Providence or Secularism? Steven Smith on America’s Constitutional Soul

Why doesn’t the U.S. Constitution mention God—and what does that silence mean?

Steven Smith, one of the nation’s foremost legal scholars on law and religion, joins Will and Josh to unpack the complex—and often misunderstood—relationship between the Constitution, religious liberty, and American identity. His new book, The Godless Constitution and the Providential Republic, argues that while the Constitution omits references to God, the nation’s political life has long been shaped by a providential worldview.

Together, they explore landmark court cases like Engel v. Vitale and Kennedy v. Bremerton, the shift toward secular governance in the 1960s, and the ongoing culture war over Christian nationalism. Smith challenges both theocracy and militant secularism, offering a third path: a framework rooted in institutional church-state separation that preserves space for pluralism and public faith expression.

If you’ve ever wondered whether America is—or was ever meant to be—a “Christian nation,” this conversation offers clarity, nuance, and constitutional insight.

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👤 Guest Bio:
Steven D. Smith is a retired law professor from the University of San Diego and one of the country’s leading scholars on law and religion. Over a career spanning more than four decades, he has written extensively on the First Amendment, church-state relations, and constitutional interpretation. His latest book is The Godless Constitution and the Providential Republic.

🔗 Resource Links:
The Godless Constitution and the Providential Republic: https://bookshop.org/a/112456/9780802885227

Transcript

0:17

Hey, welcome back, Faithful Politics listeners and watchers. If you're watching on our YouTube channel, we're so glad to have you. I am your political host, Will Wright, and I'm joined by my trusty sidekick, Pastor Josh Bertram. How's it going, Josh? And today we have joining us, is it Dr. Professor Stephen Smith? oh I could be professor, but actually I retired as of May, maybe I'm just uh Mr. Smith now, whatever. Mr. Smith. Well, we have Mr. Smith with us today, and he was formerly a law professor at the University of San Diego, one of the nation's leading scholars on law and religion, and is known for his provocative and deeply reflective work. He explores the Constitutional role in religion and public life, challenging both secularists and theocratic extremes. And he has a new book out called The Godless Constitution and the Providential Republic. You can see right here for those watching on YouTube. And we're just so glad to have you on our show today, uh Mr. Smith. Thank you. Yeah. I mean, so you told us you just retired. You've had a pretty full career in working in law and religion. I asked this question of all of our guests, like, what is it about sort of law and religion that made you want to make a career out of it for however many years you've been doing this? Yeah, interesting question. For me, um I never actually planned to be a lawyer or go to law school. When I got to that, I won't go into the whole story about how that happened. It was kind of a series of accidents, but I ended up in law school and I wasn't really that interested in a lot of the things that are covered. I mean, they are important and they're interesting. I'm more interested now in some of them than I was at the time. But I thought that religion was something that connected up with deeper issues that I was really quite concerned with. And when I started uh law school, was, I hate to say it, back in 1976, I was at Yale Law School and they didn't have, they had lots of classes on free speech, but they didn't have anything on basically law and religion or religious freedom and so forth. So I just did sort of reading on my own and kind of got into it. The field has grown somewhat, I think, so that by now there's a lot more work in this area and most schools would probably have courses in it and I've sometimes taught them. But I've just always wanted to connect sort of the legal issues to deeper, more ultimate sorts of concerns in law and religion is way to do that, I think. Yeah, I agree. I think it's fascinating to see the way that these things connect. I especially think like constitutional law and right hermeneutics and exegesis, anything that's older than the older writing that we have to try to understand in context and all that and trying to interpret things on the basis of a word or, you know, one grammatical idea or phrase. I mean, that's that happens all the time in theology. and then working in the Bible. I absolutely see all the overlap there. And I think being uh trained in law helps you probably to understand and read the Bible, or at least understand texts, right? And to be able to read texts and understand them. Oh, so many. But actually, think, ironically maybe, sort of modern American legal thinking has treated legal interpretation more like a religious function. Hmm. you might think our views of the nature of positive law would justify it, I think. And I've written things about constitutional law as idolatry, in fact, suggesting that we're treating some of these things as if they're from some divine source, even though we'd insist in the profession that that isn't the nature of them. Right, right. Yeah, absolutely. I mean, I remember even seeing like um books that would include the Constitution in like a category of secular scripture, which was so interesting to me thinking about that. I, you know, you have a lot that you've um researched, obviously, that you've done. And then this new book, m the godless constitution, would love for you to give us kind of a sense of what's the main thesis of the book for our listeners who haven't been able to look at it. What's the main thesis? Why did you write this book? Why did you think it was important now? Yeah, well, I might start just with the title itself, which would be a way into the question that you just asked. So there was a book written, oh, 20 years ago maybe uh by a couple of scholars, a historian and another scholar, called The Godless Constitution. It's gotten quite a lot of discussion. And the thesis basically is that um the American Constitution was deliberately godless in the sense that it didn't really acknowledge God, know, or refer to God in the way that all constitutions really had done, the Declaration of Independence did. the Articles of Confederation did, but the American Constitution didn't do that. So it was a godless constitution in that sense. And the second major claim I think that they made was that what followed from that is that the Constitution was intended to sort of sponsor a godless politics. They don't mean a wicked politics. They just meant a secular politics, sort of, know, in which religion didn't enter into governance. uh And as I say, that book got quite a lot of discussion. uh I think that the first of their claims is correct. is sort of godless literally in the sense that they mean the text itself doesn't refer to God in any significant way. And that was an audacious thing about it, audacious feature of the Constitution, because constitutions did do that and it was a deliberate feature and so forth. But I think they're mistaken about the second, the conclusion that this meant that we had to have a godless politics. m And so I put, and in fact, we haven't generally had anything like that. think right from the beginning, Americans, politicians, statesmen, Washington, even Jefferson, Lincoln, and so forth, had a very providentialist sort of approach to politics. And they didn't assume that there was anything in