The Transition from Civil Liberty to Civil Liberties
In the 1940s, while Father Ryan was both restating the Church's traditional objections to the secular liberal state and arguing that they could be prudentially accommodated to American democracy; the Supreme Court began intensively to secularize American democracy. The rubric was a new reading of the establishment clause which in principle, and eventually in practice, rendered all revealed religions, including the Protestantism which it partially resembled but which it displaced, incompatible with any significant place in public life. By "secularism," we understand "the doctrine that morality should be based solely on regard to the well-being of mankind in the present life, to the exclusion of all considerations drawn from belief in God or in a future state."(n23) This is today thought to require excluding public support from religious schools and prohibiting both religious practices in public contexts and moral teachings based on revelation when those teachings cross secular morality or secular ideas of freedom. Post-1940s democracy, thus authoritatively articulated and fashioned by the Court, appears to regard secularism as the sine qua non of liberal democracy.
We argue this mandatory public secularism is part of a new constitutional regime which the Court instituted at this time. The new regime is verbally indicated by the Court's introducing, for the first time in our constitutional history; "civil liberties" in contrast to the traditional "civil liberty."(n24)
"Civil liberty" is the language of Blackstone, common law and The Federalist. The latter speaks of it in the context of the problem of maintaining "the order of society."(n25) WESTLAW first finds "civil liberty" in a Supreme Court opinion in Marbury (1803),(n26) but not until the Slaughterhouse Cases (1872) is it given explicit judicial definition. There, Justice Field refers approvingly to Blackstone's definition, given by Senator Trumbull in the debate on the Civil Rights Bill of 1866. "Civil liberty is no other than natural liberty, so far restrained by human laws and no further, as is necessary and expedient for the general advantage of the public."(n27) Field quotes Blackstone's editor's gloss on this definition: "that state in which each individual has the power to pursue his own happiness according to his own views of his interest, and the dictates of his conscience, unrestrained, except by equal, just, and impartial laws."(n28) Thus, "civil liberty" did not privilege individual power to the extent of requiring the laws to grant it as much latitude as possible. The laws only had to be "equal, just and impartial," thereby giving as much emphasis to the restraints of such laws on an individual's power as to his license to exercise that power. The modern idea that "rights are trump" is alien to "civil liberty" but is the cutting edge of the new "civil liberties" regime.
Under the old "civil liberty regime," religion was permitted in public life, including ritual public prayer, which survives to this day in the opening of each day of Congress and the Court, and the public school Baccalaureate Service and graduation prayer, found unconstitutional as late as Lee v. Weisman (1992).
The grounds for the old 'civil liberty' regime's solution to the problem of the relation of religion and government was publicly advocated at the Founding by James Madison.
In a free government, the security for civil rights must be the same as for religious rights. It consists in the one case in the multiplicity of interests and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.(n29)
This Madisonian regime publicly assumed that "religious rights" included influencing public policy through truck and bargaining among the multiplicity of sects. Speaking for the Constitution's advocates, he argued that this system would so limit any particular sect's influence as generally to produce "justice and the general good."(n30)
This public religious pluralism permitted legislatures to work out pragmatically the relation between religious belief, churches, and government without conforming to a constitutional theory of what the outcome should be.(n31) This regime, constitutionally in place from 1789 until the 1940s, also permitted public schools to have a character forming function which warranted "impartial governmental assistance of all religions."(n32) Thus McCollum's publicly supported religious instruction was consistent with the old public religious pluralism.
It was this traditional "civil liberty" regime which Murray in 1960 thought compatible with Catholicism because that democracy both permitted and presupposed "the coexistence within one political community of groups who hold divergent and incompatible views with regard to religious questions-those ultimate questions that concern the nature and destiny of man."(n33) Murray further denied that the First Amendment religion clauses embodied any theory. Rather, he maintained that they are better understood as "articles of peace," that is, practical formulations the concrete meaning of which is negotiated from time to time in legislatures and school board meetings, and renegotiated as circumstances change--democracy as government by the people as one might once have conceived of it.
