(This is a follow-up to a previous post, found here.)

I know, it sounds like the title of a book, the writing of which I will leave to another of suitable leisure, ambition and learning. (Paul Cella sounds about right.)

And so I left Charles Krauthammer’s piece wondering which tyranny I ought to prefer, that of the judges or of the people, and, should I choose the latter – assuming the yoke of my fellows’ opinions to be less onerous than that of the philosopher-kings – wondering further when their ‘ethos’ might change, and to what degree, and why I should have to submit to any tyranny at all.

This is a question both Christian and atheist, conservative and liberal, reactionary and progressive, are entitled to ask. I am not concerned here with the practical matters of politics, such as how many senators each state ought to have, whether gerrymandering is constitutional, or how many votes should be required to shut down a filibuster. I am concerned with the moral matter of our constitution’s legal and cultural foundation, with the (and here I use a word that may send some fleeing, as before a cross) tradition that gave it birth, for it is in this arena that the difficulties between the above-named parties become most evident, and in their resolution most crucial to the kind of nation we were, are, and shall (or have) become.

I have seen Mr. Krauthammer described as a sort of sub-species of conservative, though whether it be of the neo, paleo, or whatever variety has lately entered the parlance, I haven’t been able to make out. And this is because neither can I perceive any reference to some version of a tradition enveloping his appeal to the popular will and its ‘ethos,’ which is his only appeal. In his contention that the Marriage Protection amendment would amount to a contravention of a future exercise of the popular will, one longs, in vain, for a feel of where, in his heart of hearts, he stands on the matter, of some truth hovering in the background that would, in its immutability, allow him to acknowledge that, yes, bad things happen, or might happen, but that it is bad and here’s why.

He’s not alone. Others whose conservative credentials are not generally questioned have expressed similar sentiments, though perhaps not for the same reasons. In the July 3rd issue of National Review (sorry, link will only work for subscribers), Ramesh Ponnuru expresses irritation with George Will’s “irritation” with social conservatives, and notes in passing that said annoyances “…do, sometimes, overreach. Will is probably right to consider both intelligent design and the marriage amendment instances of such overreaching. (I would also point to the insistence, by many social conservatives, that America is in some constitutional sense a ‘Christian nation.’)” I don’t know that it’s proper to call Fr. Richard Neuhaus and his colleagues conservative, save in matters theological, but in that magazine’s 1997 publication of “We Hold These Truths: A Statement of Christian Conscience and Citizenship“, written in the wake of “our November 1996 symposium on judicial usurpation”, a not unfamiliar sentiment surfaces. After appealing to the Founders’ invocation of “the laws of nature and nature’s God,” after asserting that “Nations are ultimately judged not by their military might or economic wealth but by their fidelity to” those two things, after claiming that “In the view of the Founders, just government is self-government,” that “Liberty is not license but is ‘ordered liberty’ – liberty in response to moral truth,” the Statement concludes with this: “We reject the idea that ours should be declared a ‘Christian’ nation. We do not seek a sacred public square but a civil public square.”

Well, you’ve got one. Considering the issues that divide us, it’s about as civil as one might expect. And why does Father Neuhaus and his long list of interdenominational eminences reject such a declaration? “Our purpose is to revitalize a polity in which all the people of ‘we the people’ are full participants.” Shades of Krauthammer. They say it in several ways, but it always comes to the same thing. They would prefer that events move in a particular direction, but offer no mechanism by which it might be accomplished. They want their share of the popular will to be heard, but in the end will remain at the mercy of whichever ‘ethos’ holds the greater share.

Fr. Neuhaus et. al were at the time of writing most concerned about “judicial usurpation.” And I hope it will not be necessary to establish the claim, but rather a self-evident fact (and a cause of great rejoicing for some), that, beginning at least with the school prayer decision in the early 60’s, that usurpation has proceeded fairly unhindered, that Supreme Court decisions since have had about them the look of a concerted effort to dismantle the ‘ethos’ that prevailed in previous years and even centuries, and that for a majority of these justices an ethos is a thing most mutable, one being subject to replacement by another, ending with certainty in the moral anarchy of a society that knows no truth. I hope likewise that it is not necessary to establish that this ethos was in its essence a Christian entity (with due homage to its Jewish predecessor), our inheritance from an earlier entity called Christendom, and that it is no burst of paranoia for socially conservative Christians to feel that their inheritance has in modern times come under a relentless and corrosively successful attack – for them to feel that their nation has been taken from them.

