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I agree that the
Declaration of Independence and the Constitution are different types of
documents, with different purposes and functions. And I have argued against
reading the Constitution through the lens of the Declaration without an
extraordinary justification for doing so. But I do not think that
distinguishing them for purposes of assessing the founding generation's level of
religiosity works. The natural question is not why mention of divine dependency
is in the Declaration, but why it is absent in the Constitution. Although not
the final constitution, the question equally applies to the Articles as well. We
don't raise this question because the Articles have little, if any,
relevance to our current quarrels over religion in the public square. But
perhaps we should raise it anyway.
It is, of course,
true that the Constitution was designed to organize the powers of government,
but not entirely. The Preamble is replete with moral concepts, and Art
I, Section 9 contains language protecting rights. Further, my
point had nothing to do with regarding the Constitution "as the basic
charter of personal rights that reflects the moral
values of our nation" (emphasis and boldface added), as Professor Friedman
writes. It is undeniable, I would think, that the Constitution is the basic
charter of the political organization of the federal government. One would
(might?) think that, even shorn of rights, deeply devout
individuals would want to express their commitment to and their dependency
on the divine in this basic political charter, one delineating which powers
government is justified in wielding. (I suspect that many (perhaps a
majority) of the present generation, in a second constitutional convention,
would want to include such language even independently of the Bill of
Rights.) Finally, the issue did not arise only after the ratification
of 14th Amendment. As Paul Finkelman pointed out, some antifederalists faulted
the Constitution for the absence of any mention of divine dependence. If the
issue arose even then, a request for an explanation of why the Constitution
omits such language seems not only possible, but is also necessary for
understanding how a founding generation that was deeply religious decided not to
express its devotion to a lesser or greater degree in its founding political
charter.
Without any intention of
stifling debate on this issue, I think (for me) the thread has been
exhausted. Four positions have emerged: (1) the absence of language
expressing a relationship with the divine is due to the usual political
(strategics) reasons, including wanting to avoid strife between and among
various religious sects, (2) the divine is already in the Constitution because
it was in the political and moral culture of the founding generation, (3)
the purpose of the Constitution suggests omitting such language, and (4) the
attribution of deep religiosity to the founding generation while true of
some (many?) was not true of all, not even perhaps true of a majority even
though some of those founding individuals would have never admitted this at the
time. I am not wedded to any of these positions, and I think some are far
more plausible than others. But I reject the supposition that an explanation
isn't necessary.
Bobby
Robert Justin
Lipkin
Professor of Law Widener University School of Law Delaware |
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