the Constitution that forbade that. So I've sort of put those two things together. The godless Constitution, yes, but coupled with what's often been a providentialist politics, I think. You know, it seems like in the debate about religious liberty in this country... And we talk a lot about it on this on the show. And for for those that that, don't watch our show regularly, I mean, we really try to get both sides. We've talked to Stephen Wolf, who wrote the book, you know, The Case Against Christian Nationalism. And then we talked to Rachel Lassner, who's the president of Americans United for the Church and State. I mean, in my mind, I like you couldn't get, you know, as far apart of the of the argument. So on one side. You know, one side says the word God doesn't appear in the Constitution. So the founders intended for a secular government. The other side of the argument says, well, you know, the founders were all Christians. They prayed regularly. Therefore, ah you know, we're supposed to have a Christian nation. Like, like, where do you kind of fall on that spectrum um of sort of like the debate about religious liberty? Yeah, so I don't really embrace either of those positions, I think. um I think it's true, as I mentioned a moment ago, that um that Constitution was deliberately, well, it's a provocative term, but godless in the sense that it didn't make references to or acknowledgments of God. And I think that was deliberate. As I mentioned, I don't think it follows from that that it was prescribing secular governments. I like to compare the Constitution to a of an agnostic parent who uh leaves the children free to follow religion if that's the way they're so inclined, not to follow religion if that's the way they're so inclined. I think the constitution, unlike state constitutions, didn't endorse a Christian nation or it didn't prescribe a religious path, but it certainly left those possibilities open. It didn't in any way forbid those sorts of things. Then as far as the Christian nation uh idea goes, So I try to distinguish between providentialism and religion even, but especially Christianity. think... Christianity has sort of provided the content of providentialism for many Americans through much of our history, probably in the early decades for most Americans through much of our history. But providentialism, the idea that God, that there's a providence that governs the affairs of nations as well as of individuals, is not inherently, or certainly not exclusively, let's say, a Christian idea. And some of the early, probably leading spokespeople for uh the and the providentialist idea were very providentialist, but not Christian really in any orthodox sense. The two leading examples probably would be Jefferson and Lincoln. think m both of them, think were very providentialist in their thinking about government and law and America and so forth. Lincoln profoundly so, just profoundly providentialist in his sort of agonizing reflections about the Civil War and everything. His second inaugural is maybe as profound an expression of a providentialist understanding of America as you can find anywhere. But he wasn't really an Orthodox Christian, I think. And part of the genius, I think, of the Providential's perspective is that it's totally compatible with Christianity, but it's not exclusively Christian. And over the course of our history, I think it became more more ecumenical, including, well, obviously Jews fairly early on, but basically lots of, and even people who wouldn't probably be thought of as religious in a very conventional sense at all, but still could be. thought of as sort of providentialist, the idea that there's some kind of providential significance or role for America in the course of history. So was there something that sparked? the like even em in the writing of this book concerning religious freedom, like what I guess what were the issues surrounding religious freedom today that made you feel like or were there specific events laws or things like that that happened that made you feel like yeah, this is I need to write this and it's so important that we're getting this out about religious freedom right now. Yeah. Yeah. as law professors, we have to write about lots of stuff, and we have to teach lots of stuff. And so this isn't the only thing I've written about. But it has been one thing that's been one of my main interests and themes almost from the beginning of my teaching career, which just went for over 40 years. let's say this. So the area of, let's say, establishment clause jurisprudence, separation of church and state, that sort of thing. There's a of a consensus almost that the Constitutional law in that area has been sort of almost like uniquely incoherent. Lots of problems. People on all sides of the political and legal spectrum complain about how incoherent the Establishment Clause has been. um Maybe even overstate that at times in my opinion. But there's some justification for that. um I sort of became convinced early on. that one of the reasons for that is that the Supreme Court had really misunderstood what the Establishment Clause did. And not just the Supreme Court, but lots of scholars as well. So the first book I actually wrote in this area, which is now, I guess, 30 years old. was one called for ordained failure. And one of the main arguments was that the Establishment Clause was adopted not to set up some principle of secularism or secular government or even separation of church and state as a general constitutional principle. It was mostly adopted to reassure Americans that the Constitution wasn't going to change the existing situation in which religion issues were left mostly to the states. um The Constitution was going to set up a new and more powerful national government. But it wasn't going to change the situation in which states basically got to decide how religion was dealt with. And that was sort of necessary because there were big disagreements in the country about how religion should be treated. There were still states like Massachusetts and Connecticut and so forth with established churches um and so on. um But there were other states like Virginia that had moved in a very dramatic way to eliminate the religious establishment. there was an agreement at the time on which the right approach was, and so the Constitution decided, and the First Amendment was a decision to leave those issues with the states where they had been all along. That, I think, got misunderstood by many scholars and by the Supreme Court. And it's one of the bases of confusion, I think, in modern jurisprudence. So I actually think my career in this area and my scholarship has been less designed to advocate some particular position as to try to dispel what I regard as some of the vitiating errors that have, you know, come into our jurisprudence and I think have had a really unfortunate effect on law but in on our politics generally. And so this is another one, you know, I've written quite a bit and this is another book in sort of that tradition trying to show how that happened and what some of the unfortunate effects have been. But I do feel like we're in a position in our national life in which these things become really crucial because I do think polarization and, you know, dysfunctional government have reached a level of crisis and insofar as part of the reason goes back to this sort of issue. think it's more important than ever that people and more Americans come to sort of at least understand that we kind of went astray in this area. We won't agree on exactly where we should go from here, but at least it would be a good thing if we could understand how we kind