We Need A Declaration of Institutional Independence

A new book, The Case for Polarized Politics: Why America Needs Social Conservatism, by Jeffrey Bell (which I haven’t read but is reviewed in Christianity Today), argues that social conservatism (i.e., the Religious Right) is “the application of natural law to politics — the self-evident truths of the Declaration — rather than as a political manifestation of religious revelation.” Bell apparently argues this way in order to counter the trend of evangelicals increasingly moving left. According to Andrew Walker, the reviewer, “Liberal evangelicals like Jim Wallis insist that younger evangelicals have moved beyond abortion and gay marriage to matters of immigration and economic justice. Many mainstream Republicans complain that social conservatives hold the party hostage to a divisive agenda. Happy to court social conservative votes, they sweep social conservative causes under the political rug once victory has been attained.” Bell’s book, then, appears to be a way of rallying evangelicals to remain conservative. His reading of the Declaration of Independence, the British Enlightenment, and American politics all point to evangelical convictions as basic to the United States’ character.

The problem with this way of looking at the American Founding (and in particular, the Declaration of Independence as opposed to the Articles of Confederation or the Constitution) is that the appeal to fundamental natural rights — as in all men are created equal — has been the way to run rough shod over all sorts of lesser human authorities and institutions. In the antebellum era, appeals to natural rights could be used against states’ rights in order to assert one national norm and go around the powers of local governments. But this has played out in more extravagant ways in the twentieth century, with the rights of individuals trumping the authority of local school boards, in some cases churches, and community standards. In other words, the appeal to the rights of individuals is hardly conservative. It is the way to liberate individuals from parental, ecclesial, academic, and community authorities. And who benefits from this? Individuals, of course. But also the federal government, the institution capable of bestowing such individual benefits. Pitting individual liberty against governmental regulation is not a conservative argument. In fact, the rise of big government goes hand in hand with the liberation of individuals. The authorities to suffer in all of this power shifting are the mediating structures, those institutions closest to persons which have a much greater stake (than judges in Washington, D.C.) in the well-being of their members.

For this reason, if Bell’s book gains traction among evangelicals it will further direct born-again Protestants from any sustained consideration of genuine American conservatism, the kind that takes seriously not some abstract rights of individuals in some nether world, state of nature, but the real laws and institutional arrangements that informed decisions to form a federated republic under the norms prescribed in a national constitution.

This is why it would be much better if evangelicals would turn to writers like Noah Millman, who blogs over at the American Conservative, and understands well the radicalism inherent in appeals to abstract ideals of individual liberty. In a post about the impossibility of religious liberty, he writes:

Winnifred Sullivan’s book argues, in a nutshell, that religious freedom, for individuals, means freedom from religious authority as well as freedom from governmental restriction on religious practice. So, you can’t ask a Catholic prelate whether this or that practice that the law would prohibit (say, putting statues on angels on graves, which is the main example in her book) is actually a formal part of Catholic religious practice, because the prelate has no standing, in a secular court, to rule on the question. If the grieving family feel that it’s an essential that Dad get guarded by a statue of an angel, then that’s their religious practice by definition, and if you want true freedom of religion you have to protect it. But this way, needless to say, lies chaos. Hence the impossibility of religious freedom.

In encourage people to read the book; a one-paragraph summary doesn’t do justice to the argument.

What I’ve argued in the past is that, regardless of where Constitutional doctrine winds up, we should strive to maximize (within reason) the zone of autonomy for religious institutions, because we should view that autonomy as a positive good, not as an absolute “right.” Hegemonic liberalism should be humble enough to accept that it doesn’t know the only ways of knowing, and that there is value, therefore, in having robust voices that claim other modes of knowledge – religious voices being preeminent examples.

Which is why I’ve argued simultaneously that I think the Constitutional objections to the HHS mandate don’t convince me, but that the mandate was a mistake – not a political mistake (it may or may not have been that as well) but a substantive policy mistake. Not because Catholics can’t freely practice their religion if the HHS mandate exists (they clearly can – indeed, it’s really easy to construct workarounds that don’t directly implicate the employer in providing the coverage, in which case I don’t see what the religious objection might be) but because we actively do want the Catholic Church out there living, in its institutions, a worldview with which the majority of the country disagrees, precisely because it has a long and profound history and the majority of the country disagrees with it. This is the kind of situation where “diversity is strength” has some actual meaning in the political ecology.

