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.1U.S. Const. Preamble.
Because neither the People nor their leaders are angels,2The Federalist No. 51 (James Madison). the Constitution reflects a Calvinist theological perspective3Calvinist theology forms the philosophical basis for many aspects of the American Republic. See James H. Smylie, Madison and Witherspoon: Theological Roots of American Political Thought, 73 American Presbyterians 155 (1995). Indeed, the Framing Generation had great awareness of Calvinist Theology. Mark David Hall, Roger Sherman And The Creation Of The American Republic 12-40 (2013). “American leaders were familiar with Locke, but few thought his political philosophy was at odds with traditional Christian or Calvinist political ideas.” Id. at 24. Rather, “Locke’s political philosophy is best understood as a logical extension of Protestant resistance literature rather than as a radical departure from it.” Id. at 21. 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.”4David Starkey, Magna Carta: The Medieval Roots of Modern Politics 1308 (2015) (Kindle Edition) (emphasis original). As I explained earlier in these pages,5My earlier essay and this essay are my efforts at what Oman calls “constitutional theology.” Nathan B. Oman, The Perils of Constitutional Theology, EMORY University Canopy Forum on the Interactions of Law & Religion (September 2020). (available at https://canopyforum.org/2020/09/01/the-perils-of-constitutional-theology/). Although Oman focuses on how Catholic theologians and Latter Day Saint leaders show that their Faith’s tenets conform to the Constitution, id, my focus has been on why Calvinist theology requires certain constitutional assumptions and, conversely, why certain constitutional assumptions require Calvinist theology. My essay on Constitutional Sovereignty demonstrated why the Augustinian or Calvinist theological view required sovereignty to be vested in the law, or more precisely a written constitution, rather than in person (King or dictator) or group of people (parliament or a party). This essay on Constitutional Grace explains why America’s foundational constitutional assumptions of equality and freedom require the Calvinist concept of “common grace.” 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.6Although I coined the term Constitutional Sovereignty, the concept is built on both theological and constitutional foundations. The theological foundation is Paul, Augustin, Calvin, and Kuyper as well as others. The constitutional foundation is Justices Scalia, Gorsuch, Thomas, and Black as well as many other Originalist scholars. First, by the consent of “We the People,”7As Justice Gorsuch noted, “before the Constitution could take effect, the founders called on the states to convene special conventions of the people’s representatives. And they insisted on a supermajority of those conventions to ratify the original Constitution.” Neil Gorsuch, A Republic, If You Can Keep It 119 (2019). For a detailed discussion of the Ratification debate, see Pauline Maier, Ratification: The People Debate the Constitution, 1787-88 (2010). the Constitution “withdraws certain subjects from the vicissitudes of political controversy” and “places them beyond the reach of majorities and officials.”8West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). 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.9The Federalist No. 78 (Alexander Hamilton). Third, if the Constitution is “interpreted, as it ought to be interpreted, the Constitution is a glorious liberty document.”10Frederick Douglass, What to the Slave is the Fourth of July (1852) 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.”11Gorsuch, supra note 8, at 110. 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).12When applied to all aspects of life rather than simply the government, the Augustinian or Calvinist vision results in power and responsibility being not only among leaders, but between family, guild, university, city, region, church, and nation with each exercising “sovereignty” in its own “sphere.” See Abraham Kuyper, Sphere Sovereignty in Abraham Kuyper, A Centennial Reader 488 (James D. Bratt, ed. 1998).
Yet, for those Americans “still languishing in the corners of American society” who find themselves to “be an exile in [their] “own land,”13Martin Luther King, I Have A Dream (1963). Constitutional Sovereignty, while essential, is not sufficient by itself to ensure “earth and heaven … ring with the harmonies of Liberty.”14James Weldon Johnson, Lift Every Voice and Sing (1900). To “bind up the nation’s wounds”15Abraham Lincoln, Second Inaugural Address (1865). so that “this nation will rise up and live out the true meaning of its creed”16Martin Luther King, I Have A Dream (1963). requires more than limiting the government by consent of the governed, empowering the judiciary to enforce those limits, and then limiting judges.17These are three propositions of Constitutional Sovereignty. Thro, Angels Do Not Govern, supra note 6. Our constitutional order assumes the “self-evident truths” of equality and freedom for all humanity.18Declaration of Independence, ¶ 2. If all Americans are to redeem this “promissory note to which every American was to fall heir,”19Martin Luther King, I Have A Dream (1963) there must be Constitutional Grace as well as Constitutional Sovereignty.20Although I coined the term Constitutional Grace, the concept builds on both theological and constitutional foundations. The theological foundation is Kuyper, but Kuyper simply tied together some threads from Calvin. The constitutional foundation is the Framing Generation’s understanding of the interdependency of freedom, virtue, and religion. Inazu’s work, which I believe rests on both theological and constitutional foundations, also informs, and influences the concept.