In contrast to this "civil liberty" regime, which permitted widely differing views of what religion is, as well as what its relation to government should be, the secular regime the Court began instituting in the 1940s attributed 'to the religion clauses a new substantive theory that seems to require all Americans to understand religion as a private matter lacking either public encouragement or consequence.(n34) The seed of this secularism was planted by the Court's declaring in Everson v. Board of Education (1947), without evidence or precedent, that the establishment clause mandated government neutrality between religion and nonreligion.(n35) The first blossoming was finding unconstitutional government sponsored religious instruction in public schools as a means to combat growing juvenile delinquency in McCollum (1948).(n36) The mature fruit became visible for all to see in finding unconstitutional publicly sponsored prayer and Bible reading in public schools in Engel v. Vitale (1962) and Abington v. Schempp (1963), respectively.(n37)
The Court's replacement of constitutionally permitted public religious pluralism with constitutionally mandatory public secularism is part of the new "civil liberties" regime which the Court began instituting in about 1940. The novelty of this regime is indicated superficially by its name. Although now a preeminent category of constitutional law, WESTLAW shows "civil liberties" first used as a term of art in a Supreme Court opinion only in 1940.(n38) It first occurred in a Supreme Court case as the proper name of the American Civil Liberties Union in 1938. However, "civil liberties" was not yet an accepted term of legal art, according to then Professor Felix Frankfurter. It was only "a very loose expression" used in communication with "the laity."(n39) "Civil liberties" appeared only twice in Supreme Court cases prior to 1938 and in neither is it the Court's language. In the first case (1892),(n40) it is part of a 1701 quotation from William Penn. In the second case (1904),(n41) it occurs in a military order which was part of the evidence in the case.
"Civil liberties," as it developed after 1940, differs decisively from traditional "civil liberty" by intensified license to individual choices and desires as against other constitutional goods. "Civil liberty" had privileged "the general advantage of the public" (Justice Field [1872] citing Senator Trumbull [1866] quoting Blackstone [1776]) or "justice and the general good" (Federalist, No. 51 [1788]). "Civil liberties" privileges individual rights and that probably generates constitutional secularism. "Civil liberty" permitted governmental support for religion and relied on the competition between, and compromise among, the multiplicity of sects to prevent injustice. It did not define justice as requiring constitutional equality between religion and nonreligion. When the Court instituted that equality in Everson (1947), it redefined injustice to something like exposing an individual to government supported religious activities with which that individual did not agree. Thus one atheist's right not to have to listen to the traditional Baccalaureate' prayer is constitutionally superior to the community's determination that such prayer is for the "general advantage of the public" (Lee v. Weisman, 1992). If an individual's choice constitutionally trumps the legislatively determined "general good," then public secularism apparently, or at least plausibly; follows.(n42)
Secularism may even more sharply contrast "civil liberties" with "civil liberty" than does the intensified individualism from which it springs. For while Professor Tribe thought "extraordinary" Clarence Thomas's reasoning politically on the basis of the Declaration's theological content, under the "civil liberty" regime even Jefferson thought it proper to state for America that we are "endowed" with rights "by our Creator." And elsewhere he asked "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 of the gift of God? That they are not to be violated but with his wrath?" And because slavery violates them "I tremble for my country when I reflect that God is just; that his justice cannot sleep for ever . . . . The Almighty has no attribute which can take side with us in such a contest."(n43) Nor did Lincoln think the Declaration's theological argument "extraordinary." Indeed, at Gettysburg he declared that America was dedicated to the Declaration's proposition "under God."(n44) Similarly; Frederick Douglas cited the Declaration and quoted Psalm 137 "By the rivers of Babylon . . . ," declaring "The existence of slavery in this country brands your republicanism as a sham, your humanity as a base pretense, and your Christianity as a lie."(n45)
The "civil liberties" regime transformed secularism from at most a common social opinion(n46) into a constitutionally obligatory theory.(n47) Tocqueville had foreseen that, as equality becomes more absolute,"trust in common opinion will become a sort of religion, with the majority as its prophet."(n48) However, "Christian morality" was still the common American opinion of his day and still "the first of their political institutions." Yet he foresaw that if Christian morality ceased to be an "impediment, one would soon find among them the boldest [moral and political] innovators and the most implacable logicians in the world."(n49) He did not foresee that the justices of the Supreme Court would become the hierarchy of the new equality-inspired religion,(n50) or so far mimic Catholicism as to claim "infallibility" in teaching doctrine. "We are not final because we are infallible, but we are infallible only because we are final."(n51) Tocqueville may have foreseen better than he knew in finding Catholicism even more compatible with American democracy than is Protestantism.(n52) Catholics' faith in papal infallibility need only be transferred to faith in the infallibility of "common social opinion" and the Supreme Court.
By 1960 the original Madisonian regime had not yet been completely overthrown by the new judicially created secular regime. The Court, in particular, had backed off from its 1947 McCollum decision under attack from many religious sectors, and even the New York Times. It did so in 1953 by finding constitutional an ever so slightly different plan for public encouragement of religious instruction.(n53) However, the subsequent bans on governmental encouragement of prayer (1962) and Bible reading (1963) in public schools visibly established public secularism as authoritative. Public secularism's exclusion of religious practices as such from a place in public life has now worked its way through a score of subsequent cases.
Kenneth Craycraft(see below) argues that Madison's encouragement of a multiplicity of sects was meant to weaken religion, meanign that religious is a sham. These professors make a good argument that our civil liberty was in fact part of the Amercian republic from the beginning, and only recently marred by unfortunate court decisions.
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