Constitutional Primer #4
Virtue & Morality: Freedom’s Prerequisites

by Timothy B. Lewis of the Constitutional Freedom Foundation

Forward by George B. Brunt, Chairman of the Constitutional Freedom Foundation:

In making the following observations we are not arguing that the Supreme Court should apply “natural law” and therefore make decisions outside of the bounds of the written constitution.  That argument is a two-edged sword depending on one’s view of “natural law.”  Rather we prefer that the Supreme Court stick to the written constitution as we have earlier discussed.   In this article Professor Lewis is attempting to educate the populace as to the context in which the constitution was adopted and the importance of both virtue and its guardian, religion, in maintaining the freedoms and liberties we now enjoy.  Consistent with his prior articles, he argues that considerations of natural law should be made in democratic, rather than judicial, venues. 

Natural Law

From time immemorial, people have disputed whether or not there is such a thing as natural law which governs the affairs of men.   “Positive law” is man-made law.  “Legal positivists,” in their most extreme sense, believe that there are very few, if any, natural laws regarding right and wrong, good and evil, etc.  They believe that we are free to define these things however we want.

Natural law theorists believe that just as there are natural laws regarding physics, chemistry, etc., there are natural laws or basic truths regarding good and evil, right and wrong, etc. that are independent of our ability to properly discern them and which carry natural consequences for obedience or disobedience to them.  They believe that to the extent societies can properly discern and implement these laws, such societies prosper politically, economically, culturally, aesthetically, artistically, etc. relative to other societies which don’t. 

In the words of Robert Frost:

“Most of the change we think we see in life
Is due to truths being in and out of favor.” ^[1]

Phillip E. Johnson, a law professor at U.C. Berkeley, has written some excellent books criticizing the weakness in logical argument behind the theory of naturalistic evolution – i.e. evolution proceeding without any sort of intervention by an intelligent guiding hand.  In one of those books he observed:

“Our logic cannot supply its own beginning.  Logic is merely a way of reasoning correctly from premises to conclusions.  The premises must come from elsewhere.  Rationalism is inherently self-defeating, because the rationalist must pretend to derive his first premises by logical reasoning, which always rests on other premises.  Empiricism faces the same dilemma when it becomes a total system because the empiricist always needs to know more than he can observe.  Premise-evading philosophies like logical positivism or scientific materialism last only until the dilemma becomes too evident to be concealed, and then they wither.   That is why the guardians of such systems when under pressure often become fanatics who try to impose authoritarian control.  Forbidding examination of the premises is the only way they can continue to rule....My problem is not with presuppositions as such, but with concealed presuppositions, which come disguised as facts.” ^[2]

Natural law theorists tend start from the premise that “God created man – not vice versa” ^[3] – and that our natural human rights derive from God and that we owe certain duties and obligations to Him which we can ignore only at our peril.  Legal Positivists start from a different premise or faith.

Consider what the preeminent English legal scholar William Blackstone said about the matter:

"This law of nature, being coeval with [equally as old as] 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; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.” ^[4]

James Wilson, U.S. Supreme Court Justice and signer of the Constitution, wrote:

"Human law must rest its authority ultimately upon the authority of that law which is divine....Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other." ^[5]

The founding of America itself is a good example of this fundamental premise of divine natural law.  After using the phrase "the laws of nature and nature's God," the Declaration of Independence (known as the first of our "organic laws") observes:

"We hold these truths to be self evident that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.  That to secure these rights governments are instituted among men deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”    

So the idea, as expressed by our own founders in that document, was that natural laws (dealing with rightness, wrongness, fairness, equity, justice, etc.) pre-dated governments, our civil law, and politics and that the latter mechanisms were designed after-the-fact to protect and secure these natural, God-given laws and rights.  If God and religion were now to be taken out of the political equation, wouldn't that be "putting the cart before the horse" or even worse, unhitching the horse from the cart entirely?

Before unhitching the horse, Jefferson's quote inscribed on the walls of the Jefferson Memorial in Washington D.C. should be considered:

"God who gave us life gave us liberty.  Can the liberties of a nation be secure when we have removed a conviction that these liberties are a gift of God?"

Why Did Greece Fail?

After gaining our independence in the Revolutionary War, we had to decide how the country was to be governed.  As the greatest American political minds searched world history for ideas, they paid a lot of attention to ancient Greece – the cradle of democracy.  They liked the idea of self-government but were troubled that the Greeks were not able to sustain their form of government permanently.  As they sought the reasons why, they considered the idea of virtue and concluded that the efficacy of democracy depended upon the level of virtue within the people.  If they were going to call themselves a free people and preserve themselves as a free people, they had to successfully foster the notion that every individual within such a society must be a good self-governor.   In other words, rather than depending upon external legal constraints and force to maintain order and peace, they had to rely upon individual self-restraint and self-control.  But they realized that it is only reasonable to expect people to act that way if they have a strong virtuous and moral base.  

Our founders saw religion as the most powerful civilizing institution which could provide and sustain that moral base upon which our republic could be successfully built and without which, it would ultimately collapse like the Greeks before them.  Consequently, they believed it to be imperative to encourage and support religion and did not see any 1^st Amendment problem with governmental support of religion as long as it did not go too far.  Joseph Story explained this further.

