Any author hopes for an expository and critical reading of his work of the kind and quality that Ronald Duty has offered of Testing the National Covenant. I have benefitted hugely from reading his review. In developing his argument, this very learned man always stays on the subject. He doesn’t simply jangle the verger’s keys of learning or tell the reader what he would have written had the publisher had the good sense to ask him to write the book.
 His review also poses a further constructive question: Even though Lutherans have not often appealed to covenantal language or thought, could one not plausibly develop “A Covenantal Political Ethic for Lutherans?” The two parts of Duty’s agenda—expository/critical and constructive—fit together. As he closes his essay with a possible Lutheran articulation of a covenantal political ethic, I see more fully why he has reservations about my way of expounding the concept of a political covenant. My book largely contrasts a covenantal with a contractual political ethic. Duty believes that a covenantal political ethic might be more aptly contrasted with the broad sweep of liberalism in the modern era. In response, I will try to continue the conversation, but, first, as authors are wont to do, by retrieving briefly, as I see it, the choice I made in organizing the book.
 I juxtaposed a covenantal and a contractual narrative for interpreting American politics because they both directly bear on the question of living with the nation’s founding document (and declaration of identity and purpose), the Constitution of the United States. A purely contractual interpretation of America traces our origins to an agreement based on self-interest alone. That view does not provide much ground for disciplining the self’s appetites and fears. It yields too much to the marketplace in ordering our appetites (ch. 4) and until recently it has narrowed too much the role of government to the task of quelling a specific set of fears (ch. 1). The social contract restricts government chiefly to the business of securing our survival against foreign invasions and internal threats of violence. It dismisses the government’s further positive role and responsibility to the common good. As the preamble to the Constitution puts it: “to promote the general welfare.”
 Admittedly contracts and covenants strikingly resemble, but they also differ from, one another. Structurally, both include a promise; both include some kind of agreement and exchange between parties; and both plot out a future time horizon for the parties involved. However, in spirit and substance covenants and contracts differ markedly. Contracts are external; covenants are internal to the several parties. People sign contracts to discharge them expediently. Contracts are limited and time-bound—whether they pertain to building a house or fixing a leaky roof. In contrast, a covenant—such as the covenants of religious people before God or covenants of friendship (Jonathan and David), marriage (cited by the prophets to describe Israel’s relation to God), and eventually the Constitution of the United States (which, as ratified, Lincoln likened to a marriage)—confirms and extends into the future an alteration of identity toward which the original promise moves.
 Contracts operate at the level of buying and selling; covenants respond to and augment at the deeper level of giving and receiving. A contract may move into a covenant when a gratuitous growing edge begins to alter and deepen the relation. Contracts ordinarily tend toward a legalism. I will deliver or pay for only what the original contract specified; whereas a perduring covenant entails some openness to the unbidden. The deeper exchanges of giving and receiving supply the tie that binds a people together.
 These differences in spirit and substance between a covenant and a contract require a further comment on the original promissory event that shaped the Constitution of the United States. Contractually understood, the Constitution of the United States concocts a unity out of the multiples of self-interest—“out of the many, one.” Covenantally understood, however, the Preamble recognizes the original promise as a response to a reality already incipiently there. Look at the grammar. The Constitution begins with this given reality—We the people—at the very top of the first sentence in the Preamble. This reality purportedly serves as the agent of the promise that follows. The document begins not with “We the individuals,” or “We the interest groups,” or “We the factions of the United States,” but with “We the people.” The people are already there as a given; not simply a given in the sense of something that individuals are stuck with, but a gift, an imperfect gift, upon which the people now build--“to form a more perfect union.”
 This gift does not appear out of the thin air. It presupposes a history of mutual giving and receiving and bearing with one another spread across 150 years in the midst of all that buying and selling that accompanies it. The answering promise acknowledges the ground, deepens the bond, and alters the future of a people forming their life together. The concept of a covenant holds together a doubleness in American identity as gift and task, reality and project. The nation is both a community and a community in the making.
 The scriptures of Israel provide the deep religious background for the two elements of gift and task, reality and project, discernible in the founding of the United States. The great narrative events of Exodus and Mt. Sinai held together this doubleness. The event of Exodus marked the original gift of deliverance; and the event of Mt. Sinai specified the task, the promised discipline undertaken by the people in response to the gift. The promise responds and ratifies, rather than creates out of nothing, this identity.
 The biblical covenant does not arise from the purely biological tie of a child to its parent projected into the relations of a subject to a king or queen. Down that road lie organic, hierarchical governments. Covenantally understood, a government emerges rather from a promise, an agreement, arising from what the community recognizes and receives as a gift—its own being, however imperfect, as a community.
