A New Project for the Conservative Legal Movement
Editor’s note: the following was delivered on June 10, 2024, at the National Conservatism Conference in Washington D.C. Video of this talk is available at National Conservatism’s YouTube channel.
June 2022 was the culmination of decades of work on the pro-life right but also for the co-called conservative legal movement—which may or may not be dead (kind of like the constitution), but we’ll table that for now. Undeniably, the Dobbs decision represented decades of time and resources dedicated to one central cause, one precedent—overturning Roe v. Wade.
Many of our friends, of course, will maintain that that Justice Alito and the Dobbs majority didn’t go far enough insofar as it failed to provide 14th Amendment protection to life in utero. And, perhaps, they’re right. But, again, let’s table that for now.
The near singular focus in the conservative legal movement on Roe was justified, to be sure. Abortion on demand has been and remains a key ritual of sacramental liberalism, celebrated by many with religious fervor and equal defiance of our creator God.
In this sense, Dobbs landed a blow to the idols of Moloch. But Dobbs stands for more than that, or it can.
Since Dobbs, states have once again emerged as the predominant venues for the most pressing political and moral decisions (we could just call it governance), especially those dealing with the health, safety, welfare, morality of the people.
In other words, Dobbs may stand for a revival of federalism after at least 75 years of persistent consolidation of power by the central or general government. In this sense, Dobbs represents a moment of potential constitutional restoration, a rebalancing of the scales of sovereignty, so to speak, that perpetual balancing act inherent in our polity of parallel mixed regimes.
Assuming this rather optimistic outlook—uncharacteristic for me—is correct—and I recognize not all has gone as planned in statehouses, but at least the venue is proper—what should lawyers, judges, and jurists on the right target next to encourage nature to further heal, as they say? How do we get things working again?
The federal constitution—which is not sacred writ but, as Max Edling rightly describes it, a sort of international treaty to hold together what Alexander Hamilton called the most interesting empire in the world—this constitution, presupposed and preserved the preexisting police powers over domestic policy of the colonies turned states.
The anti-federalists were right, no central legislature can adequately or competently legislate for the entire empire on domestic or internal affairs, even with the help of a Fourth Branch of Government. Generally speaking, only general or external policy sits within its purview and competency.
You know, like protecting the border from invasion. Indeed, obsession over uniform domestic conformity on a host of other issues noticeably distracts from efficiency (or even good faith effort) on external things more directly within the federal government’s constitutional mandate.
Moreover, the states predated the Union—table for now too America’s first coup that was the unilateral revocation of the Articles of Confederation, that “perpetual union”—the states possessed their power of policy at the start, on one theory, by royal (not parliamentary, mind you) grant.
As I said, the past 75-100 years—depends on which republic you think we’re on probably; you may drive it back further—have been marked by a concerted effort to consolidate the constituent parts of the empire unto uniformity via federal fiat—and I had thought diversity was our strength.
Anyway, to the point: My answer to the question earlier is very simple: to reinvigorate our compound (not consolidated) polity, our federalism, our constitution; the next 50-year project should be overturning Everson v. Board of Education (1947) which, by incorporating the establishment clause of the First Amendment to the states thereby imposed improperly and ahistorically Jefferson’s wall of separation. It has served as the legal justification for morally hollowing out American life, sanitizing it of its historic religion, and evangelizing our progeny in paganism.
Everson has done as much to degrade America as anything. Like Roe, it stands unjustly and serves as an indictment of America so long as it lives. It has served as the vehicle for the sanitization of American public life of religion and true morality, those constitutional prerequisites everyone likes to cite from John Adams. Further, it has paved the way for the pagan establishment we now endure. As we on the so-called “woke” right like to say, there is always an established religion, it is a question of which, not whether.
Now, I am on record defending religious establishment in, shall we say, a more pre or early modern form and, indeed, even a national one would not be wrong in principle. But we must conceive of and aspire to these things prudently and practically for ourselves here as Americans, accounting for our experience. That means according to our own history, precedent, and tradition, our own style and polity, people, geography, and constitutional arrangement.
Now, there is no real #RETVRN to what came before. There are only possible futures that can feature more or less continuity with the past. And so, it is instructive to recall the way we got here and what we had before.
While an overturning of Everson would technically open the door to state-level establishments in the 18th century sense, what Everson took from us wasn’t even that grand. No state had a tax-supported denomination in 1947. What Everson did was to remove any preference for and inculcation of “general Christianity,” as Joseph Story had called it, from public life. Before we can aspire to anything higher or more formal, we must confront that. That Everson and its progeny primarily deal with public education is a key point. The location, so to speak, of this litigation is no accident. Contra Story, Everson prostrated Christianity before the throne of pluralism. It fundamentally altered our historical baseline for public morality.
To know how offensive Everson is, how much it and later precedent changed our constitutional order, we must briefly recall what came before.
I’d love to provide a very long excursus on seventeenth century America—you know, when our country actually started—tracing the glorious development of American civilization through Boston and Jamestown, and you would all love it, I’m sure, and would all of you would leave convinced that the Puritans were awesome! (In the meantime, just go read Dale’s Code from Virginia or Massachusetts’ first body of laws—the two colonies were not so different.)
