The Classical and Christian Origins of American Politics: Political Theology, Natural Law, and the American Founding
By Kody W. Cooper and Justin Buckley Dyer.
Cambridge University Press, 2022.
Paperback, 225 pages, $34.99.
Reviewed by Stephen B. Presser.
Ideas, they say, have consequences. In 1930, Jerome Frank, channeling Oliver Wendell Holmes, Jr. declared in Law and the Modern Mind that law was nothing supernatural, and that it was the job of judges to alter it in order to meet what progressives perceived as the needs of the times. It took some time, but following the Hughes Court’s virtual rewriting of the Constitution to find permissible increased regulation of labor relations and intrastate commerce in the forties, and by the era of the Warren Court in the fifties and sixties, the idea of judges as legislators had become something close to orthodoxy, as that Court rewrote the Fourteenth Amendment to bar prayer, bible reading, and forced racial segregation in the public schools. Finally, in 1973, in a remarkable 7-2 decision, the Burger Court somehow discovered in the Constitution a right to terminate pregnancies before fetal viability.
Understanding how this happened became the task of Constitutional theorists for the last few decades, as an increasing sense that something had gone very wrong with the law and the Constitution roiled our politics, our law schools, and our judiciary. These were, as anyone who lived through them can attest, tumultuous years for the polity. There was previously unimagined prosperity in some quarters, and industrial and commercial development of a kind never seen before, but there was also perceived injustice, foreign wars, increased immigration and urbanization, and the passing of a previously dominant White Anglo-Saxon Protestant establishment. In the legal academy in particular, old ideas about deference gave way to an increasing secularization and, apparently, a belief that the purpose of law was what came to be called “self-actualization,” an essentially radical individualism focused on personal needs, growth, and expression. A culminating expression of this ethos was the execrable “mystery passage,” uttered by Justice Anthony Kennedy in Planned Parenthood v. Casey (1992) that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” These words appeared in an opinion preserving the purported Constitutional right to abortion, but their transparent silliness (humans don’t define their own concepts, they take them from their fellows or their religion or their culture) may have helped spark a serious reevaluation of late twentieth-century Constitutional jurisprudence.
At about the same time as the Casey opinion, the progressives’ dominance in the law schools was challenged by the formation of the Federalist Society for Law and Public Policy, a group of libertarians and social conservatives, who shared a belief that legislating from the bench and the centralization of the federal government had gone too far. Now, in the third decade of the twenty-first century, suddenly and rapidly, Federalist-inspired justices have nearly completed a striking reversal in Constitutional law doctrine. After almost fifty years, the Court has recognized that there was no Constitutional basis for Roe v. Wade, that the decisions removing religion from the public square went too far, and that counting by race to achieve “diversity” will no longer be permitted in the nation’s colleges and universities.
No wonder that some progressives have begun to argue that something has gone seriously wrong with the Supreme Court, and have begun to concoct schemes, such as “court-packing,” for neutralizing it. What this earthquake in Constitutional law has also demonstrated is that something was seriously wrong in jurisprudence for many decades, and some fundamental mistakes had been made about the essence of our Constitutional and Legal system. That system remains in something of a crisis, as the law has become increasingly politicized to the point where one of our two principal political parties is seeking to incarcerate the leader of the other, while that party’s president and his family appear to manifest corruption at a level that makes Watergate look trivial.
The sense that we had lost our bearings led many in the Federalist Society and elsewhere to search deeper for the original understanding of the Constitution. That search revealed, for example, in the work of Raoul Berger, that the original understanding of the Fourteenth Amendment did not justify the radical restrictions on state sovereignty imposed by the Warren and Burger courts, and such insights did lead to a number of decisions rejuvenating our system of dual federal and state sovereignty known as federalism.
We are now in pursuit of an even deeper understanding of error, and it is that pursuit that has engaged Messrs. Cooper and Dyer. They are doing nothing less than exploding the misbegotten ethos of the “mystery passage.” Instead of its radical individualism, they seek to recover what we could call the communitarian classical and Christian foundations of the American founding.