Original Intents Regarding the Establishment Clause of the 1^st Amendment

Joseph Story was introduced in the last article.  He was born in the middle of the Revolutionary War.  As a young man studying the law, certainly he would have a keen sense of the founding era – what the moods, intents and philosophies of the people were, how the history shaped the times, etc.  He became the generally recognized expert on American Constitutional Law. 

At the time Story wrote Commentaries on the Constitution of the United States, the U.S. Supreme Court had not yet ruled on any Bill of Rights cases.  Hence there had been no official interpretations of any of the Amendments, including the 1st Amendment.  Therefore, he simply described the prevailing view of the drafters and the majority of the people as follows:

"Probably at the time of the adoption of the constitution, and of the first amendment to it, now under consideration, the general, if not universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as it is not incompatible with the private rights of conscience, and the freedom of religious worship.  An attempt to level all religions, and make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation. [Isn’t this the very approach being thrust upon us today?]

"It yet remains a problem to be solved in human affairs, whether any free government can be permanent, where the public worship of God, and the support of religion, constitute no part of the policy or duty of the state in any assignable shape....

"But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which they believe, their accountability to him requires....The rights of conscience are, indeed, beyond the just reach of any human power....

"The real object of the amendment was, not to countenance, much less to advance Mahometanism [sic] or Judaism or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government...." ^[6]

“...the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the State constitutions.” ^[7]

We unabashedly considered ourselves to be a Christian nation even though we allowed everyone to believe as his or her individual conscience dictated.  Contrary to most, if not all, of the rest of the world at that time, and contrary to many countries even today, America made great political advancements regarding religious tolerance.  While there would be no religious tests at the national level, nevertheless, the founders and framers clearly saw the need to promote general Christian values and morality throughout society.  

Charles E. Rice, a law professor at the University of Notre Dame, observed:

“The view of the Supreme Court today, which forbids even the posting of the Ten Commandments in public schools, would have been utterly rejected by the framers of the First Amendment.  The Northwest Ordinance, adopted by the Constitutional Congress in 1787, provided public support for religious education: ‘Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of learning shall forever be encouraged.’  This enactment was reaffirmed by Congress in 1789.  After the new constitution was ratified, the First Congress, on September 24-26, 1789, did two things.  They approved, and sent to the states for ratification, the First Amendment.  And they called on President Washington to ‘recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God....’  Can you believe that the Congress intended the First Amendment to forbid the sort of prayer it recommended on the same day?  Nor was this a result of inadvertence.  Representative Thomas Tucker of South Carolina objected that the call for a day of prayer ‘is a religious matter, and, as such, is proscribed to us.’  Congress passed the resolution, thus overriding with full awareness the argument the Supreme Court has adopted as doctrine today.” ^[8]

Separation of Church and State: Jefferson Coined The Phrase But What Did He Mean By It?

In trying to denigrate religion as an appropriate basis upon which to render political judgments, people use a "separation of church and state" argument.  This is an extreme interpretation of the 1st Amendment.  All that was meant by this Amendment was (1) to prohibit a particular religious sect from becoming the official national religion like the Church of England was at the time of the Revolution and (2) to prohibit the forcing of conscience on religious matters.  It only applied to the federal government and not the states.  The founding fathers would have laughed at the proposition that their work would de-legitimize religion as an appropriate moral basis for forming political opinions and government policies.

Thomas Jefferson drafted The Statute of Virginia For Religious Freedom.  He also coined the phrase “wall of separation between church and state” in a letter he sent in 1802 as the U.S. President to the Danbury, Connecticut, Baptist Association. ^[9]   Contrary to what many believe, it is not a phrase found anywhere in the 1^st Amendment.  Initially one might suspect that he would be in favor of strict separation, but what did Jefferson really mean by the phrase?   In contrast to what the phrase is used for today, consider his proposals as the Rector of the University of Virginia regarding sectarian religious instruction on campus:

“It was not, however, to be understood that instruction in religious opinion and duties was meant to be precluded by the public authorities, as indifferent to the interests of society.  On the contrary, the relations which exist between man and his Maker, and the duties resulting from those relations, are the most interesting and important to every human being, and the most incumbent on his study and investigation.  The want of instruction in the various creeds of religious faith existing among our citizens presents, therefore, a chasm in a general institution of useful sciences.” ^[10]  

To remedy this perceived deficiency in the educational instruction of the students, Jefferson proposed to open up the campus facilities to the clergy of the various sects and to arrange the secular and religious teaching schedules so as not to conflict with one another.  However, the secular and religious instruction were to be independent of one another.   Jefferson continued:

“Such arrangements would complete the circle of the useful sciences embraced by this institution and would fill the chasm now existing, on principles which would leave inviolate the constitutional freedom of religion, the most inalienable and sacred of all human rights....” ^[11]

In follow-up, two years later (1824) he said:

“Should the religious sects of this State, or any of them, according to the invitation held out to them, establish within, or adjacent to, the precincts of the University, schools for instruction in the religion of their sect, the students of the University will be free, and expected to attend religious worship at the establishment of their respective sects, in the morning, and in time to meet their school in the University at its stated hour.” ^[12] (emphasis added)

Obviously the one who coined the phrase “separation between church and state” did not intend to take the concept anywhere near the extremes espoused by those who invoke it today.

