Monday, June 21

Part 1 — The Great Divide — A Look Ahead

Const_BibleThe following is a road map, a look ahead at where we are going in coming weeks.  Succeeding posts will expand on each of the boldface subheadiings by placing a kind of magnifying glass on St. Augustine, the Enlightenment, etc., concluding with the Constitution itself and the First Amendment.


But first a personal note:

Several years before I retired after 30+ years with the Boeing Company, I saw the 1993 movie Gettysburg, the version with Jeff Daniels as Col. Joshua Lawrence Chamberlain, Martin Sheen as Gen. Robert E. Lee, Tom Berenger as Gen. Longstreet, etc. (It is one of the best Civil War movies ever made, perhaps the best ever. Run-don't-walk and see it if you haven't.) At the end of the movie, I was ashamed to realize that, of all the characters, I knew only Gen. Lee.  I had never heard of the Battle of Little Round-Top.  I did not know what Cemetery Ridge was and had never heard of Pickett's Charge.  So I began to read. Over the next 10 years or so, I read literally hundreds of books about the Civil War, biographies of Mr. Lincoln, etc., etc.  I became a "Civil War nut", and remain such. What struck me about President Lincoln was his deep insight, perhaps deeper than any President before or since, into the relationship between the Declaration of Independence and the US Constitution.

So I began to read about the Constitution. This was in 2003 or so. It very quickly became evident that I could not understand the Constitution without some remedial reading in the history of the early American Republic. So I temporarily suspended my reading about the Constitution and began to read voraciously about the American Revolution and the history of the early days of the Nation, all the while kicking myself for not having paid attention in junior-high school to my American-history classes.  This consumed another 5 years or so and hundreds of more books, even more than in my personal crash course in the Civil War.  Along toward the end of the early 2000s, I was ready to return to the Constitution.  Somewhere  along the way, I read some op-ed pieces in the New York Times by Stanley Fish on postmodernist theories of constitutional interpretation. Fish is a literary scholar and Milton specialist, not a constitutional lawyer.  But I had studied interpretation theory at Harvard, Tufts, and Oxford when my wife Diane and I were in Boston in the middle '80s, and I got interested in how to apply contemporary interpretation theories to the reading of the Constitution. It immediately became apparent that this was a vast, vast, vast subject. So, with no preamble, with no prior introduction, and out of the clear-blue sky, I sent an e-mail to Prof. Stewart Jay, senior faculty in the University of Washington Law School, introducing myself and asking for suggestions about where and how to begin studying methodologies of constitutional interpretation. Prof. Jay graciously replied with a reading list of perhaps a dozen books, suggested that I begin by reading those, and continue by digging into the bibliographics at the back.

So I did. That process started in 2009 and continues to this day, augmented by auditing Prof. Jay's classes at UW in constitutional law and the First Amendment (his area of specialization). (Prof. Jay is a prodigiously gifted constitutional scholar and teacher of same. If you have one teacher of that caliber in your college career, you are lavishly fortunate.) The 2 most salient results of this entire journey -- which today is anything but finished and complete -- are that (1) I came to see the Constitution as utterly critical, indispensable, and life-or-death important to the life and well-being of the Nation ... and equally threatened by Americans' ignorance of it, rendered all the more tragic by (2) the fact that the Constitution is eminently understandable -- admittedly with some hard work. The fact that people do not understand it is in large measure due, not only to public apathy, but to the fact that the Constitution has been monopolized, deliberately or not, by The Guild:  constitutional lawyers and scholars who, at least tacitly, foster the belief that understanding the Constitution is a task that must be reserved to professional specialists, usually law-school faculty and practicing attorneys.  But the Constitution was written to be understood by the public.  In the 1819 case of McCulloch v. Maryland, Chief Justice John Marshall said "We must never forget that it is a constitution we are expounding" -- that is, a document that was ratified by the People and for the benefit of the People.

I do not have a law degree. But if I did it, so can you.


To continue the conversation, go to the "Great Divide" discussion group.


