"Constitutional Grace: Securing the Blessings of Liberty Through Dignity and Forgiveness" by William E. Thro

Constitutional Grace:
Securing the Blessings of Liberty Through Dignity and Forgiveness

William E. Thro

We the People … in order … to secure the blessings of liberty to ourselves and our posterity do ordain and establish this Constitution for the United States of America.¹

Because neither the People nor their leaders are angels,² the Constitution reflects a Calvinist theological perspective³ and embodies “obsessive distrust of government — all government — and [the] elevation of law into the ruling power of the state. Indeed, the idea of law itself as sovereign is the key.”⁴ As I explained earlier in these pages,⁵ Constitutional Sovereignty — the vesting of sovereignty in a written Constitution rather than a person or group of persons — is an effective mechanism of controlling humanity’s sinful nature. Constitutional Sovereignty has three aspects.⁶ First, by the consent of “We the People,”⁷ the Constitution “withdraws certain subjects from the vicissitudes of political controversy” and “places them beyond the reach of majorities and officials.”⁸ Second, when a particular statute or executive action “contravenes the Constitution, it will be the duty of judicial tribunals to adhere” to the Constitution and declare the statutes and executive actions void.⁹ Third, if the Constitution is “interpreted, as it ought to be interpreted, the Constitution is a glorious liberty document.”¹⁰ Therefore, judges must accept “the Constitution’s meaning was fixed at its ratification [or the ratification of the amendment] and the judge’s job is to discern and apply that meaning to the people’s cases and controversies.”¹¹ In sum, because humanity is sinful, power and responsibility must not be concentrated in any one person (a President or King) or groups of persons (a Parliament or the Courts).¹²

Yet, for those Americans “still languishing in the corners of American society” who find themselves to “be an exile in [their] “own land,”¹³ Constitutional Sovereignty, while essential, is not sufficient by itself to ensure “earth and heaven … ring with the harmonies of Liberty.”¹⁴ To “bind up the nation’s wounds”¹⁵ so that “this nation will rise up and live out the true meaning of its creed”¹⁶ requires more than limiting the government by consent of the governed, empowering the judiciary to enforce those limits, and then limiting judges.¹⁷ Our constitutional order assumes the “self-evident truths” of equality and freedom for all humanity.¹⁸ If all Americans are to redeem this “promissory note to which every American was to fall heir,”¹⁹ there must be Constitutional Grace as well as Constitutional Sovereignty.²⁰

Quite simply, Constitutional Grace demands that all Americans — both inside and outside government — aspire to “civic virtue, a sense of domesticity, natural love, the practice of human virtue, the improvement of public conscience, mutual loyalty among people, and a feeling for a piety leaven life.”²¹ Although our Republic lacks “agreement about the purpose of our country, the nature of the common good, and the meaning of human flourishing,”²² Constitutional Grace invites Americans to find a way “to be steadfast in our personal convictions, while also making room for the cacophony that may ensue when others disagree with us.”²³

Quite simply, Constitutional Grace demands that all Americans — both inside and outside government — aspire to “civic virtue, a sense of domesticity, natural love, the practice of human virtue, the improvement of public conscience, mutual loyalty among people, and a feeling for a piety leaven life.”

Like Constitutional Sovereignty, Constitutional Grace is firmly rooted in an Augustinian or Calvinist theological perspective. Constitutional Grace reflects the concept of Common Grace, which “earlier Reformed theologians had left as hints and pieces” but which was “expanded and systematized” by Kuyper.²⁴ Common Grace does not bring salvation, but “it was a real grace nonetheless, the unmerited favor of God, shed upon all people regardless of their spiritual destiny.”²⁵ “By God’s bountiful good pleasure non-Christians excelled in certain fields and all of their efforts had excellent points. None of it could be squelched, out of respect for God’s providence in the world.”²⁶ Common Grace “is in Kuyper’s system God’s way of bringing the cultural design of the creation to completion.”²⁷ With Common Grace, as well as other aspects of Kuyper’s theology, “devotees of any faith — Islam and Hinduism as well as Christianity, but also any secular ‘replacement religion’ — can carry on a responsible public life in contention, and concert, with people of other convictions.”²⁸

