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The Godless Constitution.

In an infamous address at the 1992 Republican National Convention in Houston, Pat Buchanan declared that "`[t]here is a religious war going on ... for the soul of America.'"(1) Maintaining that the United States is "`a nation that we still call God's,'" he exhorted supporters to "`take back our culture, and take back our country.'"(2) Buchanan's speech, with its clarion call for a religious restoration, tacitly cast American history in terms of a story of the fall: The nation's origins, his rhetoric implied, lay in an Edenic Christianity from which God-fearing Americans have been rudely expelled due to the sins of secular infidels who would deny the nation's fundamentally Christian identity. Buchanan's words garnered immense publicity because they were nationally televised during prime time;(3) the "fall" story underlying his address, however, is one commonly told by the Religious Right.(4)

In The Godless Constitution, Isaac Kramnick and R. Laurence Moore set out to explode the legitimacy of what they call "religious correctness" - the claim that "the United States was established as a Christian nation by Christian people, with the Christian religion assigned a central place in guiding the nation's destiny" (p. 13). To correct the purveyors of religious correctness, the authors pursue a twofold thesis. First, they argue that as a matter of history, the nation's Founders (as well as their philosophical progenitors in England and their immediate political descendants in America) believed that government should be a secular enterprise uninfluenced by, and indifferent to, religious concerns; this belief, according to the authors, is inscribed in the Constitution. Second, they posit that as a normative matter, the Founders' faith in a secular state should be heeded by the modem American polity, and that failure to ward off religious influences on American politics (particularly those of the Religious Right) will simultaneously betray constitutional values and exacerbate the nation's moral decline.

Kramnick and Moore deserve plaudits for seriously engaging the historical and constitutional rhetoric of the Religious Right and systematically demolishing its intellectual credibility. No one can finish their book and still make a reasonable case that the Constitution was conceived as a blueprint for a uniformly "Christian nation" (p. 13). The authors also deliver a valuable remonstrance against those who peddle intolerance while wrapped in the mantles of the Bible and the Constitution. Unfortunately, however, Kramnick and Moore's advocacy of "godless Constitution[alism]" (p. 12) occasionally veers beyond rebuttal of the Christian nation theory and toward a defense of an affirmatively secular state that largely excludes religion from the public sphere. At such junctures, the authors render their historical and prescriptive arguments vulnerable to some of the very criticisms they level at the acolytes of "religious correctness" (p. 13).

Kramnick and Moore present their historical evidence through a series of vignettes.(5) They begin, for instance, with a lively chapter on the Constitution's framing and ratification, in which they argue that the text's drafters deliberately designed it to be "an instrument with which to structure the secular politics of individual interest and happiness" (p. 27). As proof, they point to the absence of any express mention of "God" or "Christianity" in the Constitution itself and to the inclusion of the No Religious Test Clause in Article VI.(6) Concluding that "[t]he advocates of a secular state won" at the Founding (p. 28), Kramnick and Moore proceed to examine two other key historical episodes: the Sunday Mail Controversy of 1820 to" 1830 (pp. 132-43) and the "Christian amendment" movement of the post-Civil War era (pp.

144-48).(7) In both instances, religious zealots sought to transform the nation into "a Christian commonwealth where the state and spiritual ideals commingled" (p. 132). The failure of both crusades, the authors contend, demonstrates that the secular victory of the Founding has been an enduring one.

Kramnick and Moore take particular care to identify a distinguished American tradition of religious opposition to theocracy. Though the authors mention many adherents of that tradition in the course of their book, they focus on two: Roger Williams and the American Baptists. Both Williams (banished from Massachusetts Bay in 1636 for nonconformism) and the American Baptists (oppressed by New England's Puritan establishment throughout the pre-Independence era) suffered intense persecution at the hands of the 2tate. Both, in turn, came to view the juxtaposition of religious and political spheres with great suspicion. For Kramnick and Moore, these examples refute any "notion that the idea of the godless Constitution is the invention of militant secularists" (p. 111). The authors do not, however, neglect the historical importance of secular resistance to theocracy. In analytic expositions of English Enlightenment philosophers such as John Locke, Joseph Priestley, and James Burgh, Kramnick and Moore trace the liberal, laissez-faire pedigree of the "godless Constitution" and its survival in the thought of Jefferson, Madison, and their contemporaries (pp. 67-109).

