Kevin Walsh (00:00:03):
Welcome everyone. I’m Kevin Walsh, the Knights of Columbus Professor of Law in the Catholic tradition at the Catholic University of America’s Columbus School of Law. I’m pleased to host a discussion today with Professor Steven Smith, the Warren Distinguished Professor of Law and co-executive director of the Institute for Law and Philosophy at the University of San Diego. And Professor Smith is the author of many articles and books. I sometimes say, in fact, I said to my wife this morning, that he writes them faster than I can read them. But I have read this book and many others. But he’s always on the move. Today we’re here to discuss his book, The Disintegrating Conscience and the Decline of Modernity. This discussion is co-sponsored by two enterprises within CUA. Namely, the Institute for Human Ecology and the Project on Constitutional Originalism and the Catholic Intellectual Tradition. So that we don’t have that mouthful anymore, that would be IHE and CIT. Now, for our on-campus events, we typically will open with a prayer and we’ll do that for this virtual event as well. Name of the father, son, Holy Spirit, lead us Lord in your path that we may enter into your truth. Glad in our hearts that we may fear your name. Amen.
(00:01:21):
Okay. Well, Professor Smith, the title of this book speaks to two topics, the disintegrating conscience on the one hand and decline of modernity. And you address these two topics through case studies of three individuals. Thomas More, James Madison, and William Brennan. Before we examine those case studies, I’m wondering if we might situate this within some of your other writings that we’ve talked about. The idea of decline is something you’ve addressed before. Perhaps even a connoisseur of various kinds of decline. I believe the first book of yours that I read was The Rise and Decline of Religious Freedom. But why the disintegrating conscience? The disintegrating conscience. I was thinking about the title and it seems it can have two meanings. Refer to conscience as something that is being disintegrated, right? The passive patient of disintegration. But the disintegrating conscience can also refer to conscience as an agent of disintegration. And on that latter view, the disintegration is something else like the polity or something. What will readers of the book find out from you about these two meanings of the disintegrating conscience?
Steven Smith (00:02:37):
Yeah. Well, first of all, it’s great to be with you, Kevin, and it’s a pleasure to be able to participate in this discussion. And you’re exactly right, and I’m actually thrilled that you noticed that about the word disintegrating because a lot of times you put something in a writing or a book or something like that and you don’t know whether readers will really pick up on it and so forth, but that was definitely intended. Those two meanings. Conscience as kind of an agent of disintegration and conscience as something that in modern times is itself disintegrating, I think. And both of those things are ideas that I try to discuss in the book. And they do tie in, as you said to begin with, with the theme of decline. And I guess it is true that I write a lot and think quite a lot about decline.
(00:03:26):
I ran into some people at a conference not too long ago who said, “Oh, we’ve read several of your books.” And I said, “Oh, great. I hope you enjoyed them.” And they said, “They’re all depressing,” or something like that. Because decline does seem to be a theme. But I don’t think I’m alone in this by any means. I think there are lots of perceptions of decline today. I think surveys show that and some important books, lots of important books really. But just to mention really three that deal with this theme. One is a book that my book started off by mentioning, a book by Jacques Barzun, one of the most eminent historians of the last century, called From Dawn to Decadence, and decline is the beginning and a central theme of that book. Another more recent one that some people might know that also talks about Barzun but is Ross Douthat’s book Decadence that he published a few years ago.
(00:04:20):
That’s more for a general audience, but still quite a erudite book I would say, considering those sorts of things. And then there’s a book that some people will know that was really quite influential for me because I read it when I first started teaching about 40 years ago, Alasdair MacIntyre’s book After Virtue and so on. So these are all books I think that in one way or another deals with this sense of decline, and I’m afraid this isn’t a happy theme, but there is a widespread sense that as Barzun said, our modernity, the modern age and our culture is experiencing some kind of a decline. So that’s something I think a lot of us think about trying to diagnose and understand our situation and so on. And in this book I try to do that by seeing connections between conscience and some of the things that have happened that might constitute decline.
Kevin Walsh (00:05:14):
Well, it seems that … How to put it? So on that second meaning of the disintegrating conscience, conscience itself being a source of disintegration, it seems that that kind of conscience is a different one than the one that we see in the beginning of the book. So the beginning of the book is your case study of Thomas More and the concept of conscience that he was working with and the running, I guess, subtitle or whatever it’s called in the publishing world, but the running title of the chapter as you go through page by page is Lost World and New World. And that part of what was lost in that lost world that you talk about was Thomas More’s understanding of conscience, and that is not necessarily the one that we would have now. What was that notion of conscience and how is it different from the one that is most conventional now where we might think of the conventional one now as private personal judgment, kind of what I think?
Steven Smith (00:06:31):
Yeah. I think it became that. The right of private judgment is often almost like a description of what people understand conscience or the freedom of conscience to mean. A good question and a big question. First of all, the lost world, new world sort of idea. I think some historian, probably lots of historians would agree on this, and Thomas More himself definitely perceived that he was at a point where the world that he had known and that he valued and that had basically been the world in let’s say Western Europe for the last thousand years, give or take, was in the process of being lost. And that was the world of Christendom. A world at which … Oh, I put it sometimes as the ties that bind, both that bind an individual’s life together to make it a unified whole and to bind people together in a social order, were consecrated by Christianity and by the sacraments.
