At least since Ronald Reagan vs. Jimmy Carter in 1980, the question of religion in public life and, more specifically, the meaning of the separation of church and state, has surfaced in presidential elections. Sen. Obama has been working hard to overcome the perception that his party is not only secular but anti-religious. At the same time, Sen. Obamas supporters have been raising alarums about the unabashed religious commitment of Gov. Palin.
We all know that the Methodist George W. Bush is, among other kinds of fanatic, a religious fanatic, but most of us have at least heard of Methodists. We might even know one or two. But what on earth is the Assemblies of God, the church in which Sarah Palin was brought up? And then she joined a postdenominational church. All churches are a little weird, but a no-name church is downright scary. What have they got to hide? John Fund reports that within a couple of days her being chosen by John McCain, the Obama campaign sent a team of thirty lawyers and investigators to Alaska to dig up dirt on Gov. Palin. Did you know that her Wasilla Bible Church held a conference on how homosexuals can cope with their disordered desires? And the church sponsors an adult study course on Bible prophecy? Picture those Harvard lawyers taking copious notes on the connections between Ezekiel and Osama bin Laden. Theres got to be material for an attack ad somewhere here.
Midst the silliness and thuggery of presidential campaigns, important questions do get raised, on occasion. And any time is a good time to revisit some basics about the role of religion and religiously grounded convictions in this constitutional order. Numerous scholars have devoted their energies to explaining why the Founders did not hold the truths that they said they held, or did not hold them for the reasons that they said they held them. They have attempted to strip the public square of religious opinion that does not accord with their opinion. They have labored assiduously to lay other foundations than those laid in the beginning. From John Dewey to John Rawls, and with many lesser imitators in between, they have tried to construct determinedly non-religious, and sometimes anti-religious, philosophical foundations for this experiment in freedom, only to discover that their efforts are rejected by a people who stubbornly persist in saying with the Founders, We hold these truths.
A theory of democracy, however intellectually sophisticated, that is neither understood nor accepted by the demos for which it is contrived is a theory of democracy both misbegotten and stillborn. Two hundred years ago, and even more so today, the American people, from whom democratic legitimacy is derived, are incorrigibly and overwhelmingly, however confusedly, religious. This America continues to be, in the telling phrase of Chesterton, a nation with the soul of a church.
And yet there are those who persist in the claim that the separation of church and state means the separation of religion from public life. They raise the alarm about church“state conflicts that are nothing of the sort. There are conflicts of many kinds, to be sure, but they are the conflicts of a robust republic in which free citizens freely contend in the public square. The extreme separationists will tolerate in public, they may even assiduously protect, the expression of marginal religious opinion, of opinion that is not likely to influence our common life. But they take alarm at the voice of the majority.
In that voice it is the people that they hear; it is the people that they fear; it is democracy that they fear. Is that putting the matter too strongly? Numerous books and articles in recent years have raised alarums about an impending theocracy. It would seem that their authors are, in fact, alarmed by a democratic discourse in which all arguments are in play in the deliberation of how we ought to order our life together.
Mr. Jefferson did not say that the civil government has no jurisdiction over opinion except when it is religious opinion. He did not say that the civil government has no jurisdiction over opinion except when it is expressed through associations called churches or synagogues. He did not say that the civil government has no jurisdiction over opinion except when it is majority opinion. He said, The opinions of men are not the object of civil government, nor under its jurisdiction.
Many worry about the dangers of raw majoritarianism, and we should all be worried about that. The Founders worried about it, and that is why they devised a constitutional order for representative governance, and for the protection of minority opinion and behavior. To temper the rush to majoritarian judgment, we have a division of powers, required super-majorities, judicial review, veto authority, and other provisions commonly described as checks and balances.
To enable the majority while protecting the minority, we have a Bill of Rights. But, without the allegiance of the majority to this constitutional order, such protections are only, in the words of James Madison, parchment barriers to tyranny. As Lincoln observed, without the support of public sentiment, statutes and judicial decisions¯including those intended to protect citizens who dissent from public sentiment¯cannot be enforced.
In our day, ideological minorities seeking refuge in the protections of the Constitution frequently do so in a manner that pits the Constitution against the American people. That is understandable, but it is a potentially fatal mistake. Keep in mind the preamble and irreplaceable premise of the Constitution: We the people . . . do ordain and establish this Constitution for the United States of America. That is to say, the Constitution and all its protections depend upon the sentiment of we the people. Majority rule is far from being the only principle of democratic governance and it is not a sufficient principle, but it is a necessary principle. In the Constitution, the majority imposes upon itself a self-denying ordinance; it promises not to do what it otherwise could do, namely, ride roughshod over the dissenting minorities.
Why, we might ask, does the majority continue to impose such a limitation upon itself? A number of answers suggest themselves. One reason is that most Americans recognize, however inarticulately, a sovereignty higher than the sovereignty of we the people. They believe there is absolute truth but they are not sure that they understand it absolutely; they are, therefore, disinclined to force it upon those who disagree.
It is not chiefly a secular but a religious restraint that prevents biblical believers from coercing others in matters of conscience. We do not kill one another over our disagreements about the will of God because we believe that it is the will of God that we should not kill one another over our disagreements about the will of God. Christians and Jews did not always believe that but, with very few exceptions, we in this country have come to believe it. It is among the truths that we hold. And by which we are held.