A New Declaration of Independence

Twelve score minus two years ago, our fathers brought forth on this continent … something that no longer exists.

In 2014, Independence Day is more commonly called the Fourth of July—a Jacobin rather than a Christian practice, naming holidays after dates. (Imagine celebrating the 25th of December.) The rhetorical shift reflects an underlying reality. Lost to the mists of memory for most Americans is the fact that the Declaration of Independence announced the secession of 13 separate states from British rule, and that after the war and the treaty that ratified the action taken by the Continental Congress on July 4, 1776, those states combined to form, not the Constitution of the United States, much less the regime we know today, but a short-lived confederation that proved inadequate to the tasks set before it.

On July 4, 1776, the Constitution of 1787 was not even a distant dream; by July 4, 1863, as Gen. Robert E. Lee led the Army of Northern Virginia in retreat from Gettysburg, Pennsylvania, it had become something that neither those who signed the Declaration nor those who ratified the Constitution could have foreseen; and long before July 4, 2014, it had become a dead letter.

We continue to go through the motions today, paying rhetorical obeisance to a document that, for the last 50 years at least, no elected official or unelected judge has truly allowed to act as a check on his will to power. Few of us understand, much less really wish to return to, the Constitution as ratified, or even as amended by the Bill of Rights; we treat it instead as a proof text, something we mine to bolster whatever political positions we happen to hold, as Thomas Paine mined history in order to undermine Christianity, tradition, and the established political order.

In this, we differ only in quality, not in kind, from the current occupant of the Oval Office—or, for that matter, from Ronald Reagan, who quoted Paine more often than any other thinker, and who expanded the power of the executive branch in ways that made Barack Obama not only possible but inevitable.

And so we—and yes, I include myself—have been celebrating the U.S. Supreme Court’s decision in McCullen v. Coakley, striking down, on First Amendment grounds, a 2007 Massachusetts state law banning pro-life protests within a 35-foot buffer zone outside of abortuaries, while trying hard to overlook the inconvenient truth that the application of First Amendment restrictions to the states occurred only as a result of the destruction of federalism, the U.S. constitutional counterpart to the Catholic principle of subsidiarity. The ends, it seems, justify the means, even when the means—the expansion of federal power at the expense of other levels of government—may ultimately be used to subvert the very pro-life ends that we desire.

And thus we—and again I include myself—have been positively giddy over the Court’s June 30 decision in Burwell v. Hobby Lobby Stores, even though that “great victory” hinges on an idea of “corporate personhood” that is found nowhere in the Constitution but was created out of whole cloth by the U.S. Supreme Court in 1819 (Trustees of Dartmouth College v. Woodward). The five-member majority in Burwell included Chief Justice John Roberts, whose decision two years and two days earlier in National Federation of Independent Business v. Sebelius saved ObamaCare and made this case necessary. Roberts could just as easily have gone the other way in Burwell, and quite possibly tacked rightward this time for the reason he tacked leftward last time—for the sake of his own reputation. To paraphrase Stephen Presser, the Raoul Berger Professor of Legal History at Northwestern University, “What does the Constitution say? Whatever John Roberts thinks it says that day.”

Or, for that matter, whatever Samuel Alito thinks it says. Delivering the opinion of the majority in Burwell, Justice Alito argued that the Department of Health and Human Services had failed to demonstrate that requiring the owners of Hobby Lobby to violate their sincerely held religious beliefs was the least burdensome option, in part because:

HHS has already established an accommodation for nonprofit organizations with religious objections…. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services…. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan”and “[p]rovide separate payments for any contraceptive services required to be covered”without imposing “any cost-sharing requirements … on the eligible organization, the group health plan, or plan participants or beneficiaries.”

That, of course, is the “accommodation” HHS has “offered” to, among others, the Little Sisters of the Poor, which is the subject of its own federal lawsuit. While Justice Alito notes that “We do not decide today whether an approach of this type complies with RFRA [the Religious Freedom Restoration Act] for purposes of all religious claims,” he seems to have no particular problem with said approach, and thus it is easy to imagine him being the swing vote in a future decision that compels the Little Sisters and other religious organizations to acquiesce to that “accommodation.” Should Justice Alito say so, closely held for-profit corporations may turn out to have greater freedom of religion in the United States today than do Catholic religious orders.