The Degree of Separation Between Church And State, Was Determined Entirely By The States

At the time the Constitution was adopted, some states had established religions supported by taxpayer dollars.  Massachusetts, Delaware, Pennsylvania, Maryland, North Carolina, South Carolina and Georgia had religious tests as a qualification for public office and some states even had religious tests as a prerequisite to suffrage, or the right to vote. ^[13]

This conditional right to vote was not limited to voting on state matters, but also applied to the right to vote in national elections.  Even in the face of this fact, the Constitution did not attempt to define the conditions for the right to vote but rather, left this matter to the various state laws around the country.  In contrast to the foregoing state laws requiring certain religious affiliations, New York prohibited ministers of the gospel from holding any state office. ^[14]   So religious matters were viewed as being strictly within the jurisdiction of the states and the federal government had no authority over the subject.

Richard Vetterli and Gary Bryner observed:

“State constitutions and declarations reinforce the idea of the importance of religion in making self-government possible.  The final clause in the Virginia Declaration of Rights, for example, states that ‘it is the mutual duty of all to practice Christian forbearance, love, and charity, towards each other.’  A religious oath was often required of candidates running for elected office.  In Pennsylvania, each member of the legislature was required to make the following declaration: ‘I do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked.  And I do acknowledge the Scriptures of the Old and the New Testament to be given by Divine inspiration.’  There would be no specific religious orthodoxy, and the idea of an ecclesiastical policy or theocracy was clearly rejected.  Freedom of belief and conscience were to be assured.  But the assumption was that there would be a moral foundation for republican government and that private religion and general Christian beliefs would serve as an important source of that foundation.” ^[15]

It should be noted that even though there wasn’t very much separation of church and state in some of the states in the early years, through no external force, all states eventually disbanded their established religions (meaning official recognition and public tax support) ^[16] , the last being Massachusetts in 1833.  But religious tests for public office continued on even later than that.  In New Hampshire, the requirement that one had to be a Protestant to serve in the legislature was continued until 1877. ^[17]

Even though every state eventually dropped all official state tax support for specific religions and religious tests for public office and voting, that was about the extent of their limited notions of a “separation of church and state.”  These efforts, however, were not a product of rising sense of secularism or indifference, but rather, from a sense of fairness to all religion and a worry that state establishments would actually weaken the churches rather than make them stronger -- they were not trying to protect the government from religion, but vice versa. ^[18]   The 1960's Supreme Court, in making the separation of church and state idea almost total and all-encompassing across the land, gave the false impression that they were just continuing a fine secular tradition originally started in Virginia at the time our federal Constitution was passed.  M. Stanton Evans refutes this and shows how limited the connotation of “separation” was back then.  Says Evans:

“In [modern] Supreme Court decisions, reliance is placed mainly on Virginia, and in particular on Madison’s role in moving for disestablishment of the Anglicans and opposing tax assessments for the support of churches.  As noted, however, these measures reflected neither secularism nor indifference – chiefly because the political pressures to this effect came from other religious bodies, but also because Madison himself believed in such a policy for religious reasons.  He maintained (as did Edmund Randolph) that in addition to being unfair to other denominations, establishment weakened a church instead of making it stronger (and had plentiful evidence to support his view from the ecclesiastical history of Virginia.)

“Nor, it should be added, did Madison as legislator take the doctrinaire approach imputed to him by the Court.  It is a little noted fact, for instance, that on the same day that he introduced his bill in the Virginia legislature for disestablishment of the Episcopal church (October 31, 1785), he also introduced a bill to punish those who broke the Sabbath (plus another providing for days of prayer and thanksgiving.)” ^[19]

Returning to the idea of virtue and morality, Richard Vetterli and Gary Byrner wrote an excellent book entitled In Search of the Republic: Public Virtue and the Roots of American Government.  If you want to assemble a personal “great books” library, this is one you should have in it.  I will quote them extensively throughout without further introduction.  All paragraphs which simply begin with quotation marks are from them.

Virtue: What Is It And Where Does It Come From?

“...a democratic republic requires a citizenry capable of exercising the kind of self-restraint and public-mindedness that would permit freedom to flourish.  One of the great contributions of the American Founders was to articulate a modern understanding of ‘virtue’ grounded in a realistic assessment of human nature, which recognized that certain primary institutions played an essential role in fostering and stimulating those ‘virtues.’  In so doing, the Founders neither deified nor degraded human beings, but concentrated on the notion that a broad spectrum of potential motivations drive human behavior, there being no simple ‘nature of man,’ either good or evil.