Important to note is the contrast Millman makes between individual and institutional freedoms. I agree with him that a true diversity would encourage greater resilience for church authorities like the Roman Catholic hierarchy and I would hope that such encouragement would extend to the assemblies and synods of Reformed and Presbyterian communions. But what is striking is that the protection of religious liberties for individuals is a very different matter than such protection for religious institutions.

The reason that evangelicals do not see this distinction, or use it in their political reflections, I suppose, is that their religious devotion is largely personal and individual — the believer’s experience — and not institutional or under the oversight and norms of an ecclesiastical body. It is no wonder, then, that evangelicals, long on individualism and short on ecclesiology, will try to find roots for social conservatism in a document that has no legal standing in America’s laws and that celebrates the individual (at least for a few lines).


20 thoughts on “We Need A Declaration of Institutional Independence

  1. Yep. The cause of American “freedom” is served not by fighting for the private individual but rather for the institutions to which he belongs. Your assertion that there are no institutions that have legal standing has one exception; the marital family. This is why it is such a national tragedy that this essential institution is falling apart. In fact, one wonders whether the preamble to the Declaration of Independence can stand at all once this foundational institution has been destroyed.


  2. “It is no wonder, then, that evangelicals, long on individualism and short on ecclesiology, will try to find roots for social conservatism in a document that has no legal standing in America’s laws and that celebrates the individual (at least for a few lines).”

    What do you make of the Declaration of Independence being included in the US Code? I’ve been taught that it is, in fact, federal law.



  3. The tension I see with using rights language comes from positive or claim rights. If positive rights are rejected (as implied in the Declaration) then you don’t have tension from any voluntary institution.

    As for the federal imposition on state governments, I hardly think you can blame rights arguments, but a faulty understanding of how the Constitution works in limiting the feds. The powers bestowed on the states are many and not defined by the Constitution. Were it not for the limiting of powers in their state constitutions, they could, by Constitutional law, run roughshod over individual rights.


  4. Darryl, you say “Pitting individual liberty against governmental regulation is not a conservative argument.”

    Well, I say, so much the worse for conservative arguments. The Papist, Gerard Casey has a better take on it.

    One of the difficulties here is that you figure that since the Fed govt used ‘individual liberty’ vs. slavery as an excuse to extend its power, then ‘individual liberty’ gives rise to big govt because big govt “is capable of bestowing individual benefits”. You don’t like this because you want small community (like the church). So, you vitiate the notion of ‘rights’ in favor of ‘the good’. The problem is that this inevitably leads back to the idea that big govt is capable of bestowing the communal good. Ugh.

    The only way out is to see that pitting individual rights against government regulation is not incompatible with, but rather most conducive to, also pitting communal rights against government regulation. Govt is not properly the “bestower” of rights or benefits. Both communal and individual rights are indeed God-given, and the benefits flow from God through the free maintaining and exercise of those rights in liberty against all govt regulatory coercion.


  5. Joel, I’m not sure what to make of this and look for any help from attorneys. But the Code also includes the Articles of Confederation, which as we now know, are not part of U.S. law in any practical sense. Plus, the Declaration came well before the U.S. Congress. So how a statement from 1776 could be part of an institution not formed until 13 years later, I’m not prepared to say.


  6. Joel, democracy is fundamentally about equal rights of all individuals in the process of elections. The U.S. government was originally not a democratic form of government. As Andrew Jackson and Elizabeth Cady Stanton well knew, not all Americans could vote. The Electoral College is one check upon democracy though the Constitution provided others. Still, the states determined the norms for franchise. After the Civil War, the federal government took that authority. Hence the feds and individuals triumphed over the states and local governments.


  7. Baus, where did I say “the good”? I’m talking about rights, or better, powers. And I’m trying to argue for the powers (or rights) of institutions not just of individuals against big government. There are at least three competing powers — persons, mediating institutions, and (now) the nation-state. But for many libertarians and social conservatives, what’s a mediating institution and who cares?


