Constitution as Civil Religion

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CONSTITUTION AS CIVIL RELIGION

That there exist similarities between religious devotion and esteem for the Constitution of the United States is scarcely a new notion. james madison wrote in 1792 that our fundamental charter should be the object of "more than common reverence for authority," treated indeed as "political scriptures" protected against "every attempt to add to or diminish them." Conversely, but in the same terms, Madison's great friend and colleague thomas jefferson complained in 1816 about the propensity of Americans to "look at constitutions with sanctimonious reverence and deem them like the ark of covenant, too sacred to be touched." By 1885 the young scholar woodrow wilson could write in his classic Congressional Government of the "almost blind worship" directed at the Constitution's principles.

Perhaps the most important scholarly formulation of the role played by the Constitution within what later scholars would come to call the American civil religion was Max Lerner's 1937 article "Constitution and Court as Symbols." Influenced by Justice oliver wendell holmes, jr. 's famous assertion that "we live by symbols" and by the contemporary political-anthropological analysis of thurman arnold, Lerner emphasized the "totem[ic]" aspect of the Constitution "as an instrument for controlling unknown forces in a hostile universe." It was no coincidence with Lerner that an American culture so influenced by Protestant Christianity would fix on the Constitution: "The very habits of mind begotten by an authoritarian Bible and a religion of submission to a higher power have been carried over to an authoritarian Constitution and a philosophy of submission to a higher law." The United States, whatever the prohibition of the first amendment on an establishment of religion, "ends by getting a state church after all, although in a secular form."

The very title of Lerner's article points to the dual aspect of this purported state church: there is not only an authoritative text but also an equally authoritative institution that can give privileged interpretations of that text. That institution, of course, is the Supreme Court. No less a skeptic than henry adams confessed that "he still clung to the Supreme Court, much as a churchman clings to his bishops, because they are his only symbol of unity; his last rage of Right." Even the more scholarly Alpheus Mason suggested that the marble palace of the Supreme Court constituted our "Holy of Holies."

It is, then, easy enough to show that religious language and metaphors come readily to analysts of the Constitution. And it is also easy enough to agree with contemporary scholars like Robert Bellah that all societies, very much including our own, amass a variety of myths, symbols, narratives, and rituals that can be brought together under the rubric of "civil religion." But one may still wonder about such concepts, especially when applied quite specifically to suggest that an understanding of American constitutionalism is enhanced by placing it within the analogical context of religion. What, then, is genuinely learned by reference to Constitution "worship" or comparing the Supreme Court to the Vatican?

For almost all the persons mentioned and many others besides, the lesson has to do with the central role of the Constitution, as declared by the Court, in providing the basis of national unity. A striving for sources of unity is especially important in what Justice thurgood marshall aptly described in Gillette v. United States (1971) as "a Nation of enormous heterogeneity in respect of political views, moral codes, and religious persuasions." The Constitution overcomes such heterogeneity by offering the individual membership in what one nineteenth-century analyst termed a "covenanting community." From this perspective, it is the Constitution that provides the political basis of the "unum" that overcomes the "pluribus" of American civil society.

One way of achieving this ostensible unity is by explicitly asking (or demanding) that the citizenry pledge commitment to it. The Constitution itself, in Article VI, even as it prohibits religious tests for public office, formally requires all public officials to take an oath recognizing the supremacy of the Constitution over alternate sources of political authority. Such oaths are scarcely meaningless. Thus, Justice william j. brennan, when asked if he had "ever had difficulty dealing with [his] own religious beliefs in terms of cases," responded by pointing to the oath he had taken upon appointment to the Court in 1956 as having "settled in my mind that I had an obligation under the Constitution which could not be influenced by any of my religious principles.… To the extent that [any duty of a Roman Catholic] conflicts with what I think the Constitution means or requires, then my religious beliefs have to give way."

Not only public officials must take oaths of allegiance to the Constitution: nationalized citizens since 1790 have been required to take an oath of allegiance not simply to the United States but to the Constitution. The United States has been rent by recurrent controversy over the propriety of loyalty oaths as a means both of achieving unity and of identifying those who, by their unwillingness to subscribe to such oaths, are insufficiently integrated into the civil faith.

Although analyzing the Constitution in terms of American civil religion is suggested here, the emphasis on the Constitution as the basis of unity has limits. No doubt there is some validity to this notion, but its adherents often overlook the extent to which shared belief in the abstract idea of the Constitution may often generate significant political conflict, including civil war. Just as the history of traditional religion is replete with actual, often extremely bitter, conflict even among persons purporting to share a common faith, so does the history of constitutional faith present a far more complex picture than the conventional focus on unity would suggest. The notion of the Constitution as the focus of attention in an American civil religion may have more ominous implications than are suggested by an analysis that sees only unity as the outcome of such attention.

Indeed, there are direct analogies between the cleavages observed within traditional religious communities and those seen within the American constitutional community. Two questions common to law and religion seem especially important. First, what constitutes the body of materials that counts as authoritative teachings for the community organized as a faith community? Within traditional religion, this question can take the form of debates about "canonical" texts, for example. But a recurrent struggle, seen vividly, in the history of Western Christianity, concerns the propriety of viewing as authoritative only the materials within a closed body of canonical texts. Counter to such a textual, or scriptural, understanding would be one emphasizing as well the authority of traditions derived from sources other than these canonical texts. From an early time the Catholic church invoked the propriety of its own teachings as a supplement to the teachings of the Bible. That propriety, of course, was specifically challenged by those Protestant reformers who took "Only the Scriptures" as their cry and rejected all nonscriptural teachings as totally without authority.

