Secular Constitutionalism: Introduction to the ICLRS Webinar, held December 7, 2020

Brett G. Scharffs is the Rex E. Lee Chair, Professor of Law, and the Director of the International Center for Law and Religion Studies, J. Reuben Clark Law School, Brigham Young University. BSBA, MA Georgetown University, B.Phil Oxford University (Rhodes Scholar), JD Yale Law School

The blog/webinar model represents a new and important method for doing meaningful work. We can listen and learn from each other, even when we cannot be physically together, and it allows us to post the work quickly and get it into the marketplace of ideas. This is important with the world we live in, and the rapidly changing situation with COVID. I’d like to thank all of our scholars, thanks to those of you who are joining us to listen, and thanks to those who are speaking. We will be focusing today on secular constitutionalism in Poland, Russia, Germany, and Australia.

I’ll begin by contrasting two models of secular constitutionalism with an observation from Alexis de Tocqueville: “In France, I have almost always seen the spirit of religion and the spirit of freedom marching in opposite directions. But in America, I found they were intimately united, and that they reigned in common over the same country.” This is interesting because the American and French revolutions took place at almost the same time. The American Declaration of Independence and Bill of Rights, the French Declaration of the Rights of Man and Citizen, were both important turning points in political history in that each created a secular nation/state. But as scholars have pointed out, they are quite different. In America, the predominant paradigm is freedom of religion, and in France, the prominent paradigm is freedom from religion. The French Revolution was a revolution against the established Catholic Church, whereas if you ask schoolchildren (or even historians) in America whether the American Revolution was a war against the Church of England, you’ll get nothing but puzzled stares.

Scholars have noticed a variety of differences, including Jonathan Sacks, in his most recent book, Morality. He was the former Chief Rabbi of the United Kingdom and died a few weeks ago. In a chapter entitled, “Democracy in Danger,” he builds upon the work of Mary Ann Glendon from Harvard Law School, in Rights Talk, distinguishing between an Anglo-American model and the French Revolutionary model of the secular state. In the Anglo-American model, they see three key social arenas: the state, individuals, and civil society. Civil society occupies a middle ground between the state and individuals, and it is in civil society where, in the words of de Tocqueville, the “art of association” is learned, and these are necessary to the “apprenticeship of liberty.” Religious institutions are an important component of these voluntary associations that make up civil society. The French Revolutionary model, according to Sacks, features two predominant arenas, the state and the individual. Religion and civil society actors are marginalized or even suspect.

This is a variation on a much older theme going back to Jesus’s answer to the Pharisees on whether it is lawful to pay tribute to Caesar. We see accounts of this in Matthew 22 and Luke 20. Jesus answers initially with a question asking whose image was on the coin? The answer was Caesar’s image. He then responds somewhat cryptically, “Render unto Caesar that which is Caesar’s and unto God that which is God’s.” This parable is usually understood to stand for the legitimacy of Christians submitting to secular authority. But it also has a larger implication of what we might think of as dualism—spheres of sovereignty or areas of legitimacy, both for religion and for the state.

A less noticed aspect of Jesus’s answer is, what is it that is stamped with the image of God? And the answer, of course, is us—men and women. And so, an ongoing question is, what does it mean for us to render unto God what is God’s?

This creates a dichotomy that we might think of as Rome versus Jerusalem, or statism versus dualism. The key question is, what is the origin of rights? The statist answer is the state creates rights, and then those rights become entitlements. The dualist answer is that some rights predate the state, and the state has an obligation to recognize and protect those rights. One of the measures of the legitimacy of the state is that it protects rights. Rights become limits on what the state can do.

Concerning dualism, we see an early articulation in the U.S. Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” We see here rights that are given by God, inherent and unalienable, with the state obliged to protect them. The next sentence of the Declaration of Independence is less well known. It says, “To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” Here we see two ideas: (1) the idea of popular sovereignty and (2) the legitimacy of the government. The purpose of the government is in large measure to secure these rights. Even less well known is the next sentence, which says, “Whenever any form of government becomes destructive of these ends,” in other words, protecting these inalienable rights, or observing the voice of the people, “it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” Thus, rights are inalienable, they are endowments from our Creator. And the key rights, of course, are liberty and equality, although equality is not fully vindicated yet and became only partially vindicated in the Civil War.

A more recent articulation of what I view as the dualist approach is the Universal Declaration of Human Rights, which emerged at the end of World War II. The first whereas clause of the UDHR states, “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.” This is remarkable. Dignity and rights are said to be inherent—that is, they exist before positive enactment—and are inalienable—in other words, they cannot be separated from the human person. Article 1 of the UDHR strikes a similar chord, saying, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Equal dignity and rights are characteristics of being human, with which we are born. The state is obligated to recognize, promote, and protect these rights. That is one measure of the state’s legitimacy.

Remarkably, the UDHR also includes the idea that if the state fails to protect these basic rights and freedoms, the people have a right to rebel against that government. The third whereas clause of the UDHR reads, “Whereas it is essential if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” This is striking because it is states that are speaking. States are saying, if we as states do not protect your basic rights as human beings, you will have recourse, as a last resort, to rebellion against the state. This is a remarkable thing for states to say to their own people.

This is what I’m calling the dualist vision of rights. Rights place limits on state power; rights are not the product of the state, although the state is obliged to define, promote, and protect these rights. Positive law, in other words, poses a duty to what is sometimes called natural law.

The statist view, in contrast, asserts that rights do not exist until the state creates them. I’ve been calling this the view from Rome. Under this model of rights, rights become entitlements. This is a much more positivistic view of rights, and this viewpoint will likely view natural rights as metaphysical and epistemological mumbo-jumbo.

Now, in reality, every secular system is, I think, some sort of hybrid. Even the French Declaration of the Rights of Man and the Citizen, which is held up as a paradigm of the statist model of rights, says men are born free and remain free and equal in rights. Some rights are limits on state powers. Here we think of classic civil rights, such as freedom of speech, association, assembly, the press, and freedom of religion. Other rights are entitlements, positive rights such as the right to education, health care, employment, and housing. These are not limits on state power, they are things citizens are entitled to receive from the state.

To my mind, the contest between statist approaches and dualist approaches (which recognize inherent and inalienable rights) is one of the most important conceptual struggles happening in modern constitutional law.

Today we will explore some of these complexities as they relate to four constitutional traditions: Germany, Russia, Poland, and Australia. The question that interests me most is whether these secular constitutional systems reflect dualist or statist conceptions of rights and what kind of hybrid. Thanks again to Professor Dmytro Vovk, and to each of the participants in our discussion. I’m looking forward to learning from each of you.

Watch the recording of the webinar.