The American Founding, Protestantism, and the Law of Nations

Editor’s Note: The following is a lightly revised version of a speech given at the second annual National Conservatism Conference in Orlando at the beginning of November 2021.

Conservative and traditional Protestantism in this country has been framed. It is one of the many strange features of the modern Protestant church that while it produces many fine Christians and many fine Christian institutions—schools, charitable organizations, and the like—it produces surprisingly few public intellectuals or political leaders. This striking feature can be seen in something my colleague Aaron Renn has pointed out: as a share of conservative voters, the American Protestant church is a majority, or nearly so, yet the leading voices of that same movement have either been reticent to be involved in politics or have used their public position to chastise American Protestants for voting as they do rather than recognizing the  good things those voters are aiming at and attempting to guide them to achieving the good things they seek. Whatever the “moral majority” accomplished electorally it has done almost nothing to produce leaders who garner (or warrant) the respect of American society writ large.

This situation has arisen as a result of a phenomenon that Czesław Miłosz was quite familiar with. When the Soviet Union moved into a new country it did not begin by silencing Christians, as you might expect an atheist state to do. Rather it selected which Christian voices it would highlight and which ones it would sideline. In so doing, not only did it ensure that there were always well-funded Christian apologists for whatever new policy the Politburo rolled out, but it also created a “controlled opposition,” which ensured that the only Christian voices audible to the listening public who disagreed with the Soviet regime were the most extreme and clownish.

Our media environment is not run by a soviet, yet, but its conservative wing is dominated by Roman Catholics, while prestige publishing (which is to say mainstream publishing) is dominated overwhelmingly by liberals. In such an environment it is no wonder that a similar Protestant rope-a-dope strategy has been operative in America for most of my lifetime. Traditional protestants have been framed in precisely this way and we live in the fruit of that framing. Consider just a few anecdotes.

When George W. Bush was asked who his favorite philosopher was, the Yale-educated president said “Jesus Christ.” I do not wish to downplay the profundity of such an answer, or its possible rhetorical brilliance, particularly in the mouth of someone previously known for profundity and brilliance. In reality, we are worlds away from the nuanced and thoughtful image of Christianity that modern liberals can offer. 

Barack Obama answered a similar question with “Reinhold Niebuhr,” the great 20th century neo-orthodox Reformed theologian. 

When modern evangelical Protestants look to their heights for a living voice to theologically interpret their situation they turn up… Russell Moore. 

Meanwhile liberals are instructed by reading Marilynne Robinson’s graceful reflections on Reformed theology, which she turns out in between penning masterful fiction.

When presented with those options, no serious, intelligent, Protestant American would want to be a conservative Protestant. Thus, many of them join Rome, or make a career out of correcting their own people for being insufficiently liberal. Or they embrace the frame and beclown themselves. 

This is a major loss to our nation. Recovering and deploying the riches of the Protestant tradition has not been tried and found wanting. It has been found difficult—or merely left untried. So I will turn now to show some of what we see when we embark on just such a project of recovery.

The American Founding was a decidedly Protestant affair. Scholars will point out the Deists, the odd Roman Catholic or Jew who were present and even perhaps essential to the project. But even the inclusion of those fellow travelers was a product of the religious toleration which Protestantism established and expanded in the English Reformation by the Act of Toleration in 1689. This toleration was then expanded in the New World to Catholics and Jews as well. For further exploration of this and the exploration of the law of nations that follows I will advise readers to look up the work of my colleague Brad Littlejohn.

To see the decidedly Protestant character of the American Founding, however, we must look at the juridical warrant for the American Revolution. This has always been an opaque subject. Some would even say that none was necessary, there being in nature a so-called right to revolution and radical innovation of a social contract. Others look to the common law of England and “the ancient rights of Englishmen,” along the lines of various arguments deployed in the English Civil War and an imagined Anglo-Saxon past. Closely bound up with the question of juridical warrant for revolution is the question of American sovereignty and the status of the “law of nations.” Supreme Court Justice Oliver Wendell Holmes Jr. famously said, “there is no mystic over law to which even the United States must bow,”1 by which he seems to have been ruling out not just any sort of natural law with juridical force, but any law of nations in the strong sense whatsoever. 

