A Short (Legal) History
A recent symposium in the Roger Williams University Law Review centered on a perennial question that has lately resurfaced, namely, whether America is, in any sense, a Christian nation. One can assume that the rise of so-called “Christian nationalism”—always to be presented in scare quotes—serves as the impetus for this print colloquy. The introductory essay by Carl Bogus—yes, Bogus—answered in the negative, setting the tone for the rest of the contributions. Certainly, they did the namesake of Rhode Island’s law school proud, espousing strict separationism and shunning any semblance of sectarianism. (Doubtless the symposium’s sponsor, The Freedom from Religion Foundation, was equally pleased.)
Early on, Bogus queries, “Is America a Christian nation? If the test is whether most Americans are Christians, then the answer is yes, America is indisputably a Christian nation…In terms of numbers of adherents, no other group compares.” But Bogus doesn’t consider this fact decisive.
I do not remember hearing anyone even suggest that is what they mean when they say we are a Christian nation. In fact, I assume they would consider that a perilous position. Where the majority stands may depend on shifting sands. What happens if, say, atheists and agnostics someday comprise the majority? Would America then be properly described as a godless nation? The whole purpose of claiming that America is a Christian nation is to declare that America is—and will always properly be—a Christian nation. That may explain why what I generally hear is the suggestion that America is a Christian nation because the Founders were Christian… One might think of this as a kind of cultural equivalent of original intent. America is Christian because the Founders were Christian.
Bogus goes on to list the big six, capital- “F” founders: Washington, Franklin, Adams, Jefferson, Hamilton, and Madison. He adds,
In every nation, there are historic figures whose personal stories help define national identity. For us, the Founders are such figures. That is why it matters whether the Founders were Christian and intended to found a Christian nation.
Bogus then embarks on a survey of the Christological commitments of the big six, predictably concluding that it is uncertain whether all his hand-picked “Founders” would qualify as orthodox Chalcedonians. (Only Hamilton is deemed credibly “Christian” by the self-described “liberal Quaker” Bogus.)
But we can flip the table on Bogus. That six, admittedly influential, men were questionable in terms of historic, confessional orthodoxy does not itself reveal the character of the nation in the late eighteenth century nor any time since. Nor does it tell us much about the elusive founding intent.
We should also note that even if our scope was limited to the text of the 1787 Constitution itself, Adams and Jefferson were not delegates to the convention; and Washington made meager contributions thereto. (Surely Bogus does not want to factor in that Rhode Island sent no delegate at all.) To boot, Bogus rather summarily dismisses the contributions of vocally Christian delegates like Oliver Ellsworth even as he acknowledges Ellsworth’s outsized influence at the time. Neither does he mention others that disproportionately conditioned the constitutional milieu like the Webster’s Noah and Pelatiah—the latter a Congregationalist minister and the former a vocal Calvinist and avid proponent of Christianization. James Wilson, who stood squarely in the Christian natural law tradition and had significant influence not just on the Constitution but on American jurisprudence generally, doesn’t matter enough in Bogus’ estimation to garner consideration at all.
In any case, a limited sample of elite opinion—especially such an elite cadre—is relevant but cannot possibly be definitive for a sweeping question such as the one in focus. In other words, it does not serve to dismiss the question Bogus desperately wants to avoid, namely, whether the majority religion did, or does, prove the case. (As he acknowledges, the nation has been decidedly Christian since the inception of the nation.) When assessing America’s religious character, we also should not limit its history to 1776 or 1787 or 1791. Much happened before and after that is pertinent. But it should surprise no one that contemporary elites want to cast past elites as comprising the sum total of the American ethos. To them, a fragment of Jefferson’s musings is more valuable than a hundred years of covenanted self-governance in New England townships or centuries of the Anglo-American common law tradition in practice.
