Ben Peterson – Constituting America

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 282 (Start at “On the Principal Causes”) – 288 (Stop at “How the Enlightenment”) of this edition of Democracy in America.

De Tocqueville on Religion in Society

For De Tocqueville, habits and mores, determined especially by religion, are the primary contributors to the Americans’ successful maintenance of their democratic republic. Against champions of liberty who opposed Christianity and reactionaries who opposed liberty and defended religion, De Tocqueville described and favored an American republicanism that had combined “the spirit of religion and the spirit of freedom.” The dominance of Christian morality—a salutary tyranny of the majority—promotes domestic tranquility and furnishes limits on political power. De Tocqueville makes an arresting claim: “Religion, which, among Americans, never mixes directly the government of society, should therefore be considered as the first of their political institutions; for if it does not give them the taste for freedom, it singularly facilitates their use of it.”

While noting that religion “never mixes” with government, De Tocqueville nevertheless notes that it holds widespread influence in society, hinting at the larger force of his argument. De Tocqueville’s claim is twofold: first, Christianity exercises an enormous degree of political influence in America, despite formal separation of church and state, through its hold over the mores. Second, the degree of influence Christianity wields actually depends on disestablishment, assigning religion to its proper sphere of dominion over hearts and minds.

In De Tocqueville’s analysis, mortal man is irrepressibly homo religiosus, irrepressibly yearning for immortality. Religion thus possesses a natural advantage in the sphere of the mind and mores, pertaining to the permanent interests of human beings in the next world:

As long as religion finds its force in the sentiments, instincts, and passions that one sees reproduced in the same manner in all periods of history, it defies the effort of time, or at least it can only be destroyed by another religion. But when religion wishes to be supported by the interests of this world, it becomes almost as fragile as all the powers on earth.”

All civil powers, in contrast, are ephemeral. Direct alliance with civil political power jeopardizes religion’s natural advantage. The enemies of an allied regime become enemies of the religion: “So by uniting with different political powers, religion can only contract an onerous alliance. It does not need their help to live, and by serving them it can die.” This makes religion especially vulnerable in democratic ages because configurations of political power change rapidly and constantly.

The reason Christianity—which De Tocqueville will argue in Volume II is especially suited to liberty—maintains a somewhat thinned, but widespread and unchallenged influence in American society is because it confines itself to the realm of general moral guidance and the government of the heart and mind, the natural, universal realm of religion: “In America, religion is perhaps less powerful than it has been in certain times and among certain peoples, but its influence is more lasting. It is reduced to its own strength, which no one can take away from it; it acts in one sphere only, but it covers the whole of it and dominates it without effort.”

De Tocqueville presents religion with a tradeoff: it can have universal dominion over minds and mores, or conventional political power over a particular group, but not both. De Tocqueville’s claim and analysis, supported with the example of the French Revolutionaries’ antagonism to religion and the American case, suggest two intriguing possibilities relevant to the question of the Christian witness: first, political influence need not rest on direct governmental prerogative or public recognition. Second, entanglement with conventional political power could present a danger to the influence of religion, undermining the influence over minds and mores.

The tradeoff has a bit more bite. De Tocqueville claims that Christianity has complete dominance over minds and mores, but that dominance comes up against other mental and moral features of the democratic age. For example, Christianity must not challenge too pointedly the “love of well-being” that equality engenders but be content with constraining the pursuit of well-being to honest means. In democratic ages, religion cannot afford to buck against common opinion too much:

“As men become more alike and equal, it is more important that religions, while carefully putting themselves out of the way of the daily movement of affairs, not collide unnecessarily with the generally accepted ideas and permanent interests that reign among the masses; for common opinion appears more and more as the first and most irresistible of powers; there is no support outside of it strong enough to permit long resistance to its blows.”

Religion retains its dominant—but limited—hold over minds and mores only by staying tightly within narrow bounds. The spirit of religion and the spirit of liberty mix, but uneasily in the context of democracy.

Ben Peterson is an assistant professor in the Department of Government and Criminal Justice at Abilene Christian University. He writes on a range of public policy issues, drawing from resources in Christian social and political theory, the broader Western tradition of political thought, and contemporary social science. You can find links to his other writings and information about his scholarship on his website.

