Lecture #3:
Virtue & Morality: Freedom’s Prerequisites
Last time I told you I would next talk about Federalism, but in view of the fact that one member
of the audience spawned a discussion of libertarianism versus conservatism after I delivered my
lecture on the origin and meaning of Liberty, I decided to talk about the necessity of virtue and
morality in sustaining liberty. She argued that government has no place in trying to “force
morality,” which seems to be a libertarian approach.
If one were to examine our entire body of human law, there would be very little found that was
totally devoid of any moral base. So the vast majority of all human law promotes some notion of
morality. So the big question is: “What moral base should be applied?”
I think people in most of the differing political camps would tend to agree that human laws
should prohibit people from injuring other people. They would recognize a sphere of individual
rights possessed by everyone that should not be invaded by others, so they would favor antiintrusionary laws concerning those rights, the most obvious of which would be laws against
murder, rape, robbery, etc. They might disagree as to what should be included in that sphere of
protected rights, but would probably universally agree that at least murder and rape should be
included in that protected sphere.
But it is a completely different thing to use the force of human law to make people be
affirmatively good to one another. I think both libertarians and conservatives would generally
disapprove of such laws, while liberals/progressives would tend to favor such laws. An example
of this would be our anti-discrimination and affirmative-action laws.
I think the person who raised the issue said she was against using human law to “force” morality.
If what she meant by that was trying to force human conscience and make people believe a
certain way through the threat of official punishment administered by the government, I think
both libertarians and conservatives would disapprove of such an approach.
If she meant that it was inappropriate to use human law to “encourage morality” or “forcefully
prohibit the encouragement of immorality,” here is where I think libertarians and conservatives
tend to part company. An example that could be used here would be attempts to prohibit the
publication of pornography. I think libertarians would tend to oppose such laws whereas
conservatives would tend to favor such laws.
Knowing the vital importance of public and private virtue in sustaining liberty, our founders
would see no problem with prohibiting the public dissemination of materials that would tend to
destroy that critical moral base. They would not have viewed such attempts as being violative of
the 1st Amendment’s freedom of speech or freedom of the press clauses. At least that would
most certainly be the case at the state level, since as we will see in a future lecture, the federal
Bill of Rights did not serve as any sort of handcuffs on any actions by the states. But even at the
federal level, I don’t think the founding generation would have viewed pornography as “speech”
within the meaning of the 1st Amendment. It was the 20th century Supreme Court that expanded
the notion of “freedom of speech” to mean “freedom of expression” as they came up with a rule
about pornography that made it virtually impossible to regulate or prohibit.
1
Joseph Story was one of the first Supreme Court Justices. He was born in the middle of the
Revolutionary War. As a young man studying the law, certainly he would have a keen sense of
the founding era – what the moods, intents and philosophies of the people were, how the history
shaped the times, etc. He became the generally recognized expert on American Constitutional
Law and was commonly referred to as the “American Blackstone” – Blackstone being the
recognized expert on English law.
At the time Story wrote his Commentaries on the Constitution of the United States, the U.S.
Supreme Court had not yet ruled on any Bill of Rights cases. Hence there had been no official
interpretations of any of the Amendments, including the 1st Amendment’s coverage of religion,
speech or the press. Therefore, he simply described the prevailing view of the drafters and the
majority of the people regarding those rights. Concerning the freedom of speech in the 1st
Amendment, he said the following:
“That this amendment was intended to secure to every citizen an absolute right to speak,
or write, or print, whatever he might please, without any responsibility, public or private,
therefore, is a supposition too wild to be indulged by any rational man. This would be to
allow to every citizen a right to destroy, at his pleasure, the reputation, the peace, the
property, and even the personal safety of every other citizen….Civil society could not go
on under such circumstances….It is plain, then, that the language of this amendment
imports no more, than that every man shall have a right to speak, write, and print his
opinions upon any subject whatsoever, without any prior restraint, so always that he does
not injure any other person in his rights, person, property, or reputation; and so always,
that he does not thereby disturb the public peace, or attempt to subvert
government.”1(emphasis added)
Concerning freedom of the press in the 1st Amendment, he said that to look at that right as some
sort of absolute right that allows the press to print whatever it wants without any liability for
what it does, would mean that “the liberty of the press is incompatible with the permanent
existence of any free government.”2 Again, he emphasized the freedom from prior restraint as the
key component but then said:
“Every freeman has an undoubted right to lay what sentiments he pleases before the
public; to forbid this is to destroy the freedom of the press. But, if he publishes what is
improper, mischievous, or illegal, he must take the consequences of his own
temerity….[T]o punish any dangerous or offensive writings, which, when published,
shall, on a fair and impartial trial, be adjudged of a pernicious tendency, is necessary for
the preservation of peace and good order, of government and religion, the only solid
foundations of civil liberty. Thus, the will of individuals is still left free; the abuse only
of that free will is the object of legal punishment. Neither is any restraint hereby laid
upon freedom of thought or inquiry; liberty of private sentiment is still left; the
disseminating, or making public of bad sentiments, destructive of the ends of society, is
the crime, which society corrects. A man may be allowed to keep poisons in his closet;
but not publicly to vend them as cordials.”3
1
Joseph Story, Commentaries on the Constitution, reprinted by Carolina Academic Press (1987), section 993, on
pp.703-04.
2
Id. section 995 on p.705
3
Id. Section 995 on pp.705-06.
2
He also quoted with agreement Blackstone as saying: “So true will it be found, that to censure
the licentiousness, is to maintain the liberty of the press.”4
So it is clear from these explanations that freedom of speech and freedom of the press cannot be
viewed as absolute rights which are immune from all potential legal accountability. Society can
choose to hold anyone accountable through the force of law for the misuse of those freedoms in
ways that tend to destroy civil society.
But even if the founding generation would not consider pornography to be protected “speech,” to
stay true to my later discussion on federalism, where in the Constitution is the federal
government affirmatively delegated the power to regulate something like pornography? If it
doesn’t fall within one of the enumerated powers, then the federal government doesn’t have any
authority to regulate it. Be that as it may, I think as per the 10th Amendment, it is irrefutable that
the founding generation would not hesitate to conclude that the states could regulate the topic
however they wanted to and would think it wise to do so for the reasons discussed here. But as
we will see later, due to the U.S. Supreme Court’s misinterpretation of the 14th Amendment, it
has effectively prohibited the states from legally holding anybody accountable for publishing
pornography.
As the various quotations in this lecture will indicate, liberty cannot be sustained long term
without widespread virtue and morality in the people. In the opinion of our founding generation,
it is very easy to destroy a society’s virtue and morality and it is very difficult to create and
sustain it in adequate amounts to ensure that the widest degree of liberty can be enjoyed by the
people. Effectively, they believed it takes several institutions working in unison to produce the
desired result. Not only does it take religion, but they believed it also requires support from
families, communities, and even supporting efforts in public education and government. As the
following quotations will indicate, they would not try to punish people for disbelieving such
encouragements, but they would certainly have no hesitations making very clear and favorable
general theistic statements. I tend to agree with our founders on these points and thus favor the
conservative approach.
Although it may bore some of you, as usual in these lectures, most of what I will share with you
will be quotations from other people. I will do this for at least two reasons. First, I want to give
credit to them since they thought of the ideas before I did, and second, I think they expressed the
ideas better than I can.
My hope is that you will pause many times over the course of this recorded lecture to ponder the
various points made. If you are not willing to do that, I think you will tend to get bored and tune
out which will be very unfortunate since the principles are so important. Moreover, a particular
quote might carry subtle nuances and implications that are not necessarily included in the similar
quote making the same major point but coming from a different person. While I do not have the
time discuss all these nuances, I think they are also important for you to consider on your own.
You might tend to get bored when I quote more than one person to make the same basic point.
4
Id. p.706.
3
However, the value of the repetition lies in the fact that when more than one great thinker
independently comes to the same conclusion regarding the particular idea being discussed, that
enhances its credibility.
So I hope you will intellectually engage in the discussion and become an active participant
instead of just trying to be a passive sponge. I hope that along the way you will pause and ask
questions like: “Is that really true?”; “If so what are its implications?”; “If it is not true, what
are the implications of that conclusion?” In doing so your attention span and intellectual
stamina will naturally expand, which are very good things.
If you feel like you need a break part way through, go ahead and take one, but please be willing
to return later on to seriously consider the rest of the discussion. The same request applies to all
of my lectures.
