Notre Dame Law Review

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Nathan S. Chapman*

The role of social and religious sentiment, which was once so critical in the life of our societies, has been largely taken over by law.¹

Introduction

At the heart of American constitutionalism is an irony.  The United States is constitutionally committed to religious neutrality; the government may not take sides in religious disputes.  Yet many features of constitutional law are inexplicable without their intellectual and cultural origins in religious beliefs, practices, and movements.  The process of constitutionalization has been one of secularization.  The most obvious example is perhaps also the most ideal of liberty of conscience that fueled religious disestablishment, free exercise, and equality was born of a Protestant view of the individual’s responsibility before God.

This Essay explores another overlooked instance of constitutional secularization.  Many jurists and scholars count the modern Supreme Court’s progressive interpretations of constitutional rights and equality provisions among the nation’s greatest achievements.  Scholars have given little attention, however, to the religious origins of those decisions.  This Essay suggests that they were heavily influenced by Christian ideas of moral and social progress.

Nineteenth- and twentieth-century Christian intellectual and political movements grounded in post-Enlightenment views of eschatology—or “the last things”—contributed to a doctrine of American civil religion that in turn contributed to the Supreme Court’s reasoning.  That doctrine of American civil religion holds that America has a special moral destiny.  From at least the early nineteenth century, many Americans have believed their nation to be a “city on a hill,”² built and directed by Providence to lead the world in moral reform.  The doctrine is well captured by a phrase first written by a nineteenth-century Unitarian minister but popularized by Martin Luther King Jr. and President Barack Obama: “The arc of the moral universe is long, but it bends towards justice.”³  Numerous Presidents, of both political parties, have further distilled the concept by emphasizing the importance of being on the “right side of history.”⁴

Beginning in the mid-twentieth century, the Supreme Court deployed a secularized version of this doctrine in constitutional decisions about rights and equality.  The incorporation of the Bill of Rights, the “evolving standards of decency” doctrine under the Eighth Amendment, and the “new insights” into liberty and dignity that inspired the landmark decision to extend the marriage rights to same-sex couples all implemented the beliefs that morality is progressive and the U.S. Constitution incorporates that progress.⁵  Though many current members of the Court reject this view of constitutional interpretation, most scholars still hold it.⁶  They do not appreciate, however, that the intellectual origin of this view is a theologically controversial position on an esoteric question of Christian theology, strained through the generalizing dynamics of American civil religion.

The secularization of disputed Christian eschatology into constitutional law challenges two of the core tenets of modern liberalism.  The first is that liberal constitutionalism is coherent and stable without theological suppositions.  As some scholars appear to appreciate, a constitutional commitment to moral progress, regardless its initial motivation, boils down to hope.  A theistic view would ground that hope in a synthesis of ontology, epistemology, and human freedom; a secularized version has little to hope for but hope itself.⁷

The second challenge for modern liberalism is to constitutionalism’s pretension to religious neutrality.  The development of the constitutional norm of moral progress illustrates that religion and constitutional law are a two-way street: specific religious beliefs influence American civil religion, which influences constitutional law; and, as a prime actor in the American civil religion, the Court’s implementation of those norms advances one contested religious doctrine over another, effectively determining the content of the civil religion and shaping the terms around which specific religious groups, in this case Christians, engage in their own theological disputes.⁸

This Essay first attempts to understand how a contested Christian doctrine found its way into constitutional law.  It does so through a reverse genealogy of ideas—an archaeology, perhaps.  The Essay begins by sketching how U.S. constitutionalism, in both theory and doctrine, reflects the belief that the “arc of the moral universe is long, but it bends toward justice.”  It then suggests that underlying this constitutional theme is a merger of two features of American civil religion: the tradition of treating the Declaration of Independence and the Constitution as the central texts of a sacred canon and the belief that America has a special moral destiny.

The Essay then unearths the religious streams contributing to the doctrine of moral destiny.  Each of them reflects a position on Christian eschatology.  The first is the postmillennial movement among mainstream and evangelical American Protestants beginning in the Second Great Awakening, a movement that birthed a wide range of associational efforts to promote social progress.  The second and third were both influenced by the Hegelian school’s philosophy of history, in which God is synonymous with human conscience, social conflict, and an inexorable trajectory of moral progress.  These streams include the liberal Protestant movements of the late nineteenth and early twentieth centuries, and the deliberate secularization of historical eschatology by pragmatists like John Dewey.⁹  The stream nearest in time to the constitutionalization of this doctrine was the religious leadership of the civil rights movement, especially Martin Luther King, Jr.  Together, these streams leant rhetorical power to President Kennedy’s appeal to the Puritan image of America as a “city upon a hill.”¹⁰

The Essay concludes by reflecting on this development.  Scholars have not appreciated how much U.S. constitutional law reflects American civil religion, which itself reflects the various and often competing religious beliefs of Americans.  Each of these—constitutional law, civil religion, and denominational religion—influences the others.  This suggests new challenges for the ideal of governmental neutrality, both among competing notions of American civil religion and among diverse religious groups. 

