Justice David Josiah Brewer and the "Christian nation" maxim.

• Author: Green, Steven K.

One of the more controversial yet least understood pronouncements by the United States Supreme Court is its 1892 declaration that the United States "is a Christian nation."(1) The statement, appearing in an otherwise obscure decision interpreting an immigration law, Church of the Holy Trinity v. United States,(2) was drafted by Justice David Josiah Brewer, a jurist known for his outspoken religious and social views.(3) For adherents of minority religious faiths and others from non-Christian traditions, this statement represents a low-point in church-state jurisprudence and the struggle for religious equality.(4) Not surprisingly, the declaration has roundly been criticized by scholars and even members of the Court itself.(5) Judges and commentators have panned the Christian nation pronouncement as "arrogant" and anachronistic, an "aberration," or at best, as stating a mere "truism."(6) At times, criticism has been directed as much at the Justice who wrote the words as at the declaration itself.(7)

Still, the "Christian nation maxim," as it has been called,(8) resonates with certain audiences, just as it did over one hundred years ago.(9) For a small number of people, the declaration represents an authoritative statement by the nation's highest court about America's Christian foundations.(10) Some religious conservatives have pointed to this statement as official confirmation that the nation's political and legal systems are based on Christian principles.(11) The Christian nation declaration has also served as ready ammunition for arguments that the Court's church-state decisions since 1940 have strayed from both history and legal precedent,(12) and that Christian principles deserve (re)incorporation into the warp and woof of America's political and legal institutions.(13) As evangelical lawyer John Whitehead of the Rutherford Institute has written, "Christian theism was once the foundation undergirding law and government," but since the 1940s, that underlying premise "has shifted from biblical revelation to humanism."(14)

A much larger number of people have been drawn to the declaration, not as an expression of formal legal doctrine, but as an acknowledgement that Christian traditions and principles have informed the law and our nation's public life.(15) Some have argued that since the mid-twentieth century the Court has advanced an individual rights theory at the expense of communitarian values, such that religious influences in the law have largely been ignored.(16) One scholar who has written extensively about the religious influences on the law, Emory Law School Professor Harold J. Berman, laments the loss of a "moral dimension" to the American legal system and advocates greater recognition of the law's Christian basis.(17) Relying on Holy Trinity as authority, Professor Berman maintains that "[p]rior to World War I the United States thought of itself as a Christian country, and more particularly as a Protestant Christian country; since then it has ceased to do so."(18) Although not pleading for a "return to some golden age" based on biblical laws, Berman nevertheless bemoans the "irrevocable transition of twentieth-century America from a nation which had previously identified itself as Protestant Christian to a nation of plural religions" and the resulting loss of religious influences on public life.(19)

Most modern discussions of the Christian nation declaration, both pro and con, have failed to examine the statement from the viewpoint of its author or the context within which it was written.(20) This is somewhat surprising for a decision that, according to commentator Anson Phelps Stokes, is "[o]ne of the most authoritative statements of the fundamental importance of religion in general and of Christianity in particular to the American State."(21) Few commentators on Holy Trinity have given due consideration to the complexity of Brewer's own religious and social views or have bothered to explore how Brewer and the Court subsequently interpreted the decision.

Simply put, Brewer would have disagreed with most uses of his declaration, specifically with regard to claims that the law is obliged to support or advance Christian principles.(22) Although Brewer assumed the moral character of the American experience, he did not believe that society could legislate morality.(23) Moreover, he did not subscribe to the notion that the law had a moral quality or function.(24) For him, the phrase was descriptive of the culture, not legally prescriptive.(25) Brewer also would have been surprised by modern criticism that the maxim supported a Protestant hegemony that rendered other faiths second-class.(26) To Brewer, the concept embraced only the most generous and inclusive qualities of Christian religion.(27)