The men who framed the US Constitution at the Constitutional Convention in Philadelphia from May 25 to September 17 of 1787 set forth many fundamental principles in the Document that they envisioned as the foundation of a new nation, e.g., separation of powers, federalism, independence of the Judiciary, religion-neutrality as to spiritual matters, etc., etc. The men who wrote the Bill of Rights, chiefly though not exclusively James Madison, formulated in the first ten Amendments to the Constitution "proper" (the Constitution without the Amendments) certain other principles, many of which had been embodied in English common law since time immemorial, others of which were included to defend against abuses they had observed and experienced in the parent country.  But virtually all of these principles were in the nature of a repudiation and a reaction against what the Framers regarded as a political philosophy founded on a religious ideology that they viewed as inimical to the kind of constitutional government that gradually, over centuries, had emerged from the European Enlightenment, and that was exemplified most comprehensively in the thought of St. Augustine. It would not at all be an oversimplification to say that St. Augustine stands at one extreme and that the Framers, especially James Madison and Thomas Jefferson, stand at the other. So we begin with St. Augustine because, in a multitude of ways, it was against Augustine and Augustinianism that the Framers were reacting.


St. Augustine, one of the primary architects of Christianity in the early conciliar era (the era of the great ecumenical Church Councils of Nicea, Ephesus, Chalcedon, etc.), lived in the 300s CE (13 November 354 – 28 August 430, to be exact) and helped shape much of Christian doctrine regarding sacramental theology, sin, redemption, and the early Church’s view of humanity in relation to God. After a rather turbulent youth, Augustine repented of what he regarded as his earlier licentious excesses and  became a Christian – a process that is described in his first great work, his Confessions – and eventually became archbishop of the great city of Hippo in North Africa. (Augustine pretty much single-handedly created the literary genre of confessional literature with this one book.) He served as archbishop during a time when the Roman Empire in the West was beginning to come apart at the seams and give way to chaos and anarchy. This violent era profoundly influenced Augustine’s view of sin and of human capacities / capabilities under its influence. With Rome itself falling and with his city of Hippo under siege by the savage Lombards, Augustine wrote his other great work, The City of God, in which he describes what he regards as the proper relationship of the civil government to the state. A few of his more salient conclusions are …

St. Augustine

o Human reason is irreparably – apart from God’s Spirit – warped by sin: on our own, we cannot know what is right, theologically or morally, and so require the Holy Spirit, acting through the Church’s episcopal leadership, to form our consciences and our sense of right and wrong, about morality and theology … therefore …

o … in particular, only the Pope and ecumenical Councils are authorized to interpret the Bible definitively, so the civil government must be strictly subordinate to, in fact, a department of, the Church

o … human reason, unaided by the grace of God, will always lead us astray in matters of faith and morals

o … human society is a Divinely ordained hierarchy with God at the very top, the Pope and bishops at the next level, human rulers (kings and eventually feudal lords) at the next level, and ordinary people at the bottom, and we upset this Divinely ordained order at literal peril to organized human society in this life and at peril our souls in the next (compare this vision to Plato’s definition of “justice” in the Republic)

The last point is important because it illustrates the way the neo-Platonism of Augustine’s world of the 300s CE influenced his political and social views. Platonism / neo-Platonism envisioned reality, political and physical and metaphysical, as a vast hierarchy, in fact, a hierarchy of hierarchies, both politically and metaphysically. At the top of the Pyramid of Being is God – Plato’s Form of Forms – and descending from that level there is a multitude of gradations of reality, power, goodness, and holiness (all 4 were pretty much conflated). In fact, an Augustinian, neo-Platonic emphasis on strict and static hierarchy more or less explicitly sanctioned the ecclesial, episcopal, political, and social hierarchy of feudal times, and, by analogy with the celestial hierarchy descending from God to angels to human beings, formed the basis of St. Anselm's 11th-century view of the nature of Jesus' redemptive work (Cur Deus Homo):  human sin was an affront to God, just as treason was an affront to a feudal lord, and both crimes could only be expiated by a sacrifice of blood, for any other response threatened the integrity of the hierarchy. No human being could pay this penalty, St. Anselm argued, so God's own Son, Jesus Christ, came to earth as a Man in order to pay the price for us. Anselm's account of the theology of redemption is still orthodox doctrine in many churches, and presupposes the inviolability of a neo-Platonic view of hierarchy. Neo-Platonic metaphysics would pretty much determine the shape of Christian theology until the rediscovery of Aristotle – as a result of the Crusades and of Muslim commerce with the West – in the 1200s and of Aquinas’s use of Aristotle in the recasting of Christian theology, in particular, Aquinas’s use of Aristotle to describe the Eucharist.