So let’s get started with today’s lecture.
Natural Law
From time immemorial, people have disputed whether or not there is such a thing as natural law
which governs the affairs of men. “Positive law” is man-made law. “Legal positivists,”in their
most extreme sense, believe that there are very few, if any, natural laws regarding right and
wrong, good and evil, etc. They believe that we are free to define these things however we want.
Natural law theorists believe that just as there are natural laws regarding physics, chemistry, etc.,
there are natural laws or basic truths regarding good and evil, right and wrong, etc. that are
independent of our ability to properly discern them and which carry natural consequences for
obedience or disobedience to them. They believe that to the extent societies can properly discern
and implement these laws, such societies prosper politically, economically, and culturally, and
produce more peace, safety, and order relative to other societies which don’t similarly conform
their human positive laws with the natural laws. However, natural law theorists don’t think there
are natural laws for everything and believe that there is a hierarchy of natural laws with some
being more fundamental and important that others. They would also tend to believe that the
more fundamental and important a particular natural law is, the easier it is to discern through
logic, reason, and experience. They would also tend to believe that many can be discerned with
the help of Divine revelation found in the Bible and other scriptural texts.
In the words of Robert Frost:
“Most of the change we think we see in life
Is due to truths [or in the context of this discussion—natural laws] being in and out of
favor.”5
Phillip E. Johnson, a law professor at U.C. Berkeley, has written some excellent books criticizing
the weakness in logical argument behind the theory of naturalistic evolution – i.e. evolution
proceeding without any sort of intervention by an intelligent, guiding hand. In one of those
5
Quoted in The Conservative Mind, published by Regnery Publishing Inc. (1985) p. viii.
4
books he observed:
“Our logic cannot supply its own beginning. Logic is merely a way of reasoning
correctly from premises to conclusions. The premises must come from elsewhere.
Rationalism is inherently self-defeating, because the rationalist must pretend to derive his
first premises by logical reasoning, which always rests on other premises. Empiricism
faces the same dilemma when it becomes a total system because the empiricist always
needs to know more than he can observe. Premise-evading philosophies like logical
positivism or scientific materialism last only until the dilemma becomes too evident to be
concealed, and then they wither. That is why the guardians of such systems when under
pressure often become fanatics who try to impose authoritarian control. Forbidding
examination of the premises is the only way they can continue to rule....My problem is
not with presuppositions as such, but with concealed presuppositions, which come
disguised as facts.”6
Natural law theorists tend to start from the premise that “God created man – not vice versa”7 –
and that our natural human rights derive from God and that we owe certain duties and obligations
to Him which we can ignore only at our peril. Such duties form the basis of our civic duties
which people need to respect and honor if they wish to protect and sustain the enjoyment of their
liberties. Legal Positivists start from a different premise or faith.
Consider what the preeminent English legal scholar William Blackstone said about the matter:
"This law of nature, being coeval with [equally as old as] mankind, and dictated by God
himself, is of course superior in obligation to any other. It is binding over all the globe,
in all countries, and at all times: no human laws are of any validity, if contrary to this;
and such of them as are valid derive all their force, and all their authority, mediately or
immediately, from this original.”8
James Wilson, U.S. Supreme Court Justice and signer of the Constitution, wrote:
"Human law must rest its authority ultimately upon the authority of that law which is
divine....Far from being rivals or enemies, religion and law are twin sisters, friends, and
mutual assistants. Indeed, these two sciences run into each other."9
The founding of America itself is a good example of this fundamental premise of divine natural
law. After using the phrase "the laws of nature and nature's God," the Declaration of
Independence (known as the first of our "organic laws") observes:
"We hold these truths to be self evident that all men are created equal, that they are
endowed by their creator with certain unalienable rights, that among these are life, liberty
and the pursuit of happiness. That to secure these rights governments are instituted
Phillip E. Johnson, The Right Questions – Truth, Meaning & Public Debate, InterVarsity Press, (2002) p.89. For
the interested reader, another excellent book of his is Darwin on Trial.
6
7
I believe I got this little gem from Phillip E. Johnson in The Right Questions, but I cannot now find the exact page.
8
William Blackstone, 1765; Commentaries on the Laws of England, Book I, Sec.2, No. 41.
9
David Barton, Original Intent p. 324 & n.42 (2d ed. 1997).
5
among men deriving their just powers from the consent of the governed, that whenever
any form of government becomes destructive of these ends, it is the right of the people to
alter or abolish it, and to institute new government, laying its foundation on such
principles and organizing its powers in such form, as to them shall seem most likely to
effect their safety and happiness.”
So the idea, as expressed by our own founders in that document, was that natural laws (dealing
with rightness, wrongness, fairness, equity, justice, etc.) pre-dated governments, our civil law,
and politics and that the latter mechanisms were designed after-the-fact to protect and secure
these natural, God-given laws and rights. If God and religion were now to be taken out of the
political equation, wouldn't that be "putting the cart before the horse" or even worse, unhitching
the horse from the cart entirely?
Before unhitching the horse, Jefferson's quote inscribed on the walls of the Jefferson Memorial
in Washington D.C. should be considered. There he is quoted as saying:
"God who gave us life gave us liberty. Can the liberties of a nation be secure when we
have removed a conviction that these liberties are a gift of God?"
Why Did Greece Fail?
After gaining our independence in the Revolutionary War, we had to decide how the country was
to be governed. As the greatest American political minds searched world history for ideas, they
paid a lot of attention to ancient Greece – the cradle of democracy. They liked the idea of selfgovernment but were troubled that the Greeks were not able to sustain their form of government
permanently. As they sought the reasons why, they considered the idea of virtue and concluded
that the efficacy of democracy depended upon the level of virtue within the people. If they were
going to call themselves a free people and preserve themselves as a free people, they had to
successfully foster the notion that every individual within such a society must be a good selfgovernor. In other words, rather than depending upon external legal constraints and force to
maintain order and peace, they had to rely upon individual self-restraint and self-control. But
they realized that it is only reasonable to expect people to act that way if they have a strong
virtuous and moral base.
Our founders saw religion as the most powerful civilizing institution which could provide and
sustain that moral base upon which our republic could be successfully built and without which, it
would ultimately collapse like the Greeks before them. Consequently, they believed it to be
imperative to encourage and support religion and did not see any 1st Amendment problem with
governmental support of religion as long as it did not go too far. Joseph Story explained this
further.
Original Intents Regarding the Establishment Clause of the 1st Amendment
Here is what Joseph Story said about the intents behind the 1st Amendments coverage of religion:
"Probably at the time of the adoption of the constitution, and of the first amendment to it,
6
now under consideration, the general, if not universal, sentiment in America was, that
Christianity ought to receive encouragement from the state, so far as it is not
incompatible with the private rights of conscience, and the freedom of religious worship.
An attempt to level all religions, and make it a matter of state policy to hold all in utter
indifference, would have created universal disapprobation, if not universal indignation.
[As a side note, isn’t this the very approach being thrust upon us today?]
"It yet remains a problem to be solved in human affairs, whether any free government can
be permanent, where the public worship of God, and the support of religion, constitute no
part of the policy or duty of the state in any assignable shape....
"But the duty of supporting religion, and especially the Christian religion, is very
different from the right to force the consciences of other men, or to punish them for
worshipping God in the manner, which they believe, their accountability to him
requires....The rights of conscience are, indeed, beyond the just reach of any human
power....
"The real object of the amendment was, not to countenance, much less to advance
Mahometanism [sic] or Judaism or infidelity, by prostrating Christianity; but to exclude
all rivalry among Christian sects, and to prevent any national ecclesiastical establishment,
which should give to an hierarchy the exclusive patronage of the national
government...."10
“...the whole power over the subject of religion is left exclusively to the state
governments, to be acted upon according to their own sense of justice, and the State
constitutions.”11 (emphasis added)
We unabashedly considered ourselves to be a Christian nation even though we allowed everyone
to believe as his or her individual conscience dictated. Contrary to most, if not all, of the rest of
the world at that time, and contrary to many countries even today, America made great political
advancements regarding religious tolerance. While there would be no religious tests at the
national level, nevertheless, the founders and framers clearly saw the need to promote general
Christian values and morality throughout society.
