The COVID Heresy:
Denying America’s Constitutional Theology During the Pandemic
William E. Thro
This article is part of our “Law and Religion Under Pressure: A One-Year Pandemic Retrospective” series.
If you’d like to check out other articles in this series, click here.
Constitutional theory and theology often intersect within a society. Theology may inform and influence constitutional assumptions and constitutional theory may shape some aspects of a religious sect’s theology. In this essay, I explain the nature of Constitutional Theology, explore America’s unique Constitutional Theology, and examine the COVID Heresy — our leaders’ denial of America’s Constitutional Theology during the pandemic.
Constitutional Theology describes two different, yet complimentary, interactions between constitutional theory and theology.1Professor Oman coined the term “constitutional theology” in these pages. Nathan B. Oman, The Perils of Constitutional Theology, (September 2020). (available at https://canopyforum.org/2020/09/01/the-perils-of-constitutional-theology/). First, the predominant theology of the population concerning the nature of humanity will dictate the constitutional design.2See George Weigel, The Cube and the Cathedral: Europe, America, and Politics Without God 78-86 (2005). If a society, like Pelagius,3Pelagius taught that individuals had the capability to repent their sins and achieve salvation. God’s grace was helpful, but unnecessary to salvation. R.C. Sproul, Willing to Believe: The Controversy over Free Will 35 (1997). assumes humanity is inherently good and virtuous, then its constitution will acknowledge “human coercion [can] effect a real change in the soul” and “human effort can change human nature.”4James R. Rogers, Lessons for America from Europe’s Christian Democracy, Law & Liberty (July 28, 2020) (available at https://lawliberty.org/lessons-for-america-from-europes-christian-democracy). A Pelagian constitution will elevate the will of the majority while diminishing “the individual’s right to freedom from the majority.”5Steven Breyer, Active Liberty 5(2005). As I explained elsewhere, Justice Breyer’s interpretative method forms a “Pelagian Vision.” William E. Thro, A Pelagian Vision for Our Augustinian Constitution: A Review of Justice Breyer’s Active Liberty, 32 J. Coll. & U.L. 491 (2006). Conversely, if a polity, like Augustine,6Augustine taught that individuals lacked the ability to repent their sins and achieve salvation. God’s grace is indispensable to salvation. Sproul, Willing to Believe, supra note 3, at 51. assumes humanity is inherently sinful, then its constitution will recognize the State can never alter human nature.7Abraham Kuyper, Calvinism: Source and Stronghold of Our Constitutional Liberties in Abrham Kuyper: A Centennial Reader 279, 314 (James D. Bratt, ed. 1998). An Augustinian constitution will constrain, control, and check the majority and, thus, develop “the conceptual ground for political freedom.”8Rogers, supra note 4.
Second, Constitutional Theology does not require any religious sect to abandon its own views of the nature of humanity or any other doctrine, but it does require minority faiths to accommodate the nation’s constitutional norms. In the twentieth century, the Latter-day Saints embraced the Constitution as divinely inspired,9Oman, supra note 1. while Roman Catholic theologians “accommodated religious freedom and pluralism. . . [and] made peace with the U.S. Constitution.”10Id. In contemporary France, the government is insisting Muslims reconcile their theology to the constitutional realities of the Fifth Republic.11Christopher Caldwell Macron Seeks an Enlightened Islam, Wall Street Journal, December 4, 2020 (available at https://www.wsj.com/articles/macron-seeks-an-enlightened-islam-11607037298 ).
