David Sehat
Social contract theory, a central idea in liberal political theory, holds that at some antecedent time human beings came together to create a social contract regulating their political rights and obligations in a human community. American political theorists like to point to the state constitutions after the Revolution and especially the 1787 U.S. Constitution as example of social contract theory in practice.
But the case is not so simple. This notion of a social contract ascribes a degree of human responsibility for political life that sits uncomfortably with the claims of the religious. Christians of many stripes have long claimed that God created human societies and established the rules under which they live. As a result, many contemporary evangelicals, mirroring their forebears, reject the notion of social contract theory as overly atheistic. They similarly reject that the constitutions can be social contracts in the way that liberal theory claims.
The history of the early state constitutions shows the tensions between these positions in the American past. Many constitutional framers did self-consciously regard their constitutions as a social contract for their respective state polities. When statesmen began formulating these constitutions after the Declaration of Independence in 1776, they embarked on a constitutional project of democratic self-determination in which norms and governmental powers arose out of the will of the people. As a result, the inclusion of a specific invocation to God in these contracts was relatively rare and usually limited to those states that had institutional religious establishments (states, in other words, that paid churches through the public treasury). These constitutions also routinely discriminated against non-Christians (or more narrowly, non-Protestants). But with evangelical expansion in the early years of the nineteenth century and the subsequent Christianization of a much larger swath of American society during the Second Great Awakening, state constitutions began invoking God with greater frequency, often dropping the social contract language altogether and looking instead to God’s provision of the blessings of freedom as the foundation for American liberty. This aligned Christianity (or at least theism) with American government and served as an expression of the evangelical belief that God’s provision of freedom to the United States also entailed limits on that freedom that comported with his moral will.
New Jersey was typical of this change. In its 1776 Constitution, it explained that because constitutional authority “was, by compact, derived from the people, and held of them, for the common interest of the whole society,” the colony of New Jersey had “agreed upon a set of charter rights and the form of a constitution, in manner following.” There was no mention of God, though the constitution did level civil disabilities for non-Protestants. By 1844, when New Jersey drafted a new constitution after the Second Great Awakening, the language of social compact and political self-determination was almost gone, along with the civil disabilities for religious belief. In its place was a thanksgiving “to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations.”
Other states had similar formulations. Rhode Island’s 1842 Constitution, for example, mirrored New Jersey’s statement with a statement of thanksgiving “to Almighty God for the civil and religious liberty which he hath so long permitted us to enjoy.” The invocation altered the social contract theory of the constitution, which claimed: “We, the people of the State of Rhode Island and Providence Plantations . . . do ordain and establish this constitution of government.” As much as the people ordained and were responsible for the constitution, liberty, which the constitution sought to protect, was a gift of God and somehow dependent upon God, not the result of human contract. The Texas Constitution of 1845 modified the formulation slightly. That constitution began with an acknowledgment of “the grace and beneficence of God in permitting us to make a choice in our form of government.” God had given the people the freedom to choose. The constitutional conveners utilized their God-given freedom to create a government that, by implication, honored his will. Iowa’s Constitution of 1846 put the matter somewhat differently. It began with a statement of gratefulness “to the Supreme Being for the blessings hitherto enjoyed” and confessed “our dependence on Him for a continuation of those blessings.” The people hoped for his continued blessing in ordaining their Constitution. New York’s 1846 Constitution put the language of freedom and blessing together: “We, the people of the State of New York, grateful to Almighty God for our freedom, in order to secure its blessings, do establish this constitution,” it claimed.
The small differences in each formulation suggested that the language was not merely formulaic, as each convention sought to find the appropriate expression of God’s provision of the blessings of freedom that constitutional conveners sought to perpetuate. Social compact and political self-determination relied upon God’s prior provision of freedom and somehow presumed God’s active providence.
Although the language of these constitutions demonstrates the tensions within American political theory over the exact relationship between human law and divine law, this connection of religion, politics, and law had negative consequences for those who did not fall under the religious canopy. Because God had provided the initial freedom that the constitutional framers enshrined in their constitutions, unbelievers had no claim to use that freedom in the advancement of unbelief. Unbelief would advance licentiousness and anarchy and would ultimately be dangerous to what many state constitutions labeled “the peace and safety of the state.” In order to restrain the power of unbelievers to use religious freedom in the promotion of licentiousness, state laws relied upon blasphemy laws, indecency laws, and the promotion of religion in the schools as a check on the ability of unbelievers to subvert governance. “[T]he blessings of liberty,” in the words of the 1848 Illinois Constitution, implied certain prerogatives to Christians whose God first provided that liberty.
This is the second in an ongoing series of essays that uses material from my forthcoming book, The Myth of American Religious Freedom. The book can be found here and here.
4 Thoughts on this Post
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I completely follow your argument, I think, except for one point. Why would New Jersey, which you identify as “typical” in getting, shall we say, “more religious” between the constitutions of 1776 and 1844, have dropped the imposition of civil disabilities for religious belief? This seems to go against the tide of the other developments that you mention.
Mike
Mike: A good question. My sense is that it became unacceptable for religious partisans to explicitly exclude people from the political process based on their religious belief. I think this was because evangelicals, who had often been excluded by the more established religious groups, were sensitive to exclusion in general and as they gained more power were able to do away with these provisions. But simultaneously, as states began to back away from an explicit exclusion, they moved toward a more indirect form of religious power that used moral laws to create a special place for their religion, while still excluding other people who did not comport to their moral ideals. The preambles, which are a form of political theology, try to work out the exact relationship of divine and human law that other partisans could draw upon to pass and justify moral laws, even as they did away with more obvious forms of religious control.
States moved toward an indirect form of religious power? That seems contrary to the spirit of the first amendment! I’d love to read a book about how this could be–might you be able to recommend one?
Mike, the First Amendment wasn’t incorporated against the states until the twentieth century (the 1920s in fact, I believe). Until the Fourteenth Amendment, the Bill of Rights didn’t apply to the states at all, so they were free to act in the religious sphere as they pleased. Hence some of them still had religious establishments in the early decades of the nineteenth century. All of which is to say, the developments David is describing, far from violating the First Amendment’s spirit, were perfectly in keeping with that spirit as it was understood at the time.