Disintegrating Conscience in a Fragmented Age 

What is a conscience? What does it mean to say that one ought to follow it or not offend another’s? Those familiar with the New Testament often think of that passage in 1 Corinthians (10:25–29) in which St. Paul instructs his readers to be careful not to offend the brother who, as a matter of conscience, will not eat meat offered to idols, even if one has a clear conscience about devouring the same delicacy. Even though St. Paul recognizes that there is nothing intrinsically wrong with eating meat offered to idols, since “we know that ‘no idol in the world really exists’” (8:4), the weaker brother’s conscience should still be respected. Thus, one has a duty to one’s conscience (and deference to another’s) even if it is in error.  

But does it follow from this that conscience is equivalent to any set of beliefs one is convinced is true? That is doubtful. For example, I am convinced Carole King is a better songwriter than Taylor Swift, but if you held a gun to my head and asked me to recant that belief or suffer death, I would quickly concede Swift’s superiority. I have aesthetic convictions about King, but my conscience tells me that they’re not worth dying for. On the other hand, if you held a gun to my head and asked me to deny my faith in Christ or suffer death, my conscience would tell me that I cannot acquiesce to your demands. So it seems that the meaning of conscience cannot be reduced to any set of beliefs one is convinced is true. To be sure, a conscience may indeed have beliefs, but it is not merely the sum total of them. Conscience is more like an internal authoritative voice that whispers to the intellect in order to move the will to choose what one believes is good and true on matters of grave importance.  

Although a person’s conscience is often thought to be tightly tethered to his religious convictions, few doubt that nonbelievers and skeptics may also be moved by conscience, as the Supreme Court recognized in two landmark conscientious objector cases. Our laws include all sorts of exemptions that accommodate both individual and corporate conscience—e.g., the Church Amendments, Title VII, the ministerial exception, the Religious Freedom Restoration Act (RFRA)—but no one argues, and none of these laws affirms, that conscience is so capacious and authoritative that any action issuing from a deeply-held conviction must be legally tolerated. This is why the most rhetorically magnificent affirmations of religious liberty in early America came with conditions. Take, for example, this passage from the 1780 Constitution of Massachusetts: “[N]o subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession or sentiments, provided he doth not disturb the public peace or obstruct others in their religious worship.” (Italics added.)  

The Supreme Court first confronted this tension in 1879 when it decided the case of George Reynolds, a Latter-Day Saint whose religion commanded him, as a matter of conscience, to practice plural marriage in opposition to a federal statute that criminally banned polygamy in the territories. Reynolds argued that the judge in the lower court—which had convicted Reynolds—should have instructed the jury to consider the defendant’s federal religious free exercise rights. Although not denying that Reynolds was acting out of religious conscience, the Court rejected his argument, relying on the very conditions for conscience protection articulated in early America. The Court reasoned that Congress could not touch beliefs—and thus Reynolds might conscientiously believe whatever he wanted about marriage—but Congress most certainly could “interfere when principles break out into overt acts against peace and good order” (quoting Jefferson’s Bill for Establishing Religious Freedom). And given polygamy’s badness—at least in 1879—it seemed like an ideal target for legislative interference. So one could say that even when conscience puts demands on us that we are obligated to obey, the government may justly prohibit us from acting on our conscience if our obedience conflicts with what the government judges as the public good.  

In his new book, The Disintegrating Conscience and the Decline of Modernity, the inestimable Steven D. Smith offers us an in-depth look into the meaning of conscience and how he thinks it has shifted from the early days of the Protestant Reformation to the present. Conscience, as Smith tells the tale, was once about one’s duty to God, but it has now become simply about being true to oneself. To make his case, he focuses on what he believes are the differing (and sometimes contrary) understandings of conscience found in three historically important figures: St. Thomas More (1478–1535), James Madison (1751–1836), and William J. Brennan, Jr. (1906–97).  

The strength of Smith’s writing lies in his ability to tell an engaging story that he masterfully deploys as a vehicle for philosophical interrogation. It is a style that more resembles Socratic dialectic than a sustained series of arguments. For this reason, and because of space constraints, I will single out his most salient points and raise a few questions about some of them.  

