James Buckley, brother of NRO's William Buckley, father of the Conservative movement in America today, gave a speech in 2006 on the historical role of religion in the public sphere of America, how it has been incised from that sphere by modern judges imposing their own views to amend the the Constitution by fiat, and some of the ramifications that has had. This, in toto, is culled from NRO's "Must Read" archives:
I would like to address some odd notions that have been floating around in recent times regarding religion and public service. I cite, as one example, the statement made a few years ago by then-Governor Douglas Wilder of Virginia on hearing that my then-colleague, Clarence Thomas, had been nominated for the Supreme Court. Governor Wilder announced that he opposed the nomination because Judge Thomas was a Catholic, and Catholics opposed abortion. It is hard to pack, into a single sentence, so large a misunderstanding of the roles of both religion and the judiciary under the Constitution.
By way of full disclosure, I should state that I am a Catholic who takes his religion seriously. I am also an American who, over the past thirty-odd years, has been privileged to serve in all three branches of our federal government. As might be expected, I have developed my own views concerning my responsibilities and obligations with respect to each. So today I propose to touch on those responsibilities, with particular emphasis on those of a judge because the guerilla warfare in recent years over judicial appointments reflects so distorted a view of the role of the judiciary.
As we are all aware, the Constitution assigns the respective duties of the three branches of our federal government, and its system of checks and balances was designed to keep the members of each of these branches within their proper bounds. But few seem to appreciate that the Constitution contains an additional safeguard. It is to be found in the first part of the third clause of Article VI, which reads as follows:
The Senators and Representatives … and the Members of the several State Legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by Oath or Affirmation, to support this Constitution.
The balance of that clause provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
It should be noted that this clause is the only provision of the original Constitution that applies to all three branches of government; the only one that applies to state as well as federal officials. So it should be obvious that the Founders intended the oath to serve more than a ceremonial purpose. They were launching an extraordinary experiment in governance, and they knew that it could succeed only if every public officer in their fledgling nation were to bind himself to make it work. To this end, they consciously enlisted the power of religion to ensure fidelity to the Constitution. James Madison, in fact, would comment on the seeming paradox that such a requirement should appear in the same clause as the provision abolishing religious qualifications for office. As he wrote in October of 1787, “Is not a religious test … involved in the oath itself?”
It doesn’t speak well of our age that we must remind ourselves that in taking an oath, we call on God to bear witness to the promises we make with the implicit expectation that He will hold us accountable for the manner in which we live up to them. This understanding of the meaning of an oath is as ancient as our civilization. Edward Gibbon made the point in a wry passage on the role of religion in the Roman Empire:
The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful. … The magistrates could not be actuated by a blind, though honest bigotry, since the magistrates were themselves philosophers. … [But t]hey knew and valued the advantages of religion, as it is connected with civil government. … [A]nd they respected as the firmest bond of society, the useful persuasion that, either in this or in a future life, the crime of perjury is most assuredly punished by the avenging gods.
Like the Roman magistrates, the Founders of the American Republic took full advantage of this “useful persuasion” to further the interests of their new nation; but unlike those magistrates, they were believers in both the religious nature of an oath and its implications.
In his Farewell Address, George Washington would ask, “Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths ….?” And in an opinion quoting the judicial oath of office, Justice Samuel Chase would write, “No position can be more clear than that all the federal judges are bound by the solemn obligation of religion, to regulate their decisions agreeably with the Constitution of the United States.”
The second provision of clause 3, the one forbidding religious qualifications for public office, did not banish religion from public life; rather, it protected freedom of conscience and ensured that government would be open to persons, and therefore to influences, of every faith and of none. The Founders were not afraid of religion. To the contrary, they thought it essential to the success of their great experiment. A common theme that ran through their writings was that the Republic’s survival, and the liberties it was intended to protect, ultimately depended on the morality of its citizens as formed and reinforced by their religious beliefs. John Adams asserted that “our Constitution was made only for a moral and religious people”; and Washington warned that “reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”
I think it useful, at this point, to note that the idea that religion is a purely private matter is of recent vintage. For most of our history, the First Amendment’s provision prohibiting the “establishment of religion” was understood to do no more than forbid the federal government’s preferential treatment of a particular faith. But while the First Amendment’s purpose was to protect religion and the freedom of conscience from governmental interference, as Thomas Cooley noted in his 1871 treatise on Constitutional Limitations, the Framers considered it entirely appropriate for government “to foster religious worship and religious instruction, as conservators of the public morals and values, if not indispensable, assistants to the preservation of the public order.” As that perceptive observer of the American scene, Alexis de Tocqueville, put it, “while the law allows the American people to do everything, there are things which religion prevents them from imagining and forbids them to dare.”
And so it is not surprising that the Congress that adopted the First Amendment also reenacted the provision of the Northwest Ordinance which declares that “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged;” and early Congresses proceeded to make grants of land to serve religious purposes and to fund sectarian education among the Indians.