To be clear, the extent to which America can be designated Christian only matters to the progressive left, and perhaps the traditional right, insofar as such a designation has legal significance, the extent to which it dictates policy. It is a question of actionable history, of formative myth, leading to contemporary political ends.
The hot button issues of the day all cash out in legal and political realities. Should a Christian America legalize abortion? Gay marriage? Religious pluralism? Moral egalitarianism? Et cetera. This is as it should be in one sense. The law’s effect in shaping behavior, at the individual and societal levels, is inescapable. If America is not (and was not) Christian, then religious history and tradition are no longer tools for resistance against progressive moral-metaphysical overhaul.
But progressives also leverage a secular narrative of America, usually predicated on the big six and the absence of explicit reference to God in the Constitution, to sanitize our collective memory of Christian symbols and meaning. If America, in the sense they deem proper, never was supposed to be Christian, the predominance of Christians notwithstanding, then the public square can be further stripped bare. Our architecture, school curricula, and civil ceremonies can be more thoroughly neutered. But if the nation is Christian, then problems for prevailing, elite opinion on the aforementioned issues arise. Their aim is to limit the arsenal of their opponents. They are also shockingly anti-majoritarian, although only when it suits them. The point is to convince their interlocutors that majority sentiments (at least Christian ones), past and present, have never mattered, that because five of the big six—one would believe they single-handedly plucked a nation from the ether sui generis—weren’t real Christians; therefore, the nation they founded was secular.
To counter this maneuver, we might look at how older American courts answered the question at hand, especially since progressive elites seem quite comfortable with judicial (moral) supremacy. As William Novak has argued, law is a good barometer for a culture, for a people—it is also what lawyers are best at analyzing, however much they might like to play the historian. This is especially true for court decisions in the first hundred years of the republic, written by those closest to the so-called founding era itself. Christopher Tomlins has observed that “between the Revolution and the beginning of the nineteenth century, law became the paradigmatic discourse explaining life in America.” In other words, if you want to understand the founding and early republic eras, look to law.
And so, to return to the inquiry Bogus sidesteps, does the majority matter? Is it relevant to the question of whether America is a Christian nation that most of the populace was and is Christian?
The courts of the early republic (and even into the postbellum period) would have answered both of these questions affirmatively. That is, they perceived that the common law tradition that America inherited should, and did, take stock of majority religious belief; and that this majority belief had always been Christian.
Historically, American jurisprudence has recognized that law, human law, is formulated in context by applying the natural law to historical contingencies for the common good. This jurisprudence has also recognized that law necessarily teaches. It exudes and proliferates the predominant moral ethos of society. Hence, courts were comfortable justifying some measure of legal favoritism toward Christianity on the basis of public peace and respect for majority religious sentiments.
State v. Chandler (Delaware 1837) referred to the common law as “common reason or usage,” “preserver of the common peace of the land.” And so, “every court in a civilized country is bound to notice in the same way, what is the prevailing religion of the people.” In America, as in England, the common law “took cognizance of, and gave faith and credit to the religion of Christ, as the religion of the common people.” As I have written elsewhere, common law courts have generally taken judicial notice of common sentiments or beliefs, even when this applied to religion. This notice is something short of the older conviction that the state should recognize true religion, and more of a popular constitutionalism predicated on civil interests. That is, in a denominationally diverse, generally Protestant federalist-republican context, the courts were not interested in adjudicating theological claims, but rather in preserving the common peace amongst a Christian people, avoiding the European conflicts of the century prior. And yet, it should be mentioned that during the first forty years or so of the republic state establishments endured.
Courts also recognized a self-reinforcing facet to this reasoning. A majority Christian people deserved to have their religion recognized by law and, in turn, the existence of those laws further evidenced the Christian character of the nation. As the New York supreme court put it in Gibson v. American Mutual Life Insurance (1868), “That we live in a Christian country is certainly true. It is acknowledged by the law of the land, which prohibit blasphemy and profanity, and enjoin the observance of Sunday.” This did not mean, however, “that every man is presumed to be a personal Christian.” That was far from the point. Rather, it was that a general consensus, an ecumenical Christianity, had pervaded the country since its beginning and continued to do so.