But if we look closely it appears the Founders did consciously claim juridical warrant for their Revolution, and that it was twofold: internally vis-à-vis the Crown, which did indeed rest on English common law, but also externally, vis-à-vis the consortium of European Christian nations, which was the common law of Europe as articulated by men whom Burke called “the jurists…of the Christian world,” preeminently Emerich de Vattel.2

The modern expression we are used to hearing is the term “international law,” which to any Aristotelian is a funny construction requiring a long explanation. After all, the law is the custom of the people governed by a rational principle and enforced by a sovereign to gain a common good for that people. International law therefore is on the surface absurd. International law, however, is not the same thing as the law of nations. Simply put, the difference lies in the “inter.” To grasp this we must turn to the Treaty of Westphalia. Although it is possible that too much importance is accorded to Westphalia as the foundation of the pre-WWI international order, nevertheless, I think we are still justified in calling the period between 1648 and 1917 the Westphalian order. This order, in all places where it was intact, presupposed the sovereignty of nations; their relations were without superior arbiter, and what bound them in their relations was simply the ancient principle pacta sunt servanda–agreements must be kept. But although nations were sovereign, this was only true politically, not theologically. God was acknowledged as above the nations in two ways: in His law, and in His providence. It was the latter which governed existential conflicts, that is, wars, between States, rather like the old idea of trial by ordeal. But His law also governed the conduct of wars. For instance the obligation not to kill an enemy combatant who has laid down his arms. We can see a fascinating instance of exactly this thinking being deployed in Lincoln’s Second Inaugural where he speaks of our own American trial by ordeal. 

Lincoln muses that perhaps the providence of God, “gives to both North and South, this terrible war, as the woe due to those by whom the offence [of slavery] came.” And even, he continues, the war may not end “until all the wealth piled by the bond-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword.” Nevertheless, as bitter as the war may be, Americans must attempt to conduct that war justly. A grave responsibility taken seriously by many on both sides: While Lincoln counsels his audience to maintain hearts with “malice toward none; with charity for all,” he exhorts the Union to “strive on to finish the work we are in.”  

In Lincoln’s Second Inaugural we see the south depicted as modern social contractualists. They want, according to President Lincoln, to “negotiate a settlement” to rework the social contract. But nations are not made and unmade by the hands of men in such bloodless rationalistic (or econometric) ways. Lincoln correctly claims that such a fabrication of a social contract would be the death of the American nation. Further we see that God and God’s law is situated outside of the mire of worldly politics. Both sides call out to God. And God’s judgment on the nation of America is felt in the effects of the war itself, on both sides of the conflict. Finally the peace which is sought is a peace among all nations established by God. This is not the establishment of a supranational peace established and governed by man. 

We may contrast this with the modern order where the “inter” in international law signifies a federation, with an attendant quasi-federal center with its own authority. International law is thus in effect always supranational law, fulfilling, in part, the dream of Kant in his work Perpetual Peace. This work is, unsurprisingly, a key philosophical work underpinning the European Union. Vattel, whom I referred to earlier, conceived of the “balance of power” as being needful so that no nation grows strong enough to enforce its law on any other. Contra Vattel, international law “balances” the relative “powers” within Europe in such a way that the local laws and customs of the various peoples of Europe must be erased. And it isn’t just terms like “balance of powers” that have been co-opted and distorted, as we can see by looking at Von Mises’ use of “frame of mind.” Where Mises wants the whole world to adopt a “frame of mind” that enforces a liberal thinking that liberates us from all provincial customs, we can read Protestant writers like Thomas Traherne who argue for a “mind in frame” which allows for the peculiarities of the peoples of the earth to flourish as was intended by a good and loving God. Traherne believes in the God who is Himself the frame in which all mind exists. Von Mises wants all minds to live in the frame he and his confreres are building. The same terms are being used and reused to profoundly different effect. Look closely enough at the foundations of the modern neoliberal order and such cases multiply.

International law is not the only thing we see on the world stage. Beside it is the equally strange concept of American Exceptionalism. While international law is turned to as a sort of moral code created by men, American Exceptionalism operates as the power of enforcement of the law–and its exception. The US has functioned in recent times as guarantor of this, and occupying the position of absolute sovereign. These are points I will return to. For now we note that the US was not merely the lucky inheritor of the new situation; its policies under President Wilson, and after, in large part created it. But its conception of international order was different, and more modest, in the beginning; so we will look now at what we know of the thought of the American rebels regarding international relations. 

As Eliga Gould3 has shown, the American rebels were very eager to gain admittance not into an abstract assortment of all the world’s nations, but rather, into the family of European nations, despite Washington’s famous renunciation of the Old World, a trope which would persist right down to Condoleeza Rice’s notorious “Old Europe” jibe. They had a fierce need to be seen as “one people,” rather than a loose federation, in order to be taken seriously on the world stage.

So while they were making appeals to their historical rights as Englishmen to the King, they simultaneously appealed to the other nations of Europe. This was a tricky thing, as there was little to no precedent for the creation of a nation ex nihilo. And that isn’t actually what happened here either. The great advantage we have over Aristotle is in our ability to look at the historical record of a nation being founded and marvel at the American Founders’ wisdom, as well as the contradictions (apparent or otherwise) which they had to tolerate to accomplish that which they prudently could for their people.

