Founders Designed Establishment Clause to Protect Religion, McConnell Says
Judge Michael W. McConnell
of the 10th Circuit Court of
Appeals gave the Meador
Lecture on Law and Religion
last week. The nation’s founders included the Establishment Clause of the First Amendment to protect and promote the church’s inculcation of public virtue, rather than to protect the federal government from the influence of religion, said Judge Michael W. McConnell at the Oct. 27 Meador Lecture on Law and Religion.
McConnell, who serves on the U.S. Court of Appeals for the 10th Circuit, delivered his speech to an overflowing audience in Caplin Pavilion.
He noted that the separation of church and state often has been a provocative issue in American history. “We seem to be at one of those times again in American public life when these questions of how to adjust the spheres are on many people’s minds,” he said.
McConnell challenged popular explanations of the separation of church and state.
“The conventional wisdom goes something like this: that the creation of a liberal democratic order requires or at least presupposes the secularization of the civic culture, and that this secularization is embodied in the establishment clause of the First Amendment, the separation of church, which protects the private practice of religion from government but also, it is said, protects government from the device of any irrational powers of religion,” he said. “It’s necessary according to this view to base public policy and public affairs on the neutral grounds of reason rather than the superstitious sway of priests and bishops or the fulmination of fundamentalists.
“To many…religious intrusion into politics is an offense against their cherished ideal of a secular public sphere,” McConnell said. “They speak darkly of betraying the principles of the founding and dismantling the wall of separation created by the founders.”
Although McConnell said he believes the issue is overblown on both sides, he thought it was advantageous to rekindle interest in the role of religion in a democratic republic. “The founding was quite different and in many ways more interesting than this conventional wisdom.”
Although the First Amendment prohibited the federal establishment of religion, he said, approximately half of the founding states had some form of religious establishment when the amendment was ratified and others were exploring the possibility.
“The 1780s were actually a time of renewed interest in and support for state religious establishments,” McConnell said.
Founding fathers such as John Adams, George Washington, Patrick Henry, and John Marshall were among those who supported some kind of establishment of religion, according to McConnell.
“We have to understand why intelligent republican Americans would support an establishment in order for us to appreciate what was going on when the American people adopted the opposite view,” he said.
McConnell presented a three-step argument in favor of the establishment of religion. First, a republican government “required an extraordinary degree of public virtue.” Second, religion was “necessary or at least highly conducive to the formation of public virtue.” And finally, government support was necessary or at least valuable in sustaining religion. The modern critique focuses on the first two steps. The first step is flawed, according to many, because a republican government must be neutral about the definition of virtue, and it is impossible to promote virtue without defining it. Critics of the second step focus on the possible disassociation of religion and virtue.
“Pretty clear, isn’t it, that religion is not necessary for virtue; we all know people who are virtuous without being religious,” McConnell said. “More damaging to the argument is the opposite; we all know people who are conspicuously religious but not virtuous. We may even have seen some of them on TV.”
During the 18th century, however, the third step was the most important and controversial. At the time, the relationship between republicanism and public virtue, the first step, was less problematic, partially for semantic reasons. McConnell explained “virtue” comes from a Latin root for “manly,” and its 18th-century meaning was rooted in this definition.
“Above all, ‘virtue’ meant public spiritedness,” he said. “We might better use a term like ‘voluntary self-sacrifice.’”
Unlike common forms of 18th-century government such as monarchies, republics required public virtue because the republican emphasis on personal freedom made a government based on coercion and punishment distasteful.
Acceptance of the second step—the strong ties between virtue and religion—was rooted in the church’s monopoly on disseminating knowledge. With no public schools and no television or radio, churches were the principal and almost only institution promoting public virtue. Because a common theme of biblical religion is condemnation of selfishness, the social values promoted by churches fit well with public virtue as self-sacrifice. Even today, McConnell contended, churches are the most common source of the inculcation of public virtue. Although he believes some studies are flawed, he cited an extensive literature to suggest religious participation correlated with socially responsible behavior.
