The BLOG: Faith and Law

Can the Rule of Law survive without faith?

Law, not faith, is our nation’s shared narrative. We are a nation of laws, not of any particular religious creed. The Constitution of the United States provides the framework for peace, order, common defense, and liberty for the people of the United States. The Bill of Rights prohibits Congress from establishing a national church.  There is no test of faith for citizenship. We are not a Christian nation.

These were the central points of my first two posts on this blog. These points are not novel. Indeed, they are rather simple observations regarding the American experiment. As Hamilton explained in Federalist No. 1, the framers agreed to establish a secular government purposefully by “reflection and choice” rather than “accident and force.” Many of the framers were Christians. Nevertheless, they built a secular government supported by the Rule of Law rather than raw power.

Those who continue to support the idea of secular government, of course, will find these points agreeable. But something has changed. At the founding, many men and women of faith supported the idea of a secular government. Now, many faithful men and women are skeptical of our secular government. Sensing that faith is now threatened by secularism, some are losing confidence in the American experiment.

Why? Today’s secularism is more robust than the secularist deism of our nation’s founding. Those favoring secular government today often seek a complete and total separation of law from faith. Some go even farther by asserting that Americans “ought not legislate morality” (an internally inconsistent and self-defeating argument). Rather than building a public square welcoming of the faithful, today’s secularist seeks a public square free of faith. Many secularists are now using charter of American government as a weapon against men and women of faith. Scrutiny of religious conduct and skepticism of religious reasons will likely accelerate as we face new waves of “religiously motivated” terrorism.

The response to those advancing a hyper-secular conception of American constitutional government (i.e., a public square free of religion and morality) is not to argue that American is a Christian nation. This argument is a loser because it is not true. Instead, the response to secularists ought to be a question: Can the Rule of Law survive without religion?

The same John Adams who observed that we “are a nation of laws, and not of men” also observed that our Constitution, was made “only for a moral and religious people and is wholly inadequate to the government of any other.” As Professor Robert George asks in a recent excellent essay, was Adams right? Is secular government possible in a faithless nation?

Highlighting the fact that many framers were skeptical of faithlessness’s ability to sustain freedom, Professor George urges caution in believing that the American experiment will remain viable in a completely material, godless world. Why should Americans believe that all individuals are “endowed by their Creator with certain unalienable rights” if there is no Creator? If there are no such God-given natural rights, then what, if anything, constrains the power of human government?

Christians claiming that America is a “Christian nation” are wrong. But also wrong are those claiming that America is a secular nation free from all religious belief. President Washington in his Farewell Address warned that our nation’s prosperity depends upon “religion and morality” and, especially, in the ability of “religious principle” to guide our civic engagement.

Refusing to recognize our nation’s commitment to the transcendent basis of human rights is as much of a rejection of the truth of our nation’s heritage as is insisting that our nation is a Christian nation. The Rule of Law depends upon humility of a people recognizing (at least the possibility of) the divine. Or, in the words of Professor John McGinnis in his recent debate with Professor George regarding this important topic, “there needs to be some idea of transcendence” in order to sustain the virtues necessary for American constitutionalism.

Rob McFarland

Rob McFarland

Robert L. McFarland is Associate Dean of External Affairs and Associate Professor of Law at Faulkner University’s Jones School of Law.