(00:07:32):
And he saw that world beginning to unravel under the influence of Protestantism as he perceived it. And he saw I think the emergence of a new order. And I think we’d say, yeah, that was a time when modernity … Barzun and others talk about modernity was beginning to emerge. It was a different kind of world. Which religion doesn’t go away, but religion has a different role, more of a separate compartment in people’s lives, and the ties that bind are not really consecrated anymore, and the political order in particular and the social order are not really consecrated in the way that they were. So there was that transition. Now, conscience I think was a part of the transition at the time, and it was very important to just about everybody who was involved in that struggle. So conscience was very important to More, of course. And he wrote about it and he talked about it and he was executed because he said that as a matter of conscience, he couldn’t take the oath supporting dissolution of the king’s marriage to Katherine and the marriage to Anne Boleyn. More wouldn’t explain why he wouldn’t take the oath except to say that it was a matter of conscience. And that’s basically all he would say about it.
(00:08:52):
But he wasn’t the only one who was invoking conscience at this time because Henry VIII was saying he had to end the marriage of Katherine because it was a matter of conscience to him. He insisted on that.
Kevin Walsh (00:09:02):
Yeah. When I read that part, I said, “Oh yeah, that makes a lot of sense.” And you say, well, what was it that Thomas More … Maybe not him, but someone said, “Well, all of a sudden you’ve discovered conscience.”
Steven Smith (00:09:14):
Well, Katherine said that. I mean, Henry-
Kevin Walsh (00:09:19):
Katherine. That’s who it was. Right. She … Yeah.
Steven Smith (00:09:19):
Said that his conscience was the thing that was dearest to his soul and his conscience now told him he needed to end the marriage to Katherine. And Katherine did comment that his conscience had taken a long, long time to awaken in this respect and presumably under the influence of Anne Boleyn who might’ve done something with Henry’s conscience, but still Henry put it under the heading of conscience.
Kevin Walsh (00:09:41):
And that seemed like maybe starting the emergence of this more private judgment, but even there it ended up being a fight. More’s conception of conscience that you draw out in this chapter, how would you describe that? Because in some ways we think of conscience now in some ways it sets us apart. It’s like, well, everyone else is doing this, but my conscience tells me that I have to do that. But More’s conception of conscience, how would you describe that?
Steven Smith (00:10:13):
Was different. Well, I’d say that More’s understanding of conscience had a couple of features, and these by the way, I think are not really unique to him. I think he was operating with what had been the longstanding, traditional, let’s say, Christian understanding of conscience. But I think that conception had a couple of features that distinguish it from more modern conceptions and one that distinguished it from what he perceived as the emerging thing that would be more the Protestant or Martin Luther conception of conscience. So one feature I think was that to him, I think acting in accordance with conscience encompassed two things, doing the will of God as you understand it and being true to yourself, that in More’s conception were perfectly harmonious and almost mutually entailing and so forth. Whereas I’d say the more modern conception of conscience saves the second of those being true to yourself. You’ve got to be authentic. You’ve got to be true to yourself and what you think is right. And it doesn’t necessarily include doing the will of God. It can for individuals who happen to think that that’s what their self is inclined to do, but that’s not really part of the modern conception of conscience, I think.
(00:11:28):
The other feature for More I think though was that conscience didn’t mean so much private judgment, to refer back to the idea that you mentioned a moment ago. It referred more to doing what you believe has been the consensus of Christianity, not even just in a particular council like the Council of Constance, but over the ages. What Christians have always and everywhere believed. Your conscience is supposed to be grounded in that. And that distinguished it I think from Martin Luther’s view. Martin Luther also spoke eloquently and passionately, let’s say, about conscience. But his was here I stand. I can do no other. The church may tell me I’m wrong, but I have to act on my own understanding of what is right. And to More, that was I think, not what conscience meant. His was a more collective communal, you might say, view of conscience, whereas Luther’s was more individualistic. Luther I think would’ve agreed with More on the point about you’ve got to do what you believe God’s will is. In that respect, the two were the same. They were different I think in the communal versus more individualistic conceptional of conscience. And the modern view I think is more individualistic and not theistic in nature.
Kevin Walsh (00:12:45):
One of the striking sentences as you explained this in the book is you said, for More, when he was talking about Protestants more generally, this was not directly his differences with King Henry VIII, but he said that Protestants, in your description anyhow, we’re not merely acting against conscience themselves, they were working to make it impossible for Christians generally to act on conscience because in some ways the idea of conscience is acting in accord with the uniform opinion of Christendom has a reference that doesn’t exist anymore. Is that-
Steven Smith (00:13:25):
Yeah. And More definitely saw the Protestant movement as destroying the unity of Christianity and Christendom. And I think that’s sort of an important point I think in understanding one thing that has been troublesome ever since I think, and that is how could More say so eloquently that he meddled with no man’s conscience and no man should meddle with his? He insisted on that point. And yet you say, but how could he say that, honestly? Because as Lord Chancellor, he had persecuted Protestants. He had caused a few of them to be executed. Under modern terminology, you might say he didn’t seem to have shown much respect for the consciences of Protestants, and it is a troublesome question. But I think it helps in understanding that question to realize that from his point of view, Protestants were not really acting on conscience as he understood it.
(00:14:22):
The private judgment thing that disregards the consensus of the church over the ages and so forth was not what he understood conscience to be. But then in a sense, even more importantly, as you just said, he clearly perceived the Protestants as making it difficult or impossible to act in accordance with conscience by destroying the uniformity of Christianity that was prerequisite for being able to act on conscience. Now whether he acted properly or not is something people will obviously continue to debate and not agree about, but I think that means you can’t so easily convict him of hypocrisy as might seem to be true if you don’t appreciate his understanding of conscience.