“The Founders rejected the earlier republican concept that the political regime (or state) was the source of virtue, for virtue cannot be compelled through the coercive power of government.  Government is quite limited in its ability to change individual or collective behavior.  Attitudes and personal traits cannot be legislated.  Instead, virtue is fostered by the primary institutions of society – family, neighborhood, religion, education, and other voluntary organizations.  Virtue is something taught.  It is educated habit, developed through practice.” ^[20]

“Recent scholarship on the American founding has often failed to give sufficient attention to the evolutionary character of the concept of virtue.  When historians refer to virtue, they are often drawn back to classical antiquity, narrowing their definition of the term to its ancient expression, and confusing it with the ‘modern’ concept of virtue.   Centuries before the Constitution was written, the concept of virtue had begun its metamorphosis.  It had, over time, become infused with biblical Christianity, which had become a kind of ‘general Christianity,’ even within medieval Christendom, and had emerged as a body of moral precepts.” ^[21]

“...The cardinal virtues dating from classical times – wisdom, courage, discipline, and justice – were still considered important, although to a certain degree with an altered connotation....More than the classical notions that emphasized such ideas as patriotism and willingness to fight and die for the state, public virtue represented voluntary self-restraint, a commitment to a moral social order, honesty and obedience to law, benevolence, and a willingness to respect the unwritten rules and norms of social life.” ^[22]

Francesco Petrarch (1304-1374) gave credit to Aristotle for his intellectual discourses on the topic of virtue but said that he did not go far enough in his consideration of the topic for he was not able to move the reader beyond the mere position of knowledge to that of love.  After reading Aristotle, he admits his knowledge of virtue has increased:

“but mind and will remain the same as they were, and I myself remain the same.  It is one thing to know, another to love; one thing to understand, another to will.  He teaches what virtue is, I do not deny that; but his lesson lacks the words that sting and set afire and urge toward love of virtue and hatred of vice, or, at any rate, does not have enough of such power.” ^[23]   

“According to Petrarch, the love of virtue stems primarily from the love of God, and is expressed in its primary form through virtuous behavior.” ^[24]             

“The American Founders....had come to the conclusion that classical philosophy had relied too heavily on the expectation of the consistency of stringent virtuous behavior, devoid of any self-interest.  Their understanding of the nature of man reflected a profound awareness of his selfishness and aggressiveness.  Nevertheless, they believed that man had certain redeeming qualities, that he had the potential for self-government....They also believed that no structure of government in a republic would long survive the absence of virtue in the people.  They believed that their efforts might decide once and for all if self-government was even possible.” ^[25]

Public And Private Virtue Were Pre-Conditions for Republican Government

“THE IDEA OF VIRTUE was central to the political thought of the Founders of the American republic.  Every body of thought they encountered, every intellectual tradition they consulted, every major theory of republican government by which they were influenced emphasized the importance of personal and public virtue.  It was understood by the Founders to be the precondition for republican government, the base upon which the structure of government would be built.” ^[26]

Consider a couple of quotes from Samuel Adams:

“Neither the wisest constitution nor its wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt.  He therefore is the truest friend of liberty of his country who tries most to promote its virtue, and who ... will not suffer a man to be chosen into any office of power and trust who is not a wise and virtuous man.” ^[27]

“A general dissolution of principles and manners will more surely overthrow the liberties of America than the whole force of the common enemy. While the people are virtuous they cannot be subdued; but when once they lose their virtue then will be ready to surrender their liberties to the first external or internal invader.” ^[28]

General Douglas McArthur said:

“History fails to record a single precedent in which nations subject to moral decay have not passed into political and economic decline.  There has been either a spiritual reawakening to overcome the moral lapse, or a progressive deterioration leading to ultimate national disaster.” ^[29]

According to Russel Kirk, the first canon of conservatism is a:

“Belief in a transcendent order, or body of natural law, which rules society as well as conscience.  Political problems, at bottom, are religious and moral problems.” ^[30]

Something has to define the community and bring people together into a common enterprise that is worthy of the sacrifices necessary to defend it.  In the United States, “liberty” has always been one of the concepts that defined the community.  The word “liberty” has a noble ring to it because it implies the people who have it are just, moral, virtuous and upright.  It implies an admixture of duty, honor and responsibility.  But when we divorce these concepts from it, as we are doing today, the word loses its dignity and depreciates down to mere “license.”                                  

In the long run, people will never rally around something so empty as the mere concept of “license.”  Rome learned this the hard way.  When Rome was sacked by the vandals, few came to its defense because by that point in time there was nothing left of “civil society” deemed worthy of being saved.  There was no longer any binding commonality of objectives, morals, or vision of destiny.  The free bread and circuses weren’t enough to rally the people in a life-threatening defense of their country since the heart and soul of their country had long since vanished.

After commenting on the fall of Rome, Russel Kirk observed:

“Only the earlier stages of social decadence seem liberating to some people; the last act...consists of death [to the culture and the society] ....” ^[31]

The Founders Weren’t Confident That Americans Had Enough Virtue To Sustain Their Republican Government

“...the fundamental question [our founders] asked was whether Americans had sufficient virtue to make self-government work....Given the nature of man as they understood it, they were not at all confident that self-government over time was even a possibility.  But of one thing they appear to have been certain: a citizenry lacking in virtue was not capable of sustaining a democratic republic, whatever its structure.” ^[32]

John Adams said: “Our Constitution was made for only a moral and religious people.  It is wholly inadequate to the government of any other.” ^[33]   He also said: “Human passions unbridled by morality and religion...would break the strongest cords of our Constitution as a whale goes through a net.” ^[34]

James Madison observed: “Is there no virtue among us?  If there be not, we are in a wretched situation.  No theoretical checks, no form of government can render us secure.  To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” ^[35]