Although Kuyper’s development of the theological idea of Common Grace came over a century after the Constitution, the Framing Generation “appealed frequently to biblical language and principles in their political discourse” and realized “sustainable freedom depends on the character of the rulers and the ruled alike, and on the vital trust between them — both of which are far more than a matter of law.”²⁹ As Guinness explained, to sustain liberty requires “‘the golden triangle of freedom’ — the cultivation and transmission of the conviction that freedom requires virtue, which requires faith, which requires freedom, which in turn requires virtue, which requires faith, which requires freedom and so on, like the recycling triangle, ad infinitum.”³⁰ Statements from leading figures of the Framing Generation confirm this understanding of the interdependence of freedom, virtue, and religion.³¹ As Franklin said, “only a virtuous people are capable of freedom.”³² Washington recognized “national morality” cannot “prevail in exclusion of religious principles.”³³ Adams proclaimed that only “religion and morality . . . can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue.”

Constitutional Grace — Kuyper’s concept of Common Grace as informed by the Framing Generation’s understanding of the interdependence of freedom, virtue, and faith — is, in many ways, “a truth that lies at the heart of every world religion — that we should do unto others as we would have them do unto us. That we see ourselves in other people. That we can recognize common hopes and common dreams.”³⁴ In a sense, Constitutional Grace encompasses all of the qualities of “love” in Paul’s first letter to the Corinthians.³⁵ Yet, whatever the breadth of Constitutional Grace, the essentials are Dignity and Forgiveness.

First, Dignity acknowledges “all humans are created in the image of God and therefore of inherent worth.”³⁶ In a Nation where everyone has the “freedom to say almost anything to anyone,”³⁷ those who speak must recognize all persons “have dignity in their own distinct identity.”³⁸ Every American “is a member of the community too”³⁹ and cannot be “treated as social outcasts or as inferior in dignity and worth.”⁴⁰

In a Nation where everyone has the “freedom to say almost anything to anyone,” those who speak must recognize all persons “have dignity in their own distinct identity.”

Theologically, the Old Testament repeatedly affirms the dignity of all humanity.⁴¹ In the Gospels, Jesus told us to love our neighbors, defining “neighbor” broadly to include those whom the Jews regarded as cultural outcasts.⁴² Similarly, Jesus betrayed cultural norms regarding both women and other groups in his interactions with the Samaritan woman at the well.⁴³ In his letter to the Galatians, Paul proclaimed the equal dignity of all humanity: “There is neither Jew nor Greek, there is neither slave nor free, there is neither male nor female, for you are all one in Christ Jesus.”⁴⁴

Dignity is a constitutional assumption. The Fourteenth Amendment codifies the self-evident truth proclaimed of the Declaration of Independence⁴⁵ — all are created equal.⁴⁶ Our “Constitution neither knows nor tolerates classes among citizens. . . . those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake.”⁴⁷ As Justice Scalia said, “we are just one race here. It is American.”⁴⁸ The same sentiment applies to other immutable characteristics — there is only “We the People.”

Dignity is reinforced by Due Process,⁴⁹ “the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone or it protects no one.”⁵⁰ Due Process is ultimately a search for truth,a way of ensuring that the innocent — particularly those who are poor, unpopular, marginalized, opponents of the government, or those who refuse to conform to societal norms — are not punished.⁵¹ As Blackstone noted, it is better for ten guilty persons to go free than for an innocent person to be imprisoned.⁵² A false acquittal of a guilty person does not serve justice, but such false acquittals are the price we pay to prevent the false conviction of the innocent.

Second, Forgiveness means “a willingness to accept genuine difference, including profound moral disagreement.”⁵³ Acknowledging “nobility and dignity [of] all persons, without regard to their station in life”⁵⁴ also requires recognizing America is “wide enough both for you and ‘a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’”⁵⁵ Forgiveness requires us to permit views we find “deeply unacceptable” or “blasphemously, disastrously, obscenely wrong.”⁵⁶ As Inazu advocates, we can and must learn to “live with those we regard as damned.”⁵⁷

To be sure, the term “tolerance” — as traditionally understood — is a more appropriate term than “forgiveness.”⁵⁸However, as French notes, our society has “forgotten what tolerance actually means.”⁵⁹ Our contemporary definition of “tolerance” is nothing more than positive regard for marginalized groups.⁶⁰ This “fake tolerance” assumes that there is nothing wrong or disagreeable.⁶¹ Conversely, “true tolerance” is “respect and kindness toward people” who believe or do something that annoys you. “When there is nothing to forgive, nothing to overlook, and no patience to require, there’s no tolerance.”⁶² Moreover, “Forgiveness,” is a better theological description of the attitude that private individuals must have toward those who have different worldviews.

