• 28 August 2009

Constitutional Agnosticism, Religious Pluralism, and the Problem of Community

Steven D. Smith - University of San Diego School of Law

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The American Constitution, we are told, is a “godless” document.1 More precisely, it is an agnostic document; it nowhere makes any reference, whether affirming or denying, to God.  So what?

Some scholars see in this agnostic quality a constitutional mandate for governmental secularism; indeed, they may appeal directly to the agnostic quality of the Constitution as a way of avoiding the labyrinthine jurisprudence of the First Amendment’s religion clauses.  But is the appeal well taken?  More generally, what are the implications, if any, of the Constitution’s agnosticism for the relations among government, religion, and citizenship in this country?


I.
Irrelevant Agnosticism?

Perhaps the most obvious answer—surely the simplest, anyway—would assert that the agnosticism of the Constitution has no implications at all for how governments in this country should relate to religion.  Why should silence, on any subject, have any particular implications?  There are many things, after all, that the Constitution says nothing about.  Hunting, for instance.  Or space exploration.  Nothing much is thought to follow from this silence.  No one argues that because the Constitution doesn’t talk about hunting, governments in this country are forbidden to notice or regulate the activity.  Instead, we assume that if a particular government (local, state, or national) would otherwise have the power to regulate hunting, or to prohibit it, or to subsidize it, then that government may use its judgment and exercise its power as it thinks best.  The Constitution’s silence neither compels nor constrains.

The same goes for space exploration—and, arguably, for religion.  The Constitution contains provisions, of course, that are thought to constrain American governments in their dealings with religion—most obviously the First Amendment.  But the Constitution’s overall agnostic quality would in this view simply be irrelevant to the question of what governments can do to, for, with, or about religion.

This is, as I said, the simplest answer to the question of the implications of the Constitution’s agnosticism.  There are, however, at least two reasons to be skeptical of this answer.

First, the Constitution’s original and continuing silence on religion seems to have been a deliberate decision made in purposeful contravention both of the wishes of many Americans (both in the founding period and subsequent to it) and of many of the relevant models—foundational documents like the Declaration of Independence, the Articles of Confederation, and the constitutions of nearly every state (and some foreign countries, such as Canada) that did or do explicitly pay their respects to deity.  So it would seem that the Constitution’s silence on this subject is more portentous than its silence on many others.

Second, it seems at least possible that the Constitution’s silence on religion ought to mean something, in the sense that this purposeful silence might usefully serve to ground or inform some valuable constitutional strategy for dealing with the challenges of community and citizenship in a religiously pluralistic society.  But what might that strategy be?  And how might it be served by the Constitution’s agnosticism?


II.
Mandatory Public Secularism?

In modern times, following the demise of Christendom and the failure of Westphalia’s cuius regio eius religio2 principle as a device for dealing with the religious fragmentation that followed the Protestant Reformation, a favorite strategy for dealing with religion has been public secularism.  Practical and theoretical variations on the strategy are legion, of course, but the basic idea is that religion should be protected in but also confined to the private domain, while government should operate in the realm of the secular.  In this way, citizens can continue to profess and practice their various religions without persecution or impediment.  And government, for its part, can perform the worldly work that is proper to it while remaining serenely “neutral” in matters of religion.

“Reasonable” and civically responsible people, it is said, ought to be content with this sort of arrangement.  In reality, as we know, some people aren’t happy with it.  But shouldn’t they be?  All that is being asked is that they believe their creeds and live their religions, and that they refrain from imposing these views on others.  What could be more reasonable?

For proponents of this strategy, the agnosticism of the American Constitution may seem a godsend.  Thus, especially of late, some scholars and advocates have emphasized the Constitution’s agnostic or “godless” quality as a basis for requiring that American governments generally confine themselves to the realm of the “secular.”3 Usually, of course, the requirement of public secularism is derived more specifically from the First Amendment’s Establishment Clause.  But for those who are scrupulous about original or intended meaning, grave difficulties attend this derivation (difficulties which we need not worry about here).  So it would be convenient for proponents of mandatory secular government to find a constitutional source or argument that did not depend on that vexed textual provision.  The Constitution’s general agnosticism presents an inviting possibility—one that advocates of public secularism increasingly seem inclined to use.

But there are also problems with using the Constitution in this way.  Simply as a matter of construction and logic, the argument is problematic:  “The Constitution is agnostic (or secular); therefore, governments operating under the Constitution must be agnostic (or secular).”  The proposition seems a bald non sequitur.  The Constitution basically establishes a structure of government for the United States; it does not spell out any particular substantive ideology or governing philosophy that government(s) either must or must not follow.

Consider:  One can imagine a church whose articles of incorporation and bylaws are written in purely secular legal terms.  It would hardly follow from the fact of a secular constitution that the church itself is prohibited from being religious.  In a similar way, the United States Constitution is basically a set of articles of incorporation or imposed bylaws for American governments.  From the secular character of those provisions no general requirement of public secularity need necessarily follow.