Civic Morality Is Unsustainable Without Religion

“At the core of this moral behavior was a belief in God, reinforced by both an ‘organized’ and a ‘general’ religious establishment.  Without this de facto ‘establishment, morality simply would not have survived in America.  ‘Morals and religion are inextricably joined,’ insists Sir Patrick Devlin.  ‘No Society has yet solved the problem of how to teach morality without religion.’  ‘There is no significant example in history before our time,’ concur the historians Will and Ariel Durant, ‘of a society successfully maintaining moral life without the aid of religion.’  De Tocqueville saw this in relation to America.  ‘It must never be forgotten,’ he wrote, ‘that religion gave birth to Anglo-American society.  In the United States, religion is therefore mingled with all the habits of the nation and all the feelings of patriotism, whence it derives a peculiar force.’” ^[36]

In this regard, consider the following portion of George Washington's farewell address:

"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.  In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.  The mere politician, equally with the pious man, ought to respect and cherish them.  A volume could not trace all their connections with private and public felicity.  Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instrument of investigation in courts of justice?  And let us with caution indulge the supposition that morality can be maintained without religion....reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.  Tis substantially true that virtue and morality is a necessary spring of popular government.  The rule indeed extends with more or less force to every species of free government.  Who that is a sincere friend of it can look with indifference upon attempts to shake the foundation of the fabric?" ^[37] (emphasis added)

Steven K. Green observed:

“Protecting religious liberty provided immediate benefits to the new government.  The Framers recognized that the perpetuation of the new government would depend, in part, upon the virtue of its citizens.   For government to take the primary responsibility of ensuring virtue might, however, risk advancing particular religious viewpoints over others and invite religious dissension.  Therefore, religion -- as opposed to government -- would be the primary vehicle for promoting virtue.  In order to have religion provide this essential function, it needed to be independent from government.  Given that the benefits of free exercise flowed to republican society as well as to religion itself, it seems the Framers' impulse for protecting religious exercise was pragmatic.” ^[38]

Benjamin Rush, signer of the Declaration of Independence, said:

"Without [religion] there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments." ^[39]

John Adams wrote:

"Religion and virtue are the only foundations . . . of republicanism and of all free governments." ^[40]

"[I]t is religion and morality alone which can establish the principles upon which freedom can securely stand." ^[41]

It is interesting to note that just like we are trying to look back through history to our founders to make sense of things today, they too consulted history for guidance in their day.  After observing that the principles which drove our Revolution were liberty and the general principles of Christianity practiced by all sects, John Adams said:

“...I...believe that those general principles of Christianity, are as eternal and immutable, as the existence and attributes of God; and that those principles of liberty, are as unalterable as human nature....

“I...[believe they will] never make discoveries in contradiction to these general principles.

“In favor of these general principles in philosophy, religion and government, I could fill sheets of quotations from Frederick of Prussia, from Hume, Gibbon, Bolingbroke, Rousseau and Voltaire, as well as Newton and Locke: not to mention thousands of divines and philosophers of inferior fame.” ^[42]

Our Success Depends Upon Our Willingness to Self-Govern Ourselves And Those Who Believe In God Tend To Be Better Self-Governors

“Madison, in The Federalist No. 39, warned that the future of constitutional institutions would be based, not upon the power of the government, but upon the ability of the people to govern themselves.  He was convinced that a ‘belief in a God all Powerful wise and good is so essential to the moral order of the world and to the happiness of man, that arguments which enforce it cannot be drawn from too many sources.’” ^[43]

Consider the sense of optimism, the tolerance to adversity, and the hope for a better future generated through religion.  If you took religion out of the hearts of people, they would become bitter, frustrated, restless and even rebellious every time things went wrong in their personal lives.  People would be very demanding of a public bailout whenever they got into trouble.  They would never look for any silver linings or deeper meanings or the will of Providence in times of distress.  In short, such a society would not be a very pleasant place in which to live.

Paraphrasing Dostoevsky: “If there is not God, all is permitted.” ^[44]   If we really are just the byproduct of a random glop of primordial slime, destined to ultimately return to the dust with no existence after this life and no ultimate accountability to any Supreme Being, then why should anyone be anything other than selfish and brutish, taking a short-term relativistic attitude towards everything?  Why should I submit myself to any law other than my own?  Perhaps many people, even under such circumstances, could be convinced that it would be in their own personal self interest to act otherwise, but wouldn’t the sales job be a lot easier among those who believed in God and expected to be judged according to their works after this life?

Why Is Religion So Important To Sustaining Liberty?

David M. Whalen observed:

“...the tangible social order is maintained primarily by having an orientation toward a principle outside that order.  No social order can be sustained if it is primarily self-referential....The necessary (though not sufficient) precondition to securing our welfare is to direct ourselves to something beyond it.  Of course, this ‘something’ is not arbitrary.  We are free to disagree if we wish, but for Chaucer, a supernatural good – the earnest adoration of God – is not merely convenient, but essential....[R]eligion is often appreciated in a utilitarian fashion.  Many contemporary politicians smilingly approve of religion primarily because of its socially stabilizing effect.  Chaucer would laugh at this and remind us that religion preserves social order because it is true, and that we risk inverting means and ends (thus losing the efficacy of this ordering principle) if we forget that order is preserved through proper principles, not accidentally salutary delusions.” ^[45]

Lord Acton once said:

“No country can be free without religion.  It creates and strengthens the notion of duty.  If men are not kept straight by duty, they must be by fear.  The more they are kept by fear, the less they are free.  The greater the strength of duty, the greater the liberty.” ^[46]