of went astray here. I'll just say I love everything that you're saying right now uh because uh it's so nuanced and I think that whenever you're dealing with public debates, gets lost, right? So you've got sort of the loudest voices kind of screaming from the rooftops, their positions, but based on what I'm hearing you say is like... Okay, this doesn't mean that you can't pray in public, but it also doesn't mean that you should force everybody around you to pray in public kind of thing. Am I kind of characterizing your ah assessment or your book kind of in the right way? um Well, think, uh yeah, I think so, basically. Now, I would say the idea that you can't pray in public, of course, everyone agrees that you can pray in public in the sense of an individual person, I think, you know, can pray in public. But it means, insofar as it's been thought that public prayer is one thing, like, let's say, legislative prayer or city council prayer or prayers at a presidential inauguration ceremony are inconsistent with the Constitution. I think that's just clearly a mistake. um I would also agree with you on the other side that you can't... I have a much more minimalist approach to what the Constitution prescribes in this area than most people do probably. But it's not that it doesn't prescribe or prohibit anything. And one thing that it clearly would prohibit, I think, is any sort of really compelled religion. You get lots, of course, of disagreements about what counts as compulsion and that sort of thing. But at least at some level, it does mean you can't have compelled religion. In between, think there's, you know, there are other things that are prohibited. But there's a lot more left open, I think, than um than we've typically assumed. And that can be a scary thought in some ways, because think, well, there's even more to fight about, you know, than... But the hopeful take on that is that insofar as, I think, insofar as the court has interpreted a constitutional law to impose a particular secularist vision on the country at all levels, national, state, local, and so forth, And this is a vision that is inconsistent with what many Americans believe. I think that has been deeply alienating. And I actually think that a way in which some of these things could be left more open to actually public discussion, the hope is that that could actually lead us in a good direction. But who knows? It is probably somewhat risky to open more things up. on the other hand, you could think, can it get much worse in terms of alienation than what we have now? I'm not sure that it can get much worse than that. I think it would be a step worth taking. I sort of favor that, at least. Yeah, so um I recently spoke with Amanda Tyler from Baptist Joint Committee Commission. BJC is the organization she works for. We were talking about the Johnson Amendment. uh And I'm curious, like the... The reason we were talking about the Johnson Amendment was due to that National Religious Broadcasters court case, Eastern District of Texas, not really important for this conversation, but uh speaking more broadly about the court's role in the religiosity of America or non-religiosity of America, it seems like they've played a pretty significant part over the generations. mean, there was a time when... prayer was allowed in school. don't know if allowed is the right word or permitted required in school. Engel, is Engel V. V. V. Tall, think. Yeah, yeah. And the Bible readings, the Abdington School District. I only know these just because I was just writing about it. I'm not like some sort of like law genius. I literally. right cases though. So, how do those types of cases help create this narrative that we're left with today and the way that we think about religious liberty? Well, think that, first of all, you say that the courts have played a big role in trying to influence this. And that's certainly true, I think. But it wasn't true for almost the first century and a half of the republic's existence. If you look at, um up until, say, the late 1940s or 1950s. There are almost no Supreme Court cases on the Establishment Clause, just a handful. And they're not very important ones, I think. Nobody even remembers them, frankly. But beginning, especially in the 1960s, with the school prayer cases that you just mentioned, the Court became much more heavily involved in this. And it became heavily involved by saying that the Constitution requires government to be religiously neutral and secular. in its operations, eventually in its expressions, and so forth. I think you can, and I try in the book to give some explanation for why that seemed like an attractive position and not very problematic to, let's say, professional elites like the legal profession and the justices and so forth, because they were pretty much already at that position, I think most of them, you know, in one way or another in their life. But to Americans generally, this was a dramatic shock, and those school prayer decisions that you mentioned produced just a massive public outcry. And in this respect, I think that ordinary Americans probably understood the significance of the decisions better than the justices did because they saw that this was really a dramatic change in the nation's self-conception. It had been to a significant extent a sort providentialist uh self-conception, one that's still reflected in phrases like one nation under God and the Pledge of Allegiance and in the national motto and God we trust. But all that was now sort of in principle uh unconstitutional after the school prayer decisions. The court never really implemented fully the principles that it announced, so we still have under God in the pledge and in God we trust all the dollar bills. But in a sense that aggravates things because um it seems very hypocritical to many people. We claim that the government is secular and religiously neutral, yet every dollar bill says in God we trust, if you look at it. um And it's also been rationalized by the court by saying, but those things have lost their religious significance. That's why they're still permissible. And hardly anybody believes that, I think, whether you're a religious person or not a religious person. The idea that one nation under God doesn't express some kind of religious message is, and so this kind of hypocrisy and almost dishonesty, I think, has crept into the jurisprudence. which the court nonetheless tried to implement quite vigorously in lots of areas and so forth. And so I think that is sort of what happened beginning in the 1960s. And I don't think any of it was in bad faith. think the justices probably thought they were doing what would be good for the country and even what would be more or less consistent with what the framers thought. But they were just deeply mistaken about some of those things. And I think we're seeing the consequences of that today. Yeah, that makes a lot of sense. And you know, you keep mentioning this idea of providentialism and it makes me think about, like you said, several of the presidents were very providentialist. There's like a providentialist view of the nation, view of m America's purpose that God has. So what is the difference between like providentialism and like Christianity or something like that? like what is like if we're talking about God and we're talking about God having some purpose is that what they believed is that what Jefferson believed is that what Abraham Lincoln believed that these original framers have that idea in mind that this country is chosen by God in some way, even if just providentially? Or how do we work through that? Because this is very confusing, because I'll hear