 Duty concedes the heuristic value of comparing a covenantal political ethic with a contractual account of identity. However, he argues, that a deeper diagnosis would have contrasted a covenantal ethic with liberalism. A contractualist ethic is but one strand out of a much broader movement—Enlightenment liberalism—that increasingly dominated the West from the late eighteenth century forward. Duty defines classical liberalism comprehensively as the conviction “that individual thought and action should be liberated from the social, political, economic, moral, and ecclesiastical authorities of older ways [in favor of newer and freer ways] of thinking about and organizing social life” (Endnote #2). So conceived, classical liberalism set in motion a variety of subsequent movements (and their adherents), sometimes overlapping and sometimes fiercely competing with one another. Modern liberalism divides to include on the one hand the economic libertarianism of modern conservatives who oppose government intrusions upon free transactions in the marketplace (Adam Smith hardening down to Friedrich Hayek and Milton Friedman). However, it also includes those who currently bear the tag of liberals; that is, political liberals who would justify just such government “meddling” in the marketplace (through taxes and regulations) on the grounds that citizens should be able to exercise their rights through their duly elected representatives to promote the common good. (Read John Maynard Keynes, Kenneth Galbraith, and Paul Krugman.) Some critics on the right would also include under the rubric of liberalism the endless varieties of multiculturalism and libertinism. Duty suggests that my book might have more helpfully gone to the root problem—classical liberalism—which eventually branched (and twigged) out into the varieties of economic libertarianism, modern political liberalism/welfarism, multiculturalism, and streaks of libertinism..
 Duty’s distinction between the classical and contemporary meanings of liberalism is well-taken; a longer book on intellectual history might helpfully describe the transmutations across two hundred years. However, the contrast between the classical and contemporary usages of the term liberal and the latter’s various colorations in meaning discouraged me from organizing the book around the contrast between a covenantal ethic and liberalism. In usage, the word liberal today somewhat resembles a madras shirt in which the dies bleed into one another. The shirt includes an original spray of bright colors celebrating civil rights, to which, in the course of time, Franklin Delano Roosevelt added a slash of economic rights (and welfarism). Then, after World War II, the shirt absorbed a run of multiculturalism and some occasional spots and stains of libertinism. Conservative critics scorn this blend and have worked out a politics that rejects the exotic in favor of the white shirt of economic libertarianism that essentially needs no laundering. In the brief compass of this book, I have concentrated on a covenantal political ethic today only as it challenges the one stream out of classical liberalism that no longer goes by the name liberal (or deserves the name conservative): the claims of the free market to be so wonderfully prodigal in its hidden service to the common good, so self-correcting in its operations, so dismissive of the role of government in human affairs, and so sure of its derivation from the Constitution and from scripture itself as to brook no opposition.
 Turning now to Luther and Calvin who both recognized a significant role for government in human affairs: The book concentrates chiefly on the Calvinist tradition, which explicitly used covenantal language and thought. My comments on the Lutheran tradition on the role of government and the civil law are too brief and rather too conventional. They simply serve as a springboard for my comments on the Reformed tradition. Luther, as well as Calvin, justified the law as a help in the restraint of sin. However, Luther did not focus on the law as an instrument of social transformation. Without nuance, I wrote, “Luther’s sense of the element of gift in human life was too restricted to undertake the bold task of restructuring civil government. God touched the inner life of men and women with forgiveness but the outer world of political structures remained relatively untouched. Calvin moved beyond the inherent conservatism of the Lutheran position on government. He recognized the further reach of the covenant of grace beyond forgiveness toward the reordering and energizing of life, Inner and outer, ecclesiastical and civil” (May, Testing the National Covenant p. 95). (In the foregoing few sentences on Luther, I left out the potential impact of Luther’s doctrine of calling on the social and political order.)
 Duty rightly presses ahead in the last half of his essay and asks whether it might not be possible to develop a “Lutheran covenantal ethic on Lutheran grounds” (Duty p.12). As I read his pages, I sensed that Lutheran grounds posed issues on several questions: the scope of the law; the seat of authority, the locus of responsibility, and the element of grace in public life.
 The Scope of the Law. Duty notes that theologians Stewart Herman, Oswald Bayer, William Lazareth, and many others after World War II helped recover and expand Lutheran theology on the scope of the law and the public domain. Civil government exists partly to restrain evil from sinful humanity, but also partly, they argued, to help human life flourish. The law has both a restraining and a promoting function. Bayer (and Duty), for example, draw on Luther’s doctrine of the Three Estates (church, household, government) to uphold both the negative and positive uses of the law. The Three Estates relate to one another like three Russian nesting eggs. “Luther …pictures…the Three Estates in effect as nested inside one another; civil government as created for the sake of maintaining peace in the household, and the household as created in the context of the church—God’s relationship with humanity” (Duty p.13). The “inner egg,” as it were, of civil government has the duty of restraining sin, but also of supporting peace and well-being in the household. The household here refers not simply to the institution of the family but more expansively the household as “the source of all public affairs” and society as a whole. (See Duty, p13)
 The Seat of Authority. While the image of the three nesting eggs helps show how civil government includes both negative and positive functions, the middle term of the image—the household—does not help much to lessen a parentalistic understanding of political authority. (Clearly Luther took the image of the household and parental authority seriously. His brief explanation of the Ten Commandments, 1520, places duties to political authorities under the fourth commandment to honor one’s father and mother.) Perhaps in response to the charge of parentalism, Stewart Herman implies that recognizing the positive role of the law lessens the distance to the business of covenant-making. “…cooperative self-obligation to form covenants in civil society is as consistent with Luther’s understanding of the civil use of the law as his admonition to the princes of his day to positively further the well-being of their subjects” (Herman, cited by Duty p.15).