Alan Keyes recently observed:

"Americans are a people who have realized a dream of freedom, who have taken it from an abstract hope and turned it into a living reality.  What made this possible was a founding generation that understood the essential principles of liberty, and acknowledged from the very beginning that the basis for human justice, human dignity and human rights is no more -- nor less -- than the will and authority of our Creator, God.  The importance of this principle is definitive, because it allows us to understand that since we claim our rights by virtue of the authority of God, we must exercise our rights with respect for the authority of God.  This truth becomes a sound foundation for discipline in our use of our freedoms.  It becomes a bulwark against the abuse of our powers.  It becomes also the ground for our confidence that, when we claim those rights, and when we exercise them, we do not have to fear the consequences, because we are a people who exercise our rights in the fear of God.” ^[47]

Alexis de Tocqueville’s “Democracy in America”

The French nobleman and lawyer, Alexis de Tocqueville, in his classic 1835 commentary “Democracy in America,” observed the critical importance of religion to America’s political success.  Said he:

“On my arrival in the United States the religious aspect of the country was the first thing that struck my attention; and the longer I stayed there, the more I perceived the great political consequences resulting from this new state of things.  In France I had almost always seen the spirit of religion and the spirit of freedom marching in opposite directions. But in America I found they were intimately united and that they reigned in common over the same country.” ^[48]

“The sects that exist in the United States are innumerable. They all differ in respect to the worship which is due to the Creator; but they all agree in respect to the duties which are due from man to man.... all the sects of the United States are comprised within the great unity of Christianity, and Christian morality is everywhere the same.

“...there is no country in the world where the Christian religion retains a greater influence over the souls of men than in America; and there can be no greater proof of its utility and of its conformity to human nature than that its influence is powerfully felt over the most enlightened and free nation of the earth.

            ***

“... while the law permits the Americans to do what they please, religion prevents them from conceiving, and forbids them to commit, what is rash or unjust.  

“Religion in America takes no direct part in the government of society, but it must be regarded as the first of their political institutions; for if it does not impart a taste for freedom, it facilitates the use of it.... I do not know whether all Americans have a sincere faith in their religion; for who can read the human heart?  But I am certain that they hold it to be indispensable to the maintenance of republican institutions.  This opinion is not peculiar to a class of citizens or to a party, but it belongs to the whole nation and to every rank of society.

***

“The Americans combine the notions of Christianity and of liberty so intimately in their minds that it is impossible to make them conceive the one without the other....

“...Despotism may govern without faith, but liberty cannot.  Religion is much more necessary in the republic...than in a monarchy...; it is more needed in democratic republics than in any others.  How is it possible that society should escape destruction if the moral tie is not strengthened in proportion as the political tie [to a monarch] is relaxed?  And what can be done with a people who are their own masters if they are not submissive to the Deity?” ^[49]

Although I am about to quote him out of context (i.e. the segment I am about to quote comes from his discussion of jury trials), in view of what he said above, I think de Tocqueville would agree that when we divorce ourselves from the moral notions of right and wrong, “the love of independence [and liberty] becomes a mere destructive passion.” ^[50]

Morality and Virtue Determine How Much Liberty A People Can Enjoy

A moral principle can reside in one of two spheres.  On the one hand it can reside in the sphere of moral-persuasion/liberty or it can reside in the sphere of legal-mandate/force.  The relative sizes of these two spheres depends upon how virtuous and moral a given society is.

In his work, The Devils, Dostoevski observed: “Those who begin with unlimited freedom, must end with unlimited despotism.” ^[51]   “‘When chaos threatens,’ said Goethe, ‘men seek order rather than justice.  Then the man on the white horse appears....’” ^[52]

These observations make sense since unlimited individual freedom unbridled by a sense of morality or virtue would result in anarchy and terror which could only be cured by a strong centralized hand.  At some point in time, the people would beg somebody to save them and would be willing to give that person unlimited power to bring safety, peace and order back to society.  Then once this raw power has been given to somebody, almost invariably, if not invariably, he eventually uses that power in despotic ways.

At about the same time de Tocqueville published his commentary on America, an Austrian immigrant, Francis Grund, published two commentaries about America which were quite similar in observation.  He suggested that there was a connection between the Americans’ “domestic habits” and their religious beliefs.  Vetterli and Bryner observed:

“In all the world, he commented, ‘few people have so great respect for the law and are so well able to govern themselves.’  Perhaps, he surmised, they were ‘the only people capable of enjoying so large a portion of liberty without abusing it.’  ‘I consider the domestic virtue of the Americans as the principle source of all their other qualities.  It acts as a promoter of industry, as a stimulus to enterprise and as the most powerful restraint of public vice....No government could be established on the same principle as that of the United States with a different code of morals.  The American Constitution is remarkable for its simplicity; but it can only suffice a people habitually correct in their actions, and would be utterly inadequate to the wants of a different nation.  Change the domestic habits of the Americans, their religious devotion, and their high respect for morality, and it will not be necessary to change a single letter in the Constitution in order to vary the whole form of their government.’” ^[53] [Remember from prior articles what the Supreme Court has done to our form of government “without changing a single letter in the Constitution?”]