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Essay Read By Constituting America Founder, Actress Janine Turner

Numerius, the Governor of Narbonensis, was on trial before the emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Caesar, if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” – Coffin v. United States (1894), citing Rerum Gestarum, L. XVIII, c. 1

I served on a jury for an assault and family violence case last year. The defense counsel reminded me and the other potential jurors that the prosecution bore the burden of demonstrating the defendant’s guilt. Even if the defense presented no evidence, called no witnesses, or gave no testimony, jurors were not to take absence of exculpatory evidence as an indication of guilt. It was the prosecutor’s task to prove, beyond a reasonable doubt, that the defendant was guilty.

Neither the phrase “innocent until proven guilty,” nor “presumption of innocence” appears in the United States Constitution. Yet, the presumption of innocence is a fundamental principle of our legal order. Colonial governments and the First Continental Congress invoked the principle, it lies in the background of protections for the accused and requirements of due process in the Fourth and Fifth Amendments, and it appears in the constitutions or penal codes of some states.

Supreme Court justices have referred to the presumption of innocence as a fundamental, axiomatic legal principle. Associate Justice Joseph Story (d. 1845), offering the opinion of the Supreme Court in United States v. Gooding (1827), wrote that, “the general rule of our jurisprudence is that the party accused needs not establish his innocence, but it is for the government itself to prove his guilt before it is entitled to a verdict or conviction.” Associate Justice Edward Douglass White (d. 1921), writing for the Court in Coffin v. United States (1894), wrote, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” The Court found that the lower court should have instructed the jury that,

The law presumes that persons charged with crime are innocent until they are proven by competent evidence to be guilty. To the benefit of this presumption the defendants are all entitled, and this presumption stands as their sufficient protection unless it has been removed by evidence proving their guilt beyond a reasonable doubt.

The doctrine of presumed innocence has medieval roots, and there are ancient principles regarding fair procedure that are widely shared, finding echoes in Talmudic and Islamic legal theory, and even in the Code of Hammurabi, as well as Roman law. While Justice White and other writers traced the principle to the English common law, in great measure incorporated into the American legal order, Kenneth Pennington credits a French canon lawyer who lived in the thirteenth and first part of the fourteenth century, Johannus Monachus (d. 1313), with the first clear, pithy formulation of the principle that a person is presumed innocent until proven guilty: “item quilbet presumitur innocens nisi probetur nocens.”

The canonist was himself referring to a decretal by Pope Innocent III (d. 1216), and he was among a number of jurists who, in the thirteenth century, sought to ground procedural rights of defendants charged with criminal acts in the divine law and biblical teaching. After all, even God, the supreme judge, did not expel Adam and Eve from the Garden of Eden before they had a chance to appear and plead their case. These canonists drew on and contributed to the Ius commune, the common law of the civil law systems of Europe, based on the Corpus juris civilis of Justinian, moving European legal systems away from trial by ordeal or even torture such as employed in some inquisitorial proceedings to induce confessions.

As Pennington notes, there were jurists who argued, contrary to the presumption of innocence, that public order often requires limiting the rights of the accused to ensure conviction of the guilty. The Ius commune, and subsequently judges and jurists contributing to the English common law, instead adopted the principle reflected in William Blackstone’s (d. 1780) famous ratio: “The law holds that it is better that ten guilty persons escape than that one innocent suffer.” Blackstone was an authority on jurisprudence at the time of the American founding and early republic, and in his ratio he was distilling a notion that other common law jurists such as Sir John Fortescue and Sir Matthew Hale had also expressed.

Pennington’s point that the English common law isn’t the primary source of the presumption of innocence notwithstanding, we find an assertion of the importance of due process of law, the idea that government must demonstrate guilt via a legal process established in advance before depriving a citizen of life, liberty, or property, in the Magna Charta (1215): “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

The presumption of innocence, a legal principle with deep and broad roots in ancient, medieval, and modern tradition and experience, is a central part of the constitutional and legal order in the United States. I’ve seen the principle in action; my fellow jurors and I voted to acquit the defendant because we didn’t believe the prosecution demonstrated guilt beyond a reasonable doubt. No doubt there are many others—some innocent, some guilty—who are today not incarcerated or tagged with criminal records because of the presumption of innocence. Such is the fruit of this foundational principle of legal administration, a bulwark of constitutional liberty where it is honored.

Ben Peterson is an assistant professor of political science at Abilene Christian University.

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Essay 39: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 6)

Principle of Innocent of Any Crime Until Proven Guilty