Mark Tooley is terribly vexed. The Statement of Principles signed by national conservatives (including myself) ahead of the NatCon3 conference in Miami is deeply concerning to the president of the Institute on Religion and Democracy. Article 4 in particular, on “God and Public Religion,” is the focus of his suspicion in a recent essay over at Law & Liberty.
Tooley does not mind appreciation of the Bible as a pillar of Western civilization, nor integrating it into public-school curricula. To his credit, this distinguishes him from other right-liberals such as David French. But in Tooley’s view, in the latter half of Article 4, things go awry.
That portion of the Statement of Principles reads, in part,
Where a Christian majority exists, public life should be rooted in Christianity and its moral vision, which should be honored by the state and other institutions both public and private. At the same time, Jews and other religious minorities are to be protected in the observance of their own traditions, in the free governance of their communal institutions, and in all matters pertaining to the rearing and education of their children. Adult individuals should be protected from religious or ideological coercion in their private lives and in their homes.
Tooley wonders whether the national conservatives intend a Christian establishment. “What does it mean for ‘public life’ to be rooted in Christianity?” he asks. “What does it mean for the state to ‘honor’ Christianity?” And, by extension, he queries whether religious minorities would be subject to coercion. The answers to these questions are implied by the questioner: nothing good. The reader is meant to shudder.
In a Millian vein, Tooley warns that coercion, which presumably encompasses culturally cultivated social stigma, never works. As a good son of the Great Awakenings, he insists that only spontaneous revival will root the nation in transcendence. Any hint of state involvement therein, any governmental thumb on the scale, would be counterproductive, making religion forced, stale, or counterfeit. Best to not meddle as to not muddle.
Hypothetically, if national conservatives are “establishmentarians,” then we could call Tooley’s position “public atheism.” This is not to imply that Tooley or Christians like him—and there are many—are disingenuous or embarrassed by Christianity and the Bible. Rather, public atheism is a typical right-liberal posture akin to what used to be called practical atheism. Older Protestant theology maintained that sincere, full-throated denial of God’s existence was theologically impossible for anyone, the sensus divinitatis being a given per Romans 1 and 2. Yet people can suppress that inescapable knowledge and live as if God is dead. (Even then, as Nietzsche understood, people are not very good at it.)
Public atheism, for our purposes, is marked by suspicion of, and hostility to, whatever smells of formal, state-level recognition and privileging (i.e., honor) of Christianity over and against other faiths on offer. It decries “public Christianity” as an artificial limitation of the realm of possibility. It is, in a word, pluralism, insofar as it features a kind of religious market fundamentalism. For public atheists, free competition must be prioritized for two reasons: as a competition-based control against monopoly, and as an affirmation of the human faculty most valued by liberals generally, viz., unalloyed choice.
This is not a mere recognition of religious diversity on the ground, but a championing of pluralism as virtue. Usually, for public atheists, pluralism is coded as “religious liberty.” Specifically, a post-war, post-incorporation conception of the idea is in play. Within this paradigm, the state, the nation, must be neutral. Meaning that it must live as if there is no God, or at least in a way that no particular deity is prioritized to the discomfort of dissenters.
In defense of his position, Tooley appeals to the founding era for historical and, therefore, normative ammunition. A fine instinct, but the maneuver is largely superfluous in this case because Tooley discovers in the period only himself. In fact, the period, as it really was, would likely strike twenty-first century Americans as foreign.
In his narrative, Tooley distinguishes the United States from other nations by ascribing to it not mere “toleration”—the prerequisite of which is an established church—but “religious freedom for all.” To him, America has always been a pluralist and religious-liberty maximalist (and therefore publicly atheist) nation; ipso facto, national conservatives are an aberration, representing a departure from the nation’s history and character.
To demonstrate his claim, Tooley exhibits another good instinct: an appeal to state, as opposed to strictly national, activity in the early republic. This approach is correct because any assessment of the nation’s history must account for its federalist structure as a compound (not consolidated) republic in its original context wherein states served as the moral centers of the country (i.e., state police powers).
Still, his narrative is feeble in part because his source material is artificially limited to the usual suspects, viz., James Madison and Thomas Jefferson, and two Virginia documents: the Virginia Declaration of Rights (1776) and the Virginia Statute of Religious Freedom (1786). Unfortunately for Tooley, two founders and two documents do not American history make.
We will ignore at this juncture the colonial background which conditioned the resultant American nation and which, as John Adams instructed, should therefore condition our understanding of the same. Instead, we will proceed to other American source material of the antebellum period.
