The Constitutional Roots of Ketanji Brown Jackson’s Public Faith

By Justin Collings and Hal Boyd | March 29, 2022

Judge Ketanji Brown Jackson (Drew Angerer/Getty Images)

Standing behind a podium bearing the presidential seal, Judge Ketanji Brown Jackson—President Biden’s pick to replace Justice Stephen Breyer on the U.S. Supreme Court—introduced herself to the nation by “thanking God for delivering me to this point in my professional journey.”

“My life,” she continued, “has been blessed beyond measure, and I do know that one can only come this far by faith.”

During remarks before the Senate Judiciary Committee, Jackson once again paused “to reaffirm” her “thanks to God,” noting that “it is faith that sustains me at this moment.” Her friend, Professor Lisa Fairfax of the University of Pennsylvania Law School, similarly underscored Judge Jackson’s deep “faith in God” during her own introduction of the nominee.

The judge has already faced probing questions about her record as a public defender and her views on controversial issues. But another subject continues to arise: her faith.

Mentioning religion during a Senate Judiciary Committee hearing is sometimes simply an opportunity for judges to affirm their impartiality. In 2005, now-Chief Justice John Roberts said: “My faith and my religious beliefs do not play a role in judging.” In 2020, now-Justice Amy Coney Barrett, answered “I can” when asked if she could “set aside” her religious beliefs on the bench.

During her confirmation hearings last week, Judge Jackson tried to follow a similar tack. When asked by Republican Sen. Lindsey Graham to rate her religious commitment on a scale of 1 to 10, Jackson declined. “I am reluctant to talk about my faith in this way,” she said, “just because I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views.”

But Graham continued to press the issue, seizing the occasion to express his disgust with the treatment of Justice Barrett’s Catholic faith during her confirmation hearings. It was a tense exchange, with the senator frequently interrupting Jackson, who noted in the course of the questioning that “my faith is very important” and that “there’s no religious test in the Constitution.”

Some, of course, feel that any invocation of God in these settings runs afoul of Article VI, Clause 3 of the U.S. Constitution—the provision invoked by Jackson—which promises that “no religious test shall ever be required as a qualification” for public office in the United States. Alternatively, others argue that invoking God in official settings violates what Thomas Jefferson dubbed the “wall of separation between the church and state,” ostensibly built by the establishment clause of the First Amendment. To be sure, emphasizing an unbiased judiciary, religiously and otherwise, is important to a fair and independent judiciary rooted in the rule of law.

But regardless of the questioning she faced, Jackson’s public declarations of faith in God prior to her hearing stand squarely within a historical tradition of the nation’s civic religion present since the nation’s founding. One of the founders, George Washington, offers a striking example in this regard.

Although his public religious observance was sometimes inconsistent, Washington’s public and private writings pulsate with invocations of a higher power. His God—whom he most often referred to as “Providence”—was an unmistakably active agent who intervened to shape the fate of the infant United States.

When successes came during the Revolutionary War, Washington implored soldiers to “show their gratitude to Providence for thus favoring the cause of freedom and America.” The general consistently exhorted his men to careful religious observance. “While we are zealously performing the duties of good citizens and soldiers,” he wrote in May 1778, just after the harrowing winter at Valley Forge, “we certainly ought not to be inattentive to the higher duties of religion. To the distinguished character of patriot, it should be our highest glory to add the more distinguished character of Christian.”

Washington’s public expressions of faith were matched by an unswerving commitment to religious tolerance. When the not-yet-traitorous Benedict Arnold led an army to Canada near the beginning of the war, Washington gave clear instructions about religious tolerance. “[A]s far as lies in your power,” he commanded, “you are to protect and support the free exercise of the religion of the country and the undisturbed enjoyment of the rights of conscience in religious matters with your utmost influence and authority.” Washington’s faith in divine Providence was inseparable from his commitment to freedom.

There were, of course, limits to that commitment. In his lifetime, Washington was one of the nation’s largest slaveholders. And although he privately expressed opposition to slavery and a desire (on an unspecified timetable) for slavery’s demise, he never once employed his enormous prestige to undermine slavery’s malevolent role in American law and politics, Constitution and culture. He only freed the enslaved persons held in his name after his death.

There might be poetic justice in the picture of Ketanji Brown Jackson, a superbly educated and qualified jurist and the descendant of enslaved persons, who is forging her own new American tradition of public expressions of faith as she stands on the cusp of confirmation to the nation’s highest Court.

That new tradition echoes a very old one. When the Constitutional Convention got underway, Washington reflected that, if it were to succeed, “it will be so much beyond anything we had a right to imagine or expect … that it will demonstrate as visibly the finger of Providence as any possible event in the course of human affairs can ever designate it.”

The sentiments expressed by Washington mirror what many Americans continue to believe: that there’s something providential about the basic freedoms guaranteed by the U.S. Constitution. A Deseret News-Marist Poll, for example, finds that more than half of American adults believe that the U.S. Constitution is inspired by God, and fully 62 percent believe that the First Amendment, defined in the survey as freedom of religion and freedom of speech, is divinely inspired. And although most Americans say they don’t think religion should drive politics, 7 in 10 believe the country would be better off if Americans prayed for each other.

There are grounds for hope in these findings.

In their convictions about free speech, as well as in their convictions about religious freedom, modern Americans are following in the footsteps of the founders. George Washington’s commitment to speech and press freedoms matched his devotion to religious liberty. The first president was a passionate reader of newspapers and magazines, and he wanted a free and independent press to flourish throughout the country.

“I entertain a high idea of the utility (i.e. usefulness) of periodical publications,” Washington wrote the same day that Virginia ratified the Constitution. He “heartily desire(d)” that newspapers “might be spread through every city, town, and village in America,” considering them “easy vehicles of knowledge” that were “more happily calculated than any other to preserve the liberty, stimulate the industry, and meliorate (i.e. improve) the morals of an enlightened and free people.”

Self-government, of course, lies at the heart of what Jackson recently called “this grand experiment of American democracy that has endured over these past 246 years”—an experiment that would be impossible without the freedoms the First Amendment guarantees. Of course, what is now the First Amendment to the U.S. Constitution was not the first item in the list of proposals that Congressman James Madison presented to the House of Representatives on June 8, 1789. But it was the First Amendment that Congress adopted and the people ratified. And it appears from the survey data that support for the First Amendment remains robust.

In an otherwise grim season of national and global history, that should come as good news. The historian Joseph J. Ellis has opined that the founders bequeathed to future generations a conversation as well as a Constitution—an “American Dialogue” designed and destined (we hope) to endure throughout and across the generations.

That dialogue stands at the center of the nation’s public civic faith; the provisions that protect it lie at the heart of our constitutional order. We have reason to hope, based on her own words, that Justice Jackson will, if confirmed, zealously uphold those provisions against legislative or executive encroachment. Even more, we hope that Americans of all religious, political, or other stripes will keep faith with those core constitutional principles and with the ideals of civility and civic virtue that undergird them.

Justin Collings is a professor at BYU Law School and holds doctoral degrees in law and history from Yale University. He is the author of a forthcoming book on George Washington. Hal Boyd is the executive editor of Deseret Magazine and is also a graduate of Yale Law School. Both authors are fellows of the Wheatley Institution.

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