people talk about how, this isn't a Christian nation at all. And they'll quote that the Constitution doesn't mention God as evidence. Mm-hmm. that this is not, this wasn't a Christian nation or that Ben Franklin or Thomas Jefferson or any number of, you know, people were deists or whatever. And so it wasn't Christian. I would love for you to help us understand like what was really going on and what view did they really actually have? Yeah, well, as I mentioned, I think one of the virtues of focusing on providence or providentialism is the concept, is that that's a more inclusive concept. So it can definitely include Christians. A lot of Christians are providentialists, I think. But if you're someone like Jefferson, who's not an Orthodox Christian. or like Lincoln who I think was just not an orthodox Christian. There have been lots of claims made about Lincoln's religion and his faith and maybe it changed over time and so forth, know, and he was a little bit coy about sometimes about expressing it. So there can be different interpretations, but I think it's pretty clear he was at least through most of his life and probably up till the end, he was not really an orthodox Christian. But you can still believe in providence, not to say that everybody does, but through much of our history, think most Americans did believe in some kind of providential destination for the nation. So I actually had a, I just mentioned it here, I'll see if I can find it real fast, a quote, this is from Lincoln. He says, it is the duty of nations, as well as of men, to own dependence upon the overruling power of God, to confess their sins and transgressions in humble sorrow. yet with assured hope that genuine repentance will lead to mercy and pardon. he makes it very explicit. That's the duty of nations, not just of individuals. But as far as what the providential purpose is, oh, so I might say also in response to your question, I think this has been a really important view for various reasons. But one is that if you have a conception of your nation as having a providential purpose, then it has the possibility of lifting your self-understanding and your discourse above just sort of petty self-interest or pragmatism, you know, and to try to think about larger, more universal purposes that you might be supposed to fulfill in the providential plan. There hasn't been agreement on what those purposes have been, but for many Americans, they've been, well, at one point I say liberalism. Will you say the liberal, but liberalism in the sense of human rights. uh you know, self-government, equality, things of that sort. I think many Americans, John Adams, uh probably Washington, Jefferson, thought of the providential purpose in those terms. Not everybody agreed on the providential purpose. um you know, let's say in pre-Civil War America, for slave populations, I think they tended to be deeply immersed in the Bible and with a deeply providentialist view. but not one that would have aligned perfectly with what a lot of American slaveholders would have thought. So the purpose has been one that can be interpreted differently and has been interpreted differently by different people. I think to me, one of the most interesting cases is Lincoln because I think Lincoln demonstrated that he was deeply committed to the idea that the country had some providentialist purpose um and that influenced him. oh in a lot of what he did as president, including with the Emancipation Proclamation, but as time went on, he became less and less sure that he knew exactly what the providential purpose was. And he became impatient, I think, with people who were quite confident that they knew what God's purpose was with the war and so forth. He became very unsure that we really knew what it was. And once again, I think you can see that in his, I just think, magisterial second inaugural address um that conveys this sort of conviction. But one of the virtues, I think again, of focusing on providentialism then, is it's not just a Christian nation concept. And it's much more ecumenical inclusive, and inclusive than that. And it's subject to lots of different interpretations. mean, different people can sort of try to interpret and have interpreted the providential purpose in different ways. And it's sort of, it's kind of a way, I think it has been a way of bringing people together on something really fundamental while allowing them still to disagree a lot, you know, about a lot of the specifics or even the general principles that we should be pursuing. think it has functioned, the providentialist perspective has functioned that way through much of our history. And maybe does still to some degree, even though it's kind of constitutionally forbidden now, or has been for the last half century, to take that view for public purposes. Has there been a shift though? mean, uh you say that maybe it's shunned upon to kind of take a providential view of America, but it seems like every president, at least since I've been alive, Democrat and Republican, have always identified America as the shiny city on the hill of some kind. uh Made America almost like... dropped from the heavens itself. Yeah, well, I think most presidents probably have done that, and especially in inauguration ceremonies. It's just almost mandatory that you have some sort of providentialist language or features there. uh which in some is interesting and from one point of view, maybe a hopeful sign because a possibility would be say, just nobody even believes that in the rhetoric doesn't resonate anymore and so forth. That doesn't seem to be quite true, but it has been left in a kind of a problematic, almost shabby situation because you say, but according to what at least until very recently, the modern Supreme Court has said, all that stuff is actually constitutionally prohibited. The court since the, well, made this explicit in the mid-1980s, but had been basically implying it since the 60s, has said that government is constitutionally forbidden to do or say things that endorse religion. So, you know, it's left a lot of people saying, how can you have inauguration ceremonies that are full of prayer and religious references when the Constitution forbids any endorsement of religion? And uh Michael Newdow, I don't know if you ever have run across him, he hasn't been doing too much recently, but he He's a doctor and uh atheist uh who used to bring a lot of Supreme Court litigation and Supreme Court cases. uh I used to know him. He used to respond to lot of articles of mine and actually came down one time to San Diego where I live and we had lunch together. uh He was a very decent civil guy who disagreed with pretty much everything I wrote in this area. But I remember when we went to lunch, he says, he told me, says, look, I can't even pay the tip here without putting a dollar bill down that tells me right from, in God we trust, the Supreme Court's been saying that government can't send messages endorsing religion. It's just a kind of at least, hypocritical. And I think that's sort of the situation we've been in for a long time. So probably, yeah, there has been ongoing providentialism and there still is, but it's all kind of under the shadow of it's not supposed to be like that. And for official purposes, it isn't really religion. It's doing something else. It's not really an expression of confidence in God and so forth. The situation's just been very muddy, I think. So it's kind of like a cultural religion thing where it's like civic duty religion where we like will say God, but we don't really mean God. We mean maybe some, I don't know, providential power, whatever that is. If that's just the