Judge McConnell on The Establishment Clause

Last night, I attended a lecture by Judge Michael McConnell of the 10th Circuit Court of Appeals at the University of Minnesota Law School. The lecture drew what struck me as an astonishingly large crowd, probably as a result of the buzz surrounding Judge McConnell as a possible Supreme Court nominee. Judge McConnell’s topic was “Virtue, Religion & Republicanism at the Founding,” which might not sound like a politically-charged barnburner. But in a sense it was, since Judge McConnell is America’s foremost student of religion and the First Amendment, and the subject of his talk was the Establishment Clause.
Judge McConnell reviewed the history of the Establishment Clause, and the Founders’ attitudes toward religion and public virtue. One can’t do justice to his analysis in a sentence, but his thesis was that the Founders were nearly unanimous in believing that a “virtuous” citizenry is necessary for a republic to succeed, and that religion is a powerful support–at that time, certainly, the main support–for a virtuous citizenry. The controversial question at and after the Founding was whether government support for religion would strengthen the influence of religious institutions, or weaken it. One delightful historical nugget: David Hume, one of my favorite philosophers, argued for an established religion on the ground that it tends to dampen religious enthusiasm, which otherwise could be dangerous.
Judge McConnell reviewed the history of religious establishment by the states following the adoption of the Constitution. (The First Amendment, of course, prohibited the federal government from establishing a national religion, but left the states free to establish or support religions within their jurisdictions.) Religious establishment died out mostly because it was seen as an ineffective, and likely counter-productive, way to promote the influence of religion.
All of which was fascinating, especially as filtered through Judge McConnell’s encyclopedic knowledge of the subject. I tried to push him into extending the argument into the present day, where, it seems to me, there is no danger of an actual “establishment” of religion, and the Establishment Clause is used largely as an offensive weapon of hostility toward religion. McConnell, however, didn’t seem to see it that way, and defended such contemporary applications of the Establishment Clause as the prohibition of organized prayer in public schools (with which I also agree, for what it’s worth). Judge McConnell’s view is that, happily, history shows that strong and active religious organizations, support for public virtue, and complete disestablishment of religion can and should coexist–a view that would have to be badly distorted to cause controversy on the Senate Judiciary Committee.
I have no idea whether Judge McConnell will be nominated to the Supreme Court or not. He is very smart, very judicious, and the right age. His interest in the Constitutional role of religion is one that President Bush certainly shares. The only negative factor I know of is McConnell’s history as a law professor, which has left a long paper trail of articles on various topics, some of them controversial. Based on last night’s performance, however, I suspect that it would be hard for Pat Leahy and Ted Kennedy to get very far by cross-examining Judge McConnell on his writings. His expertise is too deep and his demeanor too reasonable. Speaking for myself, I hope we get the opportunity to find out.

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