Works By John Courtney Murray, S.J.
The Garden and the Wilderness: Religion and Government in American Constitutional History. By Mark De-Wolfe Howe. Chicago and London: The University of Chicago Press, 1965. Pp. 180. $4.50.
Some years ago I sat with Mr. Mark DeWolfe Howe, together with a dozen other men of diverse backgrounds, in a seminar on religion in American society, sponsored by the Center for the Study of Democratic Institutions. The seminar went on for a year or more, and a good bit of the discussion concerned constitutional issues. Over the months all of us came to admire Howe’s qualities as a thinker and as a man—the openness of his intelligence, his historical and legal scholarship, his faculty of nicely temperate judgment, his articulateness, urbanity, and wit. All of these qualities are revealed in his last book, whose title was chosen with fine insight—Roger Williams’ famous image of the two realms of reality, the church and the world.
Fortunately, one need not be a lawyer, as I am not, in order to find the book enlightening. The intelligent citizen today, who is aware of historical developments in America, will likewise be aware of the “gap” to which Howe points in his first chapter, “between current social reality and current constitutional law” (p. 11) with regard to the separation of church and state. The gap, as it exists on the state level, has become the subject of public argument in the New York State Constitutional Convention with respect to the so-called “Blaine Amendment” (Section XI, article 3), which forbids all manner of public aid, direct or indirect, to religiously affiliated schools. Current realities in New York State—legal, social, educational, and religious—are vastly different in 1967 from what they were in 1894, when this article became state constitutional law. And a major question before the Convention is whether the law is not today an anachronism—or in more technical language, an archaism. Howe does not argue this particular question; and I am not sure that he would follow me in my affirmative answer to it. However, this is only to say, with a manner of honest impudence, that his treatment of the constitutional issue of the relations between government and religion-in-education is not as searching as one might have wished. The issue is of recent growth and urgency; it is distinct from the original issue with which the Founding Fathers dealt—the relation of government to religion as such.
Howe’s initial concern is to illustrate how, on the Federal level, the gap in question has been created by a failure to respect the realities of history in formulating rules of constitutional law. Howe is severe. The Court’s interpretations of the past, he says, have been “superficial and purposive”; the Court “has too often pretended that the dictates of the nation’s history, rather than the mandates of its own will, compelled a particular decision” (p. 4).4p order to follow Howe on to this ground, one need only be, as I am, the Macauley’s schoolboy who knows a bit about the different historical traditions upon which Roger Williams and Thomas Jefferson respectively drew. The error of the Court, in Howe’s view, lay in its will to maintain that “the only theory of separation known in American constitutional history is the Jeffersonian or rationalistic” (p. 11). There were in fact two theories; there was also the Williamsian and evangelical theory. Conceived within each of them, the principle of separation carries quite different overtones of conviction.
Jefferson’s principle was informed by the bias of the Enlightenment —a bias in favor of religious skepticism and against organized religion, fashioned out of the fear (in one of Howe’s many felicitously ironic phrases) “lest impious clerks tighten their grip upon the purses and the minds of men” (p. 7). Separation then becomes a political principle, designed to protect secular society from the encroachments of religion. In contrast, Williams’ principle derived from a tradition altogether different in its temper and intention. Williams’ concern was for the faith and for the church. His fear was lest the wilderness and its corruptions invade the garden and its sanctities, to the destruction of the latter. Separation was for him a theological principle, rooted in a radical distinction between two distinct areas of life on earth. The distinction was established by divine design, and its requirement was that the garden of the Church, as Williams said, “must of necessity be walled in peculiarly unto Himself [God] from the world.”