The second question common to law and religion centers on the need for an institutional structure that can authoritatively resolve disputes. Against the claims of the particular institutional authority of the Vatican, Protestants asserted a "priesthood of all believers" that could come to its own conclusions about the meaning of scripture. The more radical Protestant sects were often accused, not unfairly, of being anarchic in their implications. These are obviously oversimplified "ideal typical" evocations of Catholicism and Protestantism (which have their analogues within Judaism and Islam as well). Nonetheless, how might they help to illuminate the role played by the Constitution within the overall structure of American political culture?

What constitutes the Constitution? Is it composed only of the particular words of the canonical text associated with the outcome of the constitutional convention of 1787, as amended thereafter, or does it also include "unwritten" materials that are equally authoritative? Second, does there exist a particular institution whose interpretations of the Constitution (however defined) are treated as authoritative? Both of these questions allow divergent responses, each of them with their Protestant and Catholic analogues.

As to the first dimension, it is almost certainly true that an important strain of American constitutionalism is Protestant inasmuch as it emphasizes, like Chief Justice john marshall in marbury v. madison (1803), a "reverence" for written constitutions, with the linked suggestion that the Constitution consists only of what is written down. Perhaps the most important twentieth-century judicial explicator of this strain was Justice hugo l. black, who began his book A Constitutional Faith (1968) by stating, "It is of paramount importance to me that our country has a written constitution." More recent adherents include former Attorney General Edwin Meese and robert h. bork, whose defeat for a seat on the Supreme Court can be explained in part by his antagonism to the legitimacy of any notion of an unwritten constitution on which judges could draw equally with the written one.

The competing view, emphasizing a more Catholic, unwritten dimension to the Constitution, goes back at least as far as Marbury. Indeed, Justice samuel chase made free reference to "certain vital principles in our free Republican government" that would "overrule an apparent and flagrant abuse of legislative power" even if not explicitly expressed. Many other Justices, including Chief Justice Marshall himself in fletcher v. peck (1810), have expressed similar sentiments.

The most important modern Justice in this tradition is almost certainly john marshall harlan, who joined in an epic debate with Justice Black in the 1965 decision griswold v. connecticut, in which the Court invalidated a Connecticut birth control law on the grounds that it violated the right of privacy. Justice Black dissented. He could "find in the Constitution no language which either specifically or implicitly grants to all individuals a constitutional "right to privacy." Though he "like[d] my privacy as well as the next person," he refused to find it protected against state interference. For Black, evocation of an unwritten aspect of the Constitution threatened a return to the discredited jurisprudence of lochner v. new york (1905) and its endorsement of a nontextual freedom of contract. Harlan, however, joined in striking down the Connecticut law and endorsed the necessity when interpreting due process of law to look at "what history teaches are the traditions from [this country] developed as well as the traditions from which it broke. That tradition is a living thing." A central fault line of debate within the Supreme Court can thus be understood as pitting "Protestants," who emphasize a solely textual Constitution, against "Catholics," who look to unwritten tradition as well.

The second dimension of the Protestant-Catholic distinction—that concerning institutional authority—does not so much explain debate within the Supreme Court as it does the fundamental debate about the primacy of the Court as an expositor of the meaning of the Constitution. The Court has several times in the modern era, most notably in the 1958 Little Rock school case cooper v. aaron, interpreted Marbury to stand for the proposition that it is the "ultimate interpreter" of the Constitution. Justice Black, however Protestant his theory of the Constitution, was thoroughly Catholic in his embrace of the ultimate authority of the Supreme Court as constitutional interpreter.

Not surprisingly, it has usually been nonjudges who have proclaimed the merits of a more Protestant understanding of judicial authority. A classic account was given by President andrew jackson in his 1832 message (written by roger brooke taney) vetoing on constitutional grounds the renewal of the charter of the bank of the united states. He dismissed Marshall's opinion in mcculloch v. maryland (1819), which upheld the constitutionality of the bank, stating that the "authority" of the Supreme Court opinions was restricted only to "such influence as the force of their reasoning may deserve." abraham lincoln, when running against stephen a. douglas for the Senate in 1858, took a similar stance in regard to the infamous dred scott v. sandford decision of the previous year. More recently, former Attorney General Meese provoked significant controversy when he criticized judicial supremacy and called for recognizing the primacy of the Constitution as against the decisions of the Supreme Court. Meese was castigated by many who not only defended the role of the Court as "ultimate interpreter" but also pronounced Meese's views as having dangerously anarchic tendencies.

To the extent that one accepts a reading of traditional religion as providing a base for disruption and fragmentation as well as unity, one should be prepared to accept the suggestion that the Constitution-oriented civil religion will have similar aspects and tendencies. In particular, the debates about the sources underlying legitimate decision making and about institutional authority to give privileged interpretations are likely to last at least as long as the schism between the Roman Catholic church and Protestant sects, however much the proponents of any given view would like to bring the debate to an end through surrender by the other side.

Finally, one should note that some critics have condemned the notion of civil religion not so much on empirical grounds—they often concede the existence of the phenomenon analyzed by Bellah, Lerner, and others—but rather on normative grounds. Embrace of the tenets of constitutional faith has been described by some of these critics as the equivalent of idolatry. They argue instead that constitutional faith, however important, must always be judged by the distinctly different claims of more traditional faith communities.

Sanford Levinson
(1992)