forces of history. Oh yeah. So it's like, and I guess what might the really confusing thing inside for me, and I guess that's just the nature of this all. is that, you know, it seems like most people in America, for most of its history, did kind of just think, yeah, I mean, maybe we're not quote unquote Christian in the sense that we're going to take Christian laws or Old Testament laws and make them, you know, new, you know, make them our nation's laws, or we're not going to, you know, I mean, did prohibit, many laws prohibited things that people thought were sinful. You know, I think of homosexuality. I think of the time during the prohibition. Alcohol was banned. I think at times when, when religion did really push like a kind of lawmaking and it seems like most of our history, most people, again, I know that's not very specific, but you know, most people thought, yeah, I mean, this is kind of, most people here are Christians. This is kind of a Christian nation, so to speak. It's a nation that serves God or God is the one that the Christian God is the one that we're referring to. That's the one we serve. That's, know, all these presidents use this kind of neutral sort of, you know, language. And I guess the confusing thing is like, what shifted, what happened? We're now like basically talking about in the sixties where now there's this move and I hear that there's there are those court cases. But like why did that happen? Why is it that in there's this huge backlash? But I guess what what was shifting? Like what what really happened? Now we're here today and people are freaking about about Christian nationalism and I get it. I'm. Personally, I'm not a fan of Christian nationalism. And it's more devious or sinister, in my opinion, manifestations. But what's going on? Why is this shift? When did it start to be like, oh no, we're not a Christian nation? And they didn't really think we're a Christian nation, like when they started. Right, well, first of all, think you're, yeah, no, I think you're right that in some sense, people did think of this as kind of like a Christian nation in some sense. uh The Supreme Court itself said that, you know, in a... I think a case decided in 1890. This is a Christian nation, some kind of sociological or historical sense, and most people probably thought it was in some sense. That's not the same as saying it's a Christian nation and that the Constitution establishes Christianity as the religion, but in some cultural sociological sense it was. And I don't think people had any sense at that time that there was anything unconstitutional or impermissible about appealing to people's... uh religious beliefs about what's moral and what's not moral and so forth when you enact legislation, as you said. Christianity itself, think, uh always had the resources to explain why you're not supposed to impose Christianity and compel baptism or things of that sort and so forth. But in terms of relying upon religion and religious beliefs for judgments about what's immoral, I don't think there was any thought that there was anything impermissible about that. That has changed, I think, as you say. And why it changed is probably a complicated uh sort of issue. On one level, I think we can say, and I've already been saying this, that in the beginning, maybe in the 40s, but especially in the 1960s, with the school prayer cases, the jurisprudence changed to say that we were supposed to be religiously neutral, which had not really been the case, and secular, which had not really been the case up till then. But I think it would probably be a mistake to say that, uh the justices themselves just in some kind of sinister plot decided to impose secularism on the nation. I don't think that's true. I think there had been cultural changes. These are more amorphous and a little harder to pin down. But one book, for example, there's a lot of writing on this, but there's a book a few years ago edited by the Notre Dame sociologist Christian Smith called The Secular Revolution. But it has chapters written by different scholars about how different areas of the academy had become systematically secularized. uh you can sort of interpret that in terms of just general currents of thought unfolding, but I think Christian Smith tries to show that it was a little bit more It was quite deliberate. There were people who wanted to secularize the no doubt for reasons that seemed good to them. So that by the 1960s, it's probably true that, again, the professional classes, the academy is largely secularized, I think. It isn't anything like the old religious universities where everybody goes to chapel and they pray and that kind of thing. It's largely secularized. Justices, of course, like most other professionals would come out of these universities, and it would just be sort of natural for them, I think, to uh take the understandings that they've gotten through their education and read them into the Constitution. That's almost inevitable. I think that's happened through our history. So that kind of thing happened. It probably needs to be acknowledged too that religious diversity in the country had increased I think you know so um you know that's another reason why it seemed appropriate to people to do that sort of thing and if you take someone like Justice William Brennan who was probably as influential as anyone on the court in Doing this and you think about his own life. He was Catholic raised Catholic He didn't seem to have been especially devout. uh He remembered mass as something he was forced to go to as a boy, but he didn't enjoy it. And his sons would recall him dropping them off for church on his way to the golf course later. So he may not have been especially devout, but that's not to say he didn't seriously think of this Catholicism as part of who he was or believe in and so forth. And he'd had to live all of his life, I think, in a professional situation where... most of his lawyer acquaintances or judicial acquaintances and colleagues wouldn't have been Catholic. So I think he had learned to relegate his Catholicism to sort of like a private section of his life. That's how he was able to get along. And it was fairly easy for him to do that because he wasn't all that serious about it anyway and so forth. So he'd learned to do that. And I think when the school prayer decisions came along, he just... just seemed natural to do that for the country. If uh we just made religion a purely private thing, like I've been doing in my life all along, we could all get along well. you can see the allure of that position. It just doesn't take into account that for many millions of Americans, religion is not just a private thing. It has implications for public implications. And the whole providentialist perspective that had prevailed with presidents from Washington, through Lincoln, through FDR, had assumed that religion had a public component. uh And the Supreme Court sort of missed that or something and tried to relegate it to the private sphere. I actually view this in one of my chapters in terms of almost like an unconscious and yet. transformation of American self-understanding and like a repudiation of much of what had come before, know, leaving us with the task of how do we deal with them, things like Lincoln's second inaugural, you know, I mean, it's just unconstitutional under modern principles and so forth, but we can't, you know, something as important as that or the Declaration of Independence, we can't exactly just disavow it, can we, you know, and so forth. So we've been left with this really difficult problem, I think, of trying to even relate. to our own past, which to me is another reason