John M. Swomley: Religious Liberty and the Secular State: the Constitutional Context. Buffalo: Prometheus Books, 1987.

Originally published in the New York Tribune, July 22, 1987.

 

Having led a war for American liberty, George Washington never imagined liberty to be self-maintaining. Like a country, like a homestead, liberty needs defensible borders, limits. In his Farewell Address, he urged his friends and fellow-citizens to cherish not only their liberty but also their government’s unity, “a main pillar in the edifice of real independence, the support of your tranquility at home, your peace abroad, of your safety, of your prosperity, of that very liberty which you so highly prize.”

To maintain governmental unity, Americans need a degree of national unity. National unity requires several things: patriotism; shared commercial advantages; a Constitution both respected and amendable; the mitigation of extreme factional spirit by public opinion favoring the Union. But in any republic, such popular sentiments, interests, and opinions themselves require a foundation. “Of all the dispositions and habits which lead to political prosperity,” Washington wrote, “religion and morality are indispensable supports… [the] firmest props of the duties of men and citizens.” “The mere politician, equally with the pious man, ought to respect and cherish them,” as the rule of law itself requires oaths backed “the sense of religious obligation.”

Washington denies that “morality can be maintained without religion” in the public mind. “Whatever may be conceded to the influence of refined education on minds of peculiar structure”—one might say, for example, certain philosophers—”reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” Here Washington denies a cardinal assumption of the ‘Enlightenment’: that thoroughgoing secularism may replace religion without harming, and probably by greatly benefiting, the public morality.

While dismissing ‘Enlightenment’ presumptions, Washington appropriates ‘Enlightenment’ language. “Promote… as an object of primary importance, institutions for the diffusion of general knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion be enlightened.” Washington can use this language precisely because he firmly identifies knowledge and enlightened opinion with religion and morality. In his time, churches and church-supported schools educated substantial numbers of Americans.

John Swomley never mentions the Farewell Address, and understandably so. A member of the national board of the American Civil Liberties Union and a retired professor of “social ethics” at a theology school, he speaks for the ‘Enlightenment’ in one of its contemporary forms—the one that mistakes the New Testament for a ‘social gospel,’ the polite forerunner of the violent ‘theology of liberation.’

According to Swomley, the United States Constitution establishes a “secular state,” that is, a state “not hostile to religion” but not religious, either—a state whose authority derives from “civil and natural law,” not “religious doctrine or… divine revelation.” This is only partially correct. The Declaration of Independence refers not only to the laws of nature but to the laws of nature’s God, to the self-evident truths of Creator-endowed natural rights. The Declaration and the Constitution artfully blend Biblical teachings with modern natural right, revelation with reason, all put into practice by statesmen whose prudence recalls the best of classical political thought.

This fundamental error, committed on the book’s first page, forces Swomley into committing numerous absurdities in defense of his doctrinaire civil libertarianism. Tax deductions for parochial schools are unconstitutional, he says, because not all churches sponsor schools—an argument that overlooks a church’s liberty to sponsor or not sponsor schools. “The state has no responsibility to support or aid religion in any way” because this would compel “those who support no religion to support what they do not believe”—a sad condition familiar to every American whose taxes go to support institutions animated by principles he does not believe or, to put it differently, every American. The Constitution cannot “be construed as creating the authority to enact laws benefiting religion financially”—as it cannot, if you presume that tax deductions and credits for contributions to religious institutions somehow deprive governments of monies rightfully belonging to itself, instead of allowing citizens to use their own money the way they want. If Americans consent to laws granting tax exemptions to religious institutions, there is nothing in the Constitution to prevent them from doing so.

Swomley laments, “The original intent that government was not empowered in any way to deal with religious matters”—an intent unknown to Washington or to any other Framer—”has been changed… so that government may aid religion so long as it doesn’t seem to the [Supreme] Court to be a step in the direction of establishing a state church.” But that is exactly what the Framers themselves thought.

Having drunk so deep of confusion and hypocrisy, Swomley cannot but declaim more and more incoherently as his diatribe continues. America has a dangerous “civil religion,” really an “ideology… founded on myths” and seen in such “slogans” as “In God We Trust.” Speaking of myths, Swomley advances a number of them himself: The American founders were narrow-minded defenders of economic interests; Lincoln was a pious fraud; Wilson’s speech on national self-determination and Roosevelt’s “Four Freedoms” were nothing but “war propaganda.” What is more, Marxism has contributed usefully to “the process by which society has moved away from control by the church.” Evangelical Christians and Roman Catholics “are collaborating not only to achieve their mutual interests”—which would be horrifying enough, in Swomley’s view—”but also to assist right-wing political candidates friendly to their religious beliefs.” I suppose we can all thank God that Leftists never do anything like that.

In sum, Swomley can’t decide whether to revere the Constitution or to denigrate its authors. This silly little tract will perish with other ephemera spawned in the flow of Constitutional-Bicentennial publishing. Such decent oblivion remains a true blessing of liberty in the American republic.

Charles L. Mee, Jr.: The Genius of the People. New York: Harper and Row, 1987.