America’s Constitutional Theology
As a nation based on “self-evident” truths rather than blood, soil, faith, or culture, America has a unique Constitutional Theology. Like Calvinism, which was widely accepted by the Framing Generation,12Mark David Hall, Roger Sherman and the Creation of the American Republic 12-40 (2013). America’s Constitutional Theology assumes “Man’s will is corrupt by nature but also capable of doing good. In this paradox are mingled dread, hope, and triumph.”13Marci Hamilton, The Calvinist Paradox of Distrust and Hope at the Constitutional Convention, in Christian Perspectives on Legal Thought 293, 294 (Michael W. McConnell, Robert F. Cochran, Jr., & Angela C. Carmella, eds., 2001). It acknowledges “there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust,”14The Federalist No. 55 (James Madison). Madison’s views on the nature of humanity reflect the influence of Calvinist Theologian John Witherspoon. Ian Spier, The Calvinist Roots of American Social Order: Calvin, Witherspoon, and Madison, Public Discourse (Apr. 13, 2017) (available at https://www.thepublicdiscourse.com/2017/04/19116/). but knows “there are other qualities in human nature, which justify a certain portion of esteem and confidence.”15Id. Our creed recognizes we are governed by sinners, not angels,16The Federalist No. 51 (James Madison). but calls upon “the better angels of our nature.”17Abraham Lincoln, First Inaugural Address (1861).
As I explained earlier in this forum, America’s Constitutional Theology has two streams.18William E. Thro, America’s Constitutional Theology: Sovereignty & Grace In Bostock, Espinoza, and Our Lady, Canopy Forum (February 2021) (available at https://canopyforum.org/2021/02/05/americas-constitutional-theology-sovereignty-and-grace-in-bostock-espinoza-and-our-lady-of-guadalupe/) One stream — Constitutional Sovereignty — is the faith that ours is a government of the Constitution, not a government of sinners.19I first developed the concept of Constitutional Sovereignty in William E. Thro, Angels Do Not Govern: Constitutional Sovereignty As A Response To Humanity’s Sinful Nature,Canopy Forum(September 2020) (available at https://canopyforum.org/2020/09/09/angels-do-not-govern/) The other stream — Constitutional Grace20 I first developed the concept of Constitutional Grace in William E. Thro, Constitutional Grace: Securing the Blessings of Liberty Through Dignity and Forgiveness, Canopy Forum (November 2020) (available at https://canopyforum.org/2020/11/18/constitutional-grace-securing-the-blessings-of-liberty-through-dignity-and-forgiveness/) — is a prayer that sinners who do govern America20Jeffrey A Brauch, Flawed Perfection: What It Means to Be Human and Why It Matters for Culture 165-173 (2017) (Kindle Edition) will “affirm a faith, a faith in a common purpose, a common conviction, a common devotion.”21Learned Hand, The Spirit of Liberty (1944).
First, just as Calvin22Calvinist theology is 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). believed “there is never a moment in human history when that which is human can be trusted blindly as a force for good,”23Hamilton, supra note 13, at 295. Constitutional Sovereignty reflects an “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.”24David Starkey, Magna Carta: The Medieval Roots of Modern Politics 1308 (2015) (Kindle Edition) (emphasis original). Instead of vesting power and authority in the President or Congress or collective state governments or the People themselves, “We the People” elevated the law, or more precisely the Constitution, to sovereign status.25For an overview of the process of obtaining the consent of the governed, see Pauline Maier, Ratification: The People Debate the Constitution, 1787-88 (2010).
Second, just as the Framing Generation recognized the relationship between faith, virtue, and the preservation of freedom,26Os Guinness, A Free People’s Suicide 1011 (2013) (Kindle edition). See also Eric Metaxas, If You Can Keep It: The Forgotten Promise of American Liberty (2016) (applying and expanding Guinness’ concept). Constitutional Grace recognizes the need for “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.”27Abraham Kuyper, Common Grace in Abraham Kuyper: A Centennial Reader 165, 181 (James D. Bratt, ed. 1998). Constitutional Grace is similar to Common Grace, which “earlier Reformed theologians had left as hints and pieces” but which was “expanded and systematized” by Kuyper.28James D. Bratt, Editor’s Introduction to Common Grace, in Abraham Kuyper: Centennial Reader 165, 165 (James D. Bratt, ed. 1998).
Both streams are necessary to redeem this “promissory note to which every American was to fall heir.”29Martin Luther King, I Have a Dream (1963). Constitutional Sovereignty will not function unless there is a large degree of Constitutional Grace. “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”30Learned Hand, The Spirit of Liberty (1944). Constitutional Grace reaches its full potential only if Constitutional Sovereignty is “able to transform the jangling discords of our Nation into a beautiful symphony.”31Martin Luther King, I Have a Dream (1963).