for the sort of polarization you see in the country today. There's less of a sense of what actually unites us, you know, and part of it is because we've kind of repudiated to some degree our own past and so forth, which is, you know, one of things that typically would unite a people. You know, earlier Josh had brought up kind of the similarities of reading scripture and reading law and... I was thinking as you're talking, you know, like we read the Bible and we're like, well, look, Jesus is eating dinner with tax collectors and prostitutes. And, you know, so the natural question is why? And then kind of the debate happens in the answer of why he's doing that. And when we look at the Constitution and we look at the Establishment Clause and no religious tests, like you have to ask, like, why are these things in the founding document? Because out of all the things they could have chosen, You know, like this one little carve out uh of life for most people on the globe, uh you know, made its way into our founding document. So to the degree that you feel comfortable, uh like, can you explain maybe a little bit like why are those elements in the Constitution in the first place? Because it seems like if it wasn't, you know, we wouldn't really be having this conversation. People just go about doing their own thing. Right. Yeah. Well, that's like a huge, that's like one of these uh questions. mean, but it sort of calls on us to think back. So I think uh some of this is, you know, sort of standard history that in the wake of the Protestant Reformation, the former situation of Christendom that had prevailed for basically a thousand years was shattered. uh the idea that Christianity, at least in the West, Western nations, Western European nations, and uh Christianity was sort of like the prevailing philosophy, and institutionally it would be interpreted by the magisterium of the Roman Catholic Church, and so forth. That was kind of gone, and it left people with a... real hard challenge about how are we supposed to live together now? Now that those old premises don't seem to hold anymore. And so you had oh basically a century of religious wars as people tried to figure out different ways of how can we live together. And in some ways, I think that question. is still one that we just have to struggle with all the time. Given that we don't all believe in the same things, how are we supposed to live together? em But the principle up until let's say the American Constitution still had been something like the Peace of Westphalia had established this principle of, don't know how to pronounce Latin, but cuius regio, religion, but basically the principle was essentially like the religion of the realm will be the religion of the prince, of the king. So uh it also had a right of immigration built into it. So England will be Anglican and Germany will be Lutheran. or whatever, know, in some places will be Calvinist, Massachusetts will be Calvinist, and so forth, know, and so forth. uh But people can move between places if they're not happy where they are, they can move. And that was sort of the principle, which actually had quite a lot to recommend it in some ways, but also lots of problems and limitations and so forth, I think. So I think the US Constitution was distinctive uh in adopting this agnostic position. coupled with federalism, I think, which uh made it possible to say our basic constitutional doctrine won't commit us to any particular religion, or really to religion at all. That's why it doesn't have. God in the Constitution. And Will, you alluded to this that I think we hadn't mentioned it before. And it will also have one specific provision saying no religious test for federal public office. Almost all the states had that. You had to be a Christian or a Trinitarian or something of that sort. But the US Constitution expressly prohibited that. At the same time, it didn't prescribe secularism. with federalism, it kind of left it open for different levels of government and different units to gravitate within some limits. Nobody's going to get coerced probably religiously, but within some limits uh to the kind of relation between government and religion that suited them. And this was, I think, kind of a stroke of genius and for the large, for the most part, quite successful in kind of allowing the country to flourish, even in a pluralistic situation, for a long time. But it isn't exactly a clean principle to answer to the question, I think. So whether it could serve indefinitely, I think is always a debatable thing, know, whether you could get along indefinitely that way. uh It's still, I guess I don't. know of anything better for a pluralistic nation. So that's why I think it was a mistake when the Supreme Court in the 1960s essentially ended that regime and just said, no, we are going to have a uniform principle. Government must be secular and neutral, which we're going to impose on all levels of government. uh I don't think that helped. That was not an improvement, I don't think. I do think that that's hopefully partly responsive to your question about why we have a constitution with the distinctive features that we have. I think it was part of this attempt to deal with the problem in this somewhat more complicated way. Agnostic and sort of Federalist at the constitutional level, leaving people free at different levels to bring religion in more or less depending on just what the people actually believed and thought was important to do. Yeah, that's really helpful. You know, I know one of the things we hear a lot, right, in this is recently this idea, recent, you know, the last 60 years, 70, right, whatever, is really using the wall of separation, which you've critiqued, I think, in your work and in areas like... or like in the Supreme Court decisions of Everson, I if I'm saying that right, Engel, invoking this wall of separation, right? And then I would hear about that when I would uh listen to some of my conservative friends and theologians and philosophers that would talk about, and lawyers, legal scholars that would talk about how, you know, this isn't in the Constitution is something that... Jefferson said, he wrote to the Danbury Baptists, you know, about a wall of separation. What is the problem with that wall of separation? Is there a problem in your mind? What is it and what's the correct view? What's the correct reading? so I have a little different view, I think, than most people even who are generally sympathetic with some of my perspectives. think you've accurately, Joshua, accurately described a sort of a very common view on that, which is the Constitution doesn't actually say wall of separation of church and state. This was an innovation that, you know, and so forth. Jefferson. People who say that will usually say, yeah, Jefferson used the phrase in his letter to the Danbury Baptists, but he wasn't even there when the Constitution was written, and we shouldn't have been treating this as authoritative. I have quite a different view on that. I think that one of the really important principles of, let's say, religious freedom, but sort of government more generally, is a kind of institutional separation of church and state. This one has ancient roots, but it goes way back even to Jesus saying, render unto Caesar the things that are Caesar's and unto God the things that are God's. And so through much of the Middle Ages, this was an idea that was worked on in sometimes bizarre, but really interesting ways of trying to keep church and state institutionally separate. I think that's really important. That got kind of lost when Henry VIII essentially took over the church back uh in the