Charles E. Rice, a law professor at the University of Notre Dame, observed:
“The view of the Supreme Court today, which forbids even the posting of the Ten
Commandments in public schools, would have been utterly rejected by the framers of the
First Amendment. The Northwest Ordinance, adopted by the Constitutional Congress in
1787, provided public support for religious education [it said]: ‘Religion, morality, and
knowledge, being necessary to good government and the happiness of mankind, schools
and the means of learning shall forever be encouraged.’ [Rice continues:] This enactment
10
Joseph Story, Commentaries on the Constitution of the United States, reprinted by the Carolina Academic Press
(1987) Sections 988-991, pp. 700-01.
11
Id. Sec. 992, pp. 702-03.
7
was reaffirmed by Congress in 1789. After the new constitution was ratified, the First
Congress, on September 24-26, 1789, did two things. [First,]They approved, and sent to
the states for ratification, the First Amendment. And [Second] they called on President
Washington to ‘recommend to the people of the United States a day of public
thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the
many signal favors of Almighty God....’ [Rice continues:] Can you believe that the
Congress intended the First Amendment to forbid the sort of prayer it recommended on
the same day? Nor was this a result of inadvertence. Representative Thomas Tucker of
South Carolina objected that the call for a day of prayer ‘is a religious matter, and, as
such, is proscribed to us.’ [But Rice continued:] Congress passed the resolution, thus
overriding with full awareness the argument the Supreme Court has adopted as doctrine
today.”12 *(emphasis added)
Separation of Church and State: Jefferson Coined The Phrase But What Did He Mean By It?
In trying to denigrate religion as an appropriate basis upon which to render political judgments,
people use a "separation of church and state" argument. This is an extreme and incorrect
interpretation of the 1st Amendment. As Story just expressed, all that was meant by the
establishment clause of the 1st Amendment was (1) to prohibit a particular religious sect from
becoming the official national religion like the Church of England was at the time of the
Revolution and (2) to prohibit the forcing of individual conscience on religious matters.
Moreover, it only applied to the federal government and not the states. The founding fathers
would have laughed at the proposition that their work would de-legitimize religion as an
appropriate moral basis for forming political opinions and government policies.
Thomas Jefferson drafted The Statute of Virginia For Religious Freedom. He also coined the
phrase “wall of separation between church and state” in a letter he sent in 1802 as the U.S.
President to the Danbury, Connecticut, Baptist Association.13 Contrary to what many believe, it
is not a phrase found anywhere in the 1st Amendment. Initially one might suspect that he would
be in favor of strict separation, but what did Jefferson really mean by the phrase? In contrast to
what the phrase is used for today, consider his proposals as the Rector of the University of
Virginia regarding sectarian religious instruction on campus—he said:
“It was not, however, to be understood that instruction in religious opinion and duties was
meant to be precluded by the public authorities, as indifferent to the interests of society.
On the contrary, the relations which exist between man and his Maker, and the duties
resulting from those relations, are the most interesting and important to every human
being, and the most incumbent on his study and investigation. The want of instruction in
the various creeds of religious faith existing among our citizens presents, therefore, a
chasm in a general institution of useful sciences.”14
Article: “The Constitution: Guarantor of Religion”in the book: Derailing the Constitution, p. 148, published by
the Intercollegiate Studies Institute.
12
13
The Complete Jefferson, pp. 518-519.
14
The Complete Jefferson, pp. 957-58. Quoted in No Liberty for License, David Lowenthal, Spence Publishing Co.
(1997), pp.187-88.
8
To remedy this perceived deficiency in the educational instruction of the students, Jefferson
proposed to open up the campus facilities to the clergy of the various sects and to arrange the
secular and religious teaching schedules so as not to conflict with one another. However, the
secular and religious instruction were to be independent of one another. Jefferson continued:
“Such arrangements would complete the circle of the useful sciences embraced by this
institution and would fill the chasm now existing, on principles which would leave
inviolate the constitutional freedom of religion, the most inalienable and sacred of all
human rights....”15
In follow-up, two years later (1824) he said:
“Should the religious sects of this State, or any of them, according to the invitation held
out to them, establish within, or adjacent to, the precincts of the University, schools for
instruction in the religion of their sect, the students of the University will be free, and
expected to attend religious worship at the establishment of their respective sects, in the
morning, and in time to meet their school in the University at its stated hour.”16
(emphasis added)
Obviously the one who coined the phrase “separation between church and state” did not intend to
take the concept anywhere near the extremes espoused by those who invoke it today.
Some people today argue that the fact that freedom of religion is the first right mentioned in our
Bill of Rights indicates the primacy of its importance in the minds of our founders compared to
the rest of the rights enumerated thereafter. Jefferson’s reference to freedom of religion as “the
most inalienable and sacred of all human rights,” tends to support that argument.
The Degree Of Separation Between Church And State, Was Determined Entirely By The
States
While Article VI of the U.S. Constitution specifically prohibits any sort of religious test
regarding one’s ability to hold public office at the federal level, it is silent regarding religious
tests for qualifications for suffrage–or the right to vote. At the time the Constitution was
adopted, some states had established religions supported by taxpayer dollars. Massachusetts,
Delaware, Pennsylvania, Maryland, North Carolina, South Carolina and Georgia had religious
tests as a qualification for public office and some states even had religious tests as a prerequisite
to suffrage.17
This conditional right to vote was not limited to voting on state matters, but also applied to the
right to vote in national elections. Even in the face of this fact, the Constitution did not attempt
to define the conditions for the right to vote but rather, left this matter to the various state laws
15
Id.
16
Id. Jefferson pp. 1110, 958; quoted in Lowenthal pp. 188-89.
17
American Constitutional History, Erik McKinley Eriksson, published by W.W. Norton & Co,(1933), pp.154-55.
9
around the country.18 In contrast to the foregoing state laws requiring certain religious
affiliations, New York prohibited ministers of the gospel from holding any state office.19 So
religious matters were viewed as being strictly within the jurisdiction of the states and the federal
government had no authority over the subject.
Richard Vetterli and Gary Bryner observed:
“State constitutions and declarations reinforce the idea of the importance of religion in
making self-government possible. The final clause in the Virginia Declaration of Rights,
for example, states that ‘it is the mutual duty of all to practice Christian forbearance, love,
and charity, towards each other.’ A religious oath was often required of candidates
running for elected office. In Pennsylvania, each member of the legislature was required
to make the following declaration: ‘I do believe in one God, the creator and governor of
the universe, the rewarder of the good and the punisher of the wicked. And I do
acknowledge the Scriptures of the Old and the New Testament to be given by Divine
inspiration.’ There would be no specific religious orthodoxy, and the idea of an
ecclesiastical policy or theocracy was clearly rejected. Freedom of belief and conscience
were to be assured. But the assumption was that there would be a moral foundation for
republican government and that private religion and general Christian beliefs would serve
as an important source of that foundation.”20
It should be noted that even though there wasn’t very much separation of church and state in
some of the states in the early years, through no external force, all states eventually disbanded
their established religions (meaning official recognition and public tax support)21, the last being
Massachusetts in 1833. But religious tests for public office at the state level continued on even
later than that. In New Hampshire, the requirement that one had to be a Protestant to serve in the
legislature was continued until 1877.22
Even though every state eventually dropped all official state tax support for specific religions and
religious tests for public office and voting, that was about the extent of their limited notions of a
“separation of church and state.” These efforts, however, were not a product of a rising sense of
secularism or indifference, but rather, from a sense of fairness to all religious sects and a worry
18
Depending upon interpretation, Article 1, Section 4 may allow the federal Congress to set the rules for suffrage
regarding elections at the national Congressional level if such were deemed to fall within the meaning of the word
“manner” as it relates to the holding of elections for Senators and Representatives. But I am unaware of any attempt
by Congress to ever do so. The fact that four separate Amendments (the 15th, 19th, 24th, and 26th) limit the states
regarding various suffrage issues, implies that the word “manner” in Article 1, Section 4, was not intended to cover
such issues. Otherwise, Congress could have regulated the area without having to go through the very difficult
constitutional amendment process on those four occasions.
19
Id. p.149.
20
Richard Vetterli and Gary Byrner, In Search of the Republic: Public Virtue and the Roots of American
Government, published by Rowman & Littlefield, (1996) p.7.
21
The Theme is Freedom – Religion, Politics, and the American Tradition, M. Stanton Evans (1994), p. 275.
22
Id. p. 278.