Originally published in the New York City Tribune, September 30, 1987.

 

To take the profuse, complex details of past events and build a readable narrative with them: popular history is easy to do, hard to do well. Prey to partisanship and pedantry of all kinds, the 1787 Constitutional Convention is no exception. Charles L. Mee, Jr. has a knack for this kind of writing, as he shows here. If accompanied with a few caveats, his book should make a timely gift for the non-scholar (or young student) who wants to know something about what this Bicentennial-of-the-Constitution stuff is all about.

“The genius of the people” alludes to an assertion of Publius in The Federalist: that only the republican form of government fits “the genius”—that is, the character and situation—”of the American people.” By establishing that form, the United States Constitution reflects our people but is not simply a product of them. Publius does not suggest that we are geniuses in the romantic sense of the word prevalent today; he presupposes decent virtues and ordinary intelligence, both exercised in liberty. But the framing of the Constitution did require exceptional intelligence and virtue of a certain kind, best summarized in the word ‘prudence.’

Mee more or less understands this. He rejects the once-fashionable contention of reductionist historians, that the Framers merely played for personal and regional economic advantage. Their motives, complicated and various, do not fit any simple pattern. There was James Madison, concerned with balancing central and local governments, uniform national laws with liberty. There was George Washington, convinced that the new country’s economic well-being and military strength depended upon a strong central government. There was Benjamin Franklin, optimistic, more ‘democratic’ than Washington, less troubled by such disorders as Shay’s Rebellion. There was George Mason, advocate of strong local government, a detester of politics, distrustful of politicians, who therefore determined to keep the federal government modestly empowered. Mee writes vivid, telling political character sketches of these and the other principal Framers that form the best section of the book.

Mee remarks one extraordinary similarity among these diverse, quarrelsome men. They were gentlemen, in the old way. All agreed not to report any of the Convention’s secret proceedings to the public. Except for the garrulous Franklin, who gossiped among friends, none did—proof that the Framers held prudence and honor above popularity and transient advantage. “The newspapers knew nothing,” and as a result, serious candid deliberations could occur, and did.

Virginia’s delegation put the serous set of proposals before the Convention. Written by Madison, the Virginia Plan called for a strong national government dominated by the large states. Mee recounts Madison’s argument in defense of enlarging the sphere of government: that a federal republic extending over a large territory and substantial population will make it harder for any one faction to dominate the others, thereby controlling the worst effects of faction. But he gives Madison an egalitarian twist, summarizing his claim to be, “The answer to the problems of democracy was more democracy.” This seriously distorts the argument of the tenth Federalist, which calls not for more democracy, more direct popular rule, but a more extensive republic, or representative government. Mees has replaced Madison’s argument with a phrase from the twentieth-century egalitarian philosopher John Dewey, a ‘progressive’ who regarded the United States Constitution as inadequate to the needs of modern life, and who sought to combine increased direct democracy with a bureaucratic welfare state. Madison wanted not “more” democracy but a republic capable of restraining the typical excesses of democracy.

The local-power or states-rights men were not to be overawed by the Virginia gentry. Mee narrates the debate, and much of what one can know or guess about the bargaining after hours, with accuracy and verve. “Thoroughly practiced in political realism,” the Framers were “neither naïve nor cynical”; the centralist and localist factions “could not be neatly divided along lines of wealth or class.” These were political men, not economic ones. Their final compromises—basing the House of Representatives on population, the Senate on equal representation of the states—demonstrated this prudence. Madison opposed the compromise (which Franklin wrote) making him “the Father of the Constitution” in a strict and traditional sense: initiating, contributing significantly to its genetic makeup, and helping to ensure its care, but not to be credited with the whole baby.

The book should be read with a few caveats. Mee has a weakness for polemical jabs directly more at the political situation of 1987 than 1787. Thus we learn of his opposition to “secret wars” and of his enthusiasm for gun control. He sometimes lets his sentiments outrun his evidence, as when claiming that Madison’s Senate was for the rich, his House of Representatives for the middle class, and that “the poor would have to hope, as always, that government pledged to justice did not mean to risk the foundation of justice by restricting it to the few.” But in 1787, 1987, and every year in between, the middle class and not the poor has comprised the majority of Americans; if the House is the seat of the middle class, then government has never been restricted to the few.

More seriously, Mee claims that the great defense of the new Constitution, The Federalist, “promotes a conception of the Constitution that is… more aristocratic than the consensus of those who actually wrote the document.” However, he almost immediately concedes that The Federalist “gave partisans of the Constitution the best arguments they could use in favor of the new plan.” That being the case, then the more “aristocratic” conception must be superior to the democratic one. The most intelligent critique of interpretations of the Constitution in accordance with the Framers’ “original intent” would be that the document is better than the intent.

Instead, Mee trots out a much worse, though more common, argument. Because the “Great Compromise” between large and small states was a compromise, he denies that any original intention can be found in the Constitution at all. This of course makes no sense. If two people argue and reach a genuine compromise, each comes away with a new, shared intention. The debate over original intent involves some complex issues, and cannot be so simply dismissed as ‘progressive’ partisans of “judicial activism” would like to do.