early 16th century, essentially took over the church. It got kind of lost. And I argue it got sort of transformed into a freedom of conscience view and so forth. But I think the institutional separation is still very important. It's been largely neglected in our constitutional jurisprudence, but not entirely. In fact, recent decisions over the last 10 or 12 years have shown increasing appreciation of that idea of institutional separation of church and state. I think Jefferson's phrase, separation of church and state, is almost like a perfect mantra or motto for that idea. If you actually read it and take it literally, it's a separation of church. and state. think what I find uh objectionable is that what got happened in the modern jurisprudence is that that got reread as a separation of government from religion. The institutional aspect of it got kind of dropped out, and it became sort of a formula for secular government. But I think that's not what Jefferson said. That's not what the phrase literally means. And most importantly, maybe that's not the best reading of it, because I think we need to actually do more to ah sort of reconstruct and reaffirm this principle of institutional separation. And once again, you couldn't find a better model for that than separation of church and state. So I say Jefferson, yeah, go for it. Jefferson was right on point when he said that. Yeah, that makes a lot of sense. you know, so to make sure I understand, your view is that um essentially Jefferson was talking about the institutions, the organizations here that they shouldn't, you know, there shouldn't be a lot of, you know, some church's influence or, you know, a denominational influence or the power of the bishop or whatever, ton of, like, he shouldn't be calling the shots for the law, the church, I mean for the state as an entity and the state should not be um calling the shots for the institution of the church, but there should not be, but what he wasn't saying is, yeah, we need to get all religion or religious purpose or religious ends out of American jurisprudence, out of American. I think I agree with that. There's one thing I might qualify though. um When you say church shouldn't interfere in state. If you think about that in terms of how that had worked historically in England well back in the day, but I think still, the church was officially represented in the House of Lords. A certain number of the positions in the House of Lords are for bishops. m So the church was um formally and actively involved in the state. And I think the principle of separation of church and state would mean We can't do that here. And we don't do it. In fact, it's so far removed from our experience that we hardly even grasp that as a possibility anymore. I don't think it means that churches can't take positions on political issues and so forth. I don't see that as the kind of forbidden involvement of church with state that the principal would forbid. They don't have any formal power within government. But insofar as the church wants to say, uh let's say insofar as Martin Luther King wants to use his church or his religion as a way of promoting civil rights, I don't think there's anything in the Constitution that forbids that. On the other side, as far as state involvement with the church goes, there are lots of opportunities for that to happen, and um just applying all kinds of laws, uh civil rights laws, disabilities laws, and so forth, to the church. And I think there have been various attempts to do that. The court has been pretty good on this, I think, over the last decade or so in saying... No, the state can't dictate to the church what its doctrines will be, who its leaders will be, who its teachers will be, and so forth. I think that's an important implementation of this separation of church and state principle. I would push that even farther, I think, than the court has done in some respects. Right now, for example, I think Washington has a law saying that the state of Washington, this will be litigated probably over the next couple years, compelling priests to reveal to the state any information they might find about child abuse that they might hear in the confession. So I regard that as uh an intrusion of the state into church affairs. For Catholics, think, I'm not Catholic, but I think for Catholics, the confession is a sacred part, ordinance of the church, the priests are absolutely bound not to reveal anything. And for the state to tell them, no, you have to. I think that's another instance of uh what ought to be an impermissible interference of state into church. And I do think that this is a principle that I'd like to see actually sort of shored up and recalled and implemented more vigorously. Yeah, you know, it's interesting because, you know, like thinking about something like that where, let's say someone were to come and confess, hey, I'm gonna shoot someone. They said they're going to write you're kind of ethically obligated I think to try to prevent that or maybe report that like if there's a loss of Life, I don't know all the different ways that lead you probably know way better than I do the interesting done any real close research into that because as you point out, I think there there might be complicated situations and so forth. Well, yeah, it just makes me think about how, you know... m There's, it's so complicated when we're trying to figure out harm, when we're trying to figure out what is like all these different people living together, obviously the pluralism that's in America, what our actions are going to do, what religious actions might harm someone else, what religious actions would then create some kind of need for the state to come in and try to compel. em you know, cooperation and obedience to whatever it is, whatever mandate that they have. I this happened a bunch, right, with the COVID, right? This is like, that was like a classic. I guess modern classic in the 2020s sense of like, hey, that was the conflict between churches, state, let's see, have LGBTQ as a conflict area. You have some abortion as a conflict area. You have the COVID-19 revealed this. um this conflict that the government essentially would shut down churches or require them to go online or whatever it is, right? But then some people, may need uh the sacrament, right? To come take the sacrament, they have to do it physically. They can't take the sacrament through a computer. And so it's like, with that, how do you feel like you said the court has done well in the last 10 years? But what are the lines of distinction where, like, where, like, it is appropriate for the state to overstep religious freedom or exercise of religion? Like, where is that tension really, where does that tension meet, do you think? Well, some things I think are fairly clear, but a lot of things are not that clear. here's a confession. I've to write a book about freedom of the church that would address some of those kinds of questions, and I've started it. probably three or four times over the last 10 or 15 years and I've never been able to finish it partly because I get into some of those sorts of questions and I don't have it really worked out exactly how it would be done. One thing that I think is pretty clear is I mentioned that this is a really fascinating sort of aspect of the Middle Ages. know, lots of struggles between kings and bishops or between kings and popes and so forth, you know. uh And the features were a little different in those days. For example, they thought that uh there were a separate set of church courts. And so, in England, for example, it was sort of thought that if a priest committed a murder or whatever, was