The COVID Heresy
Yet, during the COVID Pandemic, America’s leaders denied our Constitutional Theology. Confronting the largest public health crisis in the nation’s history, our elected officials assumed “angels govern men” and, thus, the “neither external nor internal controls on government” were necessary.32The Federalist No. 51 (James Madison) Faced with rising public fear and scientific uncertainty, those who govern disregarded the “well-structured [governmental] systems” designed to “deter . . . the human impulse toward tyranny.”33Hamilton, supra note 13, at 303. Instead of asking Americans to “covenant and combine ourselves together . . . for our better ordering and preservation,”34Mayflower Compact (1620). The Mayflower Compact “was not the actual American founding, but a crucial pre-founding, informing the beginning of the American Republic.” Peter Wood, 1620: A Critical Response to the 1619 Project 32 (2020). our political class simply reinforced the “important cultural, religious, political or social forces . . . pushing us apart.”35David French, Divided We Fall: America’s Secession Threat and How to Restore Our Nation 1-2 (2020). Executives assumed powers unimagined by Charles I.36Peter Ackroyd, Rebellion: The History of England from James I to the Glorious Revolution, 116-295 (2014). Legislators were paralyzed by factions “adverse to the permanent and aggregate interests of the community.”37The Federalist No. (James Madison) Judges took a sabbatical from constitutional enforcement.38Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020) (Gorsuch, J., concurring). Each of these examples of the COVID Heresy deserves more attention.
Humanity’s sinful nature is particularly dangerous when power is concentrated in a single leader.39See 1 Maccabees 8:1, 14-15 (discussing the advantages of the Roman Republic in second century before Christ). As Samuel warned, all-powerful human kings will fight unjust wars, seize property, abuse individual rights, and apply confiscatory taxes in pursuit of their own glory.401 Samuel 8: 10-18. Recognizing these theological realities, our “Constitution protects us from our own best intentions: It divides power . . . among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”41New York v. United States, 505 U.S. 144, 187 (1992). The Executive — at both the national and state levels — does not create, modify, suspend, or interpret statutes; the Executive simply enforces the statutes.
Of course, “the Constitution is not a suicide pact.”42Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting) In times of emergency, the Executive may exercise limited emergency powers for a limited time. The President’s power as Commander-In-Chief of the Armed Forces allows a defensive response to an invasion or an attack, but it does not allow the President to embark on a full-scale war.43John Yoo & Michael D. Ramsey, Commander in Chief The Heritage Guide to the Constitution T9363, 9384 (David F. Forte & Matthew Spaulding, eds, 2nd ed. 2014) (Kindle Edition) Lincoln believed the Suspension Clause44U.S. Const. art. I, § 9, cl. 2 allowed the President, rather than Congress alone, to suspend the Writ of Habeas Corpus,45Ex parte Merryman, 17 F. Cas. 144 (C.C. Md. 1861) (No. 9487) (Taney, C.J., on Circuit). For a thorough discussion of the case, see Jonathon W. White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (2011) but the constitutional text is ambiguous.46David F. Forte, Suspension of Habeas Corpus in The Heritage Guide to the Constitution 7225, 7246 (David F. Forte & Matthew Spaulding, eds, 2nd ed. 2014) (Kindle Edition). In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court clarified the ambiguity and held that only Congress may suspend the Writ. Although both national and state executives have an “emergency power” of limited scope and limited duration. They lack “carte blanche to disregard the Constitution for as long as the . . . problem persists.”47Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2605 (2020) (Alito, J., joined by Thomas & Kavanaugh, JJ., dissenting)
Yet, during the pandemic, the Executive often ignored the constitutional guardrails. At times exercising both executive and legislative power and those powers were unlimited in both scope and duration, the Executive regulated virtually all aspects of American life. An unelected state official ordered “all people within [the State] to remain in their homes, not to travel and to close all businesses that she declares are not ‘essential.’”48Wisconsin Legislature v. Palm, 942 N.W.2d 900, 904 (Wis. 2020). One Governor prohibited “any event or convening that brings together groups of individuals.”49Ramsek v. Beshear, 989 F.3d 494, 496 (6th Cir. 2021) Orders often focused on why people were gathering rather than how people were gathering.50As the Sixth Circuit noted, “How can the same person be trusted to comply with social-distancing and other health guidelines in secular settings but not be trusted to do the same in religious settings?” Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020). Other Governors granted special exemptions to the politically powerful or activities that generated tax revenue.51Calvary Chapel 140 S. Ct. at 2604(Alito, J., joined by Thomas & Kavanaugh, JJ., dissenting). Officials explicitly targeted religious services.52Charles J. Russo, Even In A Pandemic, The Constitution Cannot Be Put Away and Forgotten Canopy Forum (April 2021) (available at https://canopyforum.org/2021/04/02/even-in-a-pandemic-the-constitution-cannot-be-put-away-and-forgotten/). “At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples.”53Roman Cath., 141 S. Ct. at 69 (Gorsuch, J. concurring). When a church held a drive-in Easter service where congregants parked their cars in the church’s parking lot and listened to a sermon over a loudspeaker, the state police issued citations.54Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 611–12 (6th Cir. 2020).
