishment Clause was fashioned in a very different culture from our own, one that assumed a harmonious relationship between revelation and reason and that little relied on law to mediate conflicts between them. That is no longer the case, and the implications for our law have yet to be worked out.

Around the Web

Here are some important law-and-religion news stories from around the web:

Review of Weiner’s “The Political Constitution”

I have a review of Professor Greg Weiner book, The Political Constitution: The Case Against Judicial Supremacy, over at the Liberty Fund blog. A bit:

The book’s basic argument is that contemporary Americans have lost the sense in which the Constitution is fundamentally a “political” document, by which Weiner means a vehicle for “pursuing human goods through interdependent lives” with “openness to shared ideas of noble ends pursued with common purpose.” The Constitution, he says, embodies a certain kind of politics—republicanism—in which authority is vested in the people, working through their representatives, to take primary responsibility for the “res” of the “res publica” in the pursuit of the “ends we share.” Weiner contrasts this vision with one of individualist constitutionalism, in which all valid political ends are derived from the private choices of individuals, and which is not really a form of politics at all—an “anti-political” (as Weiner puts it) politics of rights maximization without concomitant social responsibilities.

These two models of constitutional politics (or politics and “anti-politics”) correspond, Weiner claims, to two views of the nature and scope of federal judicial power in America: judicial restraint and judicial engagement. Judicial restraint, in Weiner’s view, empowers the people to reclaim what is rightfully theirs as republican citizens from a judiciary that has usurped their sovereignty and enervated their capacity for self-governance in declaring itself the supreme expositor of the Constitution. Judicial engagement—which Weiner associates especially with the work of Professor Randy Barnett and the Cato Institute’s Clark Neily and Roger Pilon, but there are several distinguished scholars in this camp—empowers the judiciary to guard individual liberty against the perpetual encroachments of the government’s other branches while itself perpetually encroaching on the claims of the people qua political entity.

One view favors the claims of the political community as against the individual, asking judges to acquiesce in them; the other, the claims of the individual as against the political community, asking judges to vindicate them. Yet while the cost in abandoning the former may only be the loss of some implausible claims of individual freedom, the cost in forsaking the latter, Weiner says, is nothing less than the American republican soul…. 

The problem that the book sets out to solve is therefore dwarfed by the problem that it actually uncovers. If that problem—the problem of the endurance of “We the People” in America—is to be engaged (I say nothing of solved) from the judicial end of the table in a satisfactory way, it will not be through judicial disengagement and leaving the people to their own devices, as ill-considered and noxious as they may be. It will instead be at least in part by asking courts—carefully and always honoring the limits assigned to them by the Constitution—to engage with American constitutional law in ways that differ substantively from the partisans of “judicial engagement” whom Weiner criticizes.