One reason that the Christian nation declaration has been so misinterpreted is that modern commentators have failed to appreciate the nuances in Brewer's statements and the historical context within which they were made. The issue of America's Christian nationhood was a common theme during the nineteenth century, particularly during the antebellum era.(28) Claims about the role of divine providence in the nation's founding, of God's direction of America's manifest destiny, and of America's special role in bringing about the second coming of Christ resounded in sermons, speeches, and the popular literature.(29) Building on these visions, the Christian nation maxim generally stood for a culture in which Protestantism received preferential treatment and recognition in the political and legal arenas.(30) Describing the situation he encountered during the 1830's, de Tocqueville wrote that Christianity "exercises but little influence upon the laws, ... but it directs the customs of the community, and, by regulating domestic life, it regulates the state."(31) Or, as one American commentator declared in mid-century, the Framers, all being Christian men

did not intend, in yielding to others political and religious freedom, to lessen their own privileges, nor to diminish the proper authority of Christianity in the land; they intended that the nation should continue to be a Christian nation,-- that Christian morality should still pervade its legislation and social system....(32) This perspective, although tempered later by the horrors of the Civil War, remained active in the minds of many Americans throughout the nineteenth century.(33)

Though primarily an extra-legal concept, the Christian nation maxim was also embraced by judges, lawyers and legal commentators.(34) As part of the "de facto [Protestant] establishment," antebellum judges sometimes sprinkled their opinions with religious rhetoric--such as asserting that "Christianity is a part of the common law"--while enforcing religious norms through blasphemy and Sunday law prosecutions and qualifications for oath-taking.(35) Mark DeWolf Howe exaggerated the situation only slightly by asserting:

[T]he early state reports are full of cases in which decisions were affected and sometimes controlled, by the thesis that Christianity is a part of the common law.... This fact seems to me to constitute persuasive evidence that it was a common assumption in the first decades of the nineteenth century that state governments may properly become the supporters and the friends of religion.(36) Contrary to what other commentators have suggested, nineteenth century cases frequently turned on how close a particular offense or controversy deviated from accepted Christian norms.(37) Although blasphemy prosecutions and exclusions from oath taking died off by mid-century and Sunday laws were later justified on public health and welfare grounds, the legacy of a close relationship between Christianity and the law persisted.(38) Justice Brewer's declaration had its roots in this perspective while it also anticipated (if not lamented) America's inevitable shift to a post-Christian, secular nation.(39)

This Essay will examine both the Holy Trinity decision and its author within the context of its time to discover the legal significance of the declaration that "America is a Christian nation."(40) To date, the biographical studies of Justice Brewer have given little attention to the religious inclinations of this complex Justice.(41) An examination of Justice Brewer's religious and social philosophy reveals an amalgam of forces and themes that belie the maxim's popular use.(42) While this Essay cannot provide a complete picture of Brewer's religious philosophy, it will seek to illuminate his understanding of church-state relations and the meaning of this misunderstood, and often misused, statement.

JUSTICE DAVID BREWER AND HIS TIMES

David Josiah Brewer served as Associate Justice of the United States Supreme Court from 1890 to 1910.(43) Son of a Congregationalist minister-missionary, Brewer had been the scion of one of the nation's more prominent legal families.(44) David Dudley Field, Brewer's oldest uncle, was a prominent attorney and the preparer of the influential 1848 New York Code of Civil Procedure that was eventually adopted by twenty-three other states.(45) Brewer's second uncle, Stephen J. Field, served on both the California and United States Supreme Courts.(46) Brewer and Field's tenures on the Court overlapped nine years, the only time in Court history that two close relatives served concurrently.(47)

Although overshadowed by contemporaries such as Justices Field, John Marshall Harlan, and the celebrated Oliver Wendell Holmes, Jr., Brewer was both a forceful leader on the Court and visible public figure.(48) He wrote more than 719 opinions, including many of the era's more important decisions.(49) Brewer is remembered primarily as an economic conservative and leader of the infamous(50)--but overstated(51)-conservative clique on the Court. Decisions such as United States v. E.C. Knight Co.,(52) Pollock v. Farmers Loan & Trust Co.(53) Allgeyer v. Louisiana,(54) and Lochner...