Humanity’s sinful nature guarantees society will break into factions, “whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”55The Federalist No. 10 (Madison). When such factions gain control of the legislative process, “the public good is disregarded in the conflicts of rival parties and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”56Id. Consequently, the dominant faction may pursue unjust policies which have no basis in natural law or eternal law.57Martin Luther King, Letter from the Birmingham Jail (1963). Indeed, when a faction controls, there will be times “where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution . . . .”58The Federalist78 (Alexander Hamilton).
Humanity’s sinful nature makes it impossible to abolish these factions, but it is possible to mitigate the effects of factions.59The Federalist10 (James Madison). The structure of the federal and state constitutions erects a significant barrier to legislation (Constitutional Sovereignty) and encourages a spirit of compromise among the legislators (Constitutional Grace). Bicameralism, where each chamber is independently elected during different years for different terms from districts of different sizes, prevents temporary passions from becoming permanent policies. At the federal level, no bill becomes a law unless it has the support of members representing both a majority of the population (House) and a majority of the States (Senate). Procedural rules, including the U.S. Senate filibuster, ensure that minority views can influence and inform the final legislation. At the state level, time limits on the length of legislative sessions prevents even popular legislation from becoming law. In short, if a faction, even a majority faction, wants to pursue a specific policy, it must compromise its desires. Nothing happens without a broad consensus.
Yet, during the pandemic, our legislatures denied both Constitutional Sovereignty and Constitutional Grace. First, Constitutional Sovereignty assumes that elected assemblies will exercise legislative power. After the initial emergency response, the people’s agents should have enacted laws to deal with the challenges of the pandemic. If a state legislature was not in continuous session, the legislative leaders should have called the assembly into special session or demanded that the Governor do so.60Some state legislatures are in continuous session, others are not but legislative leaders may call a special session, and a few require the Governor to call a special session. Instead, legislatures refused to check Governors’ exercise of executive power and allowed Governors to exercise legislative power.
Second, concerning Constitutional Grace, the legislatures did not unite their constituents around a specific policy. Americans are deeply divided on masks, vaccines, resuming in-person instruction in schools and universities, and the pace of returning to normalcy. There is significant tension between these factions. Our representatives are similarly divided. Had the legislatures factions subordinated their interests and views to the common good, a consensus that pleased few but was accepted by almost everyone would have emerged. Instead, the legislative rhetoric simply deepened the divisions.