In sum, as understood by those who wrote it, the First Amendment did not forbid the government from being biased in favor of religion as such so long as it championed none. Nor did it require that the state be insulated from religious principles and influences. The men at Philadelphia who outlawed religious tests for public service surely had the practical common sense to know, if some contemporary ideologues do not, that in those roles in which public servants are expected to bring their personal judgments to bear, the views of religious individuals will inevitably reflect their religious beliefs. It is, quite simply, fatuous to suppose that a public official can check the religious components of his convictions at the door before entering the council chambers of government.
It follows, then, that under our constitutional arrangements, a President and members of Congress of whatever faith need never apologize for the fact that their recommendations or votes may reflect their religious beliefs. As members of the elected branches of government, they are expected to bring their best judgments to bear in the formulation of public policy. Inevitably, that policy will reflect the values and moral judgments of its makers – values and judgments that are presumably known to those who elect them.
Those who cry that one should not “legislate” morals or “impose” one’s own morality on others through the law, are ignorant of both history and the law. Whatever else might be said about such arguments, this much, I think, is clear: It would have struck previous generations of Americans as only slightly less than absurd to say that morality cannot or should not be legislated. Americans have always debated, and will, I hope, continue to debate the propriety or the prudence of incorporating a particular moral proposition into the law; but to say that morality and law do not or should not mix flies in the face of everything we know about American history – or, for that matter, about the history of every system of law since at least the Code of Hammurabi. In the 1860s we fought the bloodiest war of our history and then amended our Constitution in order to impose Northern notions of morality on the slave owners of the South.
Nor have we, in this “enlightened” age, ceased to legislate morality. How, for example, are we to describe the civil rights laws of the past generation except as the codification of a moral imperative? And what about our various social welfare laws? Are they not expressions of a corporate moral responsibility for the old, the sick, and the poor among us?
The role of federal judges, however, is of a significantly different kind. As nonelected officials, they can claim no mandate to reconstruct public policy. Rather, their constitutional duties are exclusively judicial. It is their job to give force and effect to the law, whether they agree with it or not; and that, I assure you, is responsibility enough.
When I took my oath of office as a federal judge, I solemnly swore that I would “administer justice … according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.” The authority that was vested in me on taking that oath was derived exclusively from the Constitution. Thus the justice I was sworn to administer was not justice as I might see it in a particular case, but justice as it is defined by the Constitution and laws and legal traditions of our country. And if I consciously deviated from that body of law to do justice as I saw it, I would have violated my oath of office and undermined the safeguards embodied in the Separation of Powers. Should I have been asked to hear a case in which the application of the law might result in my material complicity in what I believed to be an immoral act, I would have had to examine my conscience and, if it so dictated, recuse myself. What I might not do was bend the law to suit my conscience.
A judge, of course, is no more relieved of moral responsibility for his work than anyone else in either private or public life. The duty of a judge, however, is to be measured by the requirements of his office. A person cannot act as the impartial arbiter of the law unless he is willing to apply it. That, in part, is what is meant by judicial temperament — the ability to subordinate personal feelings and beliefs to the constitutional duties assumed — what Robert Bork has described as the principled jurist’s “continuing self-conscious renunciation of power.”
Unfortunately, over the years judges have developed diverging views as to the standards to be applied in interpreting the Constitution. One school, which is exemplified by Justice Antonin Scalia’s focus on original meaning, maintains, essentially, that in identifying and applying the Constitution’s enduring principles, a judge is bound by the meaning of its text as illuminated by contemporaneous usage and tradition; that is to say, its meaning as understood by those who ratified it.
The second school, as epitomized by the late Justice William Brennan, views the Constitution as a “living” document that each generation of jurists is at liberty to adapt to the exigencies of the times. Thus, as Justice Brennan expressed it in an address at Georgetown University in 1985, “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” Needless to say, such a view of the Constitution will allow a jurist to make rather breathtaking departures from the original understanding of what the Constitution requires. Justice Brennan also said that “[t]he act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.” With respect, that statement seems to me to beg the question of an unelected judge’s competence to speak for the community at large.
I recognize that a body of respected thought supports the premise behind Justice Brennan’s remark, namely, that its nuts and bolts provisions aside, the Constitution is essentially a depository of principles that jurists are entitled to update from time to time as conditions change. I believe, however, that a reliance on original meaning in constitutional interpretation is not only sounder in principle, but better designed to narrow the occasions for the ultimate judicial sin: the abuse of power. Over recent decades, the Brennan school has held the edge in a series of sensitive cases that have had a profound effect on the social and political life of this country.
Because millions of Americans see some of the Court’s newly defined rights as threats to their most deeply held values, because its decisions have overturned laws and practices that date back to the earliest days of the Republic, it is hardly surprising that great numbers of our citizens have come to view the Court as an active player, perhaps the major player, in the ongoing culture wars as it pursues goals that they believe to be beyond its authority.