Kevin Walsh (00:15:05):
There’s something that comes up about More, I guess in each of the other chapters as well. I’m not sure if it’s in every chapter, but I seem to recall it almost throughout the book. You refer to how one feature of More’s behavior was he did not explain himself, but nor did he seek to explain to his family members why it was okay for them to take the oath, for them to act on a different understanding. So it’s a peculiar thing where it’s so central that he cannot transgress the command of conscience. But it’s not so central, or at least the way that it is central does not mean that he needs to insist on those that he loves acting in accord with the same understanding.
Steven Smith (00:16:03):
Not with the same understanding, but I don’t think he would’ve excused them in acting contrary to conscience. And this is one of the paradoxes of conscience, I think, that I think is both fascinating and important for seeing what’s going to happen. So yeah, he refused to take the oath. He was given many opportunities to take the oath. He was imprisoned in the Tower of London for about a year and a half and urged over and over again to take the oath, and he refused to do it because he said it was contrary to his conscience and it would lead to damnation he said, if he were to take the oath. But his family took the oath and probably the person he loved most in the world was his daughter Meg, and she pleads with him to take the oath, and she tells him at one point, “I’ve taken the oath.” And he didn’t really try to explain to his family, including Meg, what was wrong with it or why they shouldn’t take it.
(00:16:58):
So you say, well, why didn’t he do that? And at one level, it’s easy enough to understand. He didn’t want to give the evidence … If he explained to them, he would’ve been giving the evidence that the king’s man were seeking so that they can convict him so he didn’t want to say it. And he might’ve even been persuasive and persuaded Meg not to take the oath, in which case, who knows. She might’ve been convicted. And of course, no father wants that. But it’s still puzzling because his judgment was for him, I think, it was better to die, which is not something he wanted. He wasn’t seeking death, but it was better to die than to take an oath that he thought would lead to damnation. So you ask why didn’t he have the same priority for his daughter, for other people that he loved? I think the most plausible answer is in so far as she didn’t know what was wrong with the oath, she didn’t understand that, she could take it without incurring the same consequences that he would if he took it because he did understand this.
(00:18:05):
And it shows in a sense a way of conscience being used, as I put it, to consecrate error. If you’re doing something in good conscience, then even if you’re wrong, your conscientious action, in a sense, consecrates the error. I think More was already beginning to … He was perceiving that. And that’s a possibility with conscience that I think becomes then really a major feature of conscience when you come to Madison and later. The ability of conscience to consecrate error. In a pluralist world, I think for Madison, that becomes just an indispensable feature or function of conscience.
Kevin Walsh (00:18:44):
So that takes us in some ways to the running title of the second chapter. Because the first chapter, running title is Lost World, New World. The second chapter, the one on Madison, is Disestablishment, which I think we all understand what that is referring to. Both the Virginia experience as well as then of course the establishment clause of the US Constitution. Disestablishment is a familiar concept, but it’s disestablishment and the new establishment. And the new establishment has something to do with this function of conscience that you’re talking about, but maybe you can sketch that out a little bit of this is sort of paradoxical in terms of what is meant by an establishment. Because what does it mean to establish the religion of conscience? Or maybe you could just say a little bit about what you’re drawing out in that chapter on new establishment.
Steven Smith (00:19:39):
Yeah. I think that’s an important question leading to something that in my view, most modern scholars kind of miss about Madison and about Madison and what he did and also what Madison and Jefferson together and the founders did. Here are a couple of things that would be common in modern histories of Madison, biographies and so forth. One point would be that Madison was very reticent about talking about his religion so it’s difficult to know for sure what his religion was. Leading biographers say that. I actually think that’s a mistake. And a second point would be that Madison, along with Jefferson, were very instrumental, probably the leading figures in disestablishing religion. Up to that point, people had believed that to have a unified political community, you had to have a common religion, and it had to be legally established in a sense, supported.
(00:20:36):
But a common view is that Madison and Jefferson persuaded the founders and so the founding generation that that wasn’t true, that a religion should be disestablished and they were therefore the source of secular government. People like Jack Rakove and Martha Nussbaum. But almost all scholars see they instituted secular government. I think both those points are wrong. So if I go back to the first point, I think … And this is an interpretation, but I think if you look at all the things Madison says and so forth, what emerges is that he was very clear throughout his life that his religion was the gospel of conscience. You might say that for someone like Thomas More, conscience was a corollary of Christianity. I think for Madison, conscience was the essence of our duty to God. That we need to act in accordance with what we believe about our duty to God.
(00:21:37):
And if we do that, then again, that’s the core of religion and we’re doing the right thing. Even if we happen to be wrong, you can put this kind of paradoxically and say, Madison believed that you should do what you believe God wants you to do and that God wants you to do what you believe God wants you to do, even if God doesn’t approve of the thing that you believe God wants you to do. But I think that’s Madison’s understanding of conscience. And about that he was not reticent at all. I think you might say he embraced the gospel of conscience. And it’s easy, in a way, I think to understand why a thoughtful person like Madison would’ve come to that sort of conclusion because he was living in a time where there had already … Remember, there’s quite a lot of religious diversity. Among Protestant sects, there were a lot of competition. Today we might look at those and oh, well, those were just a little variations on the theme.
(00:22:32):
But that was certainly not true for the Baptists who were being thrown into jail for preaching without a license or for the Anglicans or we’re throwing them into jail and so forth. But Madison had close ties to the Anglican, later the Episcopal church. He was raised in that church. His father was a vestryman, his mother was an ardent supporter, his wife was. He had close ties to Baptists. They helped him really get elected to Congress in the first Congress and supported him. He had obviously close ties to the more rationalist enlightenment religion of people like Jefferson and so forth.