Smith begins his interrogation with More, who was executed in 1535 by the English authorities after he refused to take an oath affirming that Anne Boleyn was the rightful queen, the truth of which depended on the licitness of the dissolving of King Henry VIII’s marriage to Catherine of Aragon. More claimed that his refusal was a matter of conscience. He simply could not do otherwise. But as Smith notes, More, when he was serving as Lord Chancellor, led the charge in hunting down and executing Protestant heretics even though he had eloquently defended one’s obligation to follow one’s conscience while respecting the consciences of others. Smith suggests that one way to reconcile this apparent inconsistency is by arguing that More had a communal view of conscience, whereas Protestants like Martin Luther held an individualistic one. More, as Smith tells it, viewed conscience as dependent on the received traditions and authority of the Church, whereas Luther located it in private judgment; though More’s view, writes Smith, inevitably winds up at the same place as Luther’s. 

I am not so sure. Luther, after all, engaged in his own share of heretic hunting of Anabaptists. And More’s so-called communal view, Smith neglects to mention, was informed by the Catholic doctrine that baptism leaves an indelible mark on the soul, and thus all the baptized, including heretics, are under the authority of the Church. This is why More—consistent with the teachings of St. Thomas Aquinas—went after heretics and not pagans or Jews. Aquinas thought it was permissible, though not required, for the Church to enlist the state to stamp out heresy, because heresy, as Aquinas reasoned, is like a cancer that can corrupt the innocent and thus undermine the common good. In this sense, More’s view of conscience was not unlike that held by Jefferson, the Reynolds court, or even Luther. Where they differ is on the question of what exactly constitutes the common good, and if it happens to include religion, what sorts of practices and beliefs, including those moved by conscience, are really deleterious to sustaining that good. To put it another way, one era’s Lutheran or Anabaptist is another era’s Latter-Day Saint.   

Smith suggests that the idea that one ought to obey an erring conscience, as taught by Aquinas and More (and implied by St. Paul), leads to a kind of paradox: “[E]ven if you did the [objectively] wrong thing . . . you still also did the right thing, warranting approval, if you really and sincerely acted from conscience.” But Smith’s framing is not quite what Aquinas taught. Yes, one must obey even an erring conscience, but nothing follows from this about the culpability one may have for its formation or the goodness, evil, or indifference of an act’s nature, or, as noted above, whether others, including one’s government or church, ought to approve or permit any act issuing from conscience. Smith also calls More’s view a tautology when referring to his decision to conceal his reasons for refusal until after his conviction: “[More] was saying, in effect, ‘It would be wrong for me to do it because (I believe) it would be wrong for me to do it.’” But once one attends to the facts of More’s case, “it is wrong to do X because I believe X is wrong” is not at all a tautology, since the first “wrong” refers to a particular act and the second “wrong” refers to what More believes is the universal moral rule that prohibits all instantiations of that act. In effect, More was saying: “It would be wrong for me to sign this oath because (I believe) it requires me to lie, and lying is in every case wrong.

In 1789, James Madison helped draft the First Amendment. A few years earlier, his Memorial and Remonstrance (a pamphlet he published anonymously) was instrumental in helping defeat a Virginia bill that would have created a property tax scheme to fund the salaries of Christian ministers. But, according to Smith, Madison’s most important contribution to the modern understanding of religious liberty came from the role he played in helping draft Article 16 of Virginia’s Declaration of Rights (1776). The original version, penned by George Mason, asserts: “All men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience” (italics added). The final version, after Madison had a hand at it, reads: “All men are equally entitled to the free exercise of religion, according to the dictates of conscience” (italics added). In Smith’s telling, the shift from “fullest toleration” to “equally entitled” is momentous, and the sort of political arrangement that someone like More feared. Yet, as Smith correctly notes, Madison’s understanding of conscience and religious liberty presupposed not only the existence of God but that each of us has a duty to Him. 

How then can Madison’s idea of equal entitlement—which gets cashed out in the Memorial and Remonstrance as a kind of non-endorsement of any particular religion—be reconciled with its apparent dependence on what is undoubtedly a religious doctrine? Smith settles on the answer that the point of Madison’s project was not metaphysical neutrality for the state but ecclesiastical disestablishment. Unlike many today (including several Supreme Court justices) who conceive of state religious neutrality as a means to insulate unbelievers, and religious minorities, from the psychic harm that may result from being political outsiders, Madison was primarily concerned with protecting the individual conscience from the incursions of a tyrannical clergy backed by state power.   