Considered thoughtfully, outside of the soundbite debates of FOX News and MSNBC and the tribal battlegrounds of Facebook and Twitter, Burwell v. Hobby Lobby is hardly a “great victory for religious freedom” but simply the latest little pothole in the road toward a more powerful central government and a society freed from the “unenlightened” influence of the Christian Faith. The Court’s decision does not do anything to restore federalism; nor, as Justice Alito’s suggestion to the Obama administration shows, does it revive in any significant way First Amendment protections for Christians. Two years ago, most of the same people who were cheering on the Court for its ruling in Burwell were condemning (and rightly so) that same Court for the ObamaCare decision. Having lost the constitutional war, we have now settled for making the other side angry for not getting everything they want at the very moment when they want it.

But they will get it eventually.

And that is the way it goes, as American Christians, and American Catholics in particular, cede more and more ground in a culture war that grows wider with every passing year. In the wake of the Court’s decision, the Republican Party—deathly afraid of being perceived as “anti-women” as they head into the midterm elections this fall—circulated talking points on Burwell, and many good Catholic pundits and bloggers repeated them all, including the point that everything is copacetic because Hobby Lobby is happy to cover 16 of the 20 forms of contraception mandated by ObamaCare. Never mind that the reason why Plan B and Ella, two of the four forms of contraception that were the focus of Burwell, act as abortifacients is because they have been engineered to increase the abortifacient effect already present in the Pill, one of the 16 forms of contraception with which those who repeated the talking points have apparently made their peace.

Just as the willingness to accept homosexual civil unions so long as gay “marriage” was off the table didn’t prevent gay “marriage” from coming to pass (and sooner rather than later), this “compromise” over contraception ultimately won’t prevent a future federal mandate of insurance coverage for chemical, or even manual, abortions. In every new battle, the anti-Christian forces push the envelope a little further, and we never push back as hard as we should, because we lack the courage of our convictions.

Or, perhaps, we simply lack conviction, because we have lost any sense not only of what government under the U.S. Constitution was meant to be, but of what the Church teaches that all government should be. In 1791, the first bishop of the United States, John Carroll of Baltimore, a cousin of the only Catholic signer of the Declaration of Independence, wrote A Prayer for Government, and ordered it to be recited in the parishes of his diocese. The structure of the prayer itself is enlightening, beginning as it does not with secular government, but with the Church and the governance thereof; but even more revealing are Archbishop Carroll’s words about the rightful purpose and aims, not just of government in general, but specifically of the federal government established under the U.S. Constitution:

We pray Thee O God of might, wisdom, and justice! Through whom authority is rightly administered, laws are enacted, and judgment decreed, assist with Thy Holy Spirit of counsel and fortitude the President of these United States, that his administration may be conducted in righteousness, and be eminently useful to Thy people over whom he presides; by encouraging due respect for virtue and religion; by a faithful execution of the laws in justice and mercy; and by restraining vice and immorality. Let the light of Thy divine wisdom direct the deliberations of Congress, and shine forth in all the proceedings and laws framed for our rule and government, so that they may tend to the preservation of peace, the promotion of national happiness, the increase of industry, sobriety, and useful knowledge; and may perpetuate to us the blessing of equal liberty.

Today marks the end of the third annual Fortnight for Freedom, sponsored by the United States Conference of Catholic Bishops, and many of us have joined in by praying the USCCB’s Prayer for the Protection of Religious Liberty. Yet after reading Archbishop Carroll’s prayer, it is hard not to take note of the rhetorical shift from it to these lines from the USCCB’s:

We ask you to bless us in our vigilance for the gift of religious liberty. Give us the strength of mind and heart to readily defend our freedoms when they are threatened; give us courage in making our voices heard on behalf of the rights of your Church and the freedom of conscience of all people of faith.

Grant, we pray, O heavenly Father, a clear and united voice to all your sons and daughters gathered in your Church in this decisive hour in the history of our nation, so that, with every trial withstood and every danger overcome—for the sake of our children, our grandchildren, and all who come after us—this great land will always be “one nation, under God, indivisible, with liberty and justice for all.”

Archbishop Carroll called on an omnipotent God to guide the leaders of a limited state in advancing the ends of the Christian Faith; today’s bishops ask that same God to give us strength to defend ourselves and the Church against the leaders of an increasingly omnipotent state that represents a danger not just to the ends, but to the very substance, of that Faith. The comparison is enlightening, and sobering.

This Independence Day, as we in the United States thank God for what remains of our political liberty, we might consider whether it may be time for a new Declaration of Independence—not from the British Crown, but from the reign of politics over our souls. When you are fighting a losing battle, sometimes the answer is as simple as changing the battleground.