The great English legislator Edmund Burke observed:

“Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites....Society cannot exist, unless a controlling power upon will and appetite be placed somewhere; and the less of it there is within, the more there must be without.  It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free.  Their passions forge their fetters.” ^[54]

Benjamin Franklin said:

“Only a virtuous people are capable of freedom.  As nations become corrupt and vicious, they have more need of masters.” ^[55]

Said Grant Gilmore, a former law professor at Yale:

"The worse the society, the more law there will be.  In Hell there will be nothing but law."    

Neal A. Maxwell observed:

“Our whole republic rests upon the notion of ‘obedience to the unenforceable,’ upon a tremendous emphasis on inner controls through self-discipline.  The historians Will and Ariel Durant observed that ‘if liberty destroys order, the hunger for order will destroy liberty.’  But keeping liberty and order in tension balance requires tremendous self-discipline in the citizenry of a nation.

“Can we really afford the ultimate costs of governments which, in lieu of self-discipline, impose more and more outer controls?” ^[56]

Our founders and framers assumed “that there was sufficient virtue to make a system based on individual liberty work.  If there was insufficient virtue, then order would have to be imposed by force and coercion, by pervasive governmental intervention in individuals’ lives.” ^[57]

All these people recognize the basic principle that we can afford to have the sphere of moral- persuasion/liberty remain relatively large and the sphere of legal-mandate/force relatively small, only when the people have a strong moral and virtuous base.  When that moral base weakens, the relative sizes of the two spheres necessarily reverse with the sphere of legal-mandate/force growing larger for the sake of maintaining public peace, order, and safety. 

When Religious Institutions Are Weakened, Barbarism Lurks in the Offing

The various quotes given above indicate that religion was a part of our great American success story.  But today many people seem to argue, in effect, that it was really not a necessary or critical part of our success formula so they seek to excise any trace of it from law and government.  It is a historical fact that our founding generation, and most succeeding generations, firmly believed there to be a causal connection between (1) public and private morality fostered by sincere religious belief and (2) our national success as a free people.  The question for Americans today is whether that connection was truly causal or merely coincidental.  Time will tell who was right.

Before we buy into the coincidence argument, however, we should consider what historians Will and Ariel Durant said:

“Out of every hundred new ideas ninety-nine or more will probably be inferior to the traditional responses which they propose to replace.  No one man, however brilliant or well-informed, can come in one lifetime to such fullness of understanding as to safely judge and dismiss the customs or institutions of his society, for these are the wisdom of generations after centuries of experiment in the laboratory of history.” ^[58]

Thomas Sowell observed:

“...barbarism is not some distant stage of evolution, but an ever-present threat when the civilizing institutions [like religion] are weakened or undermined:

‘Civilization is not inherited; it has to be learned and earned by each generation anew; if the transmission should be interrupted for one century, civilization would die, and we should be savages again.’” ^[59]

In 1938 Evelyn Waugh observed that:

“Barbarism is never finally defeated; given propitious circumstances, men and women who seem quite orderly will commit every conceivable atrocity.  The danger does not come merely from habitual hooligans; we are all potential recruits for anarchy.  Unremitting effort is needed to keep men living together at peace....The more elaborate the society, the more vulnerable it is to attack, and the more complete its collapse in case of defeat.” ^[60]

Those who dislike religion and wish to excise all vestiges of it from public and political life, will eventually discover the error noted by David M. Whalen when he said: “...much of what we would like to think of as inconsequential is often hugely consequential.” ^[61]   Perhaps after it is too late, they will realize how important religion really was in preventing a return to barbarism.

God Controls the Destiny of Nations

During the Constitutional Convention, James Mason argued that slavery should be abolished.  Said he:

“Every master of slaves is born a petty tyrant.  They bring the judgment of heaven on a Country.  As nations can not be rewarded or punished in the next world they must be in this.  By an inevitable chain of causes & effects providence punishes national sins, by national calamities.” ^[62]

Regarding our country’s allowance of slavery, Jefferson similarly warned:

“...can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?  That they are not to be violated but with his wrath?  Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep forever...” ^[63]

Conclusion

Our founders believed in the reality of natural law which nations can ignore only at their peril. They believed that the American republic could not survive if it lacked sufficient virtue and morality in the people and such could not be maintained absent religious support.  The 1^st Amendment was designed to (1) avoid the establishment of a national religion like the Church of England and (2) proscribe the forcing of conscience, but it was not designed to inhibit governmental encouragement of religion for that was viewed as the most effective institutional force to instill morality and virtue within the populace.  The appropriate degree of separation between church and state, was originally thought to be a state issue, not a federal one.  (In a future article, we will discuss when and how things changed regarding this matter – as you probably anticipated, however, this change did not occur through democratic processes, but rather, was forced upon us by our federal courts.) 

Without a virtuous and moral people who are willing to self-govern themselves, it would become necessary to apply more external force through the law to maintain peace, order and safety.   In other words, when public and private virtue/morality are high in the populace, the sphere of moral-persuasion/liberty can be large relative to the sphere of legal-mandate/force.  But the relative sizes must reverse when virtue and morality are generally low.  A belief in God and our ultimate moral accountability to Him, tends to make people better self-governors, and the vast majority of the people have to be good self-governors in order for a country to preserve its liberty and avoid drowning in a sea of law.  When religious institutions are weakened, and the people lose their moral bearings, barbarism lurks in the offing. And all of the foregoing indicate why, the ACLU’s and other’s attempts to excise all vestiges of religion from the public square, are so dangerous to the future of our country.  Of course in so many words they will deny any sort of hostility towards religion, but their extremist legal body language screams out to the contrary.

