The Disintegrating Conscience

Perhaps this notice comes slightly early, but I had the pleasure of reading Professor Steven Smith’s new book, The Disintegrating Conscience and the Decline of Modernity (University of Notre Dame Press), in its pre-publication draft, and I was delighted to offer this book blurb about it: “Steven Smith is the greatest law and religion scholar of his generation. Every book he writes is illuminating, and this one is no exception. The Disintegrating Conscience and the Decline of Modernity is far and away the most insightful, balanced, and convincing account of the religion clauses to appear in the last five years at least.” Here is the description:

Steven D. Smith’s books are always anticipated with great interest by scholars, jurists, and citizens who see his work on foundational questions surrounding law and religion as shaping the debate in profound ways. Now, in The Disintegrating Conscience and the Decline of Modernity, Smith takes as his starting point Jacques Barzun’s provocative assertion that “the modern era” is coming to an end. Smith considers the question of decline by focusing on a single theme—conscience—that has been central to much of what has happened in Western politics, law, and religion over the past half-millennium. Rather than attempting to follow that theme step-by-step through five hundred years, the book adopts an episodic and dramatic approach by focusing on three main figures and particularly portentous episodes: first, Thomas More’s execution for his conscientious refusal to take an oath mandated by Henry VIII; second, James Madison’s contribution to Virginia law in removing the proposed requirement of religious toleration in favor of freedom of conscience; and, third, William Brennan’s pledge to separate his religious faith from his performance as a Supreme Court justice. These three episodes, Smith suggests, reflect in microcosm decisive turning points at which Western civilization changed from what it had been in premodern times to what it is today. A commitment to conscience, Smith argues, has been a central and in some ways defining feature of modern Western civilization, and yet in a crucial sense conscience in the time of Brennan and today has come to mean almost the opposite of what it meant to Thomas More. By scrutinizing these men and episodes, the book seeks to illuminate subtle but transformative changes in the commitment to conscience—changes that helped to bring Thomas More’s world to an end and that may also be contributing to the disintegration of (per Barzun) “the modern era.”

Law Like Love?

It may seem a little strange to say it this way, given the fact that Christianity has been dealing with the subject for 2000 years, but lately the global legal academy has begun to show interest in Christian jurisprudence. Marc has written a couple of posts about the phenomenon, and our latest Legal Spirits podcast discusses it as well–specifically, what Marc has taken to calling the “Australian School.” Here is a new, interesting-looking collection of essays on Christian jurisprudence from Routledge, Christianity, Ethics, and the Law: The Concept of Love in Christian Legal Thought, edited by Zachary Calo (Hamad bin Khalifa University, Qatar), Joshua Neoh (Australian National University), and A. Keith Thompson (University of Notre Dame, Australia). The Australian School seems very much in evidence. The essays focus on how the central Christian virtue of love can influence law and legal philosophy:

This book examines how Christian love can inform legal thought. The work introduces love as a way to advance the emergent conversation between constructive theology and jurisprudence that will also inform conversations in philosophy and political theory.

Love is the central category for Christian ethical understanding. Yet, the growing field of law and religion, and relatedly law and theology, rarely addresses how love can shape our understanding of law. This reflects, in part, a common assumption that law and love stand in necessary tension. Love applies to the private and the personal. Law, by contrast, applies to the public and the political, realms governed by power. It is thus a mistake to envisage love as having anything but a negative relationship to law. This conclusion continues to govern Christian understandings of the meaning and vocation of law. The animating idea of this volume is that the concept of love can and should inform Christian legal thought. The project approaches this task from the perspective of both historical and constructive theology. Various contributions examine how such thinkers as Augustine, Aquinas, and Calvin utilised love in their legal thought. These essays highlight often neglected aspects of the Christian tradition. Other contributions examine Christian love in light of contemporary legal topics including civility, forgiveness, and secularism. Love, the book proposes, not only matters for law but can transform the terms on which Christians understand and engage it.

The book will be of interest to academics and researchers working in the areas of legal theory; law and religion; law and philosophy; legal history; theology and religious studies; and political theory.

