In the May issue of First Things, Antonin Scalia published some of his views on the intersection of his Catholicism and his job as a Justice of the Supreme Court. Scalia made the case that the Vatican's general opposition to the death penalty is not a "binding" teaching requiring adherence by all Catholics. This is important to Scalia because as a Supreme Court Justice, he is often called upon to make the final decision to impose capital punishment.

In July, Sean Wilentz, a distinguished professor of history at Princeton University, responded with an op-ed in The New York Times, decrying Scalia's "Chilling Vision of Religion's Authority in America." According to Wilentz, Scalia "seeks to abandon the intent of the Constitution's framers and impose views about government and divinity that no previous justice, no matter how conservative, has ever embraced." This is a startling assertion, and deserves some careful attention.

What exactly is this "view about government and divinity" that Wilentz finds so chilling? It is simply this: that in Scalia's view Catholic judges ought to resign rather than uphold laws that directly contradict church doctrine. (Hence, Scalia's attempts to reconcile his own judicial support for the death penalty in the face of general Catholic disapproval of capital punishment.) Wilentz can portray this seemingly logical and simple proposition as dangerously radical because he is a passionate advocate for a public square from which considerations of faith have been banished. Above all, Wilentz cannot stomach the notion that American judges (and citizens for that matter) ought to be mindful of what Scalia calls the "divine authority behind government."

Such views of religion—that it belongs "at home" or "in church"—are certainly not a rarity these days. What makes Wilentz's piece in the Times noteworthy is the way he distorts both American history and Christian theology to support his argument. Given his stature as a historian—and as the director of the American Studies Program at Princeton—this distortion is no small matter.

Exhibit A in Wilentz's case in favor of a "naked public square" is Roger Williams. As founder of Rhode Island and the grandfather of the religion clauses of the First Amendment, Williams was a man both passionately Christian and passionately insistent on keeping the affairs of church and state separate. It is true, as Wilentz says, that Williams believed that government was "merely human and civil." In perhaps his clearest exposition of that subject, Williams wrote in 1644 that:

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[F]rom this grant I infer (as before hath been touched) that the sovereign, original, and foundation of civil power lies in the people (whom they must needs mean by the civil power distinct from the government set up). And, if so, that a people may erect and establish what form of government seems to them most meet for their civil condition; it is evident that such governments as are by them erected and established have no more power, nor for no longer time, than the civil power or people consenting and agreeing shall betrust them with. This is clear not only in reason but in the experience of all commonweals, where the people are not deprived of their natural freedom by the power of tyrants.

But what "grant" is Williams referring to? In the paragraph immediately preceding, Williams made himself clear: "I acknowledge the proposition to be most true, both in itself and also considered with the end of it, that a civil government is an ordinance of God."

Thus, the "grant" from which Williams infers that the civil power of the State flows from the people is a divine grant—a fact Williams acknowledged to be "most true." And yet according to Wilentz, "Williams declared that government derived no authority whatsoever from God."

The same story can be told with each of the anti-religion-in-public-life "examples" Wilentz marshals to his cause. Yes, Thomas Jefferson held, as Wilentz points out that "civil rights have no dependence on our religious opinions." However, surely Wilentz is familiar with that other document authored by Jefferson—the one that says, "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." Rights, according to Jefferson, do not depend on man's opinion, but on something higher and more sound—God's opinion.

Wilentz goes on to deride the view of 18th-century minister Jonas Clark that "religion is 'the source of liberty, the soul of government and the life of a people.'" For Wilentz, such a view is a historical anomaly; it is "eccentric," and it "has no appreciable place in our constitutional history because the framers rejected it." The man most responsible for America's founding—George Washington—thought otherwise. In his farewell address in 1796, the beloved Washington reminded his fellow countrymen:

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 to 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 which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
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Wilentz is right about one thing: the genius of the founders was in their commitment to the "idea that sovereignty rested with a free people, even if some among those people didn't believe in God, or in the same God, or in the same way." We are still reaping the benefits of this wisdom. Wilentz's error is in his understanding of secular "sovereignty" as exclusive. To the contrary, for the framers, the sovereignty of a free people was always a sovereignty "under God."