So the “secular government” conclusion seems dubious as a matter of straightforward constitutional construction.  But it is dubious as well as a strategy for dealing with religious pluralism.  Its difficulties were perhaps less apparent a generation or so ago, when most thinkers foresaw a “secular” future in which religious belief and practice were destined to dwindle. At that time, reading a requirement of public secularism into the Constitution might have been viewed as just a way of hurrying the nation along the path it was preordained to follow anyway—an acceleration that constitutional theorists or judges have sometimes thought to be a good thing (sort of like AP classes in high schools, perhaps?).  As it becomes increasingly apparent that secularization (in the sense of a withering away of religion, at least) is not imminent after all, however, the flaws in the secularism strategy become more conspicuous.

The central problem, I think, is that it becomes increasingly obvious that the “private religion/secular government” prescription is not, as its proponents might claim, somehow outside or above the cultural fray—independent of and neutral among the various competing religious or secular orthodoxies or “comprehensive doctrines.”  Rather, the public secularism position is, while perhaps not a full-fledged “comprehensive doctrine,” still a political orthodoxy of its own—one that is consistent with some of the competing orthodoxies and incompatible with others.  Its pretensions to “neutrality” are spurious. As a possible basis for community, it is one candidate among others.  To be sure, it might be the best candidate.  But then again, it might not.

The prescription of public secularism as a basis for political community compels reflection on the problematic relationship between community and belief.   Start with the obvious:  As Toqueville observed, for a “community” to flourish, there need to be common bonds that bring citizens into a union.  These bonds can no doubt be of various sorts—economic, historical, linguistic, and so forth.  They can even be fictional. Insofar as humans are believing creatures, however, a community will necessarily adopt some stance (even if one of detached unconcern) toward the various beliefs people hold dear.

Moreover, in their consequences for community, beliefs have a sort of double-edged character or potential.  If a community associates itself with beliefs that citizens hold, it can elicit their allegiance.  But insofar as it rejects their beliefs, or associates itself with beliefs they reject, it can cause them to become disaffected or alienated.  In a pluralistic society, obviously, this dual potential is particularly challenging because any beliefs the community might affirm in order to gain the loyalty of some citizens are likely to produce alienation in others.

So, what to do?  One strategy, preferred and practiced for centuries, essentially tries to eliminate divisive creedal differences by inducing or coercing citizens to share a common religion.  Due to the failure of that strategy in post-Protestant times, contemporary communities adopt other measures.  In part, they may attempt to unite citizens on bases other than belief—commercial interests, for example.  But in view of the continuing centrality of believing to humans, communities nonetheless have to find some way of making their peace with belief.  How to do that?

In its essence, liberalism (of which modern public secularism is only one version) tries to identify what is taken to be a “second-order” set of political beliefs—in equality or liberty or human rights—around which citizens hopefully can unite, while leaving other first-order beliefs—in specific religious or antireligious doctrines, perhaps—to the private sphere.  While the strategy arguably has achieved considerable success, it also provokes serious conflicts, as we see in the nation today.

The basic difficulty, I think, is not so much that some citizens reject the liberal division of beliefs into first-order/private and second-order/communal categories.  For rhetorical purposes, advocates often accuse their opponents of doing that.  My sense, though, is that nearly all Americans accept the distinction in some form—that hardly anyone wants the government to endorse (or condemn) infant baptism or the Nicean Creed.  We are all (or nearly all) liberals now, in this country anyway, in the core sense.  But Americans differ considerably about how and where to draw the line between what is private and what is properly public.  And many doubt that “secularism” is the proper device for drawing that line.

For example, and more specifically, it seems that some Americans—millions, perhaps—believe that, as George Washington declared, “it is the duty of all nations” (notice that the duty applies to nations, not just to private individuals) “to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor . . . .”4 They might even find themselves unable to give their full allegiance to a political community that refused to honor that duty.  Hence the national motto, “In God We Trust,” or the indignation that arises when, for example, a court orders the words “under God” to be stricken from the Pledge of Allegiance.

But other Americans, obviously, object to such expressions.  The disagreement between the two camps pervades and motivates many of the conflicts that we describe as the “culture wars.”  It is a daunting problem—the more so because we ought to be able to see, by now, that “public secularism” is not a neutral arbiter among those conflicts.  It is, rather, a banner for one camp of combatants.


III.
The Strategy of “ConstitutionalAgnosticism”

At this point, we may be able to appreciate the possibility of a different strategy for maintaining pluralistic community—one that we might simply call “constitutional agnosticism.”

This strategy grows out of the crucial fact that not everything that is affirmed by an agent—by a person, or a community—is constitutive.  This distinction, as well as the possibilities it opens up, can perhaps best be appreciated on a personal level.  We understand that a person is not identical to or constituted by his or her opinions—and a good thing, too, because otherwise, if a person held an opinion we found objectionable or obnoxious, we might have to regard the person himself as objectionable or obnoxious.  Instead we are often able to draw a distinction between the man and his beliefs, thinking, for example, “I love and respect John as a person, even though I find his religious and political views absurd.”