(00:23:08):
And it’s easy, I think, to understand how a thoughtful person might say I can’t be sure that one of these groups is right and the other one is wrong, but if they’re all acting in accordance with conscience, that’s what God wants them to do. That’s the more important thing than getting the theology exactly right. So if you say in the first point, Madison was actually quite explicit about his religion, it was the gospel of conscience. Then if you come to the second point and say, did he disestablish religion? In a sense, the answer would be no. He definitely did work for the disestablishment of any institutional church, I think, but he actually worked for the legal establishment of his religion, the religion of conscience. They did that first in Virginia. He tried to do it with the Bill of Rights. His particular provision for a conscience ended up not being adopted, and he regretted that.
(00:24:02):
But he definitely worked for the legal establishment of the gospel of conscience. And again, I think you can see how that would’ve been such a natural and appealing thing and even in a sense, almost a stroke of genius. You say, how are we going to unite this country with all the religious diversity? And the answer would be if we legally establish conscience, that has the ability to consecrate all of these different faiths. They might be wrong at some level. They might all think the others are wrong. But conscience has this ability to unify them in the sense that it consecrates them in so far as people are doing what they believe what God wants them to do. And I think that’s basically what Madison’s fundamental achievement was.
Kevin Walsh (00:24:47):
Well, that sounds like you’re making an argument of a two wrongs, you combine them together and you get a right, which is the one thing that’s wrong is we don’t know much about Madison’s religious belief and the second being that he actually established a secular republic. And you say, well, if by secular we mean one thing that somehow temporal dissociated from the eternal dissociated from God, well, perhaps. But if this concept is broad enough to encompass conscience whether or not that is driven by duty to a creator, then it’s like, okay, that’s what Madison did.
(00:25:26):
I did want to ask you though about when you say that in some ways he established this religion of conscience, you don’t mean that in the sense of the establishment clause. That’s not an interpretation of the First Amendment’s establishment clause, but more like the things that he did, the positions that he took. I mean particularly in Virginia. And then what we might call the uses of James Madison and some of his things for later theorists and for other actors and stuff like that. And the reason I want to see if that to be clear is because I think when it comes to Bill Brennan, you’re going to make stronger claims about what he personally did to the law itself. And so can you disentangle the uses of Madison versus what he actually did to the law itself?
Steven Smith (00:26:20):
Yeah. I’ll try to say something about that. Actually, I think that is accurate to say that at least in the state of Virginia, he did legally establish conscience. This was one of the first things that he did as a 24-year-old representative to the convention that was setting up a new constitution for the state of Virginia in 1776. Same year. He didn’t start the idea. It was already there. There was already a provision in George Mason’s draft for conscience, but Madison insisted on tinkering with it in a way that I think legally established freedom of conscience. So it’s true that’s not setting up an institutional religion. And in fact, he wasn’t in favor of that. Let’s say a church, an institutional religion. But I think it really should be appreciated that he thought the force of law should be behind this gospel of conscience. Should be affirming it, protecting it, and so forth.
(00:27:20):
But the other point I’d make in response to what you were asking just now is that I think for Madison, conscience still did have a theistic quality. It doesn’t have the more modern, oh just do whatever you believe, I think. He always talks about conscience as acting in accordance with what you believe your duty to God is. If you take God out of it, I’m not sure that Madison’s view can really stand any longer. So in that sense, I think that was sort of a similarity that he had to Thomas More and Martin Luther that it’s still a theistic view, I think. And that to some degree probably becomes unacceptable to a lot of people later. But at that time, I think that was the view.
Kevin Walsh (00:28:09):
And that’s right there when he says religion is the duty we owe to our creator and when he’s talking about the limited jurisdiction of the state to essentially be part of that.
Steven Smith (00:28:21):
Yeah. And as I say, that sort of drops out later in the 20th century. That part of it drops out. But I think for him that was still real and still essential really to his conception and to it being able to perform the function that he wanted to perform. Providing some kind of a religious unity even in the midst of religious pluralism. I think you have to have that theistic element, I think, or it doesn’t really work in the same way.
Kevin Walsh (00:28:49):
And there is a point where … I take your point on the Virginia experience and the Virginia Constitution, but for our current law, there’s a story that’s told about how the Virginia experience essentially made its way into the establishment clause, into the First Amendment and the Bill of Rights. Which of course he’s proposing these in Congress, but you’re not arguing that the establishment clause somehow-
Steven Smith (00:29:18):
Incorporated Jefferson’s Virginia statute.
Kevin Walsh (00:29:20):
Incorporated the Virginia experience even on Madison’s own view. And I take that. I’m trying to represent the book.
Steven Smith (00:29:28):
No, I agree with you on that. I agree with you on that. And I’ve written at other places quite a lot about that. I don’t think the First Amendment did basically track the Virginia statute for religious freedom. But I think on the point of conscience, Madison wanted to do that at the national level. He wanted to have a national provision in the Bill of Rights that would have protected the right of conscience against the states. And he proposed it. It passed in the House, I believe, but it was didn’t pass in the Senate and so forth. So he tried to legally establish conscience even at the national level, I think, and failed to do that.