Theologically, Forgiveness is a key aspect of Christianity. As Jesus said, “if you forgive others their trespasses, your heavenly father will also forgive you, but if you do not forgive others their trespasses, neither will your Father forgive your trespasses.”⁶³ When asked how often we should forgive someone who sins against us, Jesus instructed us to forgive a multitude of times.⁶⁴ Paul told the Ephesians, “Be kind to one another, tenderhearted, forgiving one another, as God in Christ forgave you.”⁶⁵ He instructed the Colossians, “Bearing with one another and, if one has a complaint against another, forgiving each other; as the Lord has forgiven you, so you also must forgive.”⁶⁶ Similarly, in the Apocrypha, the Jewish Scribe Ben Sera reminds us, “Forgive your neighbor the wrong he has done, and then your sins will be pardoned when you pray.”⁶⁷

Forgiveness — in the sense the government must “forgive” rather than punish those who peacefully oppose its policies or dissent from societal norms — is also a constitutional assumption. The First Amendment Freedoms — no Establishment of Religion, Free Exercise of Religion, Freedom of Speech, Freedom of Press, Assembly, and Petition — “extend not only to our own interests but also to ideas and groups that we don’t like.”⁶⁸ As Justice Brandeis observed, “freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; . . . that the greatest menace to freedom is an inert people; that public discussion is a political duty.”⁶⁹

Unlike Constitutional Sovereignty, Constitutional Grace does not enumerate or imply limitations on government, but it does suggest that the government should pursue “just laws” that “square with the moral law or the law of God.”⁷⁰ Since “human dignity cannot be taken away by the government”⁷¹ an “unjust law is a code that a majority inflicts on a minority that is not binding on itself.”⁷² Because “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” the government cannot require us to forgive the unforgivable.⁷³ Yet, while the government cannot force us to forgive others, a “just law” requires that those we refuse to forgive to have an opportunity to participate in the democratic process.⁷⁴

Unlike Constitutional Sovereignty, Constitutional Grace does not mandate a mode of judicial analysis, but it does encourage courts to recognize and respect our differences; every American is “seeking a home where he himself is free.”⁷⁵ South African Constitutional Court Justice Sachs explained, when “you start dividing the community for whom the Constitution works into ‘goodies’ and ‘baddies,’ then . . . you wander away from the heart of the constitutional enterprise.”⁷⁶ Every judicial opinion should “discover the humanity, the integrity, the honesty in everybody” and “take account of [everyone’s] convictions and respect [everyone’s] conscious and dignity.”⁷⁷ Justice Barrett says judges should “read every word from the perspective of the losing party” and ask how they would “view the decision if one of [their] children” were the losing party.⁷⁸ Would the parent of the losing party “understand that the decision was fairly reasoned and grounded in the law?”⁷⁹ Unfortunately, as Justices Thomas and Alito recently observed, the Court’s same-sex marriage decision, Obergefell, fell short of the opinion envisioned by Justices Sachs and Barrett.⁸⁰ America is “wide enough” for red states and blue states, urban and rural, the secular and the sacred, the new immigrant and the Tribal Nations, the descendent of slaves and the descendent of pilgrims, People of Faith and people of no faith, those who remember Pearl Harbor and those who do not remember 9-11, the critical race theorist and the constitutional originalist, the gay and the straight, those who accept their biological sex and those who think gender is fluid.⁸¹ Judicial decisions should promote a “confident pluralism that conduces to civil peace and advances democratic consensus-building.”’⁸²

In the third decade of the third millennium, if a Union “conceived in liberty and dedicated to the proposition that all … are created equal” is to “long endure,” America desperately needs Constitutional Grace.⁸³ As French notes, “there is not a single important cultural, religious, political or social force that is pulling American together more than it is pushing us apart.”⁸⁴ The constitutional consensus that once defined our Republic has collapsed. Both the Left and Right now doubt the value of concepts like Free Speech, Religious Liberty, Due Process, and Equal Protection. It seems many Americans have forgotten a basic truth: “Freedom flows from the tireless efforts of those who proclaim and pursue protection of the equal human dignity of all.”⁸⁵

