BOOKS AND ARTS FEBRUARY 20, 2006
WITNESSING THEIR FAITH: RELIGIOUS INFLUENCE ON SUPREME COURT JUSTICES AND THEIR OPINIONS
By Jay Alan Sekulow(Rowman & Littlefield, 349 pp., $27.95)
THE CONFIRMATION OF JUSTICE Samuel Alito brings to five the number of Catholics on the Supreme Court of the United States. All Americans can be proud of this fact, or more precisely, proud of the fact that Alito’s religious affiliation never became an issue during his confirmation process. It marks tremendous progress over a constitutional history in which the fear of Catholicism was a recurrent theme.
Things were not always as they are now. The Sons of Liberty harbored a paranoid fantasy about a Catholic takeover of North America, spearheaded by a vanguard of invaders from Canada. Catholic immigration to the United States in the 1840s was met with a refusal to take the Protestant King James Version of the Bible out of the public schools or, alternatively, to provide government funding to separate Catholic schools; and the resulting controversy gave rise to such shocking events as the Philadelphia Bible riots of 1844, an extended pogrom during which nativists claiming that Catholics wanted the Bible out of the schools killed thirteen people and torched a Catholic church. In 1876, the Republican presidential hopeful James G. Blaine proposed a constitutional amendment banning state support for “sectarian“ (that is, Catholic) schools. Aimed to create a wedge between Catholics and other Democrats, the amendment failed at the federal level. But dozens of states adopted copycat constitutional amendments that remain on the books. As late as 1950, Paul Blanshard’s American Freedom and Catholic Power, a national best-seller, argued that Catholicism was essentially anti-liberal— especially because of its commitment to papal power—and posed a threat comparable to that of communism.
Today all these fears seem like relics of another age. Anti-Catholicism as a distinctly American bias is not merely gone, it is also mostly forgotten. Contemporary opponents of state funding for parochial schools are not out to get Catholics, but rather want to stand firm against potential encroachment on the separation of church and state. And substantial credit for this improvement lies with the Framers of the Constitution.
Whatever their private beliefs and prejudices, the Framers put into the Constitution the guarantee that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Those present in Philadelphia in the hot summer of 1787 ultimately decided that no Bill of Rights was necessary in their draft Constitution—the promises of religious liberty and non-establishment were still a couple of years away; but the religious test clause was understood to be so fundamental that it made it into the original core document. It represented a break from practice in several of the states. Everyone understood that it opened the door to Catholics and Jews serving in the national government. The clause could not, on its own, preclude political prejudice; but it did hold out the promise that such bias was fundamentally inconsistent with our constitutional project. In a sense, it opened the door to Justice Louis Brandeis and President John F. Kennedy—and now Justice Samuel Alito.
What stood behind the Framers’ confidence that the new Constitution should be willfully blind to the religious allegiances of government officials? Partly, they shared the belief that government lacked coercive authority in matters of religion, and must therefore respect the individual’s liberty of conscience. But so great a liberal philosopher as John Locke—whose ideas formed the basis for the American idea of liberty of conscience—had maintained that Catholics must not be tolerated in the commonwealth, since they owed primary allegiance to the pope in Rome. To move beyond Locke, the Framers had to do more than embrace the idea of a formal distinction between religion and government. They also had to accept the hypothesis that men swearing an oath to support the Constitution would put that duty ahead of any particular commitments entailed by their religious faith. That is why the religious test clause appears immediately after the requirement that every public servant in the country, whether state or federal, must swear or affirm support for the Constitution.
The history of public officialdom in the United States has largely borne out the Framers’ confidence. It is difficult to find even a single government official of importance in the last several centuries who justified or explained his performance of public duties primarily in terms of private religious belief. That is not to deny a rich tradition of theological interpretation of America and its place in the world. Lincoln’s Second Inaugural Address not only acknowledged that we must follow the right “as God gives us to see the right,” it also depicted the Civil War itself as divine punishment for the original sin of African slavery. Yet Lincoln was not suggesting that the Bible—read, as he bravely pointed out, by both North and South—gave him, or us, the answers to our constitutional problems. He was saying, rather, that in preserving the Union he was acting according to his constitutional conscience—so help him God.
THE AMERICAN POLITICAL practice of answering secular public problems with secular public solutions is today subject to increasing challenge. That challenge did not begin with George W. Bush’s comment in the presidential primary debates in 2000 that Jesus is his favorite philosopher. (At around the same time, Senator Joseph Lieberman, running for vice president, often gave religiously grounded explanations for particular policy positions.) It has grown gradually, but steadily, from the rising political power of evangelical Christians since America’s third great awakening began in the middle of the 1970s.