There has been too much separation of government from virtue and morality.  States should start demanding that their 10^th Amendment rights be restored regarding their ability to democratically make the various trade-off decisions surrounding this topic.  Religious people of all parties need to re-inject their core moral beliefs into the political arena.  We need to let the candidates know that we will only cast our votes in favor of virtuous and moral people who are willing to vote their moral consciences even in the face of ridicule.  The general political mood needs to be shifted back to our roots where religion was prized and respected rather than ridiculed.

In the various articles I have accused the federal courts of forcing things upon us, but they could not proceed so effectively without our consent and even complicity.  While it is true that our federal courts are not democratically controlled, they are democratically influenced.  If they sense wide-spread moral and political revulsion for what they do, they will likely back off.  But if the silent majority stays perpetually silent, then like a child, the courts will continually probe and test the outer bounds of publicly acceptable propriety – continually pushing until they are finally stopped.  Every religious person has both a moral and political duty to become politically active.  In our own words and from the bottom of our hearts, we need to write our elected officials and express our views.  In particular, those who are from states with Senators who are filibustering virtually all of President Bush’s court nominations, need to write to those Senators and express your opposition to those filibusters.  And you need to get others from your state to do likewise. 

Religious Addendum

It is plain to see that virtue – taught as duty to a higher source by Christian, and other, religions throughout the country – is a critical component of maintaining the wonderful experiment in democracy our founders crafted.  It is an experiment, not because they doubted the form of constitutional government, but rather in their concern that we might lose our way morally and attempt to govern ourselves without devotion, reverence and gratitude to God.  We ask you to seriously consider how well we are doing.

After 9/11 when a popular TV minister suggested that God was punishing us for our national sins, he was severely ridiculed.  However, students of the scriptures would certainly allow for the possibility that his analysis was correctreadily agree with his analysis.   How many times in the Book of Mormon are we told that when the people obey the commandments of God, they will prosper in the land but when they don’t, calamities will naturally follow?  The Lamanites were often used by the Lord to remind the Nephites to consider the error of their ways.  Either they could return to God and again qualify for Divine protection, or they could continue down their disobedient path unprotected from the murderous designs of their enemies.  Can we not see any familiar patterns or connections to present-day conditions?

Consider Helaman 12:1-6 & Mosiah 1:13-14.  Notice how the Lord can soften the hearts of enemies or withhold that softening influence, allowing the terrible brute force of the natural man to operate uninhibited when, through disobedience, a given people forfeits its right to Divine protection.  When the natural man is allowed to run loose and unabated, human misery abounds.

Our founding fathers clearly believed in this dynamic as did later generations.  Look at President Lincoln’s Thanksgiving Day Proclamations.  He connected our bloody Civil War with our national “sins” and our “national perverseness and disobedience.”  We have to decide for ourselves if we are on the side of our founders and the scriptures on this issue, or if the mocking scorn of sophisticates is more compelling to us.  We have to decide what is most important to us – being right or being free from ridicule.  Again remember, such ridicule simply derives from a different type of faith – not unassailable and irrefutable scientific fact.   It is simply one faith mocking another.  If that is enough to move you away from the truth, then you are to be pitied.

If Jefferson wondered how long a just God could remain silent in the face of our national sin of slavery, the faithful must wonder the same thing about our country’s legalization of abortion which has resulted in over forty million deaths of innocent babies.  If you are a legal positivist, this doesn’t bother you in the least.  But if you believe in natural law, and the consequences of breaking it, you must be concerned about what will probably happen to our country as we, like countless others before us throughout history, lose our right to Divine protection.  The same can be said of legalizing gay marriage and legally protecting the dissemination of pornography.  If these practices truly are morally wrong, negative consequences must follow. 

We have to seriously consider whether these policies only affect the individuals involved, or whether they will also put the nation at risk, as Jefferson, Lincoln and Mason foretold, and open up the possibility for “collateral damage” even among the innocents of society.  After all, I find it very hard to believe that the three thousand lost souls in the twin towers were notall bad people who were individually deserving of their fates.  They were innocents tending to their own business.  Their loss was monumental to their families and to our society.  They were collateral damage of an evil attack which our government was unable to prevent.  The scriptures are full of examples of collateral damage.  Consider, for instance, Alma 14:8-11 & 60:12-13.  So when we hear people argue that the foregoing legal policies – and similar ones – only affect the people directly involved and have no negative effect on you or me or on the greater society, we must pause to consider whether or not that is really true. 

For more information visit The Constitutional Freedom Foundation website at: http://www.constitutionalfreedomfoundation.org/index.htm

Notes

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© 2004 Meridian Magazine.  All Rights Reserved.

Professor Lewis graduated from the J. Reuben Clark School of Law at BYU and currently teaches Business Law at Southern Utah University.

Ideas and Society Archive

Constitutional  Primer Introduction

Constitutional Primer #1: The Constitutional Convention and the Meaning of Liberty

Constitutional Primer #2:Federalism and the Limitation of Powers

Constitutional Primer #3
The Proper Role of the Judiciary