The judiciary may be the “least dangerous branch,61The Federalist78 (Hamilton). but judges, like all of us, “have sinned and fall short of the glory of God.”62Romans 3:23 (English Standard Version). Scripture repeatedly reinforces this message. See 1 Kings 8:46; Psalm 14:3; 1 John 1:8. Because of judicial supremacy and judicial universality,63Josh Blackman, The Irrepressible Myths of Cooper v. Aaron, 107 Geo. L.J. 1135, 1137 (2019). courts will be tempted to become “a bevy of Platonic Guardians,”64Griswold v. Connecticut, 381 U.S. 479, 526 (1965) (Black, J., dissenting) (quoting Learned Hand, The Bill of Rights 70 (1958)). that “substitutes their predictive judgments for those of elected legislatures and expert agencies.”65Lingle v. Chevron, 544 U.S. 528, 544 (2005). Conversely, although “[a]bdication of responsibility is not part of the constitutional design,”66Clinton v. New York, 524 U.S. 417, 452 (1998) (Kennedy, J. concurring). judges may be tempted to ignore the Constitution and simply defer to the judgment of the Executive or Legislature.
Just as the national and state Constitutions limit the Executive and the Legislature, there must be limits on the Judiciary. “Courts have a vital responsibility to enforce the rule of law, . . . (b)ut courts are not designed to solve every problem or right every wrong in our public life.”67Amy Coney Barrett, Opening Statement, Confirmation Hearing of Judge Barrett to be Associate Justice of the Supreme Court of the United States (October 12, 2020). Judges must recognize the “Constitution principally entrusts the safety and the health of the people to the politically accountable officials” but “also entrusts the protection of the people’s rights to the Judiciary.”68S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 717 (2021) (Roberts, C.J., concurring).
Unfortunately, in the first year of the Pandemic, the courts often embraced a “particular judicial impulse to stay out of the way in times of crisis.”69Roman Cath. Diocese, 141 S. Ct. at 71 (Gorsuch, J., concurring). Indeed, despite the significant impact of a Governor’s Executive Order on private businesses, one state high court summarily dismissed a variety of constitutional challenges.70Friends of Danny DeVito v. Wolf, 227 A.3d 872, 892 (Pa.), cert. denied, 141 S. Ct. 239 (2020). Other state high courts held the Governor must have greater authority in times of emergency simply because the state legislature is not in continuous session.71Casey v. Lamont, 2021 WL 1181937, at *14 (Conn. 2021); Beshear v. Acree, 615 S.W.3d 780, 813 (Ky. 2020). In effect, Judges accepted “the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.”72Cty. of Butler v. Wolf, 486 F. Supp. 3d 883, 928 (W.D. Pa. 2020).
This approach betrays our Constitutional Theology. While the decisions of the Executive and Legislature should receive deference, that deference cannot become “wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.”73Roman Cath. Diocese, 141 S. Ct. at, 74 (Kavanaugh, J. concurring). As the nation enters the second year of the pandemic, the Courts must recognize well-intentioned sinners often ignore both the limits of Constitutional Sovereignty and the demands of Constitutional Grace.
“Part of the genius of the American tradition is that right from the start we were clear about what mattered.”74Danville Christian Acad., Inc. v. Beshear, 2020 WL 6954650, at *1 (E.D. Ky. Nov. 25, 2020). America’s Constitutional Theology reflects both a faith that Constitutional Sovereignty will restrain the sinners who govern and a prayer that Constitutional Grace will enable those who govern “to do all which may achieve and cherish a just and lasting” Union.75Abraham Lincoln, Second Inaugural Address (1865) Regardless of the threat confronting our Nation, “the Constitution cannot be put away and forgotten.”76Roman Cath. Diocese, 141 S. Ct. at 68. Our leaders — particularly our judges — must recant the COVID Heresy. ♦
William E. Thro77Mr. Thro thanks Shannan Stamper for her helpful comments and Linda Speakman for her editorial assistance. is General Counsel of the University of Kentucky, former Solicitor General of Virginia, and a constitutional scholar. He is the recipient of Stetson University’s Kaplin Award for Higher Education Law & Policy Scholarship and the Education Law Association’s McGhehey Award (contributions to education law), a Fellow of the National Association of College & University Attorneys (scholarship concerning higher education law), and a Distinguished Research Fellow of the National Education Finance Academy (contributions to education finance). He 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. “The COVID Heresy: Denying America’s Constitutional Theology During the Pandemic.” Canopy Forum, April 27, 2021. https://canopyforum.org/2021/04/28/the-covid-heresy-denying-americas-constitutional-theology-during-the-pandemic