10
that state establishments would actually weaken the churches rather than make them stronger -they were not trying to protect the government from religion, but rather, they were trying to
protect religion from government interference.23 The 1960s’ Supreme Court, in making the
separation of church and state idea almost total and all-encompassing across the land, gave the
false impression that they were just continuing a fine secular tradition originally started in
Virginia at the time our federal Constitution was passed. M. Stanton Evans refutes this and
shows how limited the connotation of “separation” was back then. Says Evans:
“In [modern] Supreme Court decisions, reliance is placed mainly on Virginia, and in
particular on Madison’s role in moving for disestablishment of the Anglicans and
opposing tax assessments for the support of churches. As noted, however, these
measures reflected neither secularism nor indifference – chiefly because the political
pressures to this effect came from other religious bodies, but also because Madison
himself believed in such a policy for religious reasons. He maintained (as did Edmund
Randolph) that in addition to being unfair to other denominations, establishment
weakened a church instead of making it stronger (and had plentiful evidence to support
his view from the ecclesiastical history of Virginia.)
“Nor, it should be added, did Madison as legislator take the doctrinaire approach imputed
to him by the [modern] Court. It is a little noted fact, for instance, that on the same day
that he introduced his bill in the Virginia legislature for disestablishment of the Episcopal
church (October 31, 1785), he also introduced a bill to punish those who broke the
Sabbath (plus another providing for days of prayer and thanksgiving.)”24
Returning to the idea of virtue and morality, Richard Vetterli and Gary Byrner wrote an excellent
book entitled In Search of the Republic: Public Virtue and the Roots of American Government.
If you want to assemble a personal “great books” library, this is one you should have in it. I will
quote them extensively throughout without further introduction. Unless ascribed to different
authors, all paragraphs hereafter in this lecture which simply begin with quotation marks, are
from them.
Virtue: What Is It And Where Does It Come From?
“...a democratic republic requires a citizenry capable of exercising the kind of self-restraint and
public-mindedness that would permit freedom to flourish. One of the great contributions of the
American Founders was to articulate a modern understanding of ‘virtue’ grounded in a realistic
assessment of human nature, which recognized that certain primary institutions played an
essential role in fostering and stimulating those ‘virtues.’ In so doing, the Founders neither
deified nor degraded human beings, but concentrated on the notion that a broad spectrum of
potential motivations drive human behavior, there being no simple ‘nature of man,’ either good
or evil.
“The Founders rejected the earlier republican concept that the political regime (or state) was the
23
24
John Eidsmoe, Christianity and the Constitution, Baker Books, (1987) p.243.
The Theme is Freedom – Religion, Politics, and the American Tradition, M. Stanton Evans (1994), pp. 277-78
11
source of virtue, for virtue cannot be compelled through the coercive power of government.
Government is quite limited in its ability to change individual or collective behavior. Attitudes
and personal traits cannot be legislated. Instead, virtue is fostered by the primary institutions of
society – family, neighborhood, religion, education, and other voluntary organizations. Virtue is
something taught. It is educated habit, developed through practice.”25 (emphasis added)
“Recent scholarship on the American founding has often failed to give sufficient attention to the
evolutionary character of the concept of virtue. When historians refer to virtue, they are often
drawn back to classical antiquity, narrowing their definition of the term to its ancient expression,
and confusing it with the ‘modern’ concept of virtue. Centuries before the Constitution was
written, the concept of virtue had begun its metamorphosis. It had, over time, become infused
with biblical Christianity, which had become a kind of ‘general Christianity,’ even within
medieval Christendom, and had emerged as a body of moral precepts.”26
“...The cardinal virtues dating from classical times – wisdom, courage, discipline, and justice –
were still considered important, although to a certain degree with an altered connotation....More
than the classical notions that emphasized such ideas as patriotism and willingness to fight and
die for the state, public virtue represented voluntary self-restraint, a commitment to a moral
social order, honesty and obedience to law, benevolence, and a willingness to respect the
unwritten rules and norms of social life.”27
Francesco Petrarch (1304-1374) gave credit to Aristotle for his intellectual discourses on the
topic of virtue but said that he did not go far enough in his consideration of the topic for he was
not able to move the reader beyond the mere position of knowledge to that of love. After reading
Aristotle, he admits his knowledge of virtue has increased:
“but mind and will remain the same as they were, and I myself remain the same. It is one
thing to know, another to love; one thing to understand, another to will. He teaches what
virtue is, I do not deny that; but his lesson lacks the words that sting and set afire and
urge toward love of virtue and hatred of vice, or, at any rate, does not have enough of
such power.”28
“According to Petrarch, the love of virtue stems primarily from the love of God, and is expressed
in its primary form through virtuous behavior.”29
“The American Founders....had come to the conclusion that classical philosophy had relied too
heavily on the expectation of the consistency of stringent virtuous behavior, devoid of any self25
Richard Vetterli and Gary Byrner, In Search of the Republic: Public Virtue and the Roots of American
Government, p.xiii.
26
Id. p. 6.
27
Id. pp.3-4.
28
Id. pp. 25-6
29
Id.
12
interest. Their understanding of the nature of man reflected a profound awareness of his
selfishness and aggressiveness. Nevertheless, they believed that man had certain redeeming
qualities, that he had the potential for self-government....They also believed that no structure of
government in a republic would long survive the absence of virtue in the people. They believed
that their efforts might decide once and for all if self-government was even possible.”30
Public And Private Virtue Were Pre-Conditions For Republican Government
“THE IDEA OF VIRTUE was central to the political thought of the Founders of the American
republic. Every body of thought they encountered, every intellectual tradition they consulted,
every major theory of republican government by which they were influenced emphasized the
importance of personal and public virtue. It was understood by the Founders to be the
precondition for republican government, the base upon which the structure of government would
be built.”31
Consider a couple of quotes from Samuel Adams:
“Neither the wisest constitution nor its wisest laws will secure the liberty and happiness
of a people whose manners are universally corrupt. He therefore is the truest friend of
liberty of his country who tries most to promote its virtue, and who ... will not suffer a
man to be chosen into any office of power and trust who is not a wise and virtuous
man.”32
“A general dissolution of principles and manners will more surely overthrow the liberties
of America than the whole force of the common enemy. While the people are virtuous
they cannot be subdued; but when once they lose their virtue then will be ready to
surrender their liberties to the first external or internal invader.”33
General Douglas McArthur said:
“History fails to record a single precedent in which nations subject to moral decay have
not passed into political and economic decline. There has been either a spiritual
reawakening to overcome the moral lapse, or a progressive deterioration leading to
ultimate national disaster.”34
According to Russel Kirk, the first canon of conservatism is a:
“Belief in a transcendent order, or body of natural law, which rules society as well as
conscience. Political problems, at bottom, are religious and moral problems.”35
30
31
Id. p.6.
Id. p.1.
32
Samuel Adams, essay in The Public Advertiser, Circa 1749.
33
Samuel Adams, letter to James Warren, February 12, 1779.
34
35
A Soldier Speaks, pp. 285-86.
The Conservative Mind, published by Regnery Publishing Inc. (1985) p. 8.
13
Something has to define the community and bring people together into a common enterprise that
is worthy of the sacrifices necessary to defend it. In the United States, “liberty” has always been
one of the concepts that defined the community. The word “liberty” has a noble ring to it
because it implies the people who have it are just, moral, virtuous and upright. It implies an
admixture of duty, honor and responsibility. But when we divorce these concepts from it, as we
are doing today, the word loses its dignity and depreciates down to mere “license.”
In the long run, people will never rally around something so empty as the mere concept of
“license.” Rome learned this the hard way. When Rome was sacked by the vandals, few came
to its defense because by that point in time there was nothing left of “civil society” deemed
worthy of being saved. Their laws had become corrupted with great diversions from the natural
law. There was no longer any binding commonality of objectives, morals, or vision of destiny.
The free bread and circuses weren’t enough to rally the people in a life-threatening defense of
their country since the heart and soul of their country had long since vanished. They had become
too selfish and saw no point in forfeiting their personal lives to preserve their hollowed out and
corrupted society.
