AuthorChapman, Nathan S.

INTRODUCTION 1440 I. Echoes of Eschatology in U.S. Constitutional Law 1443 A. The Brennan Paradigm 1444 B. Echoes in Doctrine 1445 II. Eschatology in American Civil Religion 1449 A. American Civil Religion 1450 B. America's Moral Destiny 1451 C. The Constitution as Sacred Text 1453 III. Streams of American Eschatology 1455 A. Christian Eschatology: A Primer 1455 B. American Postmillennialism 1457 C. Liberal Protestantism 1458 D. King and the Civil Rights Movement 1461 IV. Reflections on Secularization and Neutrality 1462 A. Secularization 1463 B. Neutrality 1465 Conclusion 1468 The role of social and religious sentiment, which was once so critical in the life of our societies, has been largely taken over try law. (1) INTRODUCTION

At the heart of American constitutionalism is an irony. The United States is constitutionally committed to religious neutrality; the government may not take sides in religious disputes. Yet many features of constitutional law are inexplicable without their intellectual and cultural origins in religious beliefs, practices, and movements. The process of constitutionalization has been one of secularization. The most obvious example is perhaps also the most ideal of liberty of conscience that fueled religious disestablishment, free exercise, and equality was born of a Protestant view of the individual's responsibility before God.

This Essay explores another overlooked instance of constitutional secularization. Many jurists and scholars count the modern Supreme Court's progressive interpretations of constitutional rights and equality provisions among the nation's greatest achievements. Scholars have given little attention, however, to the religious origins of those decisions. This Essay suggests that they were heavily influenced by Christian ideas of moral and social progress.

Nineteenth- and twentieth-century Christian intellectual and political movements grounded in post-Enlightenment views of eschatology--or "the last things"--contributed to a doctrine of American civil religion that in turn contributed to the Supreme Court's reasoning. That doctrine of American civil religion holds that America has a special moral destiny. From at least the early nineteenth century, many Americans have believed their nation to be a "city on a hill," (2) built and directed by Providence to lead the world in moral reform. The doctrine is well captured by a phrase first written by a nineteenth-century Unitarian minister but popularized by Martin Luther King Jr. and President Barack Obama: "The arc of the moral universe is long, but it bends towards justice." (3) Numerous Presidents, of both political parties, have further distilled the concept by emphasizing the importance of being on the "right side of history." (4)

Beginning in the mid-twentieth century, the Supreme Court deployed a secularized version of this doctrine in constitutional decisions about rights and equality. The incorporation of the Bill of Rights, the "evolving standards of decency" doctrine under the Eighth Amendment, and the "new insights" into liberty and dignity that inspired the landmark decision to extend the marriage rights to same-sex couples all implemented the beliefs that morality is progressive and the U.S. Constitution incorporates that progress. (5) Though many current members of the Court reject this view of constitutional interpretation, most scholars still hold it. (6) They do not appreciate, however, that the intellectual origin of this view is a theologically controversial position on an esoteric question of Christian theology, strained through the generalizing dynamics of American civil religion.

The secularization of disputed Christian eschatology into constitutional law challenges two of the core tenets of modern liberalism. The first is that liberal constitutionalism is coherent and stable without theological suppositions. As some scholars appear to appreciate, a constitutional commitment to moral progress, regardless its initial motivation, boils down to hope. A theistic view would ground that hope in a synthesis of ontology, epistemology, and human freedom; a secularized version has little to hope for but hope itself. (7)

The second challenge for modern liberalism is to constitutionalism's pretension to religious neutrality. The development of the constitutional norm of moral progress illustrates that religion and constitutional law are a two-way street: specific religious beliefs influence American civil religion, which influences constitutional law; and, as a prime actor in the American civil religion, the Court's implementation of those norms advances one contested religious doctrine over another, effectively determining the content of the civil religion and shaping the terms around which specific religious groups, in this case Christians, engage in their own theological disputes. (8)

This Essay first attempts to understand how a contested Christian doctrine found its way into constitutional law. It does so through a reverse genealogy of ideas--an archaeology, perhaps. The Essay begins by sketching how U.S. constitutionalism, in both theory and doctrine, reflects the belief that the "arc of the moral universe is long, but it bends toward justice." It then suggests that underlying this constitutional theme is a merger of two features of American civil religion: the tradition of treating the Declaration of Independence and the Constitution as the central texts of a sacred canon and the belief that America has a special moral destiny.

The Essay then unearths the religious streams contributing to the doctrine of moral destiny. Each of them reflects a position on Christian eschatology. The first is the postmillennial movement among mainstream and evangelical American Protestants beginning in the Second Great Awakening, a movement that birthed a wide range of associational efforts to promote social progress. The second and third were both influenced by the Hegelian school's philosophy of history, in which God is synonymous with human conscience, social conflict, and an inexorable trajectory of moral progress. These streams include the liberal Protestant movements of the late nineteenth and early twentieth centuries, and the deliberate secularization of historical eschatology by pragmatists like John Dewey. (9) The stream nearest in time to the constitutionalization of this doctrine was the religious leadership of the civil rights movement, especially Martin Luther King, Jr. Together, these streams leant rhetorical power to President Kennedy's appeal to the Puritan image of America as a "city upon a hill." (10)

The Essay concludes by reflecting on this development. Scholars have not appreciated how much U.S. constitutional law reflects American civil religion, which itself reflects the various and often competing religious beliefs of Americans. Each of these--constitutional law, civil religion, and denominational religion--influences the others. This suggests new challenges for the ideal of governmental neutrality, both among competing notions of American civil religion and among diverse religious groups.


    Constitutional jurists and scholars dispute whether constitutional law should reflect progressive notions of justice, liberty, and equality. This used to be a dispute between originalists and everyone else, but now even some originalists believe the Constitution's provisions on liberty and equality require significant "construction," and may, or should be, read progressively. (11) So far, scholars have largely ignored one of the most vital intellectual sources of constitutional progressivism. When the Supreme Court bakes a theory of moral progress into constitutional law, it implements, however unwittingly, tenets of the American civil religion, which itself incorporates ideas that began in post-Enlightenment Christian eschatologies.

    Because this Essay proceeds by reverse chronology, a brief introduction to Christian eschatology may help set the stage. (12) Eschatology means the study of last things. Christian eschatology encompasses beliefs about the destiny of individuals--death, resurrection, judgment, and eternal destination--as well as the destiny of the world--judgment, destruction, and new creation. Christians disagree among themselves, sometimes vehemently, about the details of eschatology. This Essay focuses on one family of American eschatological views that grew out of the Enlightenment, those that hold that the kingdom of God is coming to earth gradually through the good works of the church. The point is neither to endorse nor criticize this view on theological grounds, but to convey it, and its influence on American civil religion and constitutional law, as accurately as possible.

    1. The Brennan Paradigm

      Justice William Brennan's theory of constitutional interpretation exemplifies this influence. In a speech at Georgetown University, Brennan declared that

      the Constitution embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. The Declaration of Independence, the Constitution and the Bill of Rights solemnly committed the United States to be a country where the dignity and rights of all persons were equal before all authority. (13) The Founders' "commitment" to the equal "dignity and rights of all persons," "a sparkling vision of the supremacy of the human dignity of every individual," (14) was forward looking. "It is a vision that has guided us as a people throughout our history, although the precise rules by which we have protected fundamental human dignity have been transformed over time in response to both transformations of social condition and evolution of our concepts of human dignity." (15) Originalism fails, Brennan argues, because it "turn[s] a blind eye to social progress and eschew[s] adaptation of overarching principles to changes of social circumstance. " (16) The...

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