For many (though by no means all) evangelicals, the primacy of religious commitment in the making of political choices is itself an article of faith. This religious belief is not in itself inconsistent with the American habit of public political discourse. According to one influential version of the evangelical position, the believer must draw on his inner faith in order to form his essential “values.” These values derive from religious dogma, but they are not identical to it. Framed at a broader level of generality—the dignity of the human person, say, or the sanctity of life—these values can then be brought into the public realm for purposes of political debate and policy- making.
Martin Luther King Jr. drew on this model of argument in his letter from the Birmingham jail, a document that has become part of our collective constitutional conscience. King distinguished just laws from unjust laws by saying that only the former squared with “the moral law or the law of God.” Yet he grounded his rejection of segregation not only on divine law, but also on the Constitution itself, as interpreted by the Supreme Court. Influenced by the moral realism of Reinhold Niebuhr, he also went on to explain that one who violated an unjust law must be prepared to accept the penalty. King’s political vision was profoundly informed by religion, but his reasoning relied primarily on an interpretation of the Constitution.
SOME CONTEMPORARY EVANGELICALS, however, have adopted a different version of the primacy of religion in political argument. It is today not impossible to hear the argument that God’s law ought to be implemented directly in the United States. The Chalcedon Foundation, founded by the theologian R.J. Rushdoony, advocates the adoption of biblical law by the state—not coercively, but after Americans have converted to Christianity. Or consider the formulation of Kevin Clauson, president of Christ College and a member of the board of the National Reform Association, founded originally in 1864 and for decades devoted to a “Christian amendment” to the Constitution: “America and other nations can be Christian if they adopt biblical laws in state, church, family, and all other entities and associations. We cannot trust man (individually or collectively); we must trust God and His immutable law. If civil magistrates will not apply the Old Testament law, then what will they apply? The law of man. If we will not be ruled by God, we will be ruled by tyrants.” This is a forthright argument for theocratic rule. It is not substantially different from arguments made by many contemporary Islamists and some Jewish radicals in Israel. Needless to say, it is wholly inconsistent with the Framers’ constitutional vision, which, drawing upon Locke, rejected the very idea of a Christian commonwealth.
There is no evidence that any significant number of American evangelicals would embrace the goal of biblical law in a wholly Christianized society. The emphasis on faith as a source for “values” remains the mainstream position. And yet a growing number of evangelical thinkers seem to be attracted to the view that Christianity must seek to infuse the full range of human activity, including government. Thus the Presbyterian minister D. James Kennedy, founder of Coral Ridge Ministries (a $25 million-a-year operation) and the Center for Christian Statesmanship, has declared that “our job is to reclaim America for Christ, whatever the cost. We are to exercise godly dominion and influence over our neighborhoods, our schools, our government, our literature and arts, our sports arenas, our entertainment media, our news media, our scientific endeavors—in short, over every aspect and institution of human society.” The word “dominion” in this passage is ambiguous, perhaps deliberately so. Kennedy does not directly call for biblical governance, but he at least hints that God’s realm extends directly into the halls of the Capitol—where, as a matter of fact, his organization holds regular lunches with “Christian statesmen” under the rubric of “politics and principle.”
IN THIS POLITICAL-RELIGIOUS ENVIRONMENT, the relation of an official’s faith to his political practices has become a renewed topic of conversation in evangelical circles. That is the best reason to examine the new book by the lawyer-activist Jay Sekulow, a central figure in the evangelical rethinking of constitutional law and practice. He serves as chief counsel for the cleverly initialed American Center for Law and Justice (ACLJ), a law firm founded by Pat Robertson to represent evangelicals in constitutional litigation. He has appeared several times at the Supreme Court on behalf of evangelical causes.
Sekulow is a self-described Messianic Jew (that is, he accepts Christ while retaining the Jewish appellation) who reaches a broad evangelical audience through his radio program and appearances on Robertson’s 700 Club. A recent profile of him in Legal Times detailed the vicissitudes of Sekulow’s career, from the low point of his bankruptcy in the 1980s to the recent controversy over his salary and the finances of his organizations. Between constitutional litigation and hobnobbing with John Ashcroft and other past and present Bush administration notables, Sekulow has been a very busy man, and one wonders how he found time to write three-hundred-plus pages about some rather arcane Supreme Court justices. The book does not have the air of having been ghostwritten, nor is it framed as a polemical money-maker in the Coulter-Moore genre. No, it is something altogether different: a labor of intellectual love.