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.”21Abraham Kuyper, Common Grace in Abraham Kuyper: A Centennial Reader 165, 181 (James D. Bratt, ed. 1998). Although our Republic lacks “agreement about the purpose of our country, the nature of the common good, and the meaning of human flourishing,”22John Inazu & Tim Keller, Introduction in Uncommon Ground: Living Faithfully in a World of Difference xv, xv (John Inazu & Tim Keller, eds. 2020). 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.”23John D. Inazu, Confident Pluralism: Surviving and Thriving Through Deep Difference 8 (2016).
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.24James D. Bratt, Editor’s Introduction to Common Grace, in Abraham Kuyper: A Centennial Reader 165, 165 (James D. Bratt, ed. 1998). 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.”25James D. Bratt, Abraham Kuyper: Modern Calvinist, Christian Democrat 3901 (2013) (Kindle Edition). “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.”26James D. Bratt, Abraham Kuyper: His World and Work in in Abraham Kuyper: A Centennial Reader 1, 16 (James D. Bratt, ed. 1998). Common Grace “is in Kuyper’s system God’s way of bringing the cultural design of the creation to completion.”27Richard J. Mouw, Abraham Kuyper: A Short and Personal Introduction 599 (2011) (Kindle Edition). 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.”28Bratt, Modern Calvinist, Christian Democrat, supra note 26, at Introduction.
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.”29Os Guinness, A Free People’s Suicide 1015 (2013) (Kindle edition) 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.”30Id. at 1011. See also Eric Metaxas, If You Can Keep It: The Forgotten Promise of American Liberty 53-70 (2016) (applying and expanding Guinness’ concept). Statements from leading figures of the Framing Generation confirm this understanding of the interdependence of freedom, virtue, and religion.31See Daniel L. Driesbach, Reading the Bible with Founding Fathers (2017); Mark David Hall, Did America Have A Christian Founding: Separating Modern Myth from Historical Truth (2019). As Franklin said, “only a virtuous people are capable of freedom.”32Metaxas, supra note 32, at 55 (quoting 1787 Letter from Benjamin Franklin to Abbes Chalut and Arnaud). Washington recognized “national morality” cannot “prevail in exclusion of religious principles.”33George Washington, Farewell Address (1796). 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.”34Barack Obama, Address on the Centennial of Nelson Mandela’s Birth (2018). In a sense, Constitutional Grace encompasses all of the qualities of “love” in Paul’s first letter to the Corinthians.351 Corinthians 13:1-13. 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.”36Obergefell v. Hodges, 576 U.S. 644, 735 (2015) (Thomas, J., joined by Scalia, J., dissenting), In a Nation where everyone has the “freedom to say almost anything to anyone,”37Inazu, supra note 24, at 96. those who speak must recognize all persons “have dignity in their own distinct identity.”38Obergefell, 576 U.S. at 660. Every American “is a member of the community too”39Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017). and cannot be “treated as social outcasts or as inferior in dignity and worth.”40Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018).