Kevin Walsh (00:30:08):
Well, I want to make sure that we get to Justice Brennan. I just had one follow-up question on Madison. Because in part of the book where you essentially take apart his argument and the way that it’s been used, you say, well, also he overlooks actually some uses for compulsion in religion. So most of his argument is about this is not the sort of thing that can be compelled. Just the nature of religion as a duty we owe to our creator is not something that’s capable of being compelled. And that then can have some bad effects if you try. But you do sketch out what you call the pedagogical function of compulsion in matters of religion or certain types of compulsion as well as a contagion rationale. And these are related, but I think it does make sense analytically the way you distinguish these. Can you just, since that’s part of your criticism of Madison’s position, just sketch out when people said, what do you mean by a pedagogical function of compulsion and avoiding contagion as a rationale for compulsion?
Steven Smith (00:31:23):
Yeah. Okay. Yeah. I will say in that chapter on Madison, I intended to have a sort of dialectical quality where-
Kevin Walsh (00:31:31):
Fair enough. I’m not saying Professor Smith endorses, but recognizes I think is fair.
Steven Smith (00:31:39):
But then I’ll come back and say, oh, actually the criticism I made earlier, now we can see maybe isn’t quite cogent and so it’s a back and forth. But I do mean there to respond to what I think is a really common view, and even somebody that I, let’s say greatly respect and very erudite scholar like John Newnan who writes about Madison and so forth. But there’s a real common view that they take, which is Madison and Jefferson … And other people said this too, but I mean they are for us important figures who’ve said this. Once you understand that only a voluntary faith and a sincere voluntary faith is acceptable to God, it just follows automatically that there could be no use for compulsion in matters of religion and therefore that religious freedom should follow. And then that seems to imply that all those people over the years like St. Augustine and Thomas Aquinas and Thomas More were just somehow blind or something.
(00:32:41):
This is sort of an obvious point that today just about any middle school student ought to be able to easily comprehend, and yet somehow Augustine and Aquinas and Thomas More missed it or something like that. And I just think that’s a gross distortion both of history and of Madison. So I think there are rationales that had been embraced over the years for coercion in matters of religion. And two of those that were quite common, one was a pedagogical rationale, which is if you require people to, let’s say, practice and learn a religion up to a point, even though they’re not inclined to do so initially, they will eventually come to see the truth of it. And that’s a rationale that we use all the time in other matters. We don’t use it in religion, but we force kids to go to school, we force them to recite certain things.
(00:33:33):
On the assumption that they’ll come to see the truth of it. That was one sort of common, let’s say classical rationale for religious coercion. And another was a contagion rationale. The heretics basically are going to spread their wrong and perverse ideas to innocent people who otherwise might not have been … And so that’s a reason to stop them from doing that. Now, I’d say I certainly don’t think that those rationales provide us with a good justification for religious coercion today under our circumstances and so forth. But in terms of Madison providing some sort of, let’s say, argument for the ages that shows this, he really doesn’t address those sorts of issues at all. And I think if someone like Thomas More had read Madison’s point, he’d just say, “You’re not telling me anything I don’t know already. Everything you say is obvious and I know all that and you haven’t addressed any of my real concerns.”
(00:34:33):
Now, in the end, I tried to absolve Madison of that. I just say, well, he wasn’t trying to write a treatise for the ages. He was trying to write something under the circumstances in Virginia at the time would lead to the result that he thought was the right one. And he did a brilliant job of that. But if we try to elevate him into somebody who’s made this classic monumental contribution to the overall centuries long debate and relegate Aquinas, More and others to having somehow just blindly missed this point, I just really think we’re not doing justice to anybody in that sort of discussion.
Kevin Walsh (00:35:11):
Two, at least in some of the debates that he was trying to win, for example, the one on the religious assessments where it was compulsion in the sense that we were talking about attacks, but they could direct it to different ways, not to everybody, but maybe he’s overstating or giving a very broad understanding of what is meant by compulsion as well. And we can add to the list of people whose views maybe are not represented there. People like John Marshall who was in Virginia politics at the time, or Patrick Henry of course leading the charge. And so that’s helpful.
(00:35:53):
So let’s now move to Justice Brennan. And this one I think is where the concept of conscience is most familiar in some respects, but you have some pretty strong claims about the way that Justice Brennan personally and through his influence on the court and through the court’s influence in society shifted the meaning of the United States of America in certain ways. I just want to start though with the title, and the title is Conscience and Compartmentalization. And you end up breaking this down in private compartmentalization, and then this leads to societal compartmentalization. But I just want to add, as a reader, this was a frightening chapter just in thinking about … Less even about society than in thinking about even myself as a lawyer, a law professor, all sorts of things. Because I think that compartmentalizing is something that we do. And seeing the way that it played out for Brennan was frightening in some ways. And so I guess I want to say why is that, or is it not a fair reading of the chapter to worry about one’s own compartmentalization and conscience? The people reading this book are generally going to be educated. If not legally educated, well then God bless for all that. But it’s a little frightening, isn’t it?
Steven Smith (00:37:42):
Well, yeah, it is. I mean, now you’re making me feel like I should feel pretty disturbed myself. Well, let’s start with Brennan though. Okay. So when Brennan’s nominated to the Supreme Court, basically, one objection is that as a Catholic, he would have a conflict of interest in a sense, and a conflict of loyalty, and that the criticism would be he’d be bound to do what the Pope says and so forth. And this is a criticism that lots of Catholics in particular, but probably others in different forms have faced. Al Smith had faced it when he ran for president years before, John Kennedy faced it a few years later. And those three all tried to respond to that objection by compartmentalizing. By saying, well, I can continue to be a Catholic as a private citizen, but as a public official, as a justice or for Kennedy as president, I won’t be directed by my religious beliefs and so forth, and I’ll do my public … However you do it.