Witnessing Their Faith, it turns out, is Sekulow’s doctoral thesis, written for the School of Leadership Studies at Pat Robertson’s Regent University in Virginia Beach. Whatever its merits as an example of “leadership studies,” Sekulow’s work is a failure as history. This is not because his facts are wrong. Most of them are correct, and a reader new to the subject could certainly pick up some useful things about the history of church and state in America. The trouble with Sekulow’s book lies in its selection and its interpretation of biographical materials about nine Supreme Court justices and their opinions. The choice of examples is highly selective, and the interpretations are pervasively tendentious. Witnessing the Faith is an important document of a disturbing phenomenon.
THE CENTRAL CLAIM OF SEKULOW’S book is that in the cases he analyzes, “the opinion of the justices coincided with the official positions held by the religious denomination that had influenced them.” In practice, Sekulow cannot successfully demonstrate this claim. Yet the story he tells is worth considering, more for what it fails to show than for what Sekulow claims it does show. A reasonable argument can be made that in fact Sekulow’s subjects overwhelmingly separated their religious faith (which was often quite minimal) from their constitutional decision-making. The faith that they witnessed, in other words, was not religious, it was constitutional.
Begin with the most distinguished justice in the book, Joseph Story, the author of the influential Commentaries on the Constitution, which appeared in 1833. The justice’s religious views could hardly have been more typical of what he was: an educated Massachusetts man of the immediate post-revolutionary generation. (It is noteworthy that Sekulow never gives any social context for a person’s religious development, which is always depicted as an isolated individualistic process.) Story was born into comfortable late eighteenth- century New England Congregationalism, but at Harvard College he eschewed both his father’s liberal Arminianism and, Sekulow tells us, an uncle’s Calvinism. He became a Unitarian, embracing the fashionable new faith that was famously limited to “the fatherhood of God, the brotherhood of Man, and the neighborhood of Boston.”
The decision that reflects Story’s religion, in Sekulow’s account, involved the will of one Stephen Girard. The bequest established a school for orphans to be run by the city of Philadelphia. An immigrant from France, Girard shared the anti-clericalism of the Gallic strand of enlightenment, and he added a clause to the will that expressly banned ministers of any kind even from entering the school’s premises, much less teaching in it. The estate was considerable, and the heirs hit on the idea of breaking the will and reaping the windfall.
Writing for the Court, Story upheld the will. He took the opportunity to settle an academic score along the way, insisting (against the authority of Thomas Jefferson) that Christianity was “part of the common law.” Yet he limited this proposition to affirming the existence of a common-law crime of blasphemy. In deciding the case, Story argued that the will, though obviously anti-clerical, was not necessarily anti-Christian, since nothing in it barred the reading of the Bible in the school “without note or comment.”
For Sekulow, the opinion “resonates with Story’s Unitarian theology.” If this is true, it is so only in the most indirect sense. In fact, Story’s opinion makes sense considered against the background of a polemical dispute that took place in Massachusetts at the same time involving the character of the new public schools, under the direction of state superintendent Horace Mann. The tenor of the criticism—first leveled in 1844 (the year of the Girard case) by an Episcopalian newspaper, The Christian Witness and Church Advocate, and continued in subsequent years by Congregationalists—was that the new common schools were insufficiently Christian, because they taught no formal theology of any kind. Mann defended his choice to limit religion in the schools simply to Biblereading, without comment; he explained that the schools must be non-sectarian so as to avoid religious controversy. They would allow the child to read the Bible “and judge for himself.” Story’s opinion reflected the same view: that Bible-reading without clerical comment should not be construed as anti-Christian.
It is true that Mann, like Story, was a Unitarian—a fact his opponents sometimes threw in his face—and it can fairly be said that the non-sectarian compromise that he proposed for the common schools was consonant with Unitarian ideas about the usefulness of Scripture to teach general moral lessons. To the extent that Story was implicitly defending the common schools against the charge that they were non-Christian, perhaps Story’s opinion was obliquely informed by Unitarianism. But it does not follow that Story was applying his religious beliefs to the Girard case. He was applying the law, and he was doing so in the light of a political reality with which he was certainly conversant. Indeed, his view that Christianity was a part of the common law was if anything inconsistent with Unitarian pluralism—and yet he believed that English common- law historical sources, distorted by Jefferson, supported this essentially legal doctrine.