  8. Darryl, Millman said we should take religious institutional autonomy “as a positive good, not as an absolute “right”” –and I took you to be affirming his claim.

    Anyway, glad to hear your not abandoning rights and individual rights for the abstract ideals of communal good! I think we’re on the same page then.

    I suppose some might not know or care about mediating institutions, but most don’t like the concept of how communities are supposedly “mediating” govt power. I obviously find less of a problem with libertarians than I do with communitarians who think govt power is an ally against “corrosive individualism,” when in reality, it’s govt power that corrosive.


  9. Baus, we don’t agree. I’m all for local governments, including sessions. And I’m not very crazy about individual rights of persons. The Chamber of Commerce has enough trouble trying to herd its businesses. It doesn’t need to worry about gaining the approval of the feds.


  10. “Joel, democracy is fundamentally about equal rights of all individuals in the process of elections.”

    Darryl, I don’t know how voting can be viewed as a negative right. It seems that it is better thought of as a privilege, unless you think that the power to select your magistrate is intrinsic to life, liberty, and property. Civil voting is the power to choose someone who has the authority to initiate violence on others, which really sounds like a claim (right) to do with others life, liberty, and property what you and others desire to have done.

    “Hence the feds and individuals triumphed over the states and local governments.”
    Could you give an example of an individual triumphing over state and local government because of a negative right? I can’t imagine it could be a bad thing, if they did. It’s one thing if you believe in a positive right to healthcare, a positive right to a job, to a public education, etc. and use these “rights” to triumph over the states, but wholly another to just resist the initiation of violence on yourself or theft of your property.


  11. Joel, the example is the United States of America. Franchise was restricted and only around 1920 did women get the right to vote. How? By an amendment not to state constitutions but to the federal one. By that point states had lost most of the powers they had for determining citizenship. We used to be citizens of a state, not a citizen of the United States.


  12. Darryl, just because someone calls voting a right, does not make it so. Abortion is not a right because it makes a claim on another person’s life. It is the same with the right to universal, socialized retirement or the right to healthcare, because by definition they make a claim against other people’s lives and property, thus violating their actual right to their lives, bodies, and property. If there is a right to healthcare, you would have to consider doctors’ labor and property to be owned by whoever makes the claim. Voting and other claim rights make the entire notion of rights and liberty to be a contradiction. If you were implying that citizenship is a right, then you’d have to explain why it can’t be offered to all people everywhere, including foreigners. Rights are something you have because you are human, not because you are American.

    States have powers, not rights, unless you are speaking about the people in the plural. They can grant privileges, but not rights. They can only recognize and not violate rights that already exist.


  13. Btw, I agree with your points about how power has changed hands from states to the Feds and the associated problems with centralized government compared to decentralized, subsidiary powers. This is perhaps the only reason I think of myself at all as a conservative; older conservatives believe in making power as local and inefficient and divided as possible, which are all great things.


  14. Darryl, but why shouldn’t you be crazy for the rights of persons, especially if you are crazy for the rights of communities (or aren’t you?) ? Ones right is what one is due; justice. Why not be crazy for what is due to sessions, if you (as you should be) are “all for” sessions? To be all for rights is to be all for authority (over-against authoritarianism/tyranny; the deprivation of justice/rights). Consider what Gerard Casey has to say.


  15. Joel, I don’t think I’ve been arguing for rights, either of individuals or of states. I am talking about power and whether or not the states or the federal government has the upper hand. This was at the heart of antebellum politics and the Civil War ended that debate, with the union awarding the crown to Washington, D.C. So the point is that the Declaration says nothing about this fundamental tension in the Constitution, nor does it address the question of local power versus consolidation, though you could use it to argue against imperial consolidation. Still, the author of this book and his appeal to the Declaration appears to be completely indifferent to these questions.


  16. Baus, because I am suspicious of individual rights. It’s easy to see when an individual is wronged. It’s like seeing the problem with war or hunger. But it’s harder to see when an authority is wronged. And believe it or not, Americans tend not to see the value of authority.


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