(00:38:50):
And so I’ll sort of split myself into the public self, the public official, and that won’t be guided by my religious beliefs, but as a private citizen, I will be. And so that’s a kind of compartmentalization that Brennan had adopted for himself. And he explained this to the Senate and he explained it in others that that was his philosophy for being a justice. And then I suggest that as a justice he was probably the leading figure in working to impose that same compartmentalization on the nation as a whole by reading it into the First Amendment religion clauses and so on, which I think was an imposition on the clause. Not what they initially meant and so forth. And by now it’s become so axiomatic that we do largely take it for granted and there are probably hosts of politicians, well, Joe Biden and Nancy Pelosi and so forth who claim, and for all I know sincerely claim to be faithful Catholics, and yet in their public positions take positions that are directly contrary to Catholic teachings on matters like abortion and so forth.
(00:39:58):
And this is just kind of common. We sort of take it for granted. But I do suggest that personally, it involves a kind of disintegration if you’re going to split yourself into your religious side, and that’s where your ultimate beliefs supposedly are, but you’re going to confine that to the private sphere and operate almost like an actor in a different script when you’re in your public role. That’s a kind of disintegration. It wasn’t hard for Brennan to do it, and it wasn’t hard for John Kennedy to do it probably because they weren’t … I’m not denigrating their faithfulness or sincerity, but indications are they never took really seriously Catholic theology and trading and so forth. It came kind of natural to them. It would not have been natural to Thomas More. Thomas More resigned from office rather than do something like that and suffered execution. And it wouldn’t be natural to others, I think, who are more earnest, let’s say, and studious and committed to their faith.
(00:41:02):
It does involve a kind of disintegration, I think. And when it’s imposed on the nation, I suggest it also involves a sort of disintegration between let’s say past America and modern America and also between, let’s say we the people as the full people with religious beliefs and so forth, and we the people performing public offices, in which case we’re supposed to bracket our religious beliefs and so on. So that’s the kind of phenomenon I discussed there. Is it avoidable though? I mean, your question, is it terrifying? Do we all end up doing that, and is it disintegrating to all of us? I don’t know. I’m not sure from our perspective since we’re so used to it and this kind of thing, whether we can get a very clear sight on it. I sort of end that chapter by getting back to Thomas More and of the three figures. He’s the one that’s supposed to be kind of like the overarching figure, but I bring him back in the form of a Walker Percy novel in which the protagonist is Dr. Thomas More, a descendant of Thomas More.
(00:42:07):
And this is Love in the Ruins. Kind of in some ways on the level of belief, a faithful Catholic on the level of conduct, a serial adulterer and so forth. But it’s a wonderful novel, I think. And the whole novel is about disintegration, I think. And Percy through the novel and elsewhere and things he says did sort of think the modern self is just disintegrated. We come apart in the middle. But in the novel, Percy has Thomas More perceiving that a lot of his colleagues don’t see the problem, that they feel like they’re healthy enough and so forth. They don’t see the catastrophe in a way that it’s looming the way Dr. Thomas More sees it. And I have to admit, I wonder sometimes whether we and I are like Thomas More’s colleagues who are so accustomed to this sort of situation that we don’t really see some of the disintegration that in fact is happening.
(00:43:06):
But I do think it’s complicated because I’m not sure, depending on your situation, that it has to be disintegrating in this way. I think it depends on the life and your career and the situations you’re in and so forth. It can lead any of us maybe into that sort of situation, but I think it might be possible to avoid that kind of compromise or that kind of compartmentalization. I hope so, at least. I think I’ve sort of tried to do it in my life, and I think we try to do that, but maybe we’re fooling ourselves or maybe I’m fooling myself thinking [inaudible 00:43:39].
Kevin Walsh (00:43:40):
I think that’s one of the things that stands out in that chapter is on the one hand you make the case analytically that if you compartmentalize in this way, here’s what happens to your understanding of yourself as a person. That is when you’re making arguments in the most public way and you’re taking positions and you do all those other things, and then there’s this other aspect that really is just for you or just for your family or something, you say, well, who are you really? Are you the same person? And you talk about different aspects of personal identity. And maybe there can be too much self knowledge that it’s not helpful to be brought up to that. And this came out in the Brennan chapter. I don’t know that I had appreciated this previously. You’re talking about the influence of his father.
(00:44:32):
So his father dies when he is in his second year at Harvard Law School. And there was a lot that was happening with his father, but his father … He wanted him to go to Penn for undergrad, to go to Harvard Law School. But while all this is happening, he secretly marries. And so in law school as a law student, he in some ways is living a double life, like vis-a-vis his father, vis-a-vis his other family. And you mentioned that at the end, the secret comes out. They were actually just going to have a marriage and pretend it was their first for everybody, but somehow the priest-
Steven Smith (00:45:18):
The priest who did the first one accidentally produced the marriage certificate from the first one.
Kevin Walsh (00:45:24):
The marriage certificate. And I wonder if you could just say a little bit about this personal side of Brennan and the influence of his father and how that may have shaped his role as a justice, because you say part of what may have made Brennan effective was his personal sense of who he was. He knew even if he wasn’t a very regular practicing Catholic in some ways, he had his family, he had his religion. He was Bill Brennan from New Jersey, and he knew who he was and that enabled him to build coalitions to do all this other stuff. I just wonder if you could speak to that a little.