Catholicism as "mind control"?

As disturbing as Wilentz's historical distortions of America's civil religion are, even worse is his attack on Christianity, and Catholicism in particular. "Mr. Scalia apparently believes that Catholics, at least, would be unable to uphold, as citizens, views that contradict church doctrine," Wilentz writes. "This is exactly the stereotype of Catholicism as papist mind control that Catholics have struggled against throughout the modern era . …But Mr. Scalia sees submission as desirable—and possibly the very definition of faith."

Wilentz's incredulity is odd. It's true that individual Christians and diverse ecclesial bodies have, throughout history, given different contours to the Christian duty of submission. Thus, thoughtful Christians may judge differently Scalia's solution to his dual role as a "citizen" of both church and state in the context of the death penalty. But even those Christians who conclude that Scalia has erred somewhere in his calculation generally share with him the underlying assumption that the claims of divine authority do not utterly cease once a person crosses the threshold on his way to work. And yes, for Christians of all persuasions, submission to God is indeed "desirable." It is, in fact, the very definition of Christian morality to hold one's own will as a slight thing before God and others. It is this fundamental assumption that is outrageous to Wilentz, and he takes it to be a denial of everything this country has stood for.

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At a time when America faces new challenges and dangers, both within and without, attacks on the Christian ethic of sacrifice, an ethic that was once strong in this land, are surely not what are needed. Instead, as Scalia argues, we need to be a citizenry imbued with the idea that there are higher goods than our own—goods which demand, and to which are owed, fidelity. Without this, the American ideal of our founders will truly be in danger of extinction.

Caleb Stegall is a practicing attorney in Topeka, Kansas.

Related Elsewhere

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Books & Culture Corner appears Mondays at Earlier Books & Culture Corners include:

Speak What We Feel | Frederick Buechner's latest book is one of his best. (July 22, 2002)
The Great Inflatable Shark Hunt | A report from the Christian Booksellers Association convention in Anaheim. (July 22, 2002)
Why Evangelicals Can't Opt Out of Political Engagement | Remembering Jeremiah Evarts and Samuel Worcester. (July 19, 2002)
The Pledge Controversy | Asking the wrong questions? (July 8, 2002)
Reading Danny Pearl | How would the murdered journalist want to be remembered? (July 1, 2002)
A Cry for Help | Sudanese Christians gather in Houston and ask for U.S. support. (June 17, 2002)
Agrarians of the World, Unite! | Wendell Berry's vision, and how Christians should respond to it. (June 10, 2002)
Stop, Drop, and Cover … | Then hack your lungs out and die. (June 3, 2002)
Death of an Evolutionist | RIP Stephen Jay Gould. (May 31, 2002)
Closing The X-Files … | … with the sign of the Cross. (May 20, 2002)
And the Next Thing Is … | Marxism (or not). (May 13, 2002)
God Bless the Eliminator | Mother Jones magazine makes known a shocking discovery: evangelicals are sending missionaries to Muslim countries! (May 6, 2002)
'A Peculiar People' | The uniqueness of the Jews. (April 29, 2002)
'Nebuchadnezzar My Slave' | Was the Holocaust God's will? (April 15, 2002)
'In the Beginning Was the Holocaust'? | Blasphemy, rage, memory, and meaning of the Shoah. (April 8, 2002)
The Gospel According to Biff | A conversation with novelist Christopher Moore. (April 1, 2002)
Baseball 2002 Preview | Part 2: Saving the game? (March 25, 2002)
The State of the Game | After one of the best World Series ever, baseball faces a crisis. (March 18, 2002)
America's Homegrown Islam—and Its Prophet | The strange story of Elijah Muhammad, leader of the Nation of Islam and onetime mentor of Malcolm X. (Mar. 11, 2002)
'Must Be Superstition' | Rediscovering spiritual reality. (Mar. 4, 2002)