This was by design, as the Missouri Sabbath laws case, State v. Ambs (1854) argued. The fundamental laws of the state, of the country, had been established not just for anyone, but for a particular people, a Christian people, and were, therefore, designed to perpetuate a Christian community. In the court’s words:
Those who question the constitutionality of our Sunday laws, seem to imagine that the constitution is to be regarded as an instrument framed for a state composed of strangers collected from all quarters of the globe, each with a religion of his own, bound by no previous social ties, nor sympathizing in any common reminiscences of the past.
This was obviously not the case. “We must regard the people for whom [the constitution] was ordained.” The Ambs court took it as an historical fact that it was formed by Christians, for Christians.
How far did courts take this recognition of majority religion, exactly, and for how long? Consider Zeisweiss v. James, an 1870 decision from the supreme court of Pennsylvania that invalidated a charitable trust on rather technical grounds. Basically, the object of the devise—the legal mechanism leaving property to someone—was too remote, vague, and indefinite. The intended testator in the will at issue was the Infidel Society in Philadelphia. The problem was that no such society was, at the time of formation, actually incorporated. Accordingly, the court returned the remainder to the descendants of the deceased.
For good measure, however, Judge George Sharswood, writing for the majority, made clear that “In placing the decision on this ground, however, it must not be understood that I mean to concede that a devise for such a purpose as was evidently contemplated by this testator, even if a competent trustee had been named, would be sustained as a valid charitable use in this state.” The court defined charity, the greatest of virtues—“the fountain and source whence flow all good works”—as “love to God and love to our neighbor; the fulfillment of the two great commandments upon which hang all the law and the prophets.” It followed that since charity “worketh no ill to his neighbor,” it was difficult to see how anything but ill would be “promoted by the dissemination of infidelity, which robs men of faith and hope, if not of charity also.” Therefore, a charitable trust designated for an association devoted to infidelity would be a contradiction in terms.
Sharswood self-consciously, on behalf of the court, embraced a distinctly Christian conception of charity for this analysis. But, predicting objections, he maintained that it was entirely consistent with the “sacred guarantee of the rights of conscience and religious liberty” to have argued in such a way. For even if Christian belief and practice was not mandated by law,
it is the popular religion of the country, an insult to which would be indictable as directly tending to disturb the public peace. The laws and institutions of this state are built on the foundation of reverence for Christianity. To this extent, at least, it must certainly be considered as well settled that the religion revealed in the Bible is not to be openly reviled, ridiculed, or blasphemed, to the annoyance of sincere believers who compose the great mass of the good people of the Commonwealth.
On this point, Sharswood cited the Pennsylvania case, Updegraph v. Commonwealth (1824), and Justice Story’s opinion in Vidal v. Girard’s Executors (1844), which, among other things, tied Christianity and charity together and further reiterated that Christianity was part of the common law insofar as it was “not to be maliciously and openly ridiculed and blasphemed against.” That Christianity was part of the common law was taken for granted by the supreme court of Pennsylvania at least up through Commonwealth v. American Baseball Club (1927): “Christianity is part of the common law of Pennsylvania, and its people are Christian people.” Most famously, People v. Ruggles (N.Y. 1811) had punished blasphemy on this basis. And as federal district judge Michael Baylson discerned in 2010, “The Ruggles decision was by no means an outlier. Various other state courts joined the New York Supreme Court in finding Christianity to be part of the state common law.”
A host of other cases besides Zeisweiss that mirror its stance can be mustered. To briefly illustrate, Specht v. Commonwealth (Pennsylvania 1848) upheld Sabbath laws on the basis of the preference of a “Christian community, where a very large majority of the people celebrate the first day of the week as their chosen period of rest from labor.” Illinois recognized in Richmond v. Moore (1884) that “When the great body of the people are Christians… our laws and institutions must necessarily be based upon and embody the teachings of the Redeemer of mankind. It is impossible that it should be otherwise… our civilization and institutions are emphatically Christian.”