Steven Smith (00:46:08):
That comes up in the chapter where I’ve tried to say that by disintegrating conscience, by separating the duty to God from being true to yourself, there’s been a kind of disintegration and it’s occurring at a time when it becomes less and less clear what the self even is or what constitutes self. And I think you see lots of evidence of people struggling with that today. Who am I? How do I even know what kind of … And you see it, I think, in people who are trying to discover who their parents were, who their ancestors were.
(00:46:48):
You see it in I think the rising levels of depression and suicide that also … You see it, I think, in identity politics. People trying to find some secure sense of self. And I try to link this to the disintegration that has come with modern notions of conscience. But the typical sources, I think, of a sense of self … This is kind of a modern problem some authors say. Because people typically had a strong sense of their self. They didn’t worry about existentially, who am I? Because their self was sort of given to them by their family ties and by their religion. I am the son of Robert and Betty and so forth, and I am a child of God and one of God’s creatures, and that gives me a sense of myself.
(00:47:41):
Those things have kind of dried up to a significant degree for a lot of people, I think, which helps to explain this crisis of the self. Brennan on the other hand, I think didn’t have that problem. I see no reason to doubt that he was sincere in his faith, even if he wasn’t particularly earnest about practicing in every way, but he presumably was sort of sincere in it. And he did come from, let’s say, a strong family, in fact, with a very strong father, as you said, who kind of dominated the family. And Brennan, as you say, in some ways, it’s interesting that he escaped that for purposes of getting married without letting his father know because he thought his father wouldn’t approve. But to a large degree, he followed his father. He went to college where his father told him to do. He went to law school where his father said.
(00:48:32):
And when someone asked him many, many years later, “Would your father have been surprised to see you now as a Supreme Court Justice?” He said, “No. He would’ve expected it.” So Brennan was, well, well-grounded in let’s say the traditional forms of identity, basis of identity. And he was also known for being a sort of a warm, very likable, personable person with a kind of self-confidence about him, a warm self-confidence about him. So he I think himself did not suffer from this crisis of the self. And I suggested it may be that because he still had this grounding in the traditional sources of self, although changes that he was actually helping to bring about may have been contributing to the crisis of the self for many people and for the nation generally.
Kevin Walsh (00:49:25):
Well, I do want to try to get to some of the questions that have come in on our … It was on the webinar. Secret chat messages and things like that to make sure. And so I’m going to put two and I’ll tell you why. The first one, I’m not sure whether you want to take or not because it addresses a super important figure for conscience who is in between Madison and Brennan temporally and this is Cardinal Newman. Cardinal Newman’s understanding of conscience. And that just doesn’t feature in the book and so I’m not sure if … Maybe I think even instead of asking the question, I’ll make a promise that IHE together with CIT will ensure plenty of good Newman related things. Now, if there is something you wanted to add about Newman in conscience, this is an invitation, I suppose.
Steven Smith (00:50:22):
I’ll just say really briefly, no, I probably won’t add anything there. I know Newman did write and think a lot about conscience, and actually when I was working on a draft of this, and a friend of mine who read a draft said, “You should probably work Cardinal Newman in.” But the book was already pretty long so I mean, I looked up, read a little Cardinal Newman on it, and it was good stuff for sure. A lot of what Newman wrote. But I just didn’t see a way exactly to integrate it into the flow of the argument here so I didn’t. But it’d definitely be worth paying more attention to that.
Kevin Walsh (00:50:54):
It’s definitely interesting with … I think even in some of his writings on Christological controversies, the emphasis on the census fidelium, the sense of the faithful and that the lay faithful in particular in the Aryan heresy having a better sense of what the faith was in some ways than some of the hierarchs. But we’ll have to move that for another event.
(00:51:19):
A question about, we’ve talked a lot about changing understandings of conscience. How is this related to changing understandings of religion? So I mentioned Madison’s description in a classical sense in some ways of the duty we owe to our creator. And of course this in a broad sense, we might think of Aquinas’ understanding of religion as a sort of part in some ways of justice, of what is owed. But now religion is understood as a system and beliefs related to the transcendent that, I don’t know, it’s not necessarily within the virtue of justice, say. Are there connections that you see in these drifting meanings or is it just too complicated?
Steven Smith (00:52:10):
Yeah. Well, it is very complicated, obviously. And as you probably know, some scholars today wonder whether it’s even possible to define religion. Maybe this is just sort of a misconceived category and so forth. And other scholars might say it’s a category that got developed in more modern Western history for political reasons and so forth. I talk about it in different senses in different places as sort of a relation to the holy and so forth. But I think there is definitely, let’s say just within American law, a connection between conscience and religion. For someone like Brennan for example, he’d talk about freedom of religion or freedom of conscience interchangeably as if those were the same things. And I think what happened with conscience is sort of what happened with the interpretation of the religion clauses. Probably the clearest case to illustrate that would be Welsh and Seeger, the draft exemption cases from the Vietnam War period where religious objectors to the war were entitled to some kind of an objection. Well, to war generally. I mean, there were qualifications, but there was an exemption for religious objectors. And it got read to mean something like … I mean, it was originally defined theistically, kind of hearkening back to the way Madison talked about it, but it got defined to be any existentially sincere thing. So religion got kind of exploded, I’d say, in those decisions in the same way that conscience has.
Kevin Walsh (00:53:43):
And was it Welsh where the case where the guy’s like, “I’m not going to let you off that easy. I’m going to insist that it’s not religious.” It’s just whatever it is, it’s not religious.
Steven Smith (00:53:55):
Yeah. He said it was not religious, but the court said he says that because-
Kevin Walsh (00:53:58):
And they’re like, “Well, you don’t understand how to read a federal statute.”