The Establishment Clause in History and Today

It is not especially controversial to observe that the Supreme Court is charting what some might claim are new directions in its Establishment Clause jurisprudence. Some others might say, though, that the new directions are actually ones that have long been charted, but were discarded by the Court in favor of other views its late 20th century doctrine. What’s new, on this view, is old.

In 2003, Professor Michael McConnell, then a judge on the U.S. Court of Appeals for the 10th Circuit, wrote what to my mind was one of the best articles about the meaning and scope of the Establishment Clause in American constitutional history, the colossal Establishment and Disestablishment at the Founding, Part I: Disestablishment of Religion. In the piece, Professor McConnell described systematically various categories of activity or behavior that were understood historically to be establishments of religion. McConnell’s focus on varieties of conduct or practice was deeply influential on my own view not only about the meaning of this Clause, but also on the nature of constitutional interpretation in general. But “Part II,” which seemed to be promised in the article’s title, never came. Years passed and it seemed that the project of completing the next installment was abandoned.

At long last, it looks like “Part II” has arrived, in the form of a new book by McConnell and Professor Nathan Chapman: Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience (Oxford University Press). The book looks like it contains two principal parts: historical and normative. It will be of great interest to anybody who studies and thinks about this area of law. For me, it will be especially interesting to see how the authors theorize the connection between the historical and the normative pieces of the book (incidentally, both Michael and Nathan are good friends of ours and longtime contributors to Center projects and programs–Michael keynoted our first Tradition Project conference and Nathan was recently here to present his work at our Colloquium in Law and Religion…warm congratulations to them both!).

The Establishment Clause of the First Amendment, “Congress shall make no law respecting an establishment of religion”, may be the most contentious and misunderstood provision of the entire U.S. Constitution. It lies at the heart of America’s culture wars. But what, exactly, is an “establishment of religion”? And what is a law “respecting” it?

Many commentators reduce the clause to “the separation of church and state.” This implies that church and state are at odds, that the public sphere must be secular, and that the Establishment Clause is in tension with the Free Exercise of Religion Clause. All of these implications misconstrue the Establishment Clause’s original purpose and enduring value for a religiously pluralistic society. The clause facilitates religious diversity and guarantees equality of religious freedom by prohibiting the government from coercing or inducing citizens to change their religious beliefs and practices.

In Agreeing to Disagree, Nathan S. Chapman and Michael W. McConnell detail the theological, political, and philosophical underpinnings of the Establishment Clause, state disestablishment, and the disestablishment norms applied to the states by the Fourteenth Amendment. Americans in the early Republic were intimately acquainted with the laws used in England, the colonies, and early states to enforce religious uniformity. The Establishment Clause was understood to prohibit the government from incentivizing such uniformity. Chapman and McConnell show how the U.S. Supreme Court has largely implemented these purposes in cases addressing prayer in school, state funding of religious schools, religious symbols on public property, and limits on religious accommodations. In one of the most thorough accounts of the Establishment Clause, Chapman and McConnell argue that the clause is best understood as a constitutional commitment for Americans to agree to disagree about matters of faith.

A New History of the Reformation

This new collection of essays from Oxford on the Protestant Reformation looks very interesting: The Oxford History of the Reformation. The editor is historian Peter Marshall (Warwick). The blurb from Oxford credits the Reformation for creating the pluralist world in which we live. That might be a bit of an overstatement. As Harold Berman and others showed, pluralism has been a big part of Western culture from at least the High Middle Ages. But there’s no denying, as the blub says, that the Reformation transformed pluralism into something even the Reformers didn’t expect. Here’s the description from the Oxford website:

The Reformation was a seismic event in history whose consequences are still unfolding in Europe and across the world.

Martin Luther’s protests against the marketing of indulgences in 1517 were part of a long-standing pattern of calls for reform in the Christian Church. But they rapidly took a radical and unexpected turn, engulfing first Germany, and then Europe, in furious arguments about how God’s will was to be ‘saved’.