Smith argues that even though Madison’s view of conscience had much in common with More’s, it nevertheless set the stage for the view that is dominant today, a view whose end is the disintegration of conscience. Smith suggests that there had been a subtle shift from More to Madison. For More, writes Smith, conscience was “I must do what (I believe) God wants me to do,” but for Madison, it was “I must do what I believe (God wants me to do).” This leads Smith to ask: “Might someone complete the transformation by just lopping off the final clause—so that conscience means something like ‘I must do as I believe’?”  

Smith contends that this view is exemplified in the life and work of William J. Brennan, Jr. An associate justice of the U.S. Supreme Court (1956–90), Brennan’s ideas about conscience and religious liberty had a profound influence on the development of the Court’s religion jurisprudence for well over three decades. When he appeared before the Senate Judiciary Committee, Brennan was asked about whether his faith would guide his judgments on the Court. A liberal Catholic, he gave an answer not unlike the one that would be given over three years later by presidential candidate John F. Kennedy: “[W]hat shall control me is the oath that I took, to support the Constitution and laws of the United States, and [to] so act upon the cases that come before me for decision that it is that oath and that alone which governs.” So all conflicts between Brennan’s religious duty and his oath of office are always resolved in favor of the latter, reversing the order of obligation affirmed by More: “I die the king’s good servant, but God’s first.”   

As Smith explains, Brennan’s account of his own conscience was eventually imposed on the rest of the country through his judicial opinions, along with the considerable assistance of liberalizing trends in legal and political theory that were prompted by America’s increasing religious pluralism. Although one may think that such a development portends a liberal future of mutual forbearance, Smith argues that it does just the opposite: because conscience is no longer conceived as one’s duty to a higher authority that must be justly accommodated by the state, but rather a cluster of mere self-regarding beliefs about one’s own subjective vision of the good life, any actions that depart from this new understanding are violations of the social order and may be proscribed. But who then, asks Smith, is my real self? Suppose I am a physician ordered by the government to administer an overdose of morphine to a patient who has chosen suicide. I am told it is my professional responsibility to comply, but my conscience—formed by my church’s moral theology—tells me that to acquiesce is to engage in murder. The state—accepting Brennan’s view—may say, “Look, you took an oath to abide by the standards of the profession. We are not asking you to kill yourself. That would be wrong. We are merely asking you to be a good doctor.” But I am not two selves: the Catholic-me and the physician-me. There is just me. It should then not surprise us, reasons Smith, that this compartmentalization—originally deployed to subdue the tensions of religious pluralism—was, ironically, bound to result in the polarization that marks our present moment.  

Consider the 1962 and 1963 cases in which Brennan voted with the majority to ban, as unconstitutional, administration-directed voluntary prayer in public schools. One might think that such decisions merely establish tolerance in a setting in which the state should remain neutral on religion. But, reasons Smith, it teaches just the opposite: petitioning God or acknowledging his existence is of such little consequence to our shared public life that it must remain purely private. The idea of conscience that grounds this thinking comes to full maturity two years after Brennan leaves the Court in Casey v. Planned Parenthood (1992): “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This means that for purposes of law it is official state doctrine that freedom, including religious freedom, does not have a point, does not depend on our human nature and its rightful ends, and that existence, meaning, and mystery are defined by each individual and thus we do not encounter and discover them as givens for which our institutions must take account. Although Casey was overturned in 2022, the logic of its “mystery passage” is still dominant in the nation’s most powerful cultural venues. Just ask the social conservatives and conventional liberals in academia, Hollywood, or corporate America who have been harassed and assailed as heretics (or worse) because they have had the temerity to publicly dissent from progressive orthodoxy on issues like abortion, marriage, transgenderism, DEI, or parental rights. We seem then to have come full circle back to “sign the oath, or else,” though as of now dissenters are only being separated from their jobs or their online platforms but not their heads.  

The Disintegrating Conscience and the Decline of Modernity is a wonderful book, whose author, Steve Smith, is a national treasure. It is rich with legal and philosophical insights, most of which I could not possibly cover in this review. Although one might find oneself disagreeing with Smith, as I have on occasion, one will be better for it. And I can say that with a clear conscience.  

Image by christianchan and licensed via Adobe Stock.