I might note here that the tradition to which Williams was tributary was already ancient when Jefferson and the Enlightenment were still very young. Howe does not carry his historical argument into the long reaches opened by this last statement, which is mine, not his. I have elsewhere tried to show that Master Roger’s theology of the “wall” goes back to the very origins of Western constitutionalism, essential to which had always been the distinction between church and state (to use the word “state” anachronistically). His own proper theology of the wall was, of course, colored by his own proper ecclesiology, which was not that of the older tradition. In any event, Williams had much more history behind him than Jefferson—and the U. S. Supreme Court. In another context, the point might be pursued; it is not irrelevant, I think, to the contemporary problem of the gap to which I referred. Howe did not pursue it, perhaps for the reason that it was not necessary for his argument.
His argument is that, “if the First Amendment codified a figure of speech, it embraced the believing affirmations of Roger Williams and his heirs no less firmly than it did the questioning doubts of Thomas Jefferson and the Enlightenment” (p. 9). The function of separation is therefore also to protect the integrity of the religious experience. This explains the inclusion of the free-exercise clause in the First Amendment and illustrates its intrinsic nexus with the no-establishment clause. Moreover, the evangelical principle of separation has long been, and still is, part of the total American social reality, which includes forces that demand governmental recognition of the religious realities in human life. This recognition, often accorded, has given rise to what Howe calls “a de facto establishment of religion.”
Of late, members of the Court—for instance, Mr. Justice Douglas in Engel v. Vitale—have been captured by the theory of those who regard this factual establishment as an anomaly at law and would do away with it. But it is an anomaly only on the assumption—or in Howe’s term, the pretension—that the First Amendment incorporated only the Jeffersonian principle of separation. It is this pretension that has led the Court toward the outlawing even of those aids to religion which do not affect religious liberties. This, Howe says, is “an exercise in scholastic dogmatism—a venture in the acrobatics of logic which cannot for very long have an important effect on the actualities of American life” (p. 12). I hope he is right in this prognosis, but I am not so sure. Today the Enlightenment is indeed dead, but somewhat after the fashion in which God is dead. A great many people have somehow failed to note its passing. American society still includes some small but organized forces which strongly support the Court’s exercise in dogmatism.
The historical fact that the First Amendment had theological as well as political roots does not lead to the conclusion that government is bound to become the promoter and supporter of religion. Howe disallows the conclusion on two grounds. First, the rights guaranteed in the Bill of Rights are not claims upon government but assurances against government. They define immunities, not empowerments. Second, the premise of the Bill of Rights was the philosophy of federalism, which made national disability the rule and national power the exception. Both of these aspects of the matter reflect the political theory of limited government—a theory which is concerned sharply to define the incompetence of government in certain areas of human life, notably the area of religion.
It might be interesting to note here that the Vatican II Declaration on Religious Freedom embodies both of these ideas. The content or object of the right to religious freedom is simply an immunity from coercion; and to it there corresponds a limitation set to the power of government, and to other social powers as well. I may quote here what I have elsewhere written: “This is good juridical philosophy. It is proper to a juridical formula—such as the constitutional formulas of freedom of speech, press, religion, assembly and civic protest—that it should define the outside limits of a sphere of human activity and guarantee the integrity of this sphere against coercive intrusion from without, but that it should not enter, as it were, into the sphere itself, there to pass moral or theological judgments on the beliefs expressed or on the actions performed within the sphere. Such judgments are ‘unconstitutional,’ beyond the competence of purely juridical authority. In our case, the juridical formula, ‘the free exercise of religion,’ contains no positive evaluation of the religious phenomenon in any of its manifestations. It simply defines the immunity of these manifestations from interference, as long as they remain within the outside limits of lawful freedom. Therefore the only matters of juridical relevance are, first, the definition of the limits beyond which the exercise of freedom is socially unacceptable and unlawful [the Council defined these limits in terms of the concept of public order and its threefold component], and second, the duty of others, including government, to respect the integrity of action that goes on within these limits.”