charged with committing a murder, he shouldn't be tried in the secular or the king's courts, he should be tried in church courts and so forth. there were lots of disputes about that. That's one of the things that famously led to Thomas Becket being murdered in Canterbury Cathedral, because he was... trying to insist on the integrity of the church courts and so forth. But one thing is you read a lot of history in that from time to time too, is there weren't clear lines. A lot of this, it had to evolve in connection with. the particular circumstances, the particular history, and frankly, the political power of the church as opposed to the political power of the kings and so forth, they negotiated in different ways. And I think that will always be true. So it's hard to say in the abstract, the lion is here or that, but there are some things that are pretty clear, I think, which is, and I think the current cases actually recognize this, that the state shouldn't be able to dictate to the church what its doctrines or teachings should be. and that it shouldn't be able to dictate to the church who its leaders should be or how it selects its leaders. And you can see how this is something that without some such principle, this would happen because uh civil rights laws could easily be applied to, let's say, any church that believes in a male-only priesthood and say, you're just in blatant violation of civil rights laws. You're discriminating on the basis of sex, uh and you're doing it openly. And if there weren't some principle of institutional separation of church and state, that would probably be right. So some of those things are pretty clear. I think that the state can't tell the church how to select its ministers or its leaders or even its teachers. And then you get down to more borderline cases like, what about in religious schools? Can you apply civil rights laws just to the teachers in an ordinary religious school or not? oh So you're going to get to closer cases and so forth. I think it's really good in this area that the court has come to recognize this principle more fully, really only since about 2012, the Supreme Court, and um that it seems committed to this. And I think it would be good for this to be become a more prominent theme in our public discussions and scholarly discussions, because I think this is going to be increasingly important. You can just see why as government over years has expanded the scope of what it does and what it regulates and so forth. uh And if there's ever, right now, know, the trend seems to be sort of like the great de-churching of America, as one author puts it, know, sort of a move away from churches. But there's likely sort of a counter trend as well and likely to be. These are going to be really, really crucial issues, I think. Yeah, I agree. This is the last question and then we just have some housekeeping questions on how people can connect with you. um How do you feel like religion, religious liberty, how is it faring today and how do you see it faring in America in the next 10 years, five years? Yeah, there's quite a lot of talk about this right now, I think, because the Supreme Court over the last few years has tended to give a lot of victories to, let's say, religious claimants and so forth, you know, in free exercise cases, particularly, but sometimes in establishment clause or free speech slash establishment clause cases too, like the football case, football coach prayer case uh from Washington, Georgia. Exactly. uh So there's been kind of, at least in the scholarly community, a lot of negative reaction to those cases, you know, saying that the courts abandoning the Establishment Clause, you know, you see articles with the titles like the remnants of the Establishment Clause and stuff like that. My view is a little different here. I guess I think that the court has been moving away from and to some degree trying to dismantle in a limited way the constitutional jurisprudence that began in the 1960s. And since I regard that as sort of a mistake that's bad as constitutional law and probably bad for the country. I'm sort of more, I'm happier about the direction the court has taken. And in that respect, I think religious freedom is doing well. I'm not totally happy though. I think, you know, the court continues to be committed and in some ways even more strongly committed to the idea of religious neutrality. It's starting to use that idea in free exercise and establishment clause areas. And since I think neutrality is an illusion, I don't regard that as a good development. I also think the court has up till now sort of failed to appreciate the older American tradition of, I call it, jurisdictional diversity. But just leaving more to different localities and states and so forth to work out in accordance with their own constituencies and so forth, rather than trying to impose a single principle, sort of one size fits all on the nation as a whole. I don't think the court has shown any recognition yet. of the value of that kind of jurisdictional diversity. I'm not giving like, uh you know, all the stars, five stars to the current jurisprudence, but I'm a little happier with it than some people are. I really appreciate that. That's really helpful. Steve, thanks for coming on the show today. How can people connect with you? How can they get your book? And what do you have coming up? Well, they can get the book off of Amazon or in any of the usual ways. I have two or three extra copies that I could give to somebody, but not very many. um They could, people who had questions and so forth could certainly email me my, even though I'm retired, I'm pretty sure my profile is still on the University of San Diego website so they could find me there. know, the email is just smiths at usd.edu, but you know, nobody will remember that. But if anybody wanted to ask me questions, they uh could find me there. uh being sort of retired, I always say, what's coming up next? uh My plan was to retire and read a lot of Shakespeare and start trying to learn to play the banjo better. But it seems like I've taken on enough writing assignments and people keep asking, could you write a review of this and so forth. That my life hasn't really changed that much. So I don't really have more time than I used to have. But at some point I will have more time and I probably can respond in fact to certain kinds of emails. Your job becoming a TikTok influencer, how's that going? I'm not on any social media. I don't know how it works. I never look at it. I don't know. Yeah. we have several people that say to us, yeah, I'm not on social media. And I kind of figured that was a response I was going to get from you as well. mean, I do know how to use email. And recently I've learned how to text, you know, but I don't like to do it and so forth, you know, and all the others are beyond my, you know, I figure I don't need to learn those things. I, you know, leave them to my kids and. love it. Well, thank you so much, Steve, for coming on. I really appreciate it. It's been a real pleasure to have this conversation with you. Super enlightening. lot. Really good discussion, I thought. Absolutely and to our friends who've joined guys thanks for joining and watching or listening make sure you're liking subscribing uh sharing this with other people that need to see it you can just click that little square with the you know with the arrow button you can share this with so many different people that would love to see it and that we feel like would benefit from this so make sure you're doing that guys and until next time keep your conversations not right or left but up thanks and God bless Okay.