SEKULOW’S OTHER EXAMPLES OF the religious basis of judicial reasoning fare no better. He contends that Justice Samuel Miller’s Unitarian “religious philosophy compelled his decision” in Watson v. Jones in 1871, a case that deferred to the highest body of Presbyterianism in a dispute over the ownership of church property. But the court’s reasoning had nothing to do with religion, Unitarian or otherwise. The opinion simply said that the “civil power” lacked the authority to re-visit the decisions of a “spiritual court”—a view that was squarely derived from the Framers’ Lockean belief that government lacked power in religious matters.
Sekulow argues that Chief Justice Morrison Waite’s Episcopalianism somehow led to the opinion in Reynolds v. United States in 1879, in which the Supreme Court upheld a federal statute prohibiting polygamy in Utah. Waite famously got historical help for his opinion from his neighbor, the eminent historian George Bancroft, and he used the opinion to introduce into American jurisprudence Jefferson’s letter to the Danbury Baptists, which called for the preservation of a “wall of separation between church and state.” Whether justified or not, the opinion set the tone for subsequent church-state jurisprudence by attempting to identify the constitutional principles held by the Founding Fathers.
For Sekulow, though, “the language of his opinion and the overwhelming evidence that he was a devout Christian” indicate that Chief Justice Waite “viewed marriage through a Christian moral lens” and so found against plural marriage. Now, Waite did say that marriage was both a civil contract and also a sacred institution, and the widespread opposition to Mormonism was both cultural and religious. But the fact that Waite may have been a committed Episcopalian is no proof that he deployed a particularly Christian view of marriage in the decision. Quite the contrary. Waite’s distinction between religious conscience (protected by the Constitution) and socially harmful conduct motivated by faith (unprotected) owed little to religion and much to Locke’s argument that liberty of conscience would not require toleration of child sacrifice. Sekulow’s reliance on Waite’s faith to prove that Waite was influenced by religion here comes uncomfortably close to the old saw about the rabbi who proposes to prove from a biblical source that Abraham wore a yarmulke: “The Torah tells us that ‘Abraham set forth.’And would our forefather Abraham have set forth without a yarmulke?”
This is probably the most circular of Sekulow’s arguments. To be fair, it is true that Justice David Brewer, in the notorious case Church of the Holy Trinity v. United States in 1892, did hold that a statute granting exemptions to strict immigration rules must not extend to ministers because the United States is a “Christian nation.“ Congress, said the Court, must therefore have meant to include ministers in the list of persons entitled to be brought into the country for employment. (The opinion added that rabbis should also be allowed under the statute’s true meaning.) Sekulow quotes Owen Fiss’s wry observation that Brewer “did not draw sharp lines between the Constitution, the Declaration of Independence, Holy Scripture, and The Wealth of Nations”—but Sekulow seems to regard this confusion as a badge of honor.
PERHAPS THE MOST IMPORTANT of Sekulow’s claims is not originally his own. This is the argument that Justice Hugo Black stood for strong separation between church and state because of his anti-Catholicism, which was reflected in his early and instrumental membership in the Ku Klux Klan as well as his Baptist upbringing. (As a justice, Black avoided church and attended Unitarian services on rare occasions.) The source for this view—which has come to be increasingly accepted among church-state scholars—is Philip Hamburger’s important book Separation of Church and State. The difficulty with it is that antiCatholicism can explain at most only half of Black’s separationism, namely his view that government must not fund religious institutions. For most of our history, it has been Catholics who sought state funding for religious education, and a clear constitutional ban affected them disproportionately.
But Black also penned or joined key opinions banning school prayer and Bible- reading in the public schools. Far from being Catholic favorites, these practices were actually opposed by Catholics for all of the nineteenth century and some of the twentieth on the ground that they introduced a de facto non- sectarian Protestantism into the schools. It was Protestant nativists— precursors of the Klan—who supported these customs; and by rendering them unconstitutional, Black went against the Protestant norm and helped spawn the modern fundamentalist movement with its opposition to these Court-imposed prohibitions.
Black, it turns out, really did believe in strong separation on principled constitutional grounds. Largely self-taught in constitutional law, he was a devout Jeffersonian, and seems to have gotten his secular tendencies from that potent source. So Black was emphatically not a prisoner either of his religious background or of the racist, anti-Catholic forces that put him into public life.
