This book considers how the modern concept of “conscience” turns the historic commitment on its head, in a way that underlies the decadence of modern society.
Steven D. Smith’s books are always anticipated with great interest by scholars, jurists, and citizens who see his work on foundational questions surrounding law and religion as shaping the debate in profound ways. Now, in The Disintegrating Conscience and the Decline of Modernity, Smith takes as his starting point Jacques Barzun’s provocative assertion that “the modern era” is coming to an end. Smith considers the question of decline by focusing on a single theme—conscience—that has been central to much of what has happened in Western politics, law, and religion over the past half-millennium. Rather than attempting to follow that theme step-by-step through five hundred years, the book adopts an episodic and dramatic approach by focusing on three main figures and particularly portentous episodes: first, Thomas More’s execution for his conscientious refusal to take an oath mandated by Henry VIII; second, James Madison’s contribution to Virginia law in removing the proposed requirement of religious toleration in favor of freedom of conscience; and, third, William Brennan’s pledge to separate his religious faith from his performance as a Supreme Court justice. These three episodes, Smith suggests, reflect in microcosm decisive turning points at which Western civilization changed from what it had been in premodern times to what it is today. A commitment to conscience, Smith argues, has been a central and in some ways defining feature of modern Western civilization, and yet in a crucial sense conscience in the time of Brennan and today has come to mean almost the opposite of what it meant to Thomas More. By scrutinizing these men and episodes, the book seeks to illuminate subtle but transformative changes in the commitment to conscience—changes that helped to bring Thomas More’s world to an end and that may also be contributing to the disintegration of (per Barzun) “the modern era.”
Prologue: How Did We Get Here?
Act 1. Lost World, New World: Thomas Moore and his Troublesome Conscience
Act 2. Disestablishment and New Establishment: James Madison and the Gospel of Conscience
Act 3. Conscience and Compartmentalization: The Disintegration of William Brennan, and of America
Epilogue: Looking Backward, Looking Forward
Steven D. Smith, winner of the 2022 Religious Liberty Initiative Scholarship Award, is the Warren Distinguished Professor of Law, co-executive director of the Institute for Law and Religion, and the co-executive director of the Institute for Law and Philosophy at the University of San Diego. He is the author of numerous books including Fictions, Lies, and the Authority of Law (University of Notre Dame Press, 2021).
“Steven Smith is the greatest law and religion scholar of his generation. Every book he writes is illuminating, and this one is no exception. The Disintegrating Conscience and the Decline of Modernity is far and away the most insightful, balanced, and convincing account of the religion clauses to appear in the last five years at least.” —Marc O. DeGirolami, author of The Tragedy of Religious Freedom
Claims of conscience– by men like Thomas More, Martin Luther, even Henry VIII– were conspicuous and formative at the beginning of the modern age. And such claims are conspicuous still, at what Barzun and others have regarded as the end of that age. But although the genealogies may be traceable and the family resemblances discernible, the modern conscience is something quite different from what Thomas More invoked. In comparison with its progenitors, the modern conscience is no humble servant of God and the church or the scriptures; it is proud, inflated, and free-standing. It is closely entwined with the associated and even more conspicuous modern themes of “authenticity” and “dignity.” And its implications bear out More’s fears that conscience as it was coming to be understood contained the seeds of social and even personal disintegration.
Today, observing the destructive fruit of such seeds in the frightening polarization and fragmentation of our time, we might look back and wonder what went wrong. How did commitments that promised such gains for freedom and human dignity, and that have in some respects delivered on those promises in spectacular fashion, come to have such corrosive consequences of late? Where did conscience go off the rails? Who was, or who is, to blame?
Was it Luther? More seems to have thought so. Madison? Today there is a small but growing body of critics, sometimes clustered around an ideal of “integralism,” who would not hesitate to indict the “Father of the Constitution” for some of the evils we face today. Brennan? Though much admired, the justice surely has had his share of critics. One younger reader tells me that Brennan is not nearly the cultural icon today that he was, say, a quarter century ago.
But this is not the place either to accuse or to absolve any of these men or their fellows. And indeed, considered against the broad backdrop of the history we have been reflecting on, there may seem to be a kind of exonerating inevitability to these developments. Our examinations may thus support a sort of darker version of “Whig history.” Whig history is usually understood to be optimistic in character, viewing the past as somehow leading inexorably to the enlightened and humane state of affairs that we enjoy today. By contrast, the history we have considered here seems to run in the opposite direction-- promising and for a time providing enlightenment and emancipation, but culminating in fragmentation. And the label “Whig history” is usually thought to denote a kind of fallacy. But in this case are we dealing with a fallacy? In the men and events that we have studied, doesn’t there seem to be a kind of tragic inevitability?
So Luther no doubt played an important role in the breakup of Christendom, as Thomas More believed. And yet, from a distance, doesn’t that breakup seem pretty much foreordained? Hadn’t history been heading in that direction for some time, with Wycliffe and Ockham and Hus? And could the tenuously maintained, patched-together unity of Christendom really have persisted given the expansion of Western civilization into the Americas and elsewhere, and also given the scientific revolution that (“Enlightened” critics notwithstanding) medieval Christianity itself was bringing about? Moreover, as we saw in Act One, Thomas More himself was unable to contain the inherently subjective and subversive dimensions of conscience.
In retrospect, therefore, the operations of conscience in supporting the proliferation of pluralism, and the accompanying fragmentation, seem irrepressible. By James Madison’s time, that pluralism was already far advanced: it was not something that Madison mischievously concocted as part a subtle, long-range plan of social subversion. And given such conditions, wasn’t Madison’s effort to enshrine conscience as a unifying ideal by partially detaching it from its Christian foundations-- and, more subtly but ominously, from the historical commitment to formulated theological truth-- a necessary response to such pluralism? Notwithstanding the corrosive consequences of that detachment over the longer term? What else could he have done?
In the same way, William Brennan’s compartmentalization relegating religious truth to the private domain– first for himself and then for the nation as a whole-- may well have portended the kind of social and personal fragmentation we have considered in the last chapter. But Brennan and so many others– political figures like John Kennedy, philosophers like John Rawls-- have thought this compartmentalization to be necessary. Necessary and also just, given the country’s religious pluralism. Is it clear that they have been wrong on that point? What was the alternative, exactly?