Theologically, the Old Testament repeatedly affirms the dignity of all humanity.41See Genesis 1:26-31; Deuteronomy 10:17-19; Psalm 139:13-16. In the Gospels, Jesus told us to love our neighbors, defining “neighbor” broadly to include those whom the Jews regarded as cultural outcasts.42Luke 10:25-37 (Parable of the Good Samaritan) Similarly, Jesus betrayed cultural norms regarding both women and other groups in his interactions with the Samaritan woman at the well.43John 4:1-42. 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.”44Galatians 3:28 (English Standard Version)
Dignity is a constitutional assumption. The Fourteenth Amendment codifies the self-evident truth proclaimed of the Declaration of Independence45Declaration of Independence, ¶ 2. — all are created equal.46U.S. Const. amend XIV, § 1. 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.”47Romer v. Evans, 517 U.S. 620, 623 (1996). As Justice Scalia said, “we are just one race here. It is American.”48Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239, (1995) (Scalia, J. concurring) The same sentiment applies to other immutable characteristics — there is only “We the People.”
Dignity is reinforced by Due Process,49See U.S. Const. amends. V, VI, VII, VIII, XIV § 1. “the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone or it protects no one.”50Betsy DeVos, Secretary’s Prepared Remarks on Title IX Enforcement, Antonin Scalia Law School, George Mason University (September 7, 2017). 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.51See David A. Harris, The Constitution and Truth Seeking: a New Theory on Expert Services for Indigent Defendants, 83 J. Crim. L. & Criminology 469, 473 (1992) (“[T]he search for truth is the reason the Constitution protects the right to confrontation, the right to compulsory process and the right to put on a defense.”). As Blackstone noted, it is better for ten guilty persons to go free than for an innocent person to be imprisoned.52See 2 William Blackstone, Commentaries *358 (“[B]etter that ten guilty persons escape, then that one innocent suffer.”). 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.”53Inazu, supra note 24, at 87. Acknowledging “nobility and dignity [of] all persons, without regard to their station in life”54Obergefell, 576 U.S. at 656. 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.’”55Chelsey Nelson Photography LLC v. Louisville/Jefferson Cty. Metro Gov’t, 2020 WL 4745771, at *2 (W.D. Ky. Aug. 14, 2020) Forgiveness requires us to permit views we find “deeply unacceptable” or “blasphemously, disastrously, obscenely wrong.”56Bernard Williams, Toleration: An Impossible Virtue in Toleration: An Elusive Virtue 18 (David Heyd, ed. 1998). See also, Inazu, supra note 24, at 87 (Quoting the same passage from Williams to make a similar point). As Inazu advocates, we can and must learn to “live with those we regard as damned.”57Inazu, supra note 24, at 5-6.
To be sure, the term “tolerance” — as traditionally understood — is a more appropriate term than “forgiveness.”58Id. at 87. However, as French notes, our society has “forgotten what tolerance actually means.”59David French Divided We Fall: America’s Secession Threat and How to Restore Our Nation 185 (2020). Our contemporary definition of “tolerance” is nothing more than positive regard for marginalized groups.60Id. at 185. This “fake tolerance” assumes that there is nothing wrong or disagreeable.61Id. at 185-86. 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.”62Id. To illustrate, there is no tolerance for those who dissent from the orthodoxy on abortion, climate change, the existence of “systemic racism,” the effectiveness of current anti-poverty policy, or transgender issues. Joseph Epstein, The Tyranny of the “Tolerant,” Wall Street Journal (October 10, 2020). 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.”63Matthew 6:14-15 (English Standard Version). Cf. Matthew 11:25 (“And whenever you stand praying, forgive, if you have anything against anyone, so that your Father also who is in heaven may forgive you your trespasses.”) (English Standard Version) When asked how often we should forgive someone who sins against us, Jesus instructed us to forgive a multitude of times.64Matthew 18:21-35. Cf. Luke. 17:1-4 (“Pay attention to yourselves! If your brother sins, rebuke him, and if he repents, forgive him, and if he sins against you seven times in the day, and turns to you seven times, saying, ‘I repent,’ you must forgive him.”)(English Standard Version). Paul told the Ephesians, “Be kind to one another, tenderhearted, forgiving one another, as God in Christ forgave you.”65Ephesians 4:32 (English Standard Version). 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.”66Colossians 3:13 (English Standard Version). 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.”67Ecclesiasticus (Sera) 28:2 (New Revised Standard Version).