But I will, against my better judgment, resist and jump right to the founding era (the second founding, we should say). In the late eighteenth century, Jefferson’s wall was nowhere to be found. That phrase that plagues us now, originates, in case you didn’t know, from what can only be described as a tweet to some Baptists in Connecticut. I’m pretty sure that’s how Gordon Wood characterizes it, but I can’t remember.
This errant remark didn’t show up in Supreme Court dicta until 1878 when the court actually did decide that the government has an interest in what you do in your bedroom and that marriage actually is between one man and one woman.
And rather humorously, Jefferson, as much as he wanted to dissipate denominational enthusiasms, never thought his impregnable wall applied to the states. His second inaugural address boasted that his first administration had respected the constitution by not interfering in state religious affairs—a textualist that Jefferson; “Congress” meant “Congress.”
And, of course, Jefferson’s and Madison’s opinions on religion in Virginia were a minority report. The latter had suggested preemptive incorporation of the Bill of Rights to the states at the time of ratification, and would have been laughed out of the room if people hadn’t been so annoyed by the proposal. As Steven Smith and Philip Munoz have both recounted, the first amendment was rather uninteresting at the time and received minimal debate. The only goal was to assure the anti-federalists that no uniform, national denominational establishment would be imposed on the states.
So, what were the states like back then? Hopefully, most of you know this, so I’ll be brief. They had Christian religious tests for office, financial support for clergy, limited full civil participation to Protestants, declared sectarian preferences, and so on. Even states like Tennessee which precluded establishment of a denomination still had a Christian test for office. Everything was either explicitly or implicitly Protestant coded, so to speak.
Go read the New Hampshire and New Jersey constitutions, for example. (For more, see here.)
Not to mention, the states had robust blasphemy, Sabbath, and obscenity laws. Proselytizing was not a free-for-all. Morals were as regulated as health and safety. The whole person was considered, not just his material existence. This trend persisted throughout the 19th century.
Conscience was protected and tolerance encouraged, but this did not mean neutrality—thought and action were still distinguishable.
Up through the 19th century, Americans considered themselves a Christian people, as John Fea has shown. And rightly so. So did their laws. So did their constitutional order—the pan-Protestant ecumenism was obvious in memory and practice. States didn’t just allow, but required prayer and Bible reading in schools. We had riots in Philadelphia not over whether the Bible would be taught in schools but over which translation—what a time to be alive! We’ve always been a bit riotous in America, but at least they used to mean something. As Jefferson himself recounted, on Sundays, even federal buildings were opened to church services, including the Supreme Court.
And even after incorporation of the First Amendment began in the 20th century, Sabbath laws were still being enforced… even after the fall of the last robust denominational establishment in 1833, Jefferson’s wall had not been erected and there seemed to be no need for federal intervention.
By 1940, however, Cantwell v. Connecticut had begun the process under our review here, striking down the right of states to regulate religious solicitation.
In Everson, the court took the liberty, as it often does, of employing erroneous and irrelevant dicta wholly unnecessary to the case and controversy in view. In Everson, the appellant lost. Public transport could be provided both to public and private religious schools, but thenceforth, preferential treatment for religion would be out of bounds.
The court pretended that the regulation and encouragement of religion was not the responsibility and right of the states, and in its place bestowed a new right on individuals, the right to be free from state support of religion. That is, in a very real sense, free from state governance.
In Justice Black’s retelling of American history, religion was a danger to American freedom, the sovereign citizen, not the source of the community’s history, life, and future flourishing. The impregnable wall was erected, it’s just that New Jersey had not breached it in Everson. All in due time.
The next year, McCollum v. Board of Education (1948) finished the job—no voluntary religious instruction in public schools. Fast-forward to 1961, and Maryland’s rather bland theistic oath of office was unconstitutional. In 1962, teacher-led prayer was unconstitutional, no matter how non-sectarian. The Schempp court got rid of Bible reading and the Lord’s Prayer. Wallace v. Jaffree in 1985 suspected that even a moment of silence my tempt students with praying. That had to go too. So on and so forth. Now, even kneeling on a football field is suspect.
As Justice Thomas has noted, the establishment clause has been weaponized against both individual and communal free exercise, not to mention against state sovereignty and any classical definition of good, human governance.
The Dogma that now lives loud in our jurisprudence is that everything but religion must be aided and protected, especially when it comes to education—there religious instruction must be restrained, but pagan androgyny must be inculcated. Never mind parental preference.
Everson is the jurisprudential source code on all this, and more structurally, a barrier to constitutional harmony and function. Maybe it’s part of why, post-Dobbs, we haven’t been able to eradicate abortion in all our states—just a thought. If states cannot regulate religion, how can they regulate morals?
If police powers are not revived and exercised as they once were, then it doesn’t really matter whether Roe exists or not—we will remain a privatized, impotent, amoral, pagan republic—that is to say, a dead one, a body without a soul.
There is some evident willingness on the court at present to rethink establishment clause jurisprudence. Conservative lawyers must seize the moment. Everson must fall. Conservatives need to break free from the liberal frame peddled by the court of Everson and its progeny. Government, our states, should not protect us from Christianity, but encourage and protect Christianity from its enemies, enemies of our little republics.
There are worse things than Bible riots, I think we’d all agree now.
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