Divine Sovereignty, Popular Sovereignty, and the Dilemma of American Constitutionalism
By wonderful happenstance, this year’s Constitution Day (Thursday, September 17) occurs just two days before Rosh Hashanah, the Jewish New Year and one of the “High Holy Days,” together with Yom Kippur roughly a week later. The major motif particularly of the Rosh Hashanah service, is Divine sovereignty. The most dramatic manifestation of this sovereignty is surely one of the traditional readings from the Torah during Rosh Hashanah, the chapter from Genesis in which Abraham complies with God’s commandment to slay his son Isaac. Without explaining to his wife Sarah why they are leaving home, Abraham takes Isaac to the top of Mount Moriah and binds him for what he believes will be the sacrifice signifying his obedience to Divine command. At the last moment, an angel announces that will be unnecessary; Abraham has apparently proved his subordination to the Sovereign God, and a ram will instead be sacrificed. Interestingly enough, Isaac does not accompany his father down the mountain. Sarah dies soon afterward. We do not know whether Abraham has told her the full story. Isaac in fact does not reappear in the biblical narrative until three years have passed. We can only assume, at the very least, that the experience was traumatic. (Interestingly enough, there is a rabbinic midrash suggesting that the ram did not in fact appear, that Isaac was in fact sacrificed, but that he was resurrected, to reappear and take his part in the line of Jewish patriarchs. This, of course, is predictive of the sacrifice of Jesus by his presumptive father that underpins Christianity.)
Why begin a meditation on “Law, Religion, and the Constitution” with this story from the Bible? The answer is simple: The debate about the relationship between these three turns on one’s theories of sovereignty and the corresponding duties of individuals faced with what they perceive as commands from a Divinity. There is nothing “innocent” about sovereignty, whether we refer to God or to the State that claims to be sovereign—or, for that matter, a “people” that claim to rule in the name of “popular sovereignty.” University of Michigan political theorist Don Herzog begins his recently published book Sovereignty R.I.P. with an absolutely compelling chapter detailing the savagery of the religious wars of the sixteenth- and seventeenth-centuries, when partisans of one or another Christian denomination or sect took relish in subjecting “heretics” to the most gruesome of punishments. Hillary Mantel’s third volume of her trilogy on Henry VIII and Thomas Cromwell offers equally vivid retellings of burnings at the stake of both “Papists” and “Lutherans,” united, at least to this extent, in their refusal to accept Henry as the head of the only legitimate Church of England.
As Herzog demonstrates, classical theories of “sovereignty,” identified with Jean Bodin in France and Thomas Hobbes, the greatest of all English-language political theorists, were developed in order to bring to an end the savagery of the wars of religion, all conducted in the name of the one true Divine sovereign who, as with Isaac and Abraham, was said to have commanded the deaths of all who did not possess the one true measure of fealty to the sovereign Lord above. In effect, through the myth of the social contract, “popular sovereignty” was substituted for Divine sovereignty, and then, in addition, it turned out that the “popular sovereign” was more than willing to authorize, in Hobbes’s philosophy, an all-powerful Leviathan state. There was, to put it mildly, no spirit of tolerance for religious sectarianism in Hobbes; such sectarianism was the source of the English Civil War that provided the background for The Leviathan.
So now we do a fast forward not only to 1787 but to 2020. It is no small matter than we regularly speak of a “culture war” within the United States. On occasion this can refer to whether one prefers the Great American Songbook or rap music, cats or dogs, football or tennis. But from the beginning of European settlement in America to the present, the most important “culture war” was always religious. Roger Williams was exiled from Massachusetts to Rhode Island because of his heretical views. He was lucky; he remained alive and, indeed, became a major figure in the saga of American religious thought. Not so lucky were the Quakers who were executed by the Puritan leaders of Massachusetts. Access to political rights in several of the colonies required that one have also pledged loyalty to the right conception of God. Dissidents might be tolerated rather than hung, but they were not full members of the political community.
One of the greatest achievements of the 1787 Constitution was the presence in Article VI of the Constitution of the “no test oath” clause, which meant, at the very least that public office, at least at the national level, could not be predicated on a religious belief. It was no longer relevant whether one believed in the Trinity or possessed a given view about the Pope in Rome as either the head of the one True Church or, on the contrary, the leader of the “Whore of Babylon.” That was undoubtedly a great step forward, unless, of course, one did believe there was only one path toward salvation and that it was the duty of the state to safeguard that path and discipline those who would stray from it. After all, the First Amendment prevented only the national government from establishing a religion; it said nothing about the various forms of state establishment, which persisted in Massachusetts until 1833.
Whether or not this is truly an “exceptional” feature of America, it is certainly true that American soil proved unusually fecund with regard to creating new (and controversial) forms of religious devotion and expression. Perhaps most significant in this regard was the purported discovery in upstate New York by the Prophet Joseph Smith, in 1832, of “golden tablets” deposited by the angel Moroni. Smith would allegedly translate these tablets and go on to found what is surely the most important “made in America” religion, the Church of Jesus Christ of Latter Day Saints. Among the most important doctrines of the early church was polygamy, and Smith was ultimately murdered in 1844 by outraged non-Mormons who viewed him as a danger to the general public. (That, of course, ultimately sparked the migration to Salt Lake City led by Brigham Young, also a polygamist.).