After commenting on the fall of Rome, Russel Kirk observed: “Only the earlier stages of social
decadence seem liberating to some people; the last act...consists of death [to the culture and the
society] ....”36
The Founders Weren’t Confident That Americans Had Enough Virtue To Sustain Their
Republican Government
Vetterli and Byrner said: “...the fundamental question [our founders] asked was whether
Americans had sufficient virtue to make self-government work....Given the nature of man as they
understood it, they were not at all confident that self-government over time was even a
possibility. But of one thing they appear to have been certain: a citizenry lacking in virtue was
not capable of sustaining a democratic republic, whatever its structure.”37
John Adams said: “Our Constitution was made for only a moral and religious people. It is
wholly inadequate to the government of any other.”38 He also said: “Human passions unbridled
by morality and religion...would break the strongest cords of our Constitution as a whale goes
through a net.”39
James Madison observed: “Is there no virtue among us? If there be not, we are in a wretched
situation. No theoretical checks, no form of government can render us secure. To suppose that
36
Russell Kirk, Redeeming the Time, published by Intercollegiate Studies Institute, (1996) p.14.
37
Richard Vetterli and Gary Byrner, In Search of the Republic: Public Virtue and the Roots of American
Government, p. 2.
38
Thoughts on Government; quoted in John R. Howe, Jr,. The Changing Political Thought of John Adams, p. 384.
39
Quoted in Bill Bennett’s Our Sacred Honor, p.16.
14
any form of government will secure liberty or happiness without any virtue in the people, is a
chimerical idea.”40
Civic Morality Is Unsustainable Without Religion
Vetterli and Byrner observed: “At the core of this moral behavior was a belief in God, reinforced
by both an ‘organized’ and a ‘general’ religious establishment. Without this de facto
‘establishment, morality simply would not have survived in America. ‘Morals and religion are
inextricably joined,’ insists Sir Patrick Devlin. ‘No Society has yet solved the problem of how to
teach morality without religion.’ ‘There is no significant example in history before our time,’
concur the historians Will and Ariel Durant, ‘of a society successfully maintaining moral life
without the aid of religion.’ De Tocqueville saw this in relation to America. ‘It must never be
forgotten,’ he wrote, ‘that religion gave birth to Anglo-American society. In the United States,
religion is therefore mingled with all the habits of the nation and all the feelings of patriotism,
whence it derives a peculiar force.’”41
In this regard, consider the following portion of George Washington's farewell address:
"Of all the dispositions and habits which lead to political prosperity, religion and
morality are indispensable supports. In vain would that man claim the tribute of
patriotism who should labor to subvert these great pillars of human happiness, these
firmest props of the duties of men and citizens. The mere politician, equally with the
pious man, ought to respect and cherish them. A volume could not trace all their
connections with private and public felicity. Let it simply be asked where is the security
for property, for reputation, for life, if the sense of religious obligation desert the oaths 42,
which are the instrument of investigation in courts of justice? And let us with caution
indulge the supposition that morality can be maintained without religion....reason and
experience both forbid us to expect that national morality can prevail in exclusion of
religious principle. Tis substantially true that virtue and morality is a necessary spring of
popular government. The rule indeed extends with more or less force to every species of
free government. Who that is a sincere friend of it can look with indifference upon
attempts to shake the foundation of the fabric?"43 (emphasis added)
It is interesting to note why Washington talked like this in his farewell address. He saw what
was happening in the French Revolution which largely was a revolution from God and in favor
of the “Goddess of Reason” whereas the American Revolution had formally declared its
independence from England but its dependence upon God. He saw French churches defiled and
40
Elliott’s Debates, 3:536-7.
41
Richard Vetterli and Gary Byrner, In Search of the Republic: Public Virtue and the Roots of American
Government, p.53.
The original meaning of the word “oath” was an invocation of God’s cursing if the person making the oath failed
to live up to it. In the court context, it meant that the witness would incur the wrath of God if he lied under oath on
the witness stand.
43
W. David Stedman & LaVaughn G. Lewis (ed.) Our Ageless Constitution (Evanston, IL; Stedman & Associates,
1987.)
42
15
the “Reign of Terror” spill blood in the streets through the guillotine at the supposed prompting
of their “Goddess of Reason”. He wanted to make sure America did not follow France’s
libertine example, where, as we discussed in a prior lecture, the people chose license
unrestrained by morality over liberty, which as we see from this lecture, requires virtue and
morality in the people for its sustenance.
Benjamin Rush, signer of the Declaration of Independence, said:
"Without [religion] there can be no virtue, and without virtue there can be no liberty, and
liberty is the object and life of all republican governments."44
John Adams wrote:
"Religion and virtue are the only foundations . . . of republicanism and of all free
governments."45
"[I]t is religion and morality alone which can establish the principles upon which freedom
can securely stand."46
It is interesting to note that just like we are trying to look back through history to our founders to
make sense of things today, they too consulted history for guidance in their day. After observing
that the principles which drove our Revolution were liberty and the general principles of
Christianity practiced by all sects, John Adams said:
“...I...believe that those general principles of Christianity, are as eternal and immutable,
as the existence and attributes of God; and that those principles of liberty, are as
unalterable as human nature....
“I...[believe we will] never make discoveries in contradiction to these general principles.
“In favor of these general principles in philosophy, religion and government, I could fill
sheets of quotations from Frederick of Prussia, from Hume, Gibbon, Bolingbroke,
Reausseau and Voltaire, as well as Newton and Locke: not to mention thousands of
divines and philosophers of inferior fame.”47 (emphasis added)
The Englishman Edmund Burke, who lived during the time of our Revolutionary War, similarly
observed: “…we think that no discoveries are to be made, in morality; nor many in the great
principles of government, nor in the idea of liberty, which were [not already] understood long
44
David Barton, Original Intent 322 & n.27 (2d ed. 1997).
45
John Adams, 9 The Works of John Adams, Second President of the United States 636 (Charles Frances Adams ed.,
1854).
46
Id. p. 229.
47
John Adams to Thomas Jefferson, June 28, 1813. The Adams-Jefferson Letters: The Complete Correspondence
Between Thomas Jefferson and Abigail and John Adams, edited by Lester J. Cappon, 1988, the University of North
Carolina Press, Chapel Hill, NC, pp. 338-340.
16
before we were born….”48
Our Success Depends Upon Our Willingness to Self-Govern Ourselves And Those Who
Believe In God Tend To Be Better Self-Governors
Vetterli and Byrner observed: “Madison, in The Federalist No. 39, warned that the future of
constitutional institutions would be based, not upon the power of the government, but upon the
ability of the people to govern themselves. He was convinced that a ‘belief in a God all
Powerful wise and good is so essential to the moral order of the world and to the happiness of
man, that arguments which enforce it cannot be drawn from too many sources.’”49
Consider the sense of optimism, the tolerance to adversity, and the hope for a better future
generated through religion. If you took religion out of the hearts of people, they would become
bitter, frustrated, restless and even rebellious every time things went wrong in their personal
lives. People would be very demanding of a public bailout whenever they got into trouble. They
would never look for any silver linings or deeper meanings or the will of Providence in times of
distress. In short, such a society would not be a very pleasant place in which to live.
Paraphrasing Dostoevsky: “If there is no God, all is permitted.”50 If we really are just the
byproduct of a random glop of primordial slime, destined to ultimately return to the dust with no
existence after this life and no ultimate accountability to any Supreme Being, then why should
anyone be anything other than selfish and brutish, taking a short-term relativistic attitude towards
everything? Why should I submit myself to any law other than my own? Perhaps many people,
even under such circumstances, could be convinced that it would be in their own personal self
interest to act otherwise, but wouldn’t the sales job be a lot easier among those who believed in
God and expected to be judged according to their works after this life?
Another implication of Dostoevsky’s statement is this: To a person who believes in God, the
eternal nature of the human soul, and our ultimate moral accountability to God in the next life by
way of rewards and punishments depending upon how we lived our lives on earth and what
injustices we suffered here--troubles in life are ultimately less tragic than they otherwise might
appear to be.51 Consequently there would be less perceived need for legal guarantees during this
life regarding things like health insurance, standards of living, and other aspects of what people
generally call “social justice”; less need to forcefully redistribute wealth; and more need to allow
moral conscience to operate in individually deciding whether or not to be affirmatively good
towards our fellow man as opposed to being forced to be such by human laws such as our antiQuoted in a BYU Speech 4/4/1960. The full quote is: “We know that we may have made no discoveries; and we
think that no discoveries are to be made, in morality; nor many in the great principles of government, nor in the idea
of liberty, which were understood long before we were born, altogether as well as they will be after the grave has
heaped its mould upon our presumption, and the silent tomb shall have imposed its law on our pert loquacity. ”
49
Richard Vetterli and Gary Byrner, In Search of the Republic: Public Virtue and the Roots of American
Government, p.69.