IT NEED HARDLY BE SAID THAT Justice William Brennan, perhaps the most influential liberal Supreme Court justice in history, is barely discussed in Witnessing Their Faith. Presumably Brennan’s liberal activism would not have squared well with his Catholic upbringing and commitments (although one can imagine some historian trying to connect Brennan to the social justice tradition of the Catholic Worker movement). And that is precisely the point: there is no demonstrable direct relationship between justices’ religious background or beliefs and their jurisprudence.
If Jewish justices have tended to the liberal wing of the Court, this might seem to reflect the traditionally liberal orientation of the American Jewish community—but Felix Frankfurter, a liberal who came to be seen as a conservative during his two decades of court service, subverts the paradigm. Justices John Roberts and Samuel Alito will probably be reliable conservative votes; but Mario Cuomo would surely have been a liberal one. Justice Anthony Kennedy, a Catholic, has upheld abortion rights and twice written ringing opinions supporting equality and liberty for gay people. Justice Antonin Scalia’s jurisprudence of textualism has more in common with the Protestant hermeneutic of sola scriptura—reliance on the text of the Bible and not on the history of its interpretation—than with the traditionalism and natural-law reasoning of the canon lawyer. And Justice Clarence Thomas, the court’s most reliable originalist, by his own account strayed from the church for some years before returning to his educational roots in the College of the Holy Cross.
So how is one to make sense of Sekulow’s attempt to show that faith has lain at the heart of our constitutional law? One clue may be derived from the venue for the dissertation that underlies the book: the School of Leadership Studies at Regent University. Sekulow is after an argument about the nature of government service under the Constitution and its relation to religion. He wants to demonstrate that Supreme Court justices have relied wholly on their religious faith in deciding important constitutional cases. Sekulow is a lawyer, and his historical examples are meant to have the weight of precedent. His book is a historical brief seeking to argue that religious faith is the source that ought to be used in making law.
Notice that this position could not be further from constitutional originalism—the view that in interpreting the Constitution, judges should be bound only by the meaning of the document when it was first drafted. Nor could Sekulow’s position be described as textualism, according to which the words themselves must be the judge’s only guide. It is, rather, a certain sort of legal realism, an account of law that sees judicial decision-making as a product of social, economic, and intellectual forces that come from outside the four corners of legal text. Realism is sometimes summarized by the slogan that law is whatever the judge ate for breakfast; and for Sekulow, the judicial breakfast is a hot bowl of faith. Having ingested it, the judge can be expected to produce whatever legal outcome his diet mandates. Moreover, Sekulow is not merely making a descriptive claim. His analysis suggests that it is perfectly acceptable—even desirable—as a normative matter for a judge to decide cases on the basis of his religious beliefs, not the Constitution and laws of the United States.
WHY SHOULD WE CARE what Sekulow thinks about this question? He is not going to be on the bench anytime soon; and since he wants to win cases, his arguments to the Supreme Court cannot be openly based on faith. Whatever his historical claims, Sekulow the legal advocate speaks and acts as though the Supreme Court decides cases based on the Constitution. He makes legal arguments like any other lawyer. Otherwise he would stand no chance of persuading any judge of almost anything.
What is notable about Sekulow’s argument is where it stands in the present debate within the extended evangelical community about the proper relationship between faith and the constitutional order. So far, the more radical view that the United States ought to be governed by biblical law remains peripheral. But the mainstream evangelical position—that values derived from religion are crucial to making sense of the Constitution—is coming under pressure from the radical fringe. Hard-liners are clamoring that a truly consistent Christian faith must require the direct and universal applicability of God’s word to public affairs. Sekulow’s position, as expressed in this misguided book, tends in the direction of the view that faith does and should directly govern. Every time he proclaims that a justice of the Supreme Court rendered a decision squarely on the basis of his religious views, he implicitly suggests that the Constitution and laws of the United States themselves are secondary, or perhaps even irrelevant, in the decision of actual cases by the courts. From here it is just a very small step to the normative conclusion that judges—and perhaps others in positions of “leadership”—should not feel bound to interpret the document that they have sworn an oath to support. They should just do what God tells them to do.
As a matter of theology, there is no particular reason to argue with this or other forms of theocratic reasoning. It is perfectly plausible, from a religious standpoint, to make the argument that God’s law comes first, and that the believer is obligated to apply it, whatever the secular legal order nominally requires. There is the awkward matter of the oath itself—it would seem troubling for the believer to forswear his promise to support the Constitution; but perhaps, to the true theocrat, the oath could be explained away by one or another doctrine of pious dissimulation.