The Enlightenment

Fast-forward 1300 years to the middle of the 1600s. By now, Europe has been through about 200 years – and that is probably on the optimistic side – of bloody, devastating religious wars. Why? Because the comparative unanimity of the Augustinian view had been broken a century before (actually, even earlier than that) by something called the Protestant Reformation. (Remember:  Martin Luther was an Augustinian Roman Catholic monk!) In retrospect, we realize that Augustine’s view of the Church, of sin, of the Bible, of morality, of theology … in fact, Augustine’s view of virtually all things religious and ecclesial … vitally depended on there being no serious competition. For Augustine’s vision to work, there could only be “one game in town” ecclesiologically, hermeneutically (i.e., one interpretation of the Bible), one view of episcopal authority, etc., etc. The unity of Augustinian Christianity absolutely required uniformity and unanimity. Break that uniformity, break that unanimity – allow more than “one game in town” – with no authoritative way to resolve conflicts / disagreements, and the stage is inevitably set for religious conflict … and ultimately for religious war. Which is precisely what happened. (Always bear in mind that people took theology with utter and unqualified seriousness in medieval times, even to the point of blood, because one's eternal destiny was at stake.) The religious wars of the 16th and 17th centuries resulted from the absence of a supervening authority: there was no universally recognized theological, ecclesiological, or moral “Supreme Court”. (The Catholic Church claimed this role as the authoritative arbiter of morals, doctrine, and dogma, but all the Reformers explicitly repudiated this role of the Catholic Church to speak authoritatively on matters of faith and morals.) In the absence of this kind of magisterial authority, the only way to settle theological / religious / doctrinal disputes was by resort to the sword, wielded by the power of the State. The result was death and devastation on a Continent-wide scale, culminating in the Thirty Years War (1618-1648).

Thirty Years War

But from all that blood, fire, and devastation there did emerge one valuable lesson, which was lost, neither on the belligerents in those conflicts nor to those who negotiated and made peace. The various warring parties – Catholics and all the (by then) dozens of Protestant sects – realized the importance of learning how to agree to disagree. This lesson was written into the Peace of Augsburg of 1555, which settled conflicts between Lutherans and Catholics (the only 2 sects in existence at that time), and in 1648 with the Treaty of Westphalia, which settled the Thirty Years War among all the warring parties, which had greatly proliferated since 1555. This learning-to-disagree principle is articulated as the Latin maxim Cuius regio, eius religio: “Whose rule, his religion”. All parties agreed to abide by this principle, according to which the religion of any particular state is the religion of the reigning sovereign. Therefore, Catholic sovereign, Catholic country; Lutheran sovereign, Lutheran country; Presbyterian sovereign, Presbyterian country; etc., etc., etc. Not all nations and not all sovereigns, abided by this principle perfectly, but did conform to it to the extent that Europe was never again devastated by Continent-wide religious war, though local persecutions, many quite bloody, would persist.

Treaty of Westphalia
Treaty of Westphalia

As a result of these treaties and this principle, in the very late 1600s and in the very early 1700s, a group of philosophers, small at first but rapidly growing, began to take several steps back and reappraise the entire edifice of European civilization and the Christian religion on which it was based. Over time, they decided that the entire problem had been the wedding of state power to religious dogma in the misguided belief that preserving the unity of Christendom was both possible and desirable. The principle of cuius regio, eius religio seemed limpidly rational and clear, so much so that, so they reasoned, only subordination to religious dogma had rendered it obscure in the past. In time, these philosophers would coalesce to form a movement whose goals were (a) the secularization of society and the State, (b) the consequent separation of religious belief from State power, and (c) the promotion of the use of unaided human reason for the solution of political, social, and scientific problems. It is no mere coincidence that the 1500s and 1600s – the time of the most intense religious warfare – also saw an explosion of scientific progress and exploration that would not be equaled until the 20th century. This was the era of Kepler and Galileo and Copernicus and Giordano Bruno, of the controversy between heliocentric and geocentric cosmologies. Galileo, who first peered through a telescope around 1610, died in 1642 – the same year Isaac Newton was born. This was the age of the telescope and an explosion of innovation in the building of scientific instruments, e.g., ship-borne clocks that enabled ships to sail on the open ocean away from coastlines. This resulted in the rediscovery of the value of reason and its re-emphasis in addressing scientific, social, political – and even moral and religious – issues strictly on the basis of human rationality. The renewed faith in human rationality seemed amply justified by all this experience. Above all, scientific disputes could be settled peacefully by appeal to evidence and experience, unlike religious disputes which, in the absence of any agreed-upon magisterial authority, required bloodletting and violence on an apocalyptic scale. This era came to be known as the “Enlightenment”, because its architects viewed previous history as having been dominated by religious superstition, after which, thanks to the explosive growth of science and technology, human culture once more escaped into the light of reason.