On the Left, rejecting our constitutional promise of equality and liberty, many define themselves by “their skin color, sex, and sexual preference” and insist our Nation “remains a profoundly bigoted place, where heterosexual white males continue to deny opportunity to everyone else.”⁸⁶ Indeed, some insist “those who aren’t like you — because they’re white, or because they’re male — somehow . . . lack standing to speak on certain matters.”⁸⁷ Rather than recognizing “the religious and philosophical objections” to prevailing opinions “are protected views and in some instances protected forms of expression,”⁸⁸ a segment “equate(s) non-conforming ideas with ‘hate speech,’ and ‘hate speech with life-threatening conduct that should be punished, censored, and repelled with force if necessary.’”⁸⁹ This inevitably leads to “vindictive protectiveness” — the silencing and shaming [of] those who dare to dissent.⁹⁰

On the Right, rejecting the “libertarian assumptions central to free speech law and free-speech ideology,” some advocate a “Common Good Constitutionalism” that “should take as its starting point substantive moral principles that conduce to the common good.” This includes “a candid willingness to ‘legislate morality’ — indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority” and “a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality.” In this vision, which has been criticized as “Christian Authoritarianism” and “Reason of State Constitutionalism” and “Conservative Living Constitutionalism,” the People “will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.” Like all schemes to have the State perfect humanity, Common Good Constitutionalism aspires to “Saint Augustine’s imaginary City of God,” but it leads “every time, [to] dank basements soaked with very real blood.”

Yet, Constitutional Grace, while essential, is insufficient by itself to ensure our Republic remains “one Nation, under God, indivisible, with Liberty and Justice for all.”⁹¹ If “soon may our land be bright with Freedom’s holy light,”⁹² the “twin bulwarks of [constitutional limitations] and the golden triangle of freedom must both play their part.”⁹³ Quite simply, “to form a more perfect Union” requires us to implement both Constitutional Sovereignty and Constitutional Grace.⁹⁴

This combination of Constitutional Sovereignty and Constitutional Grace reflects the paradox of Calvinism: “Man’s will is corrupt by nature but also capable of doing good.In this paradox are mingled dread, hope, and triumph.”⁹⁵ Constitutional Sovereignty recognizes the corrupt nature and the dread; Constitutional Grace recognizes the possibility and hope of doing good. In the “American Social Compact,” Constitutional Sovereignty protects “fundamental individual liberty,” but Constitutional Grace expects individuals to exercise “liberty virtuously, for virtuous purposes.” Constitutional Sovereignty guarantees “freedom for the thought we hate,”⁹⁶ but Constitutional Grace “places a great deal of responsibility back on us: How should we think about our own speech.”⁹⁷ Constitutional Sovereignty acknowledges “there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust;”⁹⁸ Constitutional Grace knows “there are other qualities in human nature, which justify a certain portion of esteem and confidence.”⁹⁹ Constitutional Sovereignty recognizes humans are sinners, not angels;¹⁰⁰ Constitutional Grace calls upon “the better angels of our nature.”¹⁰¹ ♦

William E. Thro¹⁰²M.A., J.D is General Counsel of the University of Kentucky, former Solicitor General of Virginia, and and recipient of Stetson University’s Kaplin Award for Higher Education Law & Policy Scholarship and the Education Law Association’s McGhehey Award for Education Law. Mr. Thro, who is a Fellow of the National Association of College & University Attorneys and a Distinguished Research Fellow of the National Education Finance Academy, writes in his personal capacity and not on behalf of the University of Kentucky. Although his wife is a retired Presbyterian pastor and former Moderator of a Presbytery, Mr. Thro is, at best, an “armchair theologian.” Any heresies are his alone.

Recommended Citation

Thro, William E. “Constitutional Grace: Securing the Blessings of Liberty Through Dignity and Forgiveness.” Canopy Forum, November 18, 2020. https://canopyforum.org/2020/11/18/constitutional-grace-securing-the-blessings-of-liberty-through-dignity-and-forgiveness/

Share on Facebook