The first great religious freedom case decided by the United States Supreme Court, in 1879, was unanimous in upholding the jailing of George Reynolds, a Mormon leader, for committing polygamy in violation of a congressional law. The Republican Party platform in 1856 had condemned the “twin relics of barbarism,” slavery and polygamy. In Reynolds, the Court sharply distinguished between beliefs, on the one hand, and actions, on the other. Polygamy, although based on a belief that one was honoring Divine command — as with Abraham’s binding of Isaac — was very definitely an unprotected action. Indeed, probably the most systematic religious persecution in our history was that directed at the Mormon Church. Utah was denied admission to the Union six separate times because it was viewed as being in thrall to the unreformed Mormon Church. The state was admitted in 1890 only after Church leaders purportedly received a Divine revelation announcing that polygamy was not only no longer required, but was prohibited, and that prohibition was written into the Utah constitution. (There is, of course, a group even today of “old Mormons” that has never accepted this new understanding and continues to engage in polygamous, and criminal, behavior.)
Abraham Lincoln famously suggested that a “house divided against itself cannot stand,” a phrase borrowed from Matthew 12:25. A kingdom, Jesus seemed to be saying, can have only one sovereign. Dual sovereignty creates, by definition, the possibility of a divided household (and personality), caught between conflicting commands each issued under the seal of “sovereignty.”
Most Americans, at least today, are willing to accept the premise that the state cannot compel belief , including the renunciation of a sovereign that might be viewed as competing with the state itself. This is the meaning of the famous “flag salute case” of 1944, in which Robert Jackson upheld the right of Jehovah’s Witnesses — another “made in America” religious sect — to refuse to signify their acceptance of state sovereignty by saluting the flag. As a matter of fact, Jackson and his colleagues were overruling a decision issued only four years before, in which the Court had upheld the enforcement of a compulsory flag salute on pain of criminal punishment. (In the aftermath, several Kingdom Halls of Jehovah’s Witnesses were burnt down by people protesting against the “disloyalty” of the Witnesses, who recognize only God as their sovereign.) But actions are another matter. Jehovah’s Witness parents, for example, are not allowed to deny blood transfusions to their children even though they interpret the Bible, by forbidding the “eating of blood,” as prohibiting such transfusions and imposing eternal damnation on anyone accepting the blood of another.
The United States today is engaged in the latest version of the culture war derived from the competing claims of God and the State to exercise supremacy with regard to the conduct of everyday life. Does a state or national law forbidding discrimination automatically mean that a seller of good or services must violate his or her deepest religious precepts — viewed as commands from God — by serving someone viewed as engaging in forbidden conduct, such as marrying someone of the “wrong” race or “wrong” gender. These, of course, are not hypothetical examples. As late as the mid-20th century, a Virginia judge defended the constitutional propriety of that state’s law forbidding inter-racial marriage by referring to the Biblical “curse of Ham,” Noah’s apparently dark-skinned son. More recently, of course, we have been subjected to the great “wedding-cake” culture war. Does the Free Exercise Clause of the First Amendment, or the Religious Freedom Restoration Act in certain contexts, allow a baker to refuse to make a wedding cake for a same-sex couple on the ground that that would count as Divinely forbidden complicity in a relationship that is forbidden? (The Torah service for Yom Kippur, incidentally, includes the passages explicitly condemning homosexual conduct, which many liberal congregations either omit or take pains to discuss and explain away as an historical artifact rather than a genuine Divine command that must be honored even today.). Other example, of course, could also be given, many of them surrounding contraception and, even moreso, abortion.
What links all of these example, though, ultimately is what might be called the “Dual Sovereignty” dilemma. Can any of us truly serve “two masters,” each of whom claims to be truly supreme? Can a “house divided” necessarily stand if the debates concern issues more central to the society than wedding cakes? The Constitution proclaims no genuine answer to such questions. One must first decide whether the Constitution truly proclaims the sovereignty of “we the people,” and, therefore, laws made in the name of the people, at least so long as they do not exemplify an explicit intention to discriminate against a religion. The alternative is to accept the premise that “we the people” share our sovereignty with any given Divinity believed by one of our fellow Americans to issue commands that take precedence over “merely” human law. Political scientists Steven Levitsky and Daniel Ziblatt argue in their recent book How Democracies Die that pluralistic societies can survive only if competing groups are willing to engage in “forbearance” toward one another. This means, among other things, on occasion not taking full advantage of what might be one’s “legal rights” because doing so, like, for example, the Ku Klux Klan marching down the main street of an American city, would only take us further toward disunity and even perhaps civil war.
It is difficult, on this Constitution Day 2020, to be very confident that we will any time soon see a true peace treaty with regard to our contemporary culture wars, not least because both sides can make perfectly plausible arguments that they alone are truly embraced by what Robert Jackson, in another opinion, called the “majestic generalities” of the Constitution. If “We the People” really claim, in effect, to be, as is sometimes asserted, the equivalent of “the voice of God,” then there is no good reason to recognize claims asserted by reference to the “true voice of God.” But if “free exercise of religion” does mean more than abstract belief — that there is, for example, a Divine voice that speaks to one — and captures as well how one acts in the world, then the claim of “popular sovereignty” turns out to make little sense. ♦
Sanford Levinson is a Professor of Law at the University of Texas Law School and member of the Government Department at the University of Texas at Austin. He is the author, among other books, of Constitutional Faith (2d ed. 2011).