48
50
Will Durant, The Mansions of Philosophy, Garden City Publishing Co., (1929) p. 133. The paraphrase apparently
comes from The Brothers Karamazov (1879) see pages 50, 499, & 549.
51
See for example, Luke 16:20-31.
17
discrimination laws.
In contrast to the foregoing, atheists who do not believe in God or in the eternal nature of man or
any sort of ultimate moral accountability to God after this life, would tend to believe that forceful
human law should be used to promote their notion of “social justice” since if justice, fairness,
etc. don’t happen on earth, they believe they will never happen later on. Failure in those areas
would appear to be very tragic and thus worthy of forceful legal intervention. They would be
less inclined to sacrifice personal resources to build hospitals, orphanages, etc. thinking it would
be fairer for the government to use the force of human law to guarantee social justice by taking
from the rich to make life better for the poor through such ventures.
Why Is Religion So Important To Sustaining Liberty?
David M. Whalen observed:
“...the tangible social order is maintained primarily by having an orientation toward a
principle outside that order. No social order can be sustained if it is primarily selfreferential....The necessary (though not sufficient) precondition to securing our welfare is
to direct ourselves to something beyond it. Of course, this ‘something’ is not arbitrary.
We are free to disagree if we wish, but for Chaucer, a supernatural good – the earnest
adoration of God – is not merely convenient, but essential....[R]eligion is often
appreciated in a utilitarian fashion. Many contemporary politicians smilingly approve of
religion primarily because of its socially stabilizing effect. Chaucer would laugh at this
and remind us that religion preserves social order because it is true, and that we risk
inverting means and ends (thus losing the efficacy of this ordering principle) if we forget
that order is preserved through proper principles, not accidentally salutary delusions.”52
Lord Acton once said:
“No country can be free without religion. It creates and strengthens the notion of duty. If
men are not kept straight by duty, they must be by fear. The more they are kept by fear,
the less they are free. The greater the strength of duty, the greater the liberty.”53
In other words, if people are not kept straight by exercising moral self-restraint and self-control,
they must be controlled externally through the fear of punishments imposed by their government.
They have more liberty if they serve as their own moral task masters than if the government uses
the fear of forceful punishments to keep them in line.
Alan Keyes observed:
"Americans are a people who have realized a dream of freedom, who have taken it from
an abstract hope and turned it into a living reality. What made this possible was a
founding generation that understood the essential principles of liberty, and acknowledged
from the very beginning that the basis for human justice, human dignity and human rights
is no more -- nor less -- than the will and authority of our Creator, God. The importance
52
David M. Whalen, “The Affinity of Literature and Politics,” The Intercollegiate Review, Fall 2001, p.27.
53
The Acton Institute, http://www.acton.org/publicat/books/religion/
18
of this principle is definitive, because it allows us to understand that since we claim our
rights by virtue of the authority of God, we must exercise our rights with respect for the
authority of God. This truth becomes a sound foundation for discipline in our use of our
freedoms. It becomes a bulwark against the abuse of our powers. It becomes also the
ground for our confidence that, when we claim those rights, and when we exercise them,
we do not have to fear the consequences, because we are a people who exercise our rights
in the fear of God.”54
Alexis de Tocqueville’s “Democracy in America”
The French nobleman and lawyer, Alexis de Tocqueville, in his classic 1835 commentary
“Democracy in America,” observed the critical importance of religion to America’s political
success. Said he:
“On my arrival in the United States the religious aspect of the country was the first thing
that struck my attention; and the longer I stayed there, the more I perceived the great
political consequences resulting from this new state of things. In France I had almost
always seen the spirit of religion and the spirit of freedom marching in opposite
directions. But in America I found they were intimately united and that they reigned in
common over the same country.”55
“The sects that exist in the United States are innumerable. They all differ in respect to the
worship which is due to the Creator; but they all agree in respect to the duties which are
due from man to man.... all the sects of the United States are comprised within the great
unity of Christianity, and Christian morality is everywhere the same.
“...there is no country in the world where the Christian religion retains a greater influence
over the souls of men than in America; and there can be no greater proof of its utility and
of its conformity to human nature than that its influence is powerfully felt over the most
enlightened and free nation of the earth.
***
“... while the law permits the Americans to do what they please, religion prevents them
from conceiving, and forbids them to commit, what is rash or unjust.”
[In other words, they can enjoy more liberty and be confined by less forceful
human law because beliefs in Christian obligations makes them better selfgovernors. Returning to de Tocqueville’s quotation, he continued:]
“Religion in America takes no direct part in the government of society, but it must be
regarded as the first of their political institutions; for if it does not impart a taste for
freedom, it facilitates the use of it.... I do not know whether all Americans have a sincere
faith in their religion; for who can read the human heart? But I am certain that they hold
54
federalist.com, 03-07 Brief (2004).
55
Democracy in America, (1835) Vol. 1, Part 2, Chapter XVII: Principal Causes Which Tend to Maintain the
Democratic Republic in the United States.
19
it to be indispensable to the maintenance of republican institutions. This opinion is not
peculiar to a class of citizens or to a party, but it belongs to the whole nation and to every
rank of society.
***
“The Americans combine the notions of Christianity and of liberty so intimately in their
minds that it is impossible to make them conceive the one without the other....
“...Despotism may govern without faith, but liberty cannot. Religion is much more
necessary in the republic...than in a monarchy...; it is more needed in democratic
republics than in any others. How is it possible that society should escape destruction if
the moral tie is not strengthened in proportion as the political tie [to a monarch] is
relaxed? And what can be done with a people who are their own masters if they are not
submissive to the Deity?”56
Again, we should note that even though the 1st Amendment prohibits the establishment of a
particular Christian sect at the national level, the founders sought to create and perpetuate a de
facto establishment of general Christianity throughout the nation and saw that as being essential
to preserving our liberties. Here, de Tocqueville’s observation as an outsider, tends to confirm
this was the original intended political condition of America.
Although I am about to quote him out of context (because the following segment comes from his
discussion of jury trials), in view of what he said above, I think de Tocqueville would agree that
when we divorce ourselves from the moral notions of right and wrong, “the love of independence
[and liberty] becomes a mere destructive passion.”57
Morality and Virtue Determine How Much Liberty A People Can Enjoy
A moral principle can reside in one of two spheres. On the one hand it can reside in what I will
call the sphere of “moral-persuasion/liberty/freedom” or it can reside in what I will call the
sphere of “legal-mandate/force.” The relative sizes of these two spheres depends upon how
virtuous and moral a given society is. The more moral and virtuous a particular society is, the
more it can depend upon self-governance and the less it must depend upon the force of human
law to maintain peace, order, safety, and prosperity. Alternatively, the less moral and virtuous a
particular society, the more it must rely upon the force of human law to promote such things.
In his work, The Devils, Dostoevski observed: “Those who begin with unlimited freedom, must
end with unlimited despotism.”58 “‘When chaos threatens,’ said Goethe, ‘men seek order rather
than justice. Then the man on the white horse appears....’”59
56
Id.
57
Id. Vol. 1, Part 2, Chapter XVI: Causes Which Mitigate the Tyranny of the Majority in the United States.
58
Quoted by Russel Kirk, Redeeming the Time, pp. 233 & 236.
Theodore Dalrymple, “Lock them up first: how liberalism begets fascism,” The Daily Telegraph, London,
10/9/02.
59
20
These observations make sense since unlimited individual freedom unbridled by a sense of
morality or virtue would result in anarchy and terror which could only be cured by a strong
centralized hand. At some point in time, the people would beg somebody to save them and
would be willing to give that person unlimited power to bring safety, peace and order back to
society. Then once this raw power has been given to somebody, almost invariably, if not
invariably, he eventually uses that power in despotic ways.
At about the same time de Tocqueville published his commentary on America, an Austrian
immigrant, Francis Grund, published two commentaries about America which were quite similar
in observation. He suggested that there was a connection between the Americans’ “domestic
habits” and their religious beliefs. Concerning Grund, Vetterli and Bryner observed:
“In all the world, he commented, ‘few people have so great respect for the law and are so
well able to govern themselves.’ Perhaps, he surmised, they were ‘the only people
capable of enjoying so large a portion of liberty without abusing it.’ ‘I consider the
domestic virtue of the Americans as the principle source of all their other qualities. It
acts as a promoter of industry, as a stimulus to enterprise and as the most powerful
restraint of public vice....No government could be established on the same principle as
that of the United States with a different code of morals. The American Constitution is
remarkable for its simplicity; but it can only suffice a people habitually correct in their
actions, and would be utterly inadequate to the wants of a different nation. Change the
domestic habits of the Americans, their religious devotion, and their high respect for
morality, and it will not be necessary to change a single letter in the Constitution in order
to vary the whole form of their government.’”60
As will be developed in a future lecture, through judicial activism the Supreme Court has done
much to change our form of government without our formal changing of a single letter in the
Constitution.