The constitution is certainly no Christian document in the same sense as that which might issue from a religious organization. It has nothing to say about the ordering of our religious affairs except to prohibit an establishment of it, and forbidding any interference with its “free exercise.” By Congress. Thus, readers might be interested to know that, simultaneous with the school prayer decision, the state of Massachussetts had on its books a 137 year old law – not merely suggesting or encouraging – but requiring prayer in its public schools, the constitutionality of which law seemed never to have been questioned until the Supreme Court decision rendered it null and void. A majority of the School Board members, the teachers, and parents were initially of a mind to resist, a spokeman for that Board saying things you will no longer hear from any school board in the land: “We will challenge and defy the world movement toward atheism. This is Massachussetts, the cradle of liberty…here is where the first shots are going to be fired.” (Go read the whole fascinating story.)* My, how far the state which now offers its citizens gay marriage has traveled. By now, of course – except for the very occasional surfacing of a figure like Judge Roy Moore – all resistance has collapsed. And that includes any opposition offered by a majority of what once was called “the conservative movement.” The Court’s dispensation has prevailed. It’s all about the rule of law, not “the laws of Nature and of nature’s God.”

In its ostensible neutrality toward religion, are we to understand as settled doctrine the dictate that our constitution has no obligation to any particular set of religious propositions or to any understanding of moral truth, nor any duty at least to protect those propositions which gave birth to a particular culture? That such doctrine need not be considered settled is hinted at in Sandra Day O’Connor’s concurrence with the 8-0 majority which rejected the Ninth Circuit Court of Appeal’s effort to eject God from the Pledge of Allegiance. Says she: “Certain ceremonial references to God and religion in our nation are the inevitable consequence of the religious history that gave birth to our founding principles of liberty.” Though I’m sure the irony escapes her, even she of the abortion right knows what’s back there, in the past, what got it all started. It seems to me that Judge Moore’s desire to display the 10 Commandments in his courthouse was no more than one of those “ceremonial references,” but we are not about to accuse the justices of complete consistency.

That whole God in the Pledge of Allegiance mess puts me in mind of something I wrote a long time ago in its immediate aftermath, and which was also a response to the opinion of libertarian Atlanta talk show host Neal Boortz, to whom I was listening while driving to work, leaving my students to wonder why I was in such a sour mood once I got there. Boortz thought

the Ninth Circuit’s ruling [to be] correct because what the “under God” in the pledge accomplishes is to establish the religion of monotheism, something I’d always considered more a philosophical conclusion than a religious one. It may, of course, entail belief in one God, but not because the doctrine of some religious institution requires it. This belief can be arrived at through metaphysical enterprise. Even Aquinas had, so he claimed, several ways of proving it without once appealing to Revelation. And certainly the belief being “established” in the pledge would not be Christianity, for Muslims, Jews and Unitarians do not accept the doctrine of the Trinity as compatible with belief in one God. It seems to me the difference between monotheism and religion is that a religion requires an identifiable institution with some kind of hierarchical structure, rituals of worship, and a body of dogma to be either accepted or rejected. For the government to establish a religion, it would have to create a law compelling membership in this “identifiable institution” with penalties attached for failure to adhere – in short, the forfeiture of those civil rights that normally are the privilege of citizenship. We begin to see that “original intent” is another name for historical context, an idea that does not at all comport with Mr. Boortz’s literal, we might say fundamentalist, reading of the first amendment – to wit, that any mention of religion by the government, any support given to it, is in fact an establishment of it. He treats the constitution as though it came to us fresh from God’s hand, free of all cultural connections. It becomes in effect a divine document. Nothing else is to be referred to. The Declaration of Independence, which enunciates a huge moral and religious principle upon which the Constitution was built, holds no sway. The Declaration flowered in the ground of that great body of Anglo-Saxon law, tilled over many long centuries by what great influence, do you suppose? Need I utter the name of Christendom? Which was itself constructed, by however many fitful and strife-torn efforts, in however many frightfully flawed forms, on what great foundation stone? I think you see where this is leading. If the Supreme Court upholds Mr. Boortz’s position, perhaps our society will continue to evolve in the direction it has been going. Maybe some of us will live to see that foundation stone removed from the edifice of our culture. Mr. Boortz may not like monotheism, but I’d sure like to be around when he gets a taste of full-blown paganism.

(Actually, in hindsight, I’m not sure paganism – which makes room for stoics, ascetics and ceremonial virgins – might not be superior to what’s coming upon us.)