At the outset we should realize, as Tooley does, that the point of reference for any religious talk in the early republic was Christianity. This is true of the Virginia Statute, wherein the “Holy author” serves as shorthand for Jesus Christ, as Tooley knows. Even in Jefferson’s famous letter to the Danbury Baptists, the language is evidently limited by Christian understanding. Astute progressives too, like Justice John Paul Stevens, and even “woke” scholars like Khyati Joshi, understand this well, if begrudgingly.
The entire eighteenth-century socio-religious milieu was unquestionably and thoroughly Christian, and corresponding privilege was inevitable. When texts like the Northwest Ordinance (1787) or the Ohio Constitution (1803) reference “religion,” we know what they were up to. When the second president declared the Constitution fit only for a moral and religious people, what brand of morality and religion was he referring to? Simple: a “people who profess and call themselves Christians,” as his inaugural address put it—delivered the year after the Treaty of Tripoli, by the way. The same goes for Adams’s 1798 address to the militia of his home state. These things must be read in their native context.
More explicitly, we should offset Tooley’s Virginian supremacy by briefly surveying other states, which is always more revealing than the private correspondence of elites. Delaware’s 1776 constitution, for example, required public officials to profess faith in the Trinity and affirm divine inspiration of scripture, as did North Carolina. Georgia and New Hampshire limited officeholding to Protestants whilst reserving toleration for Christians generally. Pennsylvania required an affirmation of God’s existence and “a future state of reward and punishment.” As a class, New England states provided for public maintenance of Protestant parish ministers.
South Carolina was even more militant. First, the lower Carolinians expressed in 1776 an anxiety typical for the time: fear of Catholic encroachment on “free Protestant English settlements” via the Quebec Act, as Forrest McDonald noted, an admittedly conspiratorial catalyst for action, perhaps more so than the Stamp Act. Religious sectarianism was a key motivator for eighteenth-century Englishmen. Similarly, some founders, like the so-called “Last Puritan” Samuel Adams while defining the rights of colonists “as Christians” in 1772, excluded Catholics from tolerance for reasons of suspicion of insurrectionist tendencies.
And so, in 1778, South Carolina declared itself a tolerant state. Citizens “acknowledge that there is one God, and a future state of rewards and punishments, and that God is publicly to be worshipped, shall be freely tolerated,” the constitution read. But, as Tooley pointed out, toleration requires an establishment referent. Hence, “The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State.” Any Protestant denomination in South Carolina would “enjoy equal religious and civil privileges.” Professing Protestants alone were permitted to incorporate religious bodies.
At minimum, this data hampers any clean narrative of “religious liberty” triumphalism. If states besides Virginia championed broad Protestant establishments and a posture of toleration toward all other sects, then Tooley’s declaration to the contrary cannot be as comprehensive as he suggests. That is, it does not provide a sufficient characterization of the nation.
Sed contra, the picture painted by the history of the early republic is one of an ecumenical pan-Protestantism, the style of establishment varying from state to state, with a toleration of non-Protestant minority sects that were not demonstrably injurious to the peace, health, morals, security, and abundance of the nation. Even states without historically strong establishments, like New Jersey, typically limited civil participation to Protestants. The ubiquitous religious tests for office were informed by Reformational doctrinal standards.
To say that America, in its first decades, honored the majority Christian religion would be only half right. It more often honored a Protestant Christianity. Outliers like Maryland, famously governed by an aging colonial Catholic aristocracy, did not offer a real alternative. Knowing the state populace was primarily Protestant, Maryland’s framers opted for limiting religious liberty simply to the “Christian religion.” Only a non-denominational “general tax” for the faith was constitutionally acceptable. Non-Christian minorities were not considered in this regard. Among other things, these early constitutions provided the basis for Justice David Brewer’s contention in a 1905 lecture series that America was, indeed, a Christian nation.
In Whig historian fashion, Tooley would summarily dismiss the thoroughgoing establishments of Massachusetts or Connecticut—or the iron Quaker grip on Pennsylvania, for that matter—at the founding by dubbing their demise constitutionally foreordained. Of course, the U.S. Constitution did no such thing. As Justice Clarence Thomas has rightly clarified, the Establishment Clause is properly incapable of incorporation as a federalist amendment. The works of Philip Hamburger and Vincent Phillip Muñoz confirm much the same. That is, the clause was intended to protect colonial customs and norms from national government intervention; otherwise no one would have ratified the thing. The process of disestablishment was long and complicated. In the former Puritan colonies, the Great Awakenings and missteps by the Federalist Party owed more to the disintegration of the Standing Order than any constitutional measures.