The Genius of the People nonetheless serves the intention of its author, who provides a readable account of the single most important event in the course of events in America. Scholars will learn nothing from the book, but they are not its audience. Non-scholars can do worse than to read a book of this sort, especially if they read with that typically American skeptic’s eye.

Richard B. Bernstein (with Kym S. Rice): Are We to Be a Nation? The Making of the Constitution. Cambridge: Harvard University Press, 1987.

Originally published in the New York City Tribune, December 16, 1987.

 

Published by Harvard University Press, underwritten by the New York Public Library, recommended by Henry Steele Commager (“the dean of American historians,” as he is often billed), this handsome coffee-table volume marking the bicentennial anniversary of the United States Constitution can be safely assumed to represent the views of America’s academic establishment. As it does, for better and for worse.

For better, the establishment no longer subscribes to the crude economic determinism of Charles Beard. Writing in the 1930s, that celebrated ‘progressive’ historian aimed to ‘debunk’ the Constitution by claiming the framers acted in accordance with their own financial interests. His claim fit well with the temper of the American Left at the time, led by a U. S. president who decried ‘economic royalists’ on Wall Street. Professor Forrest McDonald disproved this claim some thirty years ago, carefully researching those interests and contrasting them with the arguments made on the floor of the Constitutional Convention. Insofar as the framers defended economic interests, these were more regional than personal; politics not corruption was their fame, played hard but honorably.

Bernstein respects the integrity and intelligence of the framers. He calls the Constitution the culmination of the intellectual ferment and political experimentation in the new republic.” As befits a historian, he does better at describing politics than at understanding political philosophy.

He rightly notices that the Declaration of Independence speaks of the American people, not the people of Massachusetts, Virginia, New York; Thomas Jefferson and his colleagues thereby “nationalized the case against George III.” Bernstein does not adequately connect the principles, as distinguished from the “nationalism,” of the Declaration of the Constitution, despite the Declaration’s clear statement that governments are instituted among men for the purpose of securing their unalienable rights—a point unlikely to have slipped from the minds of the framers. In this oversight too he follows contemporary scholarship.

Bernstein knows that “In the era of the American Revolution, more than at any other time in our history, ideas dominated our politics.” This fact even leads to a small and amusing design problem: Many of the book’s numerous plates depict nothing more visually striking than old book and pamphlet covers. Unfortunately, Bernstein endorses the regnant historicist or ‘contextualist’ interpretation of those ideas, an interpretation promoted by such scholars as J. G. A. Pocock and Quentin Skinner. This school exaggerates the effect of ‘the times’ on great political thinkers and statesmen, overlooking the fact that such individuals themselves form a large part of what we mean when we look back at ‘the times.’ Too much attention paid to ‘context’ typically causes inadequate attention to ‘texts,’ a failure to read the writings of political thinkers with sufficient care, and therefore to judge the actions of thoughtful statesmen who did read with care.

Specifically, Bernstein calls Montesquieu’s magisterial The Spirit of the Laws a “disorganized, rambling treatise,” which it demonstrably is not. He fails to see that while the principal framers rejected Montesquieu’s preliminary argument on the impossibility of maintaining a republic in an extensive territory, they accepted his final argument for an extended commercial republic. Following Pocock, Bernstein claims that “at the heart of republican thought was a deep concern with public virtue and an obsession with corruption,” oversimplifying The Federalist‘s argument, wherein civic virtue combines with representative and federal institutions, the extended territory those institutions make possible, and the practical spirit of agriculture and commerce to temper impolitic popular enthusiasms. Published work by Professor Paul Eidelberg, particularly his 1974 book, A Discourse on Statesmanship: The Design and Transformation of the American Polity, provides a subtler and more accurate assessment of the framers’ achievement.

Bernstein’s failure to see the Constitutional significance of the Declaration of Independence, along with his superficial account of the Constitutional order itself, issue in an inaccurate conclusion: That Hamilton’s preference for commercial life and Madison’s preference for agricultural life, reflected in the dispute between northern and southern states at the Convention, eventuated in the severest crisis the American regime has faced, the Civil War. In fact, the Civil War had little to do with issues between financial men and farmer, and everything to do with slavery. Both Hamilton and Madison opposed slavery, although Madison (himself a slaveholder) could never think of a way to divest himself, or his fellow Virginians, of their ‘property.’

The dispute between Madison and Hamilton centered on politics, not economics. Madison suspected Hamilton, and the Federalist Party generally, of harboring oligarchic ambitions against republicanism itself. Madison expected and wanted commerce to thrive in the United States, but wanted only such commercial activities as in his judgment fostered virtues of industry and honesty similar to those of the agrarian way of life. Far from simply identifying himself with southern agricultural interests, Madison recognized that chattel slavery made white southern gentry into aristocrats, not good republican citizens. These regime-threatening tensions, not the normal and manageable strains between town and country—characteristic of the extensive, diverse republic Madison himself lauded in the tenth Federalist—led to “the crisis of the house divided.