The Founding and the Framing

Philosophes of the French Enlightenment

The Framers of the American Constitution were all men of the 1700s, men who had been educated in methodologies, the values, and the  perspectives of the Enlightenment. In particular, they were men of the British Enlightenment. The Enlightenment took two primary forms: Continental and British. On the European Continent, the Enlightenment was often militantly anti-ecclesiastical, anti-clerical, and even anti-theist, as witness, e.g., the French Revolution and its contempt for the Church. The British Enlightenment was a “kinder and gentler” version of its Continental counterpart and, while certainly skeptical (e.g., the uncompromisingly sharp-edged skepticism and empiricism of David Hume), was nevertheless more gently disposed toward, and tolerant of, religious belief. This was the cultural context of all the architects of American government during the time of the Founding and Framing. Consequently, despite the contributions of political theorists like Montesquieu (The Spirit of the Laws, from which the Framers of the Constitution derived the principle of “separation of powers”), the American Constitution breathes the air of the British Enlightenment much more so than that of the Continental.

US Constitution

The important point to note is that, in very many ways, the Enlightenment background of all the Founders and Framers was diametrically and irreconcilably opposed to the Augustinian principles of 1400 years before. In particular, the Enlightenment-derived principles of the Framers were …

o … consistent with religious commitment, but insisted that religion should not be mandatory. Religious faith is properly a matter purely of individual conscience, not state coercion. Cf. the “establishment” and “free exercise” clauses of the First Amendment.

o … optimistic about the potentialities of sheer human reason, something tacitly presupposed, e.g., by the “republican form of government” clause (Article IV, sec. 4), by the government’s custodianship of patents and inventions (Article I, sec. 8, cl. 8), and by the “abridgement” clause of the First Amendment, which implicitly places its confidence in the efficacy of rational human collaboration

o … nevertheless realistic enough to understand that people do make mistakes — reason is effective but not infallible— and so often need to revise their positions, opinions,  principles, and creations (Article V amendment process)

o … protective of freedom of discourse (speech, press, association, publication, a strong bias against prior restraint. etc. -- though, as we will see, the "prior restraint" part took a while to work out, even after the First Amendment was ratified) is essential for all the above. Cf. “abridgement” clause of First Amendment.

o … insistent on the human, not Divine, origin of government, thanks to Rousesau, Montesquieu, and precursors like Hobbes and Locke. “We the People [i.e., not 'I, God the Deity'] do … ordain and establish this Constitution”. E.g., Article VI, para. 3 prohibition against any “religious test” being required for public office.

o … insistent on the equality of all people before the law. We’re still working on this one, but, e.g., the Reconstruction Amendments (13, 14, and 15), together with the 19th, provide explicit constitutional support.

None, absolutely none, of these foundational principles of American constitutionalism – plus ones I have not yet mentioned – are even conceivable from an Augustinian standpoint. All require Enlightenment presuppositions.

Skepticism is the chastity of the intellect, and it is shameful to surrender it too soon or to the first comer: there is nobility in preserving it coolly and proudly through long youth, until at last, in the ripeness of instinct and discretion, it can be safely exchanged for fidelity and happiness. -- George Santayana

James R. Cowles


    • Thanks Max … Well get trying to this point has taken me about 6 years and several hundred books on history, constitutional theory, and interpretative technique. And that’s just the Constitution “proper”, not counting all the antecedent reading on the Civil War and the history of the early Republic. And it continues. Probably the most bang-for-the-buck useful thing I did was to audit 3 of Prof. Jay’s con law classes: Con Law, Advanced Con Law, and the First Amendment.

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