Tooley wonders what weight, within the American tradition, religious majorities should be given. Historically, the national conservatism statement gets it right. As I have written elsewhere, the Anglo-American common law tradition has always recognized Christianity as integral to its system—Matthew Hale declared it part and parcel with the common law in Rex v. Taylor (1676)—but has also emphasized a majoritarian aspect to this analysis. The Supreme Court affirmed more than once “general” Christianity, or non-denominational Protestantism, as part of the common law. As a matter of social tranquility, then, public blasphemy against Christianity was outlawed, a rationale evident in cases throughout the nineteenth century such as People v. Ruggles (N.Y. 1811) and State v. Chandler (Del. 1837), among others.
To come full circle and answer Tooley’s first question: what would national, governmental honor of Christianity look like? The history recounted above notwithstanding, national conservatives are asking for considerably less than a national church, much less the Handmaid’s Tale-style forced-conversion dystopia our opponents indulgently imagine. Rather, a recovery of those vestiges of our Christian founding only recently jettisoned would be a start. Take two examples: blasphemy laws and Sabbath laws, to say nothing of public architecture, civil rituals, and school curriculum—the expressions of cultural Christianity.
The enthusiastic enforcement of both types of laws is not foreign to America, but fell out of style, rather late in our late-stage republic. Blasphemy laws already mentioned, we may proceed to brief consideration of the Lord’s Day. Vermont, to take one example, codified observance of the Sabbath in 1793. Blue laws were ubiquitous in early America. Protection of Christian practice and the “morals and health of the community,” as one court put it in 1878, by enforced cessation of the worship of Mammon on Sunday, endured up through the twentieth century. Economic and cultural recognition of Christian living should be unobjectionable to a Christian majority, to say the least. Would such honor of what is even now the predominant faith really be too “coercive,” too establishmentarian for public atheists to stomach? It has not been so for most Americans in history.
Not to be overlooked is Tooley’s attempt to root his aversion to coercion (state and social) in Christian anthropology. A rebuttal can be easily formed on the same basis. National conservatives cling to the pre-modern view that man is, by nature, both religious and social. Both horizontally and vertically, so to speak, he is not alone. No hypothetical radical autonomy exists, nor would it be desirable (Genesis 2:18). All coherent societies are always and everywhere centered on shared religion. It is simply a question of which operative orthodoxy is in play. It is only natural, then, that a society’s underlying morality take shape not only in law but through symbols that render social being, as Henrich Rommen called it, visible.
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Everything from national anthems to flags to civic buildings to memorials express a “moral and spiritual content.” Whatever is so honored is what constitutes the proposed “moral bond,” the unitas ordinis, of the community. That the visible expressions of our national bond are still basically, like our populace, Christian is evident from the sheer fact that malcontents want to demolish them. We are engaged, as ever, in a battle over the national object of moral honor. Tooley prefers a neutral approach in this regard, a publicly atheist approach. National conservatives are tired of that defensive crouch and assert a historically and anthropologically positive vision of the national moral bond according to history, metaphysics, and justice. For social justice to the Creator and only just Law Giver is due before it can be afforded to men.
The liberty of conscience cannot, in fact or theory, be violated. We cannot pretend to peer into men’s souls. No one is advocating a persecution of thought crimes. But the inescapable formal and informal public preference for a particular religion in law and memorial does not amount to forced conversion. National conservatives believe that public life should be formative (not passive) of public virtue. If Christianity and the Bible do not fuel that formation something else will (and lately has).
In 1663 John Davenport, the founder of New Haven, observed that the fact of establishment “seems to be a Principle imprinted in the mindes and hearts of all men in the equity of it, That such a Form of Government as best serveth to Establish their Religion, should by the consent of all be Established in the Civil State.” If this was the case in England, Holland, and Turkey, why would it not be so in New England vis a vis Christianity? Further, why would a Christian people not desire it? And so it was in America generally in the antebellum period. Historically and anthropologically, it is not the national conservatives, but right-liberals who are out of step. Article 4 of the Statement of Principles should not vex a Christian patriot. It is thoroughly, historically American. John Jay, in Federalist No. 2, identified shared religion as an indispensable ingredient for a coherent nation. The national conservatives are simply following suit.