A typical progressive work on religion and the Constitution from the end of the last century was the revealingly-titled The Godless Constitution: The Case Against Religious Correctness (1997), in which the authors, Isaac Kramnick and R. Lawrence Moore, through a highly selective and woefully inadequate reading of the historical record, essentially argued that the Constitution’s framers envisioned a fundamental document as secular as the Warren Court’s reading. Cooper and Dyer have now supplied a comprehensive corrective. Indeed, they have demonstrated through a thorough examination of primary and secondary sources, the earliest state constitutions, and both founding-era and contemporary theorists that “ideas central to American founding thought are not only compatible with but presuppose classical natural law and natural theology.” They argue convincingly that not the self-actualization of our latter-day Epicureans, but rather the law of God as understood by Aquinas ought to inform our understanding of the Constitutional order, if we are to be true to our tradition.
For the last few decades, the most underrepresented minority in American law faculties was conservative Christians, which underscores the value and uniqueness of what Cooper and Dyer have to offer. Indeed, their little book, by necessity, is a basic primer on Christian theology as well as on the American founding, including a necessary introduction to Catholic, Anglican, and Reformed approaches. Anyone who took seriously the framers’ own words was aware, as Samuel Chase put it in a jury charge in 1803 (echoing sentiments in Washington’s farewell address) that there could be no order without law, no law without morality, and no morality without religion, and Joseph Story’s 1833 Constitutional treatise made clear his belief that it was the duty of any serious Republican government to promote Christianity. (All of this, of course, makes plain the fallacy of the “Godless Constitution.”)
Cooper and Dyer have now demonstrated that the classical and Christian theoretical underpinnings of these notions are also evident in the thought even of the purportedly Deist framers such as Jefferson, Washington, and Franklin. As Cooper and Dyer summarize their work, “The patriots deployed a classical, theistic natural law theory of morality, rather than the radically modern doctrine that some scholars have suggested.” Or, putting the point slightly differently, “Broadly speaking, classical natural law is radically contrary to subjectivist theories of the good that are often tied to instrumentalist accounts of practical reason, conventionalist accounts of moral and legal obligation, and metaphysical atheism.” Or, alternatively, this powerful little book should be understood as a thorough repudiation of the currently popular notion among many American political scientists and Constitutional scholars that “the founding was pouring new wine of secular individualism into old wineskins of classical and Christian theology.” R.I.P., mystery passage.
There is plenty of support here for the framers’ belief in the ultimate value of popular sovereignty, but it is a popular sovereignty superintended by an all-powerful, and all-benevolent providential God, working through history, and apparently, with an especial interest in the United States. Those of us enchanted by the founding era will find much to delight and admire here, but the importance of this book is what it offers to those under the misimpression that ours was always intended to be a secular polity. If I read Cooper and Dyer correctly, they limn a splendid way forward embracing the past and understanding a truth known to the framers and some of their successors such as the nineteenth-century sage Orestes Brownson, that we humans can’t go it alone, and that a meaningful life (even for Constitutional theorists and lawyers) comes not from self-actualization, but through conformity to the dictates of our Creator, and through His Grace.
This book, then, is a powerful brief for turning back the clock in Constitutional law to a time before “The Godless Constitution” was dominant, and for recapturing something of the world of the framers, a world we have never actually left (nor could we). Earl Warren famously remarked in Brown v. Board of Education that one can’t turn back the clock, but C.S. Lewis (something of an appropriate if not inspired influence on Cooper and Dyer) argued that was wrong, and that if the clock is failing properly to tell you the time, that’s precisely what you ought to do. This exceptionally learned, bold, and courageous book is a perfect tract for our times.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and the author of Recapturing the Constitution: Race, Religion, and Abortion Reconsidered (1992) and Law Professors: Three Centuries of Shaping American Law (2017).
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