In general I was attempting to defend

a serious claim that citizens outraged by the pledge decision simply take for granted: that our people and the culture that defines their very lives is more than the Constitution. The culture gave birth to the Constitution, parent to the child. The document is an artifact of that culture, not its discoverer. It was formed to protect that culture, not to eviscerate it, and therefore cannot be considered the enemy, nor a neutral arbiter, of governmental beneficence toward a specific notion of civic or even moral virtue, of monotheism in general or of Christianity in particular, from whence that virtue arises. Could the Founders be asked, I believe they would declare that our institutions – the public schools, the Congress, even the Courts – ought to be warriors in defense of this virtue, of what is commonly called the Judeo-Christian tradition, and that their banner of battle is the Constitution itself. As long as no man is compelled to “pledge allegiance” to this faith as a condition of citizenship, no establishment has been accomplished. If you don’t think the Constitution was meant to protect that tradition, I ask you to imagine what our country would be like if, by some warped twist of events, another tradition supplanted it, say, Islam. The societies that currently practice it are not big on “separation of church and state.” The process of debate as to whether or not a certain thing ought to be considered obscene, for example, they would find blasphemous. The process of amendment they would find crushingly laborious. The Constitution wouldn’t last two weeks.

But now I think I would like to see judges and holders of political office made, if not to pledge allegiance to that faith, at least prevented from demonstrating their “neutrality” toward it by in fact destroying it. At the risk of offending Mr. Krauthammer’s aversion to “pockmarking” the constitution with many amendments, I propose we crater it with one declaring this a Christian nation. The legalese of its wording I leave to those with a taste for it, but it might proceed along the following lines:

–The Christianity referred to would have to be that which has historically been shared by Protestant and Catholic alike (that is, anything prior to the Lambeth Conference of 1930) and dogmatically asserted in, and only in, the Nicene Creed; and that moral tradition depending from it about which Blackstone wrote in an inspired way:

This will of his Maker is called the law of nature…This law of nature, being coeval with mankind and dictated by God Himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this…Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.

(It used to be that when a man spoke like that, most people understood what he was talking about. It is a matter for rediscovery.)

–The constitutional prohibition against a test for religious office would not be abrogated, every man remaining free to believe and worship as he sees fit, but rendered powerless to overthrow by statute or judicial fiat the aforementioned moral tradition. He would not be asked to swear allegiance to the faith, but only to uphold in law its precepts. If he finds this to be a burden of hypocrisy upon his soul, he should seek another outlet for his ambition.
–And, consequent to the foregoing, no establishment of religion will have been promulgated, as there is no such thing as The Christian Church. You can’t show me the cathedral in which it is headquartered, nor the clergy which preside over it.
–No member of the clergy of any facet of Christianity, including members of religious orders, will be permitted to hold office, the conduct of public affairs belonging properly to the sphere of the secular citizen who, though he may share the faith of his guides and inspirations, occupies from them a station in life different in kind. Pat Robertson will have to ward off hurricanes from the security of his television studio, not with Abe Lincoln looking over his shoulder.

That’s just to get us started. Obviously, such an amendment would require the immediate reversal of any number of Supreme Court decisions, though it will have come too late for Nancy Cruzan, Terri Schiavo, many millions of aborted babies, and the many more millions of our young people (and adults) whose souls have been corrupted by ubiquitous pornography courtesy of our Supreme Court’s esteemed neutrality, the cowardice of local zoning boards, city commissions, state and federal legislatures, and the apathy of our fellow citizens.

I live a rich fantasy life, but am not naive. In this temporal vale there is no escaping the “popular will”. Such an amendment could at any time be repealed, and in the current atmosphere would not only not reach the floor of our Republican controlled Congress, but would probably be stomped into it. But there might be some pleasure in the effort of bringing it forward, as your fellow citizens – the overwhelming majority of whom identify themselves as Christian – would be made to show their collective hand.
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* A hat tip to Paul Cella for steering me (us) to the ISI archives of Willmoore Kendall. I did not read the recommended essay, but found another equally rewarding: American Conservatism and the “Prayer” Decisions. Mr. Kendall’s piece is long, absolutely riveting, and entertainingly prescient in its critique of conservatism and the consequences yet to come (e.g. battles over crosses in the classroom, creches in city hall). Part of his thesis involves a solution similar to my own, for he too wishes to mess with the constitution, though in a different fashion: he wants us to stop what he calls “agu-barguing” with the Court, and urges us instead to – get this – repeal the 14th amendment, to whose continuing presence he attributes many evils.