From the standpoint of American constitutional theory and practice, however, the usurpation of constitutional reasoning by religious reasoning is very troubling indeed. For our constitutional system to operate successfully, we need to keep alive the Framers’ heroic assumption that officers of the United States can be trusted to uphold their oath to support the Constitution, and not some alternative source of authority, sacred or profane, other-worldly or this- worldly. We need this assumption to be true not least because it is the basis for our ability to say with confidence that we do not care one whit whether the Supreme Court is staffed by five Catholics or two Jews or nine Hare Krishnas. In a world that conformed to Sekulow’s vision, we could no longer say this. If judicial opinions were to be dictated by religious faith, and not by constitutional commitment, then our head-counting of liberals and conservatives- -which is entirely fair game for concerned citizens who think judicial philosophies matter—would be replaced with the head-counting of Protestants and Catholics and Jews, not to mention the missing Mormons, Muslims, and (come to think of it) Methodists.
WITNESSING THEIR FAITH is not just bad history— it is dangerous history. And lest it appear that this alarm about Sekulow’s book is excessive, consider the ill-fated nomination of Harriet Miers to the Supreme Court. Within hours of her nomination, according to news reports, a coordinated campaign had begun touting her qualifications on the ground that she was a born-again Christian. It would have been one thing to argue that evangelicals are an underrepresented political interest group, like Latinos, who “deserve a spot” on the Court. That would have been tokenism, but tokenism of a familiar kind—distasteful perhaps, yet not unconstitutional when it comes to political appointments. But the argument being advanced for Miers came perilously close to the suggestion that her faith would dictate her voting in cases posing the problems of the right to life and the right to death.
We should not be surprised to discover that Sekulow was at the heart of this campaign. According to Legal Times, he stated in a conference call with evangelical leaders that “I’m involved in three controversial cases at the court this term. And believe me, I want Harriet Miers voting on these crucial cases.” This followed his participation in a series of calls with the White House to discuss judicial nominations. In the light of his book, there can be little doubt that Sekulow viewed Miers’s nomination warmly because he considered that, as an evangelical, she would vote according to her religious faith. Her religion would not merely inform her sense of values; it would directly govern her decision-making.
We do not know what the unfortunate Miers herself thought about such questions, although she might well have been asked about her faith in the confirmation hearings that never were. It seems possible that President Bush nominated her because he liked and respected her, entirely apart from her faith, and that the spin emphasizing her evangelicalism came from political operatives eager to please an important constituency. But some of the Republican opposition that brought down her nomination was having none of it. For the members of the Federalist Society, the problem with Miers was that her judicial philosophy was unknown and her constitutional expertise open to challenge—which is to say that the Federalists, at least, believed that the Constitution, not the Bible, was the relevant writ. And so we were spared the spectacle of a justice confirmed at least in part on the nature of her religious commitments.
As a purely theoretical matter, it can be tricky to distinguish the reliance on religious beliefs to establish moral values of constitutional relevance from the direct reliance upon religious authority. Moral principles sometimes have a role to play in constitutional judgment, not least because judges have to interpret a document that itself speaks in broad phrases such as “equal protection” or “due process of law.” Those principles must come from somewhere, and the Constitution neither rules out any source of moral inspiration nor directs us to one source in particular. Even Martin Luther King Jr. was equivocal in his resort to moral law, divine law, and constitutional text.
In practice, however, it is very easy to see the difference between theocratic argument and constitutional interpretation informed by religious morality. The theocrat calls faith or sharia or biblical law the source of law, and he applies it directly to decide cases. The constitutionalist, at least in the American system, understands that such commitments need to be mediated through the texts and traditions of the U.S. Constitution. That God has spoken is not the basis for a constitutional decision under our system of government, even if the Declaration of Independence makes the Creator the source of our self-evident natural rights.
Like their predecessors, the justices sitting on the Supreme Court today understand that an oath to the Constitution commits them to legal, not religious, interpretation. As a rule of political life, especially in this inflamed time, this bears repeating. We need to teach it to our children and to remember it when we go to bed and when we wake up. It is, after all, the credo of a living constitutional faith.
Noah Feldman is a professor at the New York University School of Law and the author of Divided by God: America’s Church-State Problem and What We Should Do About It (Farrar, Straus & Giroux). This article appeared in the February 20, 2006 issue of the magazine.