 Still, accepting the positive role of the law goes only part of the way toward legitimizing the task of covenant-making. Note Herman’s words. Luther directs his admonitions to princes, not to the people. The people moreover are “subjects” vis-à-vis the prince, not yet citizens acting together in the formation and reformation of the law. The image of the civil as nesting in the familial tends to fold the historically contingent notion of princely authority into the relatively immovable natural structure of parental authority.
 The Locus of Responsibility. At the same time, Herman’s complex sentence indicates that the issue is not simply a debate over the seat of power. One would misread both Lutheran and covenantal thought to disconnect the seat of authority from the locus of responsibility. The covenantal task is not merely a matter of displacing princes with “the people” as the locus of power. Whoever occupies the seat of authority –whether a prince or the people – bears responsibility. The seat of power is not a High Chair above the swirl of political criticism. Luther admonished princes; and, no less, prophets today (themselves numbered among the people) are obliged to criticize the people in their imperfect exercise of power.
 That answer, however, triggers another question. Does this view simply affirm the connection between political order and divine judgment but sever its tie with divine grace? Not so, argues Duty, following Bayer:
 The Element of Grace “God’s fundamental character is as a giver and God’s fundamental activity is giving, not only in creating the world but in all God’s subsequent dealings with it including humankind” (Duty on Bayer p.12). Calvin specifies God’s gracious dealings with the world by recognizing civil government as a gift, “its use among men being not less than bread and water, light and air, while its dignity is much more excellent. The value of government lies not only in its use for survival “to enable men to breathe, eat, drink, and be warmed…” but as a further aid to human flourishing, “…to humanity among men” (Calvin’s Institutes of the Christian Religion, 4:20:3, p. 652).
 To take the element of gift one step further: Luther affirms that the whole of the Trinity coinheres in God’s giving as it bears on the world. Duty following Bayer: “Giving is characteristic of the whole Trinity in all God’s actions. Luther comments on Genesis 1:26: ‘Not even so far as Their activity is concerned, therefore is God separated, because all three Persons here co-operate and say: Let Us make. The Father does not make one man and the Son another, nor the Son one man and the Holy Spirit another; but the Father, the Son, and the Holy Spirit, one and the same God, is the author and Creator of the same work. Nor is it possible to divide God subjectively, for the Father is not known except in the Son and through the Holy Spirit’” (Luther quoted by Duty on p.12). This statement does not encourage the construction of an impermeable boundary between the work of judgment and grace.
 Further, Luther’s discussion of the coinherence of the Trinity in all God’s gracious work in the world leads one to wonder whether the “ab extra” work of God does not also reflect in some measure upon God’s inner life as it bears on human community and politics. God’s inner life includes the two poles of Giving and Receiving-- Giving and Receiving in the procession of the Spirit. Pointedly, the Nicene Creed warns us off a misunderstanding of that dynamics in the godhead when it rejects subordinationism. It rejects the false view that the Receiver is subordinate to the Giver. Rather, the Son, as the Creed puts it, is of one substance with the Father, coequal to the Father. God is Giving Love and Receiving Love in the power of the Spirit. The Nicene doctrine of the Triune God differs from the Arian projection of a divinity at the top conceived as a dominating imperial power whose very giving marks the recipient as inferior. Down that road lies a concept of governance based on domination, whether soft or harsh, from superordinate to subordinate. If, on the contrary, each of us bears the imago dei, the image of God’s own life within us, then every one of us by God’s grace reflects, however darkly and irregularly, in our common life the systolic and diastolic beat of giving and receiving. This view, at the level of civil government, hardly sanctifies the business of making covenants, but it does suggest that grace need not descend exclusively through kings and queens and generals and chief executives. Through the dynamics of giving and receiving the people themselves may covenant together in the pursuit of the common good. That is the spacious, enduring, and critical horizon in which all the short-term buying and selling, debating and resolving, amending and mending, voting in and voting out bearably takes place.
William F. May is a senior fellow at the Institute of Practical Ethics and Public Life at the University of Virginia. He is a former president of the American Academy of Religion and the Society of Christian Ethics and has authored several books on medical and political ethics.
© July 2012
Journal of Lutheran Ethics
Volume 12, Issue 4