Edmund Burke observed:
“Men are qualified for civil liberty in exact proportion to their disposition to put moral
chains upon their own appetites....Society cannot exist, unless a controlling power upon
will and appetite be placed somewhere; and the less of it there is within [in other words,
self control], the more there must be without [in other words, forceful human laws]. It is
ordained in the eternal constitution of things, that men of intemperate minds cannot be
free. Their passions forge their fetters.”61
Benjamin Franklin said:
“Only a virtuous people are capable of freedom. As nations become corrupt and vicious,
they have more need of masters.”62
60
Richard Vetterli and Gary Byrner, In Search of the Republic: Public Virtue and the Roots of American
Government, p. 5; quoting Francis Grund, Aristocracy in America (reprinted in New York; Harper, 1959), pp.21213.
61
Edmund Burke, Works, 4:51-2.
62
Smythe Ed., Writings of Benjamin Franklin, Vol. 9, p. 569.
21
In a similar vein, Grant Gilmore, a former law professor at Yale reputedly quipped:
"The worse the society, the more law there will be. In Hell there will be nothing but
law."
Neal A. Maxwell observed:
“Our whole republic rests upon the notion of ‘obedience to the unenforceable,’ upon a
tremendous emphasis on inner controls through self-discipline. The historians Will and
Ariel Durant observed that ‘if liberty destroys order, the hunger for order will destroy
liberty.’ But keeping liberty and order in tension balance requires tremendous selfdiscipline in the citizenry of a nation.
“Can we really afford the ultimate costs of governments which, in lieu of self-discipline,
impose more and more outer controls?”63
According to Vetterly an Byrner, our founders and framers assumed “that there was sufficient
virtue to make a system based on individual liberty work. If there was insufficient virtue, then
order would have to be imposed by force and coercion, by pervasive governmental intervention
in individuals’ lives.”64
All these people recognize the basic principle that we can afford to have the sphere of moralpersuasion/liberty/freedom remain relatively large and the sphere of legal-mandate/force remain
relatively small, only when the people have a strong moral and virtuous base. When that moral
base weakens, the relative sizes of the two spheres necessarily reverse with the sphere of legalmandate/force growing larger for the sake of maintaining public peace, order, and safety.
When Religious Institutions Are Weakened, Barbarism Lurks in the Offing
The various quotes given above indicate that religion was a part of our great American success
story. But today many people seem to argue, in effect, that it was really not a necessary or
critical part of our success formula so they seek to excise any trace of it from law and
government. It is a historical fact that our founding generation, and most succeeding
generations, firmly believed there to be a causal connection between (1) public and private
morality fostered by sincere religious belief and (2) our national success as a free people. The
question for Americans today is whether that connection was truly causal or merely coincidental.
Time will tell who was right.
Before we buy into the coincidence argument, however, we should consider what historians Will
and Ariel Durant said:
“Out of every hundred new ideas ninety-nine or more will probably be inferior to the
traditional responses which they propose to replace. No one man, however brilliant or
63
The Prohibitive Costs of a Value-free Society, an address given to the Salt Lake City Rotarians, Feb. 7, 1978.
64
Richard Vetterli and Gary Byrner, In Search of the Republic: Public Virtue and the Roots of American
Government, p.4.
22
well-informed, can come in one lifetime to such fullness of understanding as to safely
judge and dismiss the customs or institutions of his society, for these are the wisdom of
generations after centuries of experiment in the laboratory of history.”65
Thomas Sowell observed:
“...barbarism is not some distant stage of evolution, but an ever-present threat when the
civilizing institutions [like religion] are weakened or undermined:
‘Civilization is not inherited; it has to be learned and earned by each generation
anew; if the transmission should be interrupted for one century, civilization would
die, and we should be savages again.’[Will and Ariel Durant]”66
In 1938 Evelyn Waugh observed that:
“Barbarism is never finally defeated; given propitious circumstances, men and women
who seem quite orderly will commit every conceivable atrocity. The danger does not
come merely from habitual hooligans; we are all potential recruits for anarchy.
Unremitting effort is needed to keep men living together at peace....The more elaborate
the society, the more vulnerable it is to attack, and the more complete its collapse in case
of defeat.”67
Those who dislike religion and wish to excise all vestiges of it from public and political life,will
eventually discover the error noted by David M. Whalen when he said: “...much of what we
would like to think of as inconsequential is often hugely consequential.”68 Perhaps after it is too
late, they will realize how important religion really was in preventing a return to barbarism.
God Controls the Destiny of Nations
During the Constitutional Convention, James Mason argued that slavery should be abolished.
Said he:
“Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a
Country. As nations can not be rewarded or punished in the next world they must be in
this. By an inevitable chain of causes & effects providence punishes national sins, by
national calamities.”69
Regarding our country’s allowance of slavery, Jefferson similarly warned:
65
Will and Ariel Durant, The Lessons of History, p. 35.
66
The Vision of the Anointed, Basic Books (1995) p.118; Interior quote: Will and Ariel Durant, The Lessons of
History, p.101.
67
Quoted in “Notes & Comments,” The New Criterion, Sept. 2001. http://www.newcriterion.com/
68
“The Affinity of Literature and Politics,” The Intercollegiate Review, Vol. 37, Fall 2001, p. 25.
69
Marjorie Ashworth, To Create a Nation, the Link Press, 1987, p.175.
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“...can the liberties of a nation be thought secure when we have removed their only firm
basis, a conviction in the minds of the people that these liberties are the gift of God?
That they are not to be violated but with his wrath? Indeed I tremble for my country
when I reflect that God is just: that his justice cannot sleep forever...”70
Our founding fathers clearly believed in this dynamic as did later generations. Look at President
Lincoln’s Thanksgiving Day Proclamations where he connected our bloody Civil War with our
national “sins” and our “national perverseness and disobedience.”
An Example of What Our Federal Courts Have Done to Radically Change Our Governmental
Approach to General Christianity
So let’s quickly recap some points made to help us judge the propriety of what our U.S. Supreme
Court has done to us regarding these matters through judicial activism. Jefferson argued that
liberty can only survive long term when the people retain their conviction that liberty is a gift
from God. Our founders looked at public and private virtue as a precondition to successful
republican government. Madison said that without virtue in the people, our government and our
liberties could not survive. Washington cautioned us that religion and morality are indispensable
supports for political prosperity because they instill a necessary sense of civic duty in the people
to make them good self-governors. Francisco Petrarch taught that just talking about virtue does
not create a sufficient incentive to live a virtuous life. He said that instilling a love of God in the
people is the surest way to instill a love of virtue in the People and increase the chances of their
deciding to actually live virtuous lives. Joseph Story expressed profound doubt that “any free
government can be permanent, where the public worship of God, and the support of religion,
constitute no part of the policy or duty of the state in any assignable shape.” The very first
Congress which passed the 1st Amendment not only recommended a national day of prayer as an
expression of public worship, they also saw the need for our educational system to promote
religion and morality for the sake of creating and maintaining good government. Vetterly and
Byrner said that even though the founders did not want to establish a particular Christian sect as
the one favored by the federal government, they effectively sought to promote a generalized
notion of Christianity composed of moral principles and precepts with which all Christian sects
would likely agree. According to Joseph Story, as long as this was done in a way that did not try
to force individual conscience, it did not violate the establishment clause of the 1st Amendment.
Now, as an example of our attempt to sustain those original public policies and instill within our
public school students a love of virtue by trying to instill a love for and respect of God, consider
the school prayer that was eventually struck down by the U.S. Supreme Court as violating the
establishment clause of the 1st Amendment. It read:
“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings
upon us, our teachers and our country. Amen.”71
The ones who wrote that prayer even went beyond an attempt to create a generalized Christian
prayer that would please any Christian. They apparently sought to craft a prayer that would be
70
Notes on the State of Virginia. Reproduced at: http://www.monticello.org/reports/quotes/memorial.html
71
Engel v. Vitale (370 U.S. 421 (1962))
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acceptable to people of almost any religion. Nevertheless, the Supreme Court said it couldn’t be
done. Instead, through its various holdings, it has held that a faith in Godless naturalistic
evolution must be taught in schools but not any sort of thing that would tend to increase our
school children’s faith in God.