Steven Smith (00:54:02):
Yeah. And I kind of liked those cases when they were decided, and I still sort of like them, I guess, in a way. But I do think they sort of reflect a kind of incoherence that’s creeping into the whole notion of religion and conscience.
Kevin Walsh (00:54:17):
Well, I do think … I’m glad you did not end the book with the conscience and compartmentalization chapter, and I just want to just read the end of that chapter in part and then ask you to speak to the epilogue, the looking backward, looking forward as we wrap up. And at the end of the book, before the epilogue, you talk about conscience and you say, “That ennobling, but also disintegrating faculty that has served to uplift, dignify and even consecrate humanity, but it also sunders a man from his society and family, Sir Thomas More, from the tradition in church that shaped him, Luther, from the commitment to theological truth, Madison. And finally, in its modern version, it’s senders a man, Brennan, Kennedy, Dr. Thomas More, Joe Biden, and so many others from his self, separating a public persona or performer from what ostensibly are, or at least were his deepest and constitutive convictions, and thereby leaving him ignorant of who he is, what he believes or what he is doing.”
(00:55:32):
If that was the final word in the book, that would’ve been rough.
Steven Smith (00:55:38):
That would be depressing, wouldn’t it?
Kevin Walsh (00:55:39):
What is the final word? I mean, the final word you end up referring to, well, the future and to future generations. And I think perhaps the therapy of looking at all this change over time does open up the possibility for imagining a future that isn’t just a continuation of the worst aspects of the present, but in the looking backward, looking forward, where do you leave readers with your epilogue?
Steven Smith (00:56:11):
Yeah. By the way, the passage that you just read was kind of a distillation, also a reflection of the Walker Percy novel in a sense. I think that’s what he’s kind of leading up to. But I suppose saying it that way, I was kind of endorsing it, I suppose.
Kevin Walsh (00:56:26):
Well, this is a challenge for your readers with the dialectical style. I took Percy to be standing in in some ways for this author, but you can speak to that better.
Steven Smith (00:56:40):
So this is a longstanding commitment of mine going back to when I taught at the University of Colorado, and I had some colleagues there, and we had a commitment in which we said legal scholarship always ends with a solution. This is what we should do. And we were committed to not doing that. If we could give a diagnosis of a situation, that was already a contribution. Why would we be the ones who would know what the solution is? And I feel like we are … Well, one of the historians talking about More says he was at a fulcrum period in human history. Things were changing. I feel like we are at a fulcrum point in human history now, and in a point like that, it’s very difficult to anticipate what will come. So I try to end on a potentially hopeful note, but I don’t say anything very concrete.
(00:57:34):
But when I’m forced to say things also, okay, but if you had to say, where should we go, again, I sort of insist we don’t know where we’re going. Here’s Newman again. One step enough, lead kindly, one step enough. I do not ask to see the distancing. But if I have to be more concrete, I try to say something like, for me, the most hopeful thing here would be appreciating the importance of freedom of the church. Because I think the church is something that has led through previous fulcrum periods, and by that I mean broadly I’ll say the faithful or the Christian community, not necessarily the Roman Catholic Church or the Anglican church, but the church in a broad sense. Much as the church, I think today, all the churches, many of them at least are struggling with serious challenges and things may not look good. I still think that’s where the hope for the future life.
(00:58:34):
So I sort of go that direction. Now, someone else, you can easily see someone responding to your question by moving in the direction of something that apparently is gaining some considerable momentum in some quarters going into the name of integralism and so forth. I don’t go that way myself, but I do think it’s an indication of the sort of disintegration that’s being experienced and the need for some way of having a more meaningful system of life that’s connected to transcendence and is integrated in that way. I think there are different ways of trying to explore that, and I associate them with the church in one form or another, I think. So that’s about the best I can do, I think.
Kevin Walsh (00:59:25):
Well, thank you for that. It reminds me a little bit of the last self-help book that Percy wrote, Lost in the Cosmos. And at least it is a cosmos or even a sense of us as being … We might be lost, but we’re in a universe so we’re in the same world. The last question that came in, which I won’t have a chance to get to, refers to Pope John Paul II in cyclical Veritatis splendor 30 years ago, and of course, the splendor of truth, and that is something that comes through in a book like this that helps us understand this changing concept over time. I will ask everyone who’s with us virtually to join me in thanking you, but instead, since they’re virtual, I will thank you. Thank you for this conversation and for letting us listen in and to speak with you as an author.
Steven Smith (01:00:26):
Thank you, Kevin. It’s really been good to have a chance to talk with you.
Kevin Walsh (01:00:31):
Well, that’s a wrap of-
Steven Smith (01:00:34):
And I’ll go with the Veritatis splendor too. Probably won’t find a better and actually hopeful and meaningful diagnosis of our situation than that, I suppose. That’d be a good place to turn.
Kevin Walsh (01:00:45):
Very good, very good. Well, thank you all for attending virtually and for listening down the road. Well, if it’s not too late for whenever you’re listening to this, the next IHE event is virtual event on February 13th. That is part of the St. Scholastica series, two notions of leisure, resting in the Lord versus restless consumption. And then the next CIT event is later that week. That’s an in-person one. February 15th at 12:30. And that maybe to go back to part of what we were discussing today, Professor Daniel Dresbach of American and Professor Gerard Bradley of University of Notre Dame will be speaking on the topic reading the Bible with the Founding Fathers. So for now, goodbye, Godspeed and may God bless America.
Steven Smith (01:01:33):
Okay, thanks.