In the final chapter of the book, titled "Religious Politics and America's Moral Dilemmas," the authors' argument becomes more explicitly normative. Kramnick and Moore emphasize the Founders' conviction that "democratic government was not created to produce moral citizens. It was the other way around: moral citizens constructed and preserved democracy" (p. 151). The authors decry the imperilment of this ideal, excoriating Pat Robertson, Ralph Reed, and Pat Buchanan for cloaking themselves in the rhetoric of religion and morality while promoting a virulent and obdurate symbolic politics that threatens the nation's democratic tradition (pp. 153-64).

The first problem with The Godless Constitution - and the genesis of several others - lies in the authors' failure to define exactly what they mean by the title phrase, and especially by the term "godless." What exactly does "godless Constitutionalism" connote? Kramnick and Moore's account differs at different junctures. At some points, the authors' claims are virtually incontrovertible, as when they argue that the Constitution bars establishment of a theocratic (e.g., "Christian") state at the federal level (p. 143) and formal religious tests for public office (p. 168). At others, their contentions are more dubious: The authors also suggest, for instance, that the Constitution proscribes local establishments just as clearly as federal ones (p. 104); prohibits governmental support for religious institutions in any way that privileges their work over that of secular entities (p. 152); rules out religion-based advocacy of legislation (p. 130); and frowns on statements by elected officials that they are following or fulfilling divine imperatives in making public policy (p. 130). These latter claims, which intermingle with Kramnick and Moore's more modest contentions as the book unfolds, confuse readers seeking to assess the authors' overall argument; worse still, they present an unbalanced (and at times unreliable) account of the historical record.

Take, for example, the authors' contention that the Establishment Clause was drafted to preclude both federal and state or local establishments of religion (p. 104). Kramnick and Moore posit that though "[t]he Christian right offers a narrow reading in which the ... clause refers only to the prohibition of a national church, . . . [w]hat is perfectly clear, despite today's debate, is that Madison, the father of the Bill of Rights, shared [the] broader reading" (p. 104). Madison's agreement with the authors' expansive reading, however, is far from "perfectly clear."(8) And the "narrow reading" of the Establishment Clause can hardly be described as a product of the Christian right: A long line of constitutional scholarship has recognized that the Clause was widely understood to allow state establishments until radically reinterpreted by the Everson Court in 1947.(9)

The authors likewise tread on unfirm ground when they assert historical support for the proposition that government has "an obligation not to encourage [religion) . . . in a way that privilege[s] it over the work of nongovernmental secular agencies" (p. 152). This claim is troubling even if one ignores its insensitivity to principles of federalism (e.g., even if one overlooks that as of 1789, no fewer than six states featured government-supported churches, and all thirteen promoted religion in some manner).(10) If

the Founding generation understood the First Amendment to bar federal promotion of religion, for instance, why did the first Congress pass a statutory extension of the Northwest Ordinance that encouraged formation of religious schools by emphasizing the necessity of "religion, morality, and knowledge . . . to good government and the happiness of mankind"?(11) Moreover, why did the Senate ratify a treaty with the Kaskaskia Indians in 1803 that appropriated $100 annually for priestly ministrations and $300 for the erection of a church?(12) These examples - and the myriad other instances of federal aid to religious entities in the late eighteenth and the nineteenth centuries - do not, of course, dictate how present generations should interpret the Constitution's Religion Clauses. But they do debunk assertions that history has bequeathed us a strongly and unequivocally "godless" Constitution.

