Sunday, February 04, 2007

The Founders and the Metaphysics of Law

Claims about the Constitution being based on the Ten Commandments are ill-founded at best; more nebulous claims about the Founders wanting to create a "Christian Nation" can be rebutted as well. But did Christianity, or at least some form of theism, sneak in the back door by way of the metaphysics of law?

I recently read Law's Quandry by Steven D. Smith, which makes it seem like it might have. Mr. Smith argues quite compellingly that, prior to Oliver Wendell Holmes, Jr., "God" was seen as the ultimate basis of the law. Barristers and judges weren't "making" law, but were believed to have been revealing a law that had an a priori independent existence. Provided that's true, can it then be said that the whole of US law at the time of The Founding, the Constitution included, ultimately had a theistic base? That would seem to be the case, but what that actually means in practice is still unclear.

How would this metaphysical commitment manifest itself? One would assume that any given Founder, in drafting a law, would seek to conform that law to their understanding of the eternal and immutable law whence it draws its authority. Immediately, however, you run up against some contradictions which this theory can't explain. For example, many of the Founding Fathers were deists of one stripe or another and believed that there was a supreme being which ought to be worshiped. Presumably the "ought to be worshiped" represents part of transcendent law which Mr. Smith claims that they recognized. And yet they drafted a constitution which explicitly denies the government the right to establish a state religion.

What to make of this? Some possible interpretations present themselves. The Founders:

  1. Were putting on a show; they didn't really believe in God in any meaningful sense.
  2. Did believe in God, but didn't believe that ey "ought to be worshiped".
  3. Believed in God, believed that ey ought to be worshiped, but also believed that ey permitted freedom of conscience.
  4. Did not regard divine law as the ultimate or sole source of terrestrial law.

Item 1 seems to be counterfactual; there's no good evidence to support the belief that any of the Founders were atheists in the modern sense. Hypothesis 2 may have a little traction; its not inconceivable that at least some of the Founder's practiced formal religion for appearance's sake. But to believe that all (or even a majority) of the signatories to the Constitution did so stretches credulity. Number 3 is right out, see the 1st Commandment.

By process of elimination this leaves our last hypothesis. Its easy to envision the deists among the Founders as buying into this idea, but what about the orthodox Christians? They signed on to The Constitution as well... what were they thinking? They may have agreed with the idea as well; there's certainly Biblical precedent for it. The alternative is to assume that they contravened the will of God for no discernible reason and with no benefit to themselves.

In the end it seems reasonable to believe that, on some level, the Founders were aware that they were making law, not just revealing it. Maybe they did so pragmatically and without reflecting on the nature of what they did, but its nevertheless clear that they created laws which could not be justified by recourse to their conceptions of God.

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