However, these debates did not remain confined to a narrow sphere of theology. They came to reshape politics and international relations; social, cultural, and artistic developments; relations between the sexes; and the patterns and performances of everyday life. They were also the stimulus for Christianity’s transformation into a truly global religion, as agents of the Roman Catholic Church sought to compensate for losses in Europe with new conversions in Asia and the Americas.

Covering both Protestant and Catholic reform movements, in Europe and across the wider world, this compact volume tells the story of the Reformation from its immediate, explosive beginnings, through to its profound longer-term consequences and legacy for the modern world. The story is not one of an inevitable triumph of liberty over oppression, enlightenment over ignorance. Rather, it tells how a multitude of rival groups and individuals, with or without the support of political power, strove after visions of ‘reform’. And how, in spite of themselves, they laid the foundations for the plural and conflicted world we now inhabit.

Call for Papers: Multidisciplinary Digital Publishing Institute

The Multidisciplinary Digital Publishing Institute is requesting submissions for its Special Issue, “Civic Engagement, Justice, and Legal Considerations in a National and International Context”:

  • Paper Topic: Papers should discuss the “civic engagement” movement by addressing how power, justice, and the law overlap. Relevant questions to address include:
    • To what end or purpose are higher education institutions encouraging students to engage?
    • Who are the gatekeepers at different institutions?
    • More questions are available on the website.
  • Paper Proposal: Manuscripts may be submitted by September 15, 2023
  • Paper Submission: Research articles, review articles, and short communications are invited. Submitted manuscripts should not have been published previously, nor be under consideration for publication elsewhere (except conference proceedings papers). Manuscripts should be submitted online at by registering and logging in to this website. Once you are registered, click here to go to the submission form.
  • Accepted Papers: After passing pre-check and a double-blind peer-review, accepted papers will be published continuously in the journal (as soon as accepted) and will be listed together on the special issue website.  

Student Writing Competition: The Program on Church, State & Society at Notre Dame Law School

The Program on Church, State & Society at Notre Dame Law School has announced a writing competition for law students focused on scholarship related to the intersection of church, state & society, and in particular, how the law structures and governs that intersection.

Papers should be focused broadly on topics related to church, state & society. Papers must be between 9,000-13,000 words, including footnotes and/or endnotes. Papers should be double-spaced and use Bluebook citation rules. Papers must be submitted by March 1st, 2023.

First Place, $3,000 cash award; Second Place, $2,000 cash award; Third Place, $1,000 cash award; Honorable Mention awards of $500.

For more information, please visit the competition’s website.

Unire l’utile al dilettevole

In the academy today, there are powerful forces that aim to dismantle and discard traditional sources of knowledge, and that reject the merit of gaining that knowledge, replacing it with other objectives. The motives are many, but it is possible to discern a reason that many of the disparate motives share: knowledge (and its acquisition and dissemination) is not, or not necessarily, an essential human good. It is not necessarily a human good, for example, if and when it conflicts with what are felt to be other, more important, ends.

Even among those who believe that the acquisition and production of traditional knowledge is good, there are further disagreements. Is such knowledge good because it is useful for some further purpose or end? For the exercise of power over others, for example, or for bending other people to one’s will, or even simply for the provision of material necessities? Or is it good because it is, as some contemporary defenders of the traditional liberal arts put it, “useless”–an end in itself, a good in itself that needs no, and, indeed, can have no further justification? Or some combination of these?

Disagreements about the good of knowledge–whether it is good at all, and what it is good for, if anything, beyond itself–are not uniquely modern (though the motives driving some of the trending policies in academia today do seem, to me at any rate, to be distinctive). The old Italian phrase, “unire l’utile al dilettevole,” which means to unite what is useful with what delights, reflects one interesting position. Namely, that the good of knowledge is comprehensively manifested in the coming together of utility and pleasure or delight.