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©2023 Nathan S. Chapman. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Pope F. Brock Associate Professor of Professional Responsibility, University of Georgia School of Law. Thank you to those who commented on an earlier draft of this paper at workshops at the Notre Dame Law School, the Emory Center for the Study of Law and Religion, and the Stanford Constitutional Law Center. Thank you especially to Paul Billingham, Marc DeGirolami, Paul Horwitz, Andy Koppelman, Jeff Powell, and Amy Seppinwall. Thank you to John Witte, Jr.; Richard Garnett; the editors of the Notre Dame Law Review; the Emory Center for the Study of Law and Religion; the Notre Dame Program on Church, State, and Society; and the McDonald Agape Foundation for their generous support of this symposium.

1Lord Sumption, 27th Sultan Azlan Shah Lecture: The Limits of Law 3 (Nov. 20, 2013) (transcript available at https://‌www.supremecourt.uk‌/docs‌/speech-131120.pdf [https://‌perma.cc‌/U832-CK66]).

2See infra Sections I.A, II.B.

3See sources cited infra notes 121–22; President Barack Obama, Remarks by the President at Commencement Address at Rutgers, the State University of New Jersey (May 15, 2016) (transcript available at https://‌obamawhitehouse.archives.gov‌/the-press-office‌/2016‌/05‌/15‌/remarks-president-commencement-address-rutgers-state-university-new [https://‌perma.cc‌/83S2-9QLY]); President Barack Obama, Presidential Proclamation—Death of Nelson Mandela (Dec. 5, 2013) (transcript available at https://‌obamawhitehouse.archives.gov‌/the-press-office‌/2013‌/12‌/05‌/presidential-proclamation-death-nelson-mandela [https://‌perma.cc‌/3JS9-2M7S]).

4See David A. Graham, The Wrong Side of ‘the Right Side of History,’ The Atlantic (Dec. 21, 2015), https://‌www.theatlantic.com‌/politics‌/archive‌/2015‌/12‌/obama-right-side-of-history‌/420462‌/ [https://‌perma.cc‌/8W3R-75ZV] (noting that President Obama used the phrase “the right side of history” fifteen times, “the wrong side of history” thirteen times); see also id. (“Bill Clinton referred to ‘the right side of history’ 21 times over his time in office, while his staffers added another 15.”); Abraham Lincoln, President of the U.S., Second Annual Message (Dec. 1, 1862) (transcript available at https://‌millercenter.org‌/the-presidency‌/presidential-speeches‌/december-1-1862-second-annual-message [https://‌perma.cc‌/8589-28G3]) (“The way is plain, peaceful, generous, just-—a way which if followed the world will forever applaud and God must forever bless.”); John F. Kennedy, President of the U.S., Inaugural Address (Jan. 20, 1961) (transcript available at https://‌www.archives.gov‌/milestone-documents‌/president-john-f-kennedys-inaugural-address [https://‌perma.cc‌/M3C4-YN7G]) (“With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help, but knowing that here on earth God’s work must truly be our own.”); Ronald Reagan, President of the U.S., Address to Members of the British Parliament (June 8, 1982) (transcript available at https://‌www.reaganlibrary.gov‌/archives‌/speech‌/address-members-british-parliament [https://‌perma.cc‌/8K2Z-B3ME]) (describing “the march of freedom and democracy which will leave Marxism-Leninism on the ash-heap of history as it has left other tyrannies which stifle the freedom and muzzle the self-expression of the people.”).

5See infra Section I.B.

6See, e.g., Steven D. Smith, Idolatry in Constitutional Interpretation, 79 Va. L. Rev. 583, 587 n.25 (1993) (listing examples).

7See infra Section IV.A.

8See infra Section IV.B.

9See infra notes 134–41 and accompanying text. 

10John F. Kennedy, U.S. President-Elect, The City Upon a Hill Speech (Jan. 9, 1961) (transcript available at https://‌www.jfklibrary.org‌/learn‌/about-jfk‌/historic-speeches‌/the-city-upon-a-hill-speech [https://‌perma.cc‌/Y8ZY-4AYN]).