When those on the left argue that any positive theistic statement made in our public schools
violates the establishment clause of the 1st Amendment and is thus “unconstitutional,” couldn’t
the same argument be turned against them regarding their insistence that only an atheistic version
of evolution must be taught in those schools? To be logically consistent, doesn’t that “establish”
an atheistic religion or faith?
Let me end by connecting this to some things that were discussed earlier. Referring specifically
to the earlier quote from Joseph Story, a school prayer like the foregoing does not attempt to
force conscience since no attempt is made to officially reward or punish a student for either
believing it, or disbelieving it. Moreover, it does not prevent anyone from practicing his own
religion, so it does not violate the “free exercise” clause of the 1st Amendment. And since it does
not attempt to favor or recognize any particular religious sect over another, it does not violate the
“establishment” clause of the 1st Amendment.
In the words of Will and Ariel Durrant, that prayer merely represents a public expression of “the
wisdom of generations after centuries of experiment in the laboratory of history.” It simply
suggests to the student that while he might be inclined to personally reject the general theistic
professions of that prayer, perhaps he would be wise to be a little more humble and thoughtful
about the matter since a contrary position would run counter to the foundation upon which our
founding generation built the most successful and free country the world has ever seen. It causes
the students to seriously consider whether or not they are really smarter than those people—
whether our firm and almost universal national belief in general Christianity was a critical
component of our national success story, or just an inconsequential part of our American history.
When the Court says that our public schools cannot have any such prayers and must teach our
students a faith in Godless naturalistic evolution, isn’t that effectively communicating to our
students that “the wisdom of generations after centuries of experiment in the laboratory of
history” really teaches us that faith in God is foolishness? Doesn’t it effectively teach our
children that we are the random offspring of apes and not the children of God? There are many
powerfully opposing legal and political implications that derive from the one belief as opposed to
the other. As Dostievsky observed--if there really is no God and thus no duties that are owed to
Him, then everything our hearts desire is permissible and carries no inherent moral implications
of good or evil, right or wrong, but rather, simply represent morally neutral alternative lifestyles.
It has now been over 50 years since the Supreme Court held the foregoing school prayer to be
unconstitutional. One can only wonder what America would be like today and how many
troubles we could have avoided had those Justices not thumbed their noses at our founders and
effectively encouraged a largely irreligious generation of Americans.
Contrary to Washington’s warnings in his farewell address, America has chosen to follow the
example of the French revolution—effectively our Supreme Court has led the charge for our
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revolution against God in favor of our own version of “Goddess of Reason.” It didn’t end well
in France and it won’t end well here.
In effect our Supreme Court has changed our national motto from “In God We Trust” to “In God
We Do Not Trust.” That is effectively what it has done in its rulings on school prayer, public
Christmas decorations, displays of the 10 Commandments on public property, pornography,
abortion, the definition of marriage, etc. The Court has effectively changed the phrase “freedom
of religion” to “freedom from religion.” While liberals/progressives and libertarians might agree
with those holdings, conservatives generally do not.
I think Fransesco Petrarch would criticize both modern liberalism and libertarianism because
while they might “talk a good game” about the need for virtue and morality, their favored legal
policies lack sufficient strength to successfully urge the people to go beyond merely “knowing”
virtue to “loving” it; beyond merely “understanding” it to “willing” it.
Conclusion
Don’t worry—I’m almost done with this session. For the sake of connecting the various dots
discussed in this lecture and enhancing your ability to understand and remember them, let me
briefly summarize what we have discussed today. Remember, repetition is important for longterm learning and retention.
Our founders believed in the reality of natural law which nations can ignore only at their peril.
They believed that the American republic could not survive if it lacked sufficient virtue and
morality in the people and such could not be maintained absent religious support. The 1st
Amendment was designed to (1) avoid the establishment of a particular Christian sect as our
national religion like the Church of England and (2) proscribe the forcing of conscience, but it
was not designed to inhibit governmental encouragement of generalized Christianity for that was
viewed as the most effective institutional force to instill true and correct morality and virtue
within the populace.
The appropriate degree of separation between church and state, was originally thought to be a
state issue, not a federal one. In a later lecture on the 14th Amendment, I will discuss when and
how things changed regarding this matter – as you probably anticipated, however, this change
did not occur through democratic processes, but rather, was forced upon us by our federal courts
through an incorrect interpretation of both the 14th Amendment and the establishment clause of
the 1st Amendment.
Without a virtuous and moral people who are willing to self-govern themselves, it would become
necessary to apply more costly external force through human law to maintain peace, order,
safety, and prosperity. In other words, when public and private virtue/morality are high in the
populace, the sphere of moral-persuasion/liberty/freedom can be large relative to the sphere of
legal-mandate/force. But the relative sizes must reverse when virtue and morality are generally
low.
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A belief in God and our ultimate moral accountability to Him, tends to make people better selfgovernors, and the vast majority of the people have to be good self-governors in order for a
country to preserve its liberty and avoid drowning in a treacherous, unpredictable, and
overwhelming sea of human law.
I teach business law, and to give you an example of how we are currently drowning in such an
economically discouraging sea, consider how many of the following laws would become
unnecessary if America returned to its general Christian roots including such things as the
scriptural injunction to be honest and Christ’s admonition to do unto others as you would have
them do unto you, and to forgive those who do you wrong. In such an environment, couldn’t we
do away with our:
Various employment laws,
Anti-discrimination laws,
Sarbanes-Oxley (which was passed in response to the dishonesty of Enron and its
Auditors and which costs public companies about $3.9 million in annual
accounting compliance costs),
Federal securities laws,
Consumer protection laws like:
the Consumer Product Safety Commission;
the Federal Trade Commission Act of 1914 prohibiting deceptive advertising,
labeling & packaging;
the Federal Drug Administration which approves the safety of foods and drugs;
the Consumer Credit Protection Act;
the Equal Credit Opportunity Act;
the Consumer Credit Leasing Act of 1988;
the Fair Credit Reporting Act of 1970;
the Fair & Accurate Credit Transaction Act of 2003;
the Fair Debt Collection Practices Act of 1977;
Most of our criminal laws;
Much of our contract laws;
Our environmental laws;
Most of our tort laws,
Our Welfare state redistribution laws,
Etc.
Those, and many other laws, create a huge sphere of legal mandate/force at the expense of our
diminished sphere of moral persuasion/liberty/freedom. Rather than doing those things that
would effectively enhance the level of virtue and morality in the people so they will be more
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inclined to exercise self control and self restraint, we have chosen to use forceful punishment at
the hands of the government to try to maintain peace, order, and safety. In the words of Edmund
Burke, we now tend to favor restraints imposed from “without” over those imposed from
“within.”
When religious institutions are weakened, and the people lose their moral bearings, barbarism
lurks in the offing. And all of the foregoing indicate why, the ACLU’s and others’ attempts to
excise all vestiges of religion from the public square, are so dangerous to the future of our
country. Of course in so many words they will deny any sort of hostility towards religion, but
their extremist legal body-language screams out to the contrary.
There has been too much separation of government from virtue and morality. As discussed
further in the next lecture, states should start demanding that their 10th Amendment rights be
restored regarding their ability to democratically make the various trade-off decisions
surrounding this topic. Religious people of all parties need to re-inject their core moral beliefs
into the political arena. We need to let the candidates know that we will only cast our votes in
favor of virtuous and moral people who are willing to vote their moral consciences even in the
face of ridicule. The general political mood needs to be shifted back to our roots where religion
was prized and respected rather than ridiculed.
In these lectures I accuse the federal courts of forcing many things upon us, but they could not
proceed so effectively without our consent and even complicity. While it is true that our federal
courts are not democratically controlled, they are politically influenced. If they sense widespread moral and political revulsion for what they do, they will likely back off. But if the silent
majority stays perpetually silent, then like a child, the courts will continually probe and test the
outer bounds of publicly acceptable propriety – continually pushing until they are finally
stopped. Every religious person has both a moral and political duty to become politically active.
In our own words and from the bottom of our hearts, we need to write our elected officials and
express our views. And we need to get others to do likewise.
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