Three particularly sensitive lines of cases come to mind; namely, those in which, by narrow margins, the Supreme Court has virtually banished religion from public life, extended First Amendment protection to the most explicit pornography, and proclaimed what amounts to an unrestricted right to abortion. When, in 1957, the Court outlawed the recitation of voluntary non-denominational prayers in public schools, it ended a practice that had been part of the American experience since the outset of public education and which an overwhelming majority of American parents wished to have continued; and the net effect of its subsequent Establishment Clause decisions has been to exclude religion from almost every aspect of public life and to encourage the belief that religion is irrelevant to the public welfare. More than that, in Yale professor Stephen Carter’s words, it has led to “a discomfort and a disdain for religion in our public life that sometimes curdles into intolerance.”
Recent interpretations of the Speech Clause have had an equally dramatic impact on our society and culture. For better or worse, the Court’s expansion of protected speech to include pornography has abolished any meaningful limitations on its commercial distribution. The Court did hold that obscenity is not protected by the First Amendment, and it defined as obscene any work that, in the view of “the average person, applying contemporary community standards, [has a] dominant theme [that] . . . taken as a whole appeals to prurient interest.” But such has been the erosion of community standards since the Court opened the floodgates for pornography that the U.S. Court of Appeals for the Second Circuit recently had to rule that the notorious film “Deep Throat,” which contains wall-to-wall depictions of sexual intercourse and perversions, was not obscene because it was not patently offensive to jaded New York City audiences. Gresham’s law, it seems, is as applicable to culture as it is to currency.
And then there is Roe v. Wade. In discovering a right to abortion for any reason and, as a practical matter, at any time, the Court overturned the laws of all fifty states and unleashed the most divisive political issue since Dred Scott, one that remains a major factor in American politics more than thirty years after the decision was announced.
To appreciate the full effect of these lines of cases, it is important to understand the social consequences that can flow from a particular Supreme Court ruling. There is a fundamental difference between a practice that society condemns and may or may not choose to forbid and one that the Court has declared to be constitutionally protected. The latter tips the psychological as well as the legal balance in favor of a newly defined right because that which society may not forbid acquires the presumption of moral legitimacy, for how can one condemn the exercise of a constitutional right?
It is because of the pivotal role the Supreme Court has come to play in the ongoing culture wars that Senate judicial confirmation hearings have become the scenes of such destructive acrimony. And the ferocity of the attacks by such organizations as People for the American Way on a man of John Roberts’ impeccable qualifications confirms that the acolytes of today’s secular religions can be as driven as any fighting in the name of the Lord.
Qualitatively, in fact, I can see little to distinguish radical evangelicals from, say, the radical feminists who have spearheaded so many of the attacks on recent judicial nominees. Each group has political axes to grind, each is profoundly convinced that reason and virtue are on its side, each has become sophisticated in the arts of political warfare, each has important constituencies in both the electorate at large and in Congress, and each has an equal right to pursue its goals in the political marketplace. What does distinguish the evangelicals is that the values they champion have fallen into disrepute with both the establishment media and Atlantic and Pacific Coast elites even though they seek no more than to protect institutions and standards that were almost universally accepted as recently as a generation ago. Call it a question of style, if you will.
Whatever its cause, the undeniable fact is that we have witnessed an astonishing sea change in American practices and attitudes over the past forty years or so. Such words as “sin” and “honor” and “virtue” sound quaint as we discard moral precepts and codes of behavior that had been rooted in our society since the founding of the Republic. Moreover, we have shown a dismaying tendency to recast God in Man’s image. If enough people engage in conduct that society once condemned, we rewrite the rule book and assume that God, as a good democrat, will go along.
As a result, since the 1960s, we have witnessed an erosion of moral standards and self-discipline that have given us among the civilized world’s highest incidences of crime, abortion, pornography, drug abuse, and illegitimacy, as well as some corporate scandals of Olympian proportions. To cite just one striking statistic, in 1960, one out of twenty births in the United States was illegitimate; today, the figure is one out of three; and over the same period, we have also managed to create what Professor Carter has called a “culture of disbelief.”
It is hardly surprising, then, that there should have been a reaction to this culture of disbelief and to the loss of moral moorings that many attribute to it. That reaction is embodied in the so-called “religious right”, which consists of a loose coalition of men and women of all faiths who, taking religion and their civic responsibilities to heart, have decided to become politically engaged. And they are not alone in their concerns. According to the exit polls conducted on behalf of the Los Angeles Times, in each of the last three elections, the issue of moral and ethical values was uppermost in the voters’ minds. In 2004, that issue outweighed concerns over the economy, homeland security, and Iraq by substantial margins.
As one would expect in a functioning democracy, this phenomenon has helped frame the issues for public debate, and it has had its impact on both the choice of political candidates and their election to office. The caterwauling of the establishment media notwithstanding, however, I can see nothing more sinister in the activities of the religious right than an attempt to elect officials who share their convictions on certain matters of public policy. That is their right, and it does not offend the Constitution that their views should fail to accord with those of the New York Times or the Washington Post.
The Constitution is quite capable of protecting our liberties so long as those in office feel bound by its terms. For this reason, it seems to me that the American people have little to fear from public servants who take their religion seriously. A healthy concern for the Last Judgment, after all, was precisely what the Founders were banking on when they wrote the third clause of Article VI into our Constitution.