“I’m not asking you to accept the second step—it’s a big thing to swallow—but just understand why the relationship between religion and public virtue may not be so far-fetched even today,” he said.
McConnell suggested that from the modern perspective, the third step “is actually the least hard to swallow.
“What do we ever do in our society when we think something is good and we want to encourage it?” he asked. “We spend money on it. … Spending money on good things is what our country may do best.”
In the 18th century, however, the third step is what ultimately resulted in the decision to disestablish religion. Although federalists such as James Madison and Alexander Hamilton were able to reduce the necessity of relying on public virtue by creating checks and balances, they realized they could not eliminate it. Thus, the first step was accepted by the founders. Similarly, the second step was accepted with relative ease.
“In a largely Christian society, it was virtually inconceivable for most to imagine that virtue could be sustained on any other basis [other than the church],” McConnell said. “It would require the creation of alternative institutions for the inculcation of virtue, and it was hard to imagine what they would be.”
Instead, opposition to the establishment of religion was rooted primarily in the third step, and came from an unexpected quarter—the most intensely evangelical elements of American society.
“They offered a religious critique of the establishment of religion,” he said.
Because freedom of conscience and a personal relationship with God were primary tenets of the Protestant reformation, established religion was contrary to the ideals of common Christian denominations at the time.
“An establishment of religion is useless because only genuine faith, a voluntary submission to the will of God, is true religion,” McConnell said. “So neither the Pope in Rome nor the legislature has any authority to dictate to us in matters of religion.”
The religious arguments often were incorporated into secular sources, too. For example, Thomas Jefferson began Virginia’s 1786 bill for religious freedom with a theological proposition.
A second reason for religious support of the separation of church and state was to protect the autonomy and independence of the church. Historically, governments are more likely to use churches for their own purposes than for churches to use governments, according to McConnell. For this reason, Baptists took the separation a step further and preferred for churches not to receive money from the state.
“He who pays the piper picks the tune,” McConnell said.
Finally, many argued that established religion would be weaker than nonestablished religion.
“This should seem fairly plausible to us today because when the government runs something, it is usually done poorly,” McConnell joked. “If you like the United States Postal Service, you probably like an established church also.”
Following Adam Smith’s economic views, religious leaders believed the exertion, zeal, and energy of ministers would be greater if independent from the state.
“Which members of the clergy have a greater incentive to bring in new members and to get the congregation excited?” McConnell said. “Is it the minister who receives a regular stipend from the state, or is it the minister who depends for a salary on passing the collection plate every Sunday morning?”
McConnell concluded that the separation of church and state was supported to protect the strength of religion more so than that of the government.
“These were the arguments that actually carried the day against establishment of religion, not that religion is deleterious or unnecessary to liberal government but that government support and control are bad for religion,” he said.
Although disestablishment looked risky, the founders determined it was in the best interest of religion and consequently of the state.
“Religion would flourish better if it were left free,” he said. “Just as free enterprise is good for the economy, free exercise is good for religion. And the remarkable thing about this experiment is it seems to have worked—the United States is still one of the most religious countries in the world.”
From this, McConnell said, it is possible to be left with “a happy, optimistic conclusion.
“It wasn’t necessary to choose between religion, public virtue and disestablishment—you could have all three,” he said.
He concluded his lecture with some caveats.
“I did not say and I do not believe that all religions are good,” he said, explaining that the role of religion in American history has been “a mixed bag just like everything else....But I do believe, on balance, that freedom of religion has beneficial civil effects, and that’s the point.”
Furthermore, he does not believe nonreligious philosophies are inferior or do not contribute to the public good.
“My point is just that our constitutional tradition does not favor the secular over the religious, that religion has a public and not just a private role to play, and that nonestablishment was defended as good for religion, hence good for virtue and hence good for liberal democracy,” he said.
• Reported by Elizabeth Katz