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11/23/2015

John McGinnis on the Constitution and Civic Virtue
Michael Ramsey

At Liberty Law Blog, John McGinnis has a three-part series: The Constitution’s Design for Promoting Civic Virtue.  From the introduction: 

At the Federalist Society Convention I had a debate with my friend, Professor Robert George, on a famous quote by John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” In the next three posts, I will excerpt my speech. And then I will add a postscript on Washington’s Farewell Address. Here is the beginning:

John Adams famously said “Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” His claim assumes that we can afford to have the limited government created by the Constitution because the people are already possessed of an abundance of virtue—indeed crucially virtues fortified by religion. But the Constitution itself reflects a very different faith: that a people blessed with a constitution like our own are likely to develop the virtues of self-restraint and social trust needed in order to thrive.

Religion can certainly help actualize virtues but so can other kinds of culture and practices. And the Constitution is premised on the enlightenment view that its very design can create the necessary virtues for civic life from elements of human nature, including raw self-interest.  The constitutional structure thus maintains itself and does not necessarily depend on any religious system.

Nothing in the text of the Constitution assumes any level of religious belief on the part of the American people.   The Constitution emphatically does not call for the people to adhere to any particular religion or any religion at all. It prohibits all religious tests for any federal office and permits Presidents to affirm rather than take a religious oath to defend the Constitution.

Rather than rely on religion or indeed some thick conception of secular, communitarian virtue, like Sparta, the Framers built the Constitution on the bedrock of human nature.  As Hamilton said “man will only serve the public interest, if the structure of government interests his passions in doing so.”  Paradoxical as it might seem, Hamilton’s view reflects an important element of Protestant theology at the time which emphasized that politics had to recognize the consequences of the fallen nature of man.   Given the unknowability of who actually was among the elect, even many religious believers would have acknowledged it perilous to make the Constitution depend on the uncertain religious state of the populace.

Instead of relying on religion, the Constitution has a different design to elicit the virtues needed for civic life and its preservation. First, the Constitution creates a commercial republic to make sure the self-interest of man helps promote virtue.  It is remarkable that except for national defense, almost all the enumerated powers of the federal government were meant to facilitate a continental market—to make commerce regular.

Part I is here.

Part II is here.

Part III is here.

In conclusion:

Let me end with our current period and on a practical note. If I am right, we can revive a flourishing civic life by restoring the Constitution and not wait on a religious revival. Sociologists tell us that religious belief, at least as measured by adherence to organized religion, is declining. Yet enthusiasm for constitutional fidelity is rising. From the 1960s to the 1980s, a constitutional challenge such as that mounted against Obamacare would have been unimaginable even though religious belief was more widespread. Today, but not back then, a Republican President is required by his political base to nominate someone part of that culture of constitutional fidelity. And note that this culture created in no small part by the secular, civic association—the Federalist Society.  We saw a remarkable instance of that culture’s power when President George W. Bush was forced to withdraw Harriet Miers, a candidate who had no proven record of sound constitutional interpretation.

As Obergefell reminds us, our legal culture is far from perfect but it is a lot better than in the years of the Warren or even the Burger Courts, when religious adherence was somewhat higher but support for interpreting the Constitution as written was feeble both academically and politically.

The reasons for this greater enthusiasm for constitutional fidelity lie in the fact that after the Reagan Administration, respect for free markets, federalism and limited government—matters at the core of our Constitutional order– generally grew even as the society has become less, not more religious. Thus our Constitution was not made for a people who must be faithful to a religion but instead a people who need to have the civic virtues to be faithful to the Constitution. And those virtues in turn are likely to be generated by following the Constitution as written. It is to that virtuous circle for civic virtue that we need to return.