And so the law of nations gets baked into our national DNA from the start. Given who the founders were, it couldn’t have happened any other way. We see this evidence through the ages. Take for one more example two great American jurists of the early and middle 19th century, James Kent and Henry Wheaton, both of whom thought that the law of nations was a law of Christian nations. They also seemed to assume a sort of two kingdoms distinction, whereby Christian nations could find a universal jus gentium (law of nations) embedded in the laws and customs of all nations. Still, Christian nations had the preeminence, not simply by way of power, but by way of juridical clarity and coherence, and together formed a family of nations distinct among all other nations, although not in necessary opposition to them.

This changes as we enter the period of Wilsonian Globalism. Once America emerges on the world stage ravaged by wars of imperialism it learns precisely the wrong lesson: that it should itself take on the mantle of empire. This leads us step by step to the point we are at now where the UN/EU operates as a moral authority, a bit like the Pope in the medieval era. And America operates as the Roman emperor wielding the sword to enforce the moral norms (and allow exceptions where it chooses). There is some discrepancy between the two as priests and kings vie for power but all in all they tend to move in lock step. This need not be the case. A recovery of the Protestant conception of the law of nations and of America as a nation among the nations would do much to heal what can be healed in our national soul. This healing would do much good for the peoples of the world longing to be free from the strangling so-called “universal moral norms” of the United Nations. And for the nations longing to be free of American over-interventionism.

But it would also do a great deal of good for the American people. The overwhelming number of whom long to live in peace with their fellow Americans, and as President Lincoln said, with all nations. Americans want more than anything to possess once again a shared heritage they can cherish, honor, and pass on to their children. This is possible for us, just as it was for our ancestors.

I opened this talk by talking about the ways conservative Protestants have been framed in the institutional ecosystem in which we exist. I will end by admitting some of the blame belongs with ourselves, or at least our forebears.

As Philip Hamburger has written: Protestants for centuries in this country had public intellectuals and institutions. When they realized they had to share space with Roman Catholics and to a lesser extent Jews, they burned down their own house and created the naked public square by de-sacralizing the institutions they had built. Whatever good this might have done, making space for religious toleration and the flourishing of the sciences, it was not without grave damage to our national fabric. A generation ago Richard John Neuhaus was right to resist this naked public square, and more Protestants should follow in his wake reversing the trend our ancestors began. 

Protestants must de-secularize. We must bring Protestant traditions of legal thought, natural law, and civic order back into public conversation. The unipolar world of the past thirty years is crumbling. Nation states are reasserting themselves in a way we haven’t seen in over a century. We are looking at a multi-polar world. It is time for Protestants to say some things we haven’t been saying since the time my grandfather was a boy. Some of this work will necessarily be ecumenical in ways we never would have expected. In rejecting the frame of Protestants as neoliberal collaborators or goofy backwoods snake handlers we must assert positive images of nobility, intellect, and self-regard. We must create spaces in which we can develop our thinking and from which we can propose creative legal and political resolutions. In such a recovery of our own tradition we may find we have surprising commonality with others. We must also recover the prophetic Protestant social justice tradition. It is a conception of true justice which speaks to problems of justice not only in the soup kitchen but also in the Senate. It is a moral vision which sees our duties tied up with our joys equally in the bedroom and the boardroom. True justice requires re-humanizing the everyday lives of our fellow citizens. By recovering our own tradition we will be able to learn how, why, and where we can partner with others in broad coalitions to advance laws for the common good of all Americans. We will find the resources to resist a vision of secular social justice which, divorced from God, necessarily devolves into idolatrous tyranny and oppression.

We will re-envision our political life through the ordo amoris of St Augustine. Augustine taught that there is a fitting order to the ways in which we must seek out, and love reality. If you return home to your family and say, upon walking in the door, “I love all kids,” it would be deeply unsatisfying to your children. Similarly we can not pretend to be global citizens who love all nations. We must love the particular nation God has granted us. So too it may be that justice requires us never to say that politically we “care for all people.” Our duty to all requires particular duties to particular people. Our political and legal relations will require us to make distinctions, to say things which are uncomfortable for many to hear. But the distinctions must be made because they are true by nature of our particularity. 

We have much to do and we cannot get to this place easily. There must be dedicated investment of time and money to fully develop, and in cases update, the legal, political, and philosophical thinking which, as we recover it, we will find is surprisingly relevant for an age in which the global hegemony of post-WWII secularism is over. 

[1] The Western Maid, 257 U.S. 432 (1922).

[2] For more on this see Mark Janis’ book, America and the Law of Nations 1776-1939, 2010.

[3] Among the Powers of the Earth, 2012.

*Image credit: Wunderstock

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Colin Redemer

Colin Redemer is Director of Education at American Reformer and Vice President of the Davenant Institute. He is a founder of the Davenant Hall graduate college and co-host of the weekly Ad Fontes Podcast.

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