Consider finally the authors' claims that religion-based advocacy of legislation and appeals to the divine in making public policy "offend . . . the religious rules of this country set up to protect the free exercise of religion" (p. 130). Here too Kramnick and Moore's arguments are not supported by the historical record. Surely the authors would not maintain that the passage of the Thirteenth and Nineteenth Amendments violated constitutional principles of free exercise - yet supporters of both actively invoked religious principles in fighting for ratification.(13) Surely the authors would not argue that Presidents Washington, Madison, and Lincoln trenched on First Amendment values - yet each of these constitutional giants publicly appealed to personal and collective religious faith at critical junctures in his presidency.(14)

The deeper problem with Kramnick and Moore's book, however, lies neither in its shifting claims regarding the nature of the Constitution's "godlessness," nor in the historical inaccuracies of the authors' more strident contentions. It lies rather in Kramnick and Moore's attitude toward religion and religious adherents. In The Culture of Disbelief, Stephen Carter decries those who "trivializ[e]" religion by unthinkingly denying respect to people who "take . . . religion seriously."(15) Though the authors profess sympathy with Carter's position (pp. 14, 175), their treatment of religion often lapses into a textbook illustration of the phenomenon he describes. Kramnick and Moore see only two sides in the debate over the role of religion in American politics: the "party of the godless Constitution" (advocating religion's relegation to the private sphere) and "the party of religious correctness" (seeking formal establishment of a Christian state) (pp. 12-13). Other positions - held by moderate, rational, religious citizens who believe that American politics should be neither hermetically secular nor fanatically theocratic - are never contemplated. The authors' affinity for such facile dichotomies not only produces an oversimplified, monochromatic view of the religion debate; it also, at times, leads them to trivialize the convictions of religious adherents. Kramnick and Moore blithely characterize all proponents of prayer in schools, for instance, as purveyors of "symbolic politics" who seek to install "vapid prayers as a way of saying `in your face' to some evil group of secular humanists" (p. 165) - never considering that some might seek to pray in schools out of actual devotion, or that others might promote school prayer as a modest way to ameliorate problems of nihilism, materialism, and violence among American youth.

In the end, the authors' polarizing impulses also prevent them from addressing the fascinating questions at the center of America's struggle with the role of religion in politics. The modem Supreme Court has recognized that the Constitution bars theocratic government;(16) it has also recognized, however, that the Constitution bars efforts to excommunicate religious adherents and institutions from the public sphere.(17) The interesting problems lie between these poles, in cases such as Lee v. Weisman(18) and Rosenberger v. Rector and Visitors of the University of Virginia,(19) which challenge us to determine neither whether the Constitution is "godless," nor whether it sanctions a "Christian nation," but rather what constitutes religious freedom and what religious coercion.(20)