Here is a book–admittedly in one of the more distant galaxies of the law-and-religion universe–that offers what looks like a wonderful perspective on the good-of-knowledge question reflecting, in certain ways, the point of view in the Italian adage: Why Does Math Work If It’s Not Real? (Cambridge University Press) by Dragan Radulović. The thesis of the book concerns the distinction between “pure” and “applied” mathematics, and it seems to be (if one can surmise from the description) that what in one generation or century seems entirely “pure,” or useless, or delightful for its own sake, can become, in the distant future and entirely unexpectedly, “useful.” So that the union of the useful and the delightful really should be evaluated across extended periods of time–perhaps centuries or even millennia–because it is unfathomable when confronting the good of knowledge at any given moment or point in time, especially the point in time in which the knowledge is acquired or comes to be known.

According to G. H. Hardy, the ‘real’ mathematics of the greats like Fermat and Euler is ‘useless,’ and thus the work of mathematicians should not be judged on its applicability to real-world problems. Yet, mysteriously, much of mathematics used in modern science and technology was derived from this ‘useless’ mathematics. Mobile phone technology is based on trig functions, which were invented centuries ago. Newton observed that the Earth’s orbit is an ellipse, a curve discovered by ancient Greeks in their futile attempt to double the cube. It is like some magic hand had guided the ancient mathematicians so their formulas were perfectly fitted for the sophisticated technology of today. Using anecdotes and witty storytelling, this book explores that mystery. Through a series of fascinating stories of mathematical effectiveness, including Planck’s discovery of quanta, mathematically curious readers will get a sense of how mathematicians develop their concepts.

Tocqueville’s Travels

The nineteenth-century French aristocrat, Alexis de Tocqueville, is perhaps the most perceptive traveler ever to visit the United States. His observations on American culture, law, and politics–including the relationship between church and state–remain instructive today. (One marvels at his keen insights into the relationship between democracy and religion, and his prediction that a society devoted to equality would ultimately fix upon pantheism, which blurs the distinction between God and Creation itself). It turns out that Tocqueville traveled quite a bit outside the US as well. An interesting new book by political philosopher Jeremy Jennings (King’s College London), Travels with Tocqueville Beyond America, recounts these journeys. Here’s the description from the publisher (Harvard University Press):

A revelatory intellectual biography of Tocqueville, told through his wide-ranging travels—most of them, aside from his journey to America, barely known.

It might be the most famous journey in the history of political thought: in 1831, Alexis de Tocqueville sailed from France to the United States, spent nine months touring and observing the political culture of the fledgling republic, and produced the classic Democracy in America.

But the United States was just one of the many places documented by the inveterate traveler. Jeremy Jennings follows Tocqueville’s voyages—by sailing ship, stagecoach, horseback, train, and foot—across Europe, North Africa, and of course North America. Along the way, Jennings reveals underappreciated aspects of Tocqueville’s character and sheds new light on the depth and range of his political and cultural commentary.

Despite recurrent ill health and ever-growing political responsibilities, Tocqueville never stopped moving or learning. He wanted to understand what made political communities tick, what elite and popular mores they rested on, and how they were adjusting to rapid social and economic change—the rise of democracy and the Industrial Revolution, to be sure, but also the expansion of empire and the emergence of socialism. He lauded the orderly, Catholic-dominated society of Quebec; presciently diagnosed the boisterous but dangerously chauvinistic politics of Germany; considered England the freest and most unequal place on Earth; deplored the poverty he saw in Ireland; and championed French colonial settlement in Algeria.

Drawing on correspondence, published writings, speeches, and the recollections of contemporaries, Travels with Tocqueville Beyond America is a panoramic combination of biography, history, and political theory that fully reflects the complex, restless mind at its center.

What Binds Us?

In 1973, the distinguished political theorist, Wilson Carey McWilliams, first published perhaps his best-known work, The Idea of Fraternity in America. The book might be broadly placed within what was then the growing family of communitarian accounts of American culture. It distinguished two strains of thought and feeling in the United States, the religious and the liberal. The religious was represented in such literary figures as Hawthorne, Melville, Henry Adams, and James Baldwin, while the liberal had its literary spokesmen in the likes of Emerson and Whitman (to complement its political spokesmen in Madison and Hamilton). The project of The Idea of Fraternity was to investigate these two traditions of thought, but especially the first, the tradition that emphasizes affection, fellow-feeling (I’ve often thought that Charles Dickens, though of course not American, makes this a central theme of his novels), duty to others, and brotherhood. To oversimplify a great deal, McWilliams’ view was that liberty and equality were having their way in his time, while the tradition of fraternity was eroding, as the common civic American culture–the bonds of affection (as Lincoln put it)–steadily diminished. This latter tradition, McWilliams called “America’s Second Voice,” and in his view it was vital to sustain the American project.