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.”68Inazu, supra note 24, at 16. 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.”69Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J. concurring)
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.”70Martin Luther King, Letter From the Birmingham Jail (1963). Since “human dignity cannot be taken away by the government”71Obergefell, 576 U.S. at 735 (Thomas, J., joined by Scalia, J., dissenting) an “unjust law is a code that a majority inflicts on a minority that is not binding on itself.”72Martin Luther King, Letter From the Birmingham Jail (1963). 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.73Barnette, 319 U.S. at 643. 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.74Martin Luther King, Letter From the Birmingham Jail (1963).
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.”75Langston Hughes, Let America Be America Again (1935). 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.”76Albie Sachs, The Strange Alchemy of Life and Law 239 (2009). 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.”77Id. 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.78Amy Coney Barrett, Opening Statement, Confirmation Hearing of Judge Barrett to be Associate Justice of the Supreme Court of the United States (October 12, 2020). Would the parent of the losing party “understand that the decision was fairly reasoned and grounded in the law?”79Id. 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.80Davis v. Ermold, 141 S. Ct. ____, _____ (2020) (Thomas, J., joined by Alito, J, statement respecting the denial of certiorari). 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.81Lin-Manuel Miranda, The World Was Wide Enough (2015) (penultimate song in the musical Hamilton (2015)). In the song, Aaron Burr realizes his mistake in shooting Alexander Hamilton in a duel. Burr then laments he should have “known the world was wide enough for both Hamilton and me.” Judicial decisions should promote a “confident pluralism that conduces to civil peace and advances democratic consensus-building.”’82Christian Legal Soc. v. Martinez, 561 U.S. 661, 733-34 (2010) (Alito, J., joined by Roberts, C.J, Scalia, & Thomas, JJ., dissenting)
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.83Abraham Lincoln, Gettysburg Address (1863). 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.”84French, Divided We Fall, supra note 62, at 1-2. 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.”85Danielle Allen, The Constitution Counted My Great-Great Grandfather as Three-Fifths of a Free Person, Here’s Why I Love It Anyway, Atlantic 58, 62 (October 2020).
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.”86Heather Mac Donald, The Diversity Delusion: How Race and Gender Pandering Corrupt the University and Undermine Our Culture 45 (2018) (Kindle Edition). 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.”87Barack Obama, Address on the Centennial of Nelson Mandela’s Birth (2018). Rather than recognizing “the religious and philosophical objections” to prevailing opinions “are protected views and in some instances protected forms of expression,”88Masterpiece Cakeshop, 138 S. Ct. at 1727. 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.’”89Mac Donald, supra note 89, at 62. This inevitably leads to “vindictive protectiveness” — the silencing and shaming [of] those who dare to dissent.90Greg Lukianoff & Jonathon Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up A Generation for Failure 10 (2018).
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.”91Pledge of Allegiance, 4 U.S.C. § 4. If “soon may our land be bright with Freedom’s holy light,”92Samuel Francis Smith, America (My Country, ‘Tis of Thee) (1831). In Smith’s version, which is the more familiar, the quoted passage begins “long” rather than “soon.” “Soon” is from the abolitionist version written by A.G. Duncan in 1843. the “twin bulwarks of [constitutional limitations] and the golden triangle of freedom must both play their part.”93Guinness, supra note 32, at 1037. Quite simply, “to form a more perfect Union” requires us to implement both Constitutional Sovereignty and Constitutional Grace.94U.S. Const. Preamble.
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.”95Marci Hamilton, The Calvinist Paradox of Distrust and Hope at the Constitutional Convention, in Christian Perspectives on Legal Thought 293, 294 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,”96United States v. Schwimmer, 279 U.S. 644, 654-55 (1929) (Holmes, J., dissenting). but Constitutional Grace “places a great deal of responsibility back on us: How should we think about our own speech.”97Inazu, supra note 24, at 96 Constitutional Sovereignty acknowledges “there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust;”98The Federalist No. 55 (James Madison). Constitutional Grace knows “there are other qualities in human nature, which justify a certain portion of esteem and confidence.”99Id. Constitutional Sovereignty recognizes humans are sinners, not angels;100The Federalist No. 51 (James Madison). Constitutional Grace calls upon “the better angels of our nature.”101Abraham Lincoln, First Inaugural Address (1861). ♦
William E. Thro102He thanks Cliff Iler and Shannan Stamper for their helpful suggestions.M.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.
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/