Once upon a time, in a land known as Christendom, a man died rather than betray his conscience, which is to say, his “convictions about what it is right and wrong to do.” That man was Thomas More (1478–1535), who, if you are a certain kind of law professor writing in the year 2020, you can imagine “erupting with amazement and anger” over some of the more liberal pronouncements of the U.S. Supreme Court before it was rescued by the three appointees of a twice-impeached president.

Fast forward to the mid-twentieth century: 

Four centuries earlier, an eminent Catholic jurist, Thomas More, had resigned from the office of lord chancellor and had refused to take a mandatory oath, suffering execution as a consequence, out of faithfulness to his church. Now the situation was flipped: [the Catholic Supreme Court Justice] William Brennan emphasized his fidelity to the judicial oath as a way of demonstrating his independence from his church, and thus his suitability for high office.

Decline has come upon the land. “Ideas and movements that were fresh in the sixteenth century…seem to be floundering or decrepit today.” One such idea is that of conscience. A book might be written “[r]eflecting on the changing meanings and importance attributed to conscience” at several “decisive turning points at which Western civilization changed from what it had been in premodern times to what it is today.” Indeed, a provocative, entertaining, even theatrical book of this kind has been written! But also a book too clever and coy, a book that exults in rhetorical questions and abounds with sentences like, “Let us return and take another look. Just in case.” 

Steven D. Smith’s The Disintegrating Conscience and the Decline of Modernity has three protagonists: Thomas More, James Madison, and William Brennan. Now and again, Smith seems to lose the thread of his story, and the reader’s patience is sorely tried, but the book’s basic argument is clear and its exposition lively. Smith wants to unspool the logic of conscience as a concept—from its zenith in late medieval times to its nadir in our own time.

First, then, Sir Thomas More, one of two “illustrious Thomases” Smith admires (the other is, of course, Aquinas). For More, conscience was fundamentally religious: God wills that you do the right; to betray what you believe in conscience is to act against God. As Smith explains, More believed “you should form your beliefs about what is right not on the basis of your own private judgment but rather according to what Christians have always and everywhere believed”—that is, “the ‘consensus’ or ‘common faith’ of Christendom.” That consensus, however, was already passing during More’s lifetime. By his own lights, he did what he could to preserve it—by persecuting Protestants—but with his death “ended…an extraordinary age. Even a world. Or…we might say that thus began a new era, or a new world.”

Enter Madison, who also conceived of conscience as “in its essence a religious faculty,” but whose interest in it was more political than personal. Smith repeatedly refers to conscience’s “capacity to consecrate error.” The idea is that you would do wrong to act against your conscience because, in doing so, you would be choosing to do what you take to be wrong, and that can never be right—even if you’re wrong about what’s right and wrong. If it’s always wrong to act against your conscience, does it follow that it is always right to act in accord with it? Smith is too quick to answer in the affirmative. According to him, the correct reasoning is: “You believe God wants you to do this; God knows you believe this; and therefore God does want you to do this (even though…in a different sense God might not want people, presumably including you, to do it)”—because what you believe is wrong. But that’s misleading. In fact, you’re responsible not only to your conscience, but for it. If it’s poorly formed, though you would do wrong to act against it, it wouldn’t be right, in the sense of good, for you to act in accord with it. Presumably, what God would really want is for you to reconsider whether your conscience is working as it should.

Conscience, then, does not “consecrate” error: nothing is made holy or true just by being dictated by someone’s conscience. It is, therefore, incorrect to claim that, for More, “it was Christianity that consecrated conscience,” while, for Madison, conscience consecrated religious liberty in the New World. Smith attributes to Madison the argument that, since all the different sects and denominations understood themselves to be doing God’s will, God must have willed that they believe and act differently from one another—which is to say that he willed religious diversity and liberty. This argument is clever, but not supported either by the historical record or by the logic of conscience. A better argument for religious liberty is that knowledge of matters religious and moral is fallible, and so a person of conscience should tolerate some diversity in judgment by other persons of conscience. (John Rawls, a bogeyman in Smith’s text, called this the fact of reasonable pluralism.) The limits of religious liberty and freedom of conscience have to be worked out over time, in conjunction with the duties of citizenship and the rights of other citizens.