McWilliams’ ideas are visible and vital today in many places. His broader train of thought can be seen as something of a precursor to the flowering of so-called post-liberalism today, as in, for example, the work of his student and Center collaborator and friend, Patrick Deneen. But it also appears in more mundane and less expected areas. One of the first concepts we begin with in Tort law is “duty.” What do we owe to each other, and what in turn binds us as a political and legal community? It is an urgent question and instructive also that many of the most prominent tort scholars in the 20th century deemphasized or even attempted to eliminate duty as a feature of the law.

This year, on the 50th anniversary of the original publication of the book, The University of Notre Dame Press publishes a new edition of The Idea of Fraternity in America. I am looking forward to investing some time with it. Here is the description.

The United States is currently experiencing a crisis of citizenship and democracy. For many of us, there is a sense of forlornness caused by losing sight of human connectedness and the bonds of community. Originally published in 1973, and long out of print, The Idea of Fraternity in America is a resonant call to reclaim and restore the communal bonds of democracy by one of the most important political theorists of the twentieth century, Wilson Carey McWilliams.

This sprawling and majestic book offers a comprehensive and original interpretation of the whole range of American historical and political thought, from seventeenth-century White Puritanism to twentieth-century Black American political thought. In one sense, it is a long and sustained reflection on the American political tradition, with side glances at other cultures and other traditions; in another sense, it is an impressive beginning to an original and comprehensive theory of politics, rooted in a new reading of a vast array of relevant sources. Speaking with a prescience unmatched by his contemporaries, McWilliams argues that in order to address the malaise of our modern democracy we must return to an ideal of our past: fraternity, a relation of affection founded on shared values and goals. This 50th anniversary edition, which offers a critique of the liberal tradition and a new social philosophy for the future, contains a new introduction from McWilliams’s daughter, Susan McWilliams Barndt. She writes, “At a time when many Americans are wondering how we got to where we are today . . . this book demonstrates that there is in fact a lot of precedent for what feels so unprecedented in contemporary American politics.”


This new book from Oxford University Press on the rise of the religiously unaffiliated is getting some attention: Nonverts: The Making of Ex-Christian America by sociologist Stephen Bullivant (St. Mary’s University, London and University of Notre Dame, Sydney). I just received my copy in the mail and am looking forward to reading it. The rise of the religiously unaffiliated has implications for American culture generally and for free exercise law in particular. Understanding the phenomenon is essential. Here’s the publisher’s description:

The United States is in the midst of a religious revolution. Or, perhaps it is better to say a non-religious revolution. Around a quarter of US adults now say they have no religion. The great majority of these religious “nones” also say that they used to belong to a religion but no longer do. These are the nonverts: think “converts,” but from having religion to having none. There are currently has about 59 million of them in the United States.

Nonverts explores who they are, and why they joined the rising tide of the ex-religious. One of world’s leading experts on contemporary atheism and nonreligiosity, sociologist and theologian Stephen Bullivant draws on dozens of interviews, original analysis of high-quality survey data, and a wealth of cutting-edge studies, to present an entertaining and insightful exploration of America’s ex-religious landscape. Bullivant criss-crosses the country, talking to everyone from ex-Mormons in Utah to ex-Catholics in Pennsylvania, from ex-Evangelicals in Georgia to ex-Muslims in California, showing not only what they have in common but also how the traditions they left behind continue to shape them.

While American religion is not going to die out any time soon, ex-Christian America is a growing presence in national life. America’s religious revolution is not just a religious revolution–it is catalyzing a profound social, cultural, moral, and political impact. Nonverts will serve as an indispensable guide to this shifting landscape, as well as the future of American life.