No doubt there are beliefs so central to a person that they become at least partially constitutive:  If the Pope were to repudiate Catholicism, or if Daniel Dennett were to become a fundamentalist Christian, we might think that these worthies were just no longer the same persons they used to be.  For the most part, though, we can distinguish between a person and his or her beliefs.  This distinction allows us to treat persons with respect even though we utterly reject their beliefs.

The same possibility is available, I suggest, with respect to communities.  A community can affirm or associate itself with various ideas or beliefs without these becoming fundamentally constitutive of the community.  As a result, it is possible to respect or profess loyalty to a community even while disagreeing with some or many of the beliefs the community, through its government(s), affirms.  Governments can express beliefs in accordance with democratic demands, thereby eliciting or solidifying the allegiance of citizens who hold such beliefs; dissenters, while less than happy with such expressions, can take comfort in the fact that the objectionable expressions are not constitutive of the community.

They can do this, at least, so long as dissenters can look to something beyond such expressions that is constitutive and that does not affirm the objectionable beliefs.  And here the agnostic Constitution serves a crucial function.  The question of what “constitutes” a community is complex, to be sure.  Still, it seems safe to say that the American Constitution is at least part of what “constitutes” the American political community—as supreme law and articles of incorporation but also as venerated symbol.  So long as the Constitution itself remains steadfastly agnostic, it will always be true that whatever expressions various governments at the local, state, or national levels may make, these are not ultimately “constitutive” of the political community.  Hence, a citizen may reject the expressions without rejecting the community itself.

So suppose, for example, that something like the national motto (“In God We Trust”) were adopted at every level of government—by Congress, by every state, and by every city and county in the land.  Citizens who are atheists would—do?—find this situation galling:  There would be no political entity in the country to which they might travel that would not affirm a belief to which they object.  Even in this lamentable (to them) situation, however, they would still be able to look to a more foundational political reality—the Constitution—in which such an objectionable belief is deliberately and conspicuously not affirmed.  And because that document and symbol—that agnostic document and symbol—is accepted as the community’s supreme and constitutive law, they could take consolation in the observation that the political community itself is not constituted by a commitment they reject.

This is not to say, of course, that such citizens will find this situation ideal—far from it.  Nor, for that matter, will the situation be ideal for more aggressively devout citizens who think that the community should not only associate itself with belief in God, but should constitute itself upon that commitment.  Just as atheists or agnostics might prefer a constitution that is not only itself agnostic but that prescribes agnosticism at every level of government, more devout citizens may embrace the view, energetically professed by some at the founding, in favor of including theistic language in the Constitution, as the Articles of Confederation had done.  And so they may support the sort of proposal that has periodically arisen in American history to amend the constitutional text by adding religious affirmations.

To alter the Constitution in either of these ways (or to so interpret it, as modern “no endorsement” jurisprudence episodically does), however, would subvert  the community-maintaining possibilities that the agnostic Constitution affords.


Conclusion

It is important to acknowledge that we have an agnostic Constitution, but equally important to recognize that we have an agnostic Constitution.  It is the Constitution that is agnostic, in other words, not politics or government.  Indeed, it is precisely the Constitution’s agnosticism that permits governments, at different levels and in different ways, to sponsor the sorts of religious expression that American governments have traditionally engaged in and that may well be important in securing what Lincoln called the “attachment” of citizens, while not making such affirmation constitutive of the political community.

In this way, the Constitution makes a valuable contribution to the project of maintaining community in a pluralistic world.  That contribution is not a panacea; it does not resolve the various conflicting views that are always a potential threat to political unity, but rather supports a strategy for negotiating with and among them.  Insofar as it is agnostic, the Constitution does not dictate any particular content to our civic creeds or affirmations.  It permits civic religion of the sort reflected in the national motto and the Pledge but does not command it—just as it permits but does not command public secularism.

Supplying the more specific substantive content of our public orthodoxies thus remains a perpetual project.  No doubt the content of our orthodoxies has varied—and will vary—from place to place and time to time.  This unsettled situation may leave theorists feeling queasy.  But it is precisely this open-endedness, I suggest, that makes the agnostic Constitution such an important contribution to the challenge of maintaining e pluribus unum.dingbat

Acknowledgments:

Copyright © 2009 New York University Law Review.

Steven D. Smith is Warren Distinguished Professor of Law at University of San Diego Law Review.

This Legal Workshop Editorial is based on the following Essay:   Steven D. Smith, Our Agnostic Constitution, 83 N.Y.U. L. REV. 120 (2008).

  1. ISAAC KRAMNICK & R. LAURENCE MOORE, THE GODLESS CONSTITUTION: A MORAL DEFENSE OF THE SECULAR STATE 27 (2d ed. 2005).
  2. The phrase literally translates to “whose realm, his religion”; the basic idea was that every realm or nation would follow the religion favored by its prince.
  3. “Secular” may be a troublesome category, in and of itself. For the purposes of this essay, we need not struggle to define its exact meaning and contours.
  4. George Washington, Proclamation: A National Thanksgiving (Oct. 3, 1789), in A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897, at 64 (James D. Richardson ed., 1896).

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