If it is incorrect that conscience “consecrates” error, it is also incorrect that “the religious conscience,” as Smith calls it, “implies that for the existentially crucial purposes of this life and the next, it doesn’t really matter much whether what you believe actually is true, so long as you believe it is true.” He presents that implication as the next step in the disintegration of conscience and the decline of modernity. “If what matters is sincerity, not truth,” Smith writes, “why risk compromising your sincerity by reflecting or investigating, and perhaps thereby digging up complications and stirring up doubts?” Here it is worth pausing to ask whether you do in fact hold a belief “sincerely” when you refuse to reflect on it, or to investigate its truth. But Smith will not be denied his conclusion: “This elevation of the self was also a sort of culmination of a development denied and yet hinted at in Thomas More’s ideas and somewhat more self-consciously adopted in Madison’s—namely, the detachment of conscience from a commitment to truth.”

And here at last, slouching toward Gomorrah, comes William Brennan. He is presented as “a willingly, willfully fragmented man,” whose jurisprudence, relegating “religion and other ‘comprehensive doctrines’ to the private domain,” brought “a similar fragmentation for his fellow citizens.” Yet, Smith asks, “How can citizens meaningfully debate…issues [with a strong dimension of morality or justice] when they are admonished not to invoke what they most fundamentally believe?” The upshot is that the public square is vacated of substance. What fills this void is “the sanctity of the self,” whose “deeply felt convictions or commitments regarding how he or she should live” should never be questioned or subject to critical scrutiny, but instead accommodated as much as possible. To make his point, Smith discusses two Vietnam-era cases of conscientious objection, United States v. Seeger (1965) and Welsh v. United States (1970). In these cases, he writes, the Supreme Court “suggested that respect for conscience is based on respect for the individual subject. The sincere objector should not be forced to violate, or to be unfaithful to…himself.” God falls away, but somehow the warrant to respect conscience remains, even without “the historical commitment to formulated theological truth.”

Smith hints that this situation is unstable and perhaps untenable. “[W]hat would be the sense or authority of conscience,” he asks, “if it is detached from God?” Further, “[W]hy is conscience so weighty or so authoritative? And, more troublingly, why should government respect and attempt to accommodate the consciences of people whom government…believes to be mistaken or misguided in their judgments?” Smith ignores the work of others who have written about these questions, such as Cécile Laborde (see my “Protecting Religious Liberty,” May 2018). It is also curious that he doesn’t discuss two later Vietnam-era conscientious-objection cases, Negre v. Larsen and Gillette v. United States (1971), which already show the pendulum swinging. Guy Gillette appealed to humanistic principles for his refusal to serve in Vietnam, whereas Louis Negre, a Roman Catholic, sought discharge after consulting with a Jesuit at the University of San Francisco. That Jesuit, Fr. James Straukamp, advised Negre that “under the beliefs and teaching of the Catholic Church he [was] obliged to examine and form his own conscience in respect to participating or refusing to participate in the war at this time.” But this time the Court interpreted the Universal Military Training and Service Act more strictly than it had in Seeger and Welsh. Thirty years later, Negre’s lawyer, the distinguished Catholic scholar and jurist John Noonan, summarized the majority opinion thus: “What was truly sacred was not the claim of conscience but the security of the nation.” (See “A Right Not to Fight,” December 2017.)

After all this book’s drama (“Who knows what the situation will be by the time the book is finished and you read these words, if indeed that ever happens?”), a reflective reader might well wonder whether Smith has his villains right. His book takes several swipes at President Biden as another fragmented man in the broken mold of William Brennan. Fragmentation, however, might seem like the least of our worries. It is striking that the man with seemingly no conscience, former president Donald Trump, is not mentioned in Smith’s book. In the prologue, Smith tells us that he finished writing this book in mid-2020, before the presidential election. He couldn’t have foreseen the insurrection at the Capitol, or the resurrection of Trump from the ashes for this year’s election. It’s true that our republic is at a moment of peril, but it’s not at all clear that Smith’s story of decline captures the dynamics that have brought us to this point. 

The Disintegrating Conscience and the Decline of Modernity
Catholic Ideas for a Secular World
Steven D. Smith
University of Notre Dame Press
$55 | 286 pp.