(1.) Judi Hasson, Religion Shares Convention Stage, USA Today, Aug. 18, 1992, at 4A. (2.) Buchanan Speech Highlights, Gannett News Serv., Aug. 17, 1992, available in LEXIS, News Library, Arcnws File. (3.) See Chris Black, Buchanan Beckons Conservatives to Come `Home', Boston Globe, Aug. 18, 1992, at 12. (4.) See, e.g., The Collected Works of Pat Robertson 51, 66 (1994) (arguing that "[t]he American Revolution produced a constitution and a government based on biblical principles of Christianity" but that present day secularists "have tried to throw out the last remnants of Christianity in America"). (5.) The scope of Kramnick and Moore's historical inquiry should be singled out for credit. Unlike many constitutional scholars, the authors do not rest their historical case solely on excavation of "original intent." Cf. Philip Bobbitt, Constitutional Fate 9 (1982) (defining historical argument, as modality of constitutional interpretation, in terms of search for "the original understanding of the constitutional provision to be construed"). (6.) "[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." U.S. Const. art. VI. Other scholars, however, have argued that Founding-era citizens understood the Clause not as a statement of the Constitution's secularism but as a guardian of religious pluralism. See, e.g., Gerard V. Bradley, The No Religious Test Clause and the Constitution of Religious Liberty: A Machine That Has Gone of Itself, 37 Case W. Res. L. Rev. 674 (1987). (7.) For further exposition of these controversies, see Morton Borden, Jews, and Infidels 58-74, 103-07 (1984). (8.) The Madison of Federalist No. 10, for instance, cites religious pluralism as the best defense against the threat of sectarian conflagration, a position wholly consistent with state and local establishments. See The Federalist No. 10, at 84 (James Madison) (Clinton Rossiter ed., 1961). Additionally, while participating in the congressional debate over the Bill of Rights in 1789, Madison sponsored an amendment that would have limited state governments' power to curtail their citizens' freedom of speech, press, and conscience, but would have permitted state establishment of religion - an amendment Madison proudly spoke of as "the most valuable ... in the whole list" he presented to Congress. 1 Annals of Cong. 784 (Joseph Gales ed., 1789) (Aug. 17, 1789); see also Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1159 (1991) (discussing Madison's proposed amendment and its implications for modern interpretation of Establishment Clause). Madison, of course, also penned the Memorial and Remonstrance Against Religious Assessments, which the modern Supreme Court has cast as the paradigmatic expression of strict separation in the em of the Founding. See, e.g., Everson v. Board of Educ., 330 U.S. 1, 11-12, 63 app. (1947). For a cogent summary of Madison's vacillations over the course of his career, see Gerald V. Bradley, Church-State Relationships in America 86-87 (1987). (9.) See, e.g., Edward Dumbauld, The Bill of Rights and What It Means Today 104 & n.5 (reprint 1979) (1959); Amar, supra note 8, at 1157-58; Clifton B. Kruse, Jr., The Historical Meaning and Judicial Construction of the Establishment of Religion Clause of the First Amendment, 2 Washburn L.J. 65, 84-45, 127-30 (1962); Joseph M. Snee, Religious Disestablishment and the Fourteenth Amendment, 1954 Wash. U. L.Q. 371, 371-73; see also Everson, 330 U.S. 1. (10.) See Bradley, supra note 8, at 13. (11.) An Act to Provide for the Government of the Territory Northwest of the River Ohio, ch. 8, 1 Stat. 50, 52 n.(a) (1789) (adapting original Northwest Ordinance to newly ratified Constitution). (12.) See A Treaty Between the United States of America and the Kaskaskia Tribe of Indians, Dec. 23, 1803, art. III, 7 Stat. 78, 79. (13.) See, e.g., Aileen S. Kraditor, The Ideas of the Woman Suffrage Movement 1890-1920 at 64-75 (1965) (examining complex but critical role of religion in women's suffrage movement); William E. Nelson, The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 Harv. L. Rev. 513, 525-26 (1974) (detailing key role of religion in American antislavery movement). (14.) See, e.g., Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in 1 Great Issues in American History 389, 396 (Richard Hofstadter ed., 1958); James Madison, Thanksgiving Proclamation of July 9, 1812, reprinted in 1 Messages and Papers of the Presidents 513 (James D. Richardson ed., n.p., U.S. Cong. 1898); George Washington, First Inaugural Address (Apr. 30, 1789), in 1 Annals of Cong. 27 (Joseph Gales ed., 1789). (15.) Stephen L. Carter, The Culture of Disbelief 15 (1993). (16.) See, e.g., Everson v. Board of Educ., 330 U.S. 1, 15 (1946) (declaring that "[n]either a state nor the Federal Government can set up a church"). (17.) See, e.g., McDaniel v. Paty, 435 U.S. 618, 628-29 (1978) (holding that state may not limit political participation to those who eschew religious practice). (18.) 505 U.S. 577 (1992) (holding that nondenominational benediction ceremony at public school violates Establishment Clause). (19.) 115 S. Ct. 2510 (1995) (holding that denial of university funds to religious student magazine violates First Amendment principles and expressly rejecting applicability of Establishment Clause strictures). (20.) Important exemplars of the animated scholarly debate about the Constitution's Religion Clauses include Jesse H. Choper, Securing Religious Liberty (1995), Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115 (1992), Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311 (1986), and Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. Chi. L. Rev. 195 (1992).
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Author:Kalir, Erez
Publication:Yale Law Journal
Article Type:Book Review
Date:Dec 1, 1996
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