In his essay, Bogus wonders whether those who would predicate America’s Christian character on majority religious commitment would, in turn, accept a converse outcome according to the same standard.
Where the majority stands may depend on shifting sands. What happens if, say, atheists and agnostics someday comprise the majority? Would America then be properly described as a godless nation? The whole purpose of claiming that America is a Christian nation is to declare that America is—and will always properly be—a Christian nation.
The courts of the early nineteenth century would have had no problem with this affirmation of America’s Christian character. Chandler ceded that “if in Delaware the people should adopt the Jewish or Mahometan religion, as they have an unquestionable right to do if they prefer it, this court is bound to notice it as their religion, and to respect it accordingly.” But, again, as Ambs had argued, it is a matter of historical record that the country was not born of Islam or Buddhism or even Judaism, but Christianity. Elites and commoners alike in the eighteenth and nineteenth centuries were predominately—if only broadly and, dare I say it, culturally—Christian. The courts found this reality determinative for assessing America’s religious character.
Admittedly, before the close of the nineteenth century, some courts began to push back against the enduring assumptions regarding Christianity and the common law. The first to do so was the Ohio Supreme Court in the 1853 case, Bloom v. Richards. But even then, the same court was compelled to begrudgingly admit less than two decades later that “the only foundation—rather, the only excuse—for the proposition, that Christianity is part of the law of this country, is the fact that it is a Christian country, and that its constitutions and laws are made by a Christian people.” By the mid-twentieth century, the U.S. Supreme Court could only bring itself to say that “we are a religious people whose institutions presuppose a Supreme Being.”
Even so, state and federal courts have continued to take judicial notice of America’s fundamentally Christian character. Contra Bogus, some have continued to insist on the Christian character of the founding fathers and the framers of the Constitution. In School District of Abington Township v. Schempp (1963), for instance, the Supreme Court said that “the fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself.” This passing admission notwithstanding, in Schempp the Warren court ruled 8-1 against public school Bible readings. Neither the predominant religion nor the religion of the founders seemed to matter.
Perhaps Bogus is right and the fact of majority Christianity is not the final word on the question of America’s religious character. Even so, according to prior courts, it is the first word. If nothing else, the primacy of Christianity must be affirmed as a matter of prudential governance. As these courts repeatedly pointed out into the twentieth century, the law cannot countenance the reviling and disparaging of majority religious commitments if for no other reason than that this is destabilizing.
As Justice Joseph Story wisely instructed in his Commentaries, because “piety, religion, and morality are intimately connected with the wellbeing of the state, and to the administration of civil justice” they are all squarely within the government interest. Amongst a people who ascribe to Christianity, then, it is “the especial duty of government to foster and encourage it among all the citizens and subjects.”
This isn’t might-makes-right reasoning. Peace and tranquility, after all, are properly considered common goods to which all law must be directed to be just. Christians need not, therefore, be embarrassed to assert the historical and continuing predominance of Christianity as a basis for its privileged legal status, for its place as the moral center informing norms, customs, and policy. Some morality, some orthodoxy, some religion must and does inevitably serve this function, as Story recognized. It is undeniably prudent for the state to adopt the mores, customs, and laws of that religion which is at least ostensibly embraced by the majority of the population. What could be more reasonable? And whether Bogus likes it or not, Christianity was predominant at the founding and still serves, in some regard, as the moral basis of most Americans—and not just for white folks, it should be added, as Samuel Perry’s and Andrew Whitehead’s own research has demonstrated.
It turns out after all that Bogus’ dismissal of the predominance of Christianity in the populace as decisive for answering whether American is a Christian nation is indeed bogus.
*Image Credit: Wunderstock