If one could be content to define the relations of government and religion simply in terms of religious freedom as an immunity from coercion, and in this sense to define the essential meaning of separation of church and state, the whole matter would be quite simple. Howe says much the same thing against the background of American constitutional history: “Had the effort of Mr. Justice Roberts to make the prohibition of establishment a mere assurance of religious liberty and the effort of Justice Jackson to reduce that assurance to a guarantee of free speech been successful, the problems that perplex us today would not, I think, be as intensely bewildering as they are” (pp. 116-17). In particular, as he notes, the famous School Question would not continue to be a thorn in our constitutional and legislative flesh. In Mr. Justice Roberts’ narrow interpretation of the no-establishment clause, certain manners of governmental aid of the religiously affiliated school, which raise no issue of religious freedom, would not seem to fall under constitutional ban. However, as Howe points out, the case is altogether different when the broader Jeffersonian concept of non-establishment is adopted. Since the decision in the second flag-salute case in 1943, that adoption has occurred. It has been strongly confirmed by the Court’s reasoning in the prayer cases. (Incidentally, I do not quarrel with these decisions themselves, only with the reasoning.)
Was the adoption necessary on a historical view of American constitutionalism? I should not wish to force Howe’s thought, but he seems clearly to be saying that it was not. Another road was open to the Court, indicated by the evangelical principle of separation, which is deeply rooted in our history. At that, the more important question is, whether the exclusive adoption of Jefferson’s theory is today what a rule of law should be—protective and creative of social values, directive of American society toward the fulfillment of its original inspiration. Howe does not clearly speak to this question. It is, I think, the actual question. It is, for instance, central to the contemporary controversy over the Blaine Amendment. This famous legal doctrine, which failed of adoption on the Federal level, only to gain it in more than thirty states, is pure Jeffersonianism. This, say its opponents, is the source of its archaism.
I may here advert once again to the Vatican Declaration on Religious Freedom. It did not lie within the scope of the document to deal with the full range of issues included under the rubric of the relations between church and state, or better, between religion and government. At that, it states two principles in conjunction, namely, that “government, whose proper purpose is the care of the common temporal good, ought indeed to recognize and favor the religious life of the citizenry; but it must be said to exceed its own limits if it presumes to take control of, or to impede, religious acts.” The second principle is clear enough. It bears on the issue of the intrinsic incompetence of government to exert coercion in the sphere of religion, from which it is barred by the barrier of the human and civil right to religious freedom. The first principle, however, is stated with studied and deliberate vagueness. It bears on quite a different issue—the positive duties of government towards religion in society. The Council implicitly recognized that the solution to this question will vary greatly according to historical and social circumstances of one sort or another. Therefore it refused to dogmatize in an area where the relativities of history are determinative of particular solutions.
On the other hand, the Council explicitly intended to proscribe the Continental laicist concept of separation of church and state. It proscribed, if you will, the extreme Jeffersonian concept of non-establishment. It affirmed two duties on the part of government, each derivative from a different source. One duty derives from the status of religious freedom as a human and civil right. It is the consequent duty of government to refrain from infringement of the inviolable zone of freedom which surrounds the human person and the religious community. The other duty derives from the notion of the common temporal good, which includes the values of the religious experience, personal and communal. These values are not simply transcendental; they also affect the substance and quality of human life in the civil community. The duty of government to the common good in the fullness of its realization necessarily includes a duty to religion in society—the duty of “recognition” and “favor.” No legal transcription of this duty is suggested; only the principle itself is affirmed. The principle, I think, bears much the same sense that Howe found in the evangelical principle of separation of church and state, whose earlier operation in American constitutional history has presently met frustration.
I have not done justice to the multiplicity of insights in Howe’s book. I shall simply say that he has succeeded in his effort, which was “to bring into the light some elements and tendencies in American social and intellectual history which courts have too often overlooked and which should be taken into account in any effort to write an accurate story or construct an adequate theory of church and state in the United States” (p. 5). His success makes one regret the more that he is not here to follow the story as it further unfolds and to contribute to the theory as it reaches for the adequacy which is missing at the moment.
John Courtney Murray, S. J.