Congregationalists All?

Something there is in America that works to convert all Protestant churches into Congregational Churches. Federal judge Michael McConnell began his career a scholar on religion and the Constitution, and he anticipated that this trend would eventually begin to affect the Catholic Church as well. The irony was that the understanding at work in transforming the churches had virtually nothing to do with the Constitution’s religion clauses. The forces that were separating Church and State, and putting ecclesial authority into the hands of local congregations, were being powered by something, rather, in the American regime itself. At the root of everything was a people confident in their authority to cast votes on all species of things.

In his notable book, The Garden and the Wilderness, Mark DeWolfe Howe showed that the forces reshaping the churches were at work in states as religiously different as Massachusetts, New York, and South Carolina. Running back to the seventeenth century, virtually all polities in America provided for the public funding of churches, along with measures, more or less severe, to make attendance compulsory and settle, with authority, the churches that were favored. The 1778 Constitution of South Carolina was quite unequivocal in declaring “the Christian Protestant religion” as “the established religion,” laying down the articles of faith, and making the point that the Christian religion is the one true religion.

We may forget that it required no religious fanaticism to bring forth the public funding of churches. We find nothing strange these days in the notion of the community taxing itself to sustain schools. It was no more strange in the seventeenth century to presume a clear public interest in supporting churches, for they were even more important in shaping the moral sensibility that sustained a civic order. The ministers within the churches were regarded as public employees, every bit as much as teachers in public schools today. Complications arose when the inhabitants of any town were drawn to religious doctrines that put them at odds with some of the churches sustained through their taxes. Howe offered the example of Dedham, Massachusetts: It was a state of high awkwardness, to put it mildly, that many there were being drawn to Unitarianism, and found themselves paying for churches that were quite unyielding in Trinitarianism. The outlines of the political solution became clear: political authority over the churches would be severed as the public funding was ended. Churches would be free to sustain their own doctrines, insulated under the law, as private entities, privately funded.

But then the next phase: churches in America would be incorporated with private donors, private land, and private trusts to maintain their character. And yet, with time the members of the congregation could be drawn to views less orthodox, even less distinctly religious: Unitarians could find their confidence waning even in that one God, and in some notable cases they shifted out of religion altogether to Ethical Culture. Judges had to school themselves in the doctrines of a church in order to reach a faintly plausible judgment on just how pronounced a change had to be before it broke the terms of trust and oaths taken by the trustees in any church. This task has ever made judges deeply uncomfortable. For as they themselves quickly point out, training in theology has not been part of their training as lawyers. Once again the legal quagmire pointed to a political solution: The judges would recede, and the law would simply accept the decision made by the duly elected officers of the church on the doctrines they found suitable to their congregation.

But now, as we say, we fast-forward: Holy Trinity, a notable Catholic church in Georgetown, Washington, D.C. in the 1990’s. During Mass, some members of the church stand, while others sit or kneel. They stand in protest over the settled doctrine of their church not to ordain women. They sense they might have the sympathy of their priest as they seek to unsettle and overturn that ancient doctrine. But in making their gesture, they are also signaling their desire to have the doctrines of the church altered by protests and by the staging of sentiments within the congregation. And yet, these good people could simply have walked several blocks and settled themselves in a church that gratified them on both counts: they would have readily found, in the neighborhood, a church that offers women as ministers, and permits doctrine to be established by the congregation itself. What apparently exceeded their imagination was that the people around them in the Mass at Trinity were also the bearers of rights, and the so-called dissenters were threatening now to remove those rights. Chief among them was the right to be part of a Church whose doctrines could not be manipulated or altered by the vote of a local majority. That sense of surety may be, even now, as critical and consoling for the parishioners as the confidence that they are at Church in America, where people are free to vote. But in the Church itself the majority has no sovereignty to assert. As Chesterton put it, the Church is “the only thing in which the superior cannot be superior.” For as John Paul II sought to explain, there were things that even he and the College of Cardinals were not free to change.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.