Saturday, April 20, 2019

"The Search For Christian America," Misuses of History

I was rereading this classic by Drs. Noll, Hatch and Marsden. And this passage from pages 150-51 struck me as especially relevant.

The book is remarkable in how it got three extremely important authorities together to write such. It wasn't just Mark Noll, who is a legend in his own right, but also Nathan O. Hatch and George Marsden.

Dr. Hatch is, if I'm not mistaken, the high paid college President in America, currently.

The book is strongly recommended.

Thursday, April 18, 2019

Ben Franklin & the Virginia View

On social media Prof. Francis J. Beckwith quotes Engel v. Vitale (1962), and the following by Justice Hugo Black's majority opinion:
But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.
Some might balk at this as not representing the American Founding; but as I noted in the comments, I think it does, with a slightly exaggerated tone, represent the so called "Virginia view" on establishments articulated by Madison, Jefferson and some others.

The problem would be there were other competing views that were accepting of mild establishments compatible with religious liberty. This has been termed the "Massachusetts view" and has support from John Adams, Patrick Henry, and arguably George Washington.

I think Franklin's views are closer to the VA view, or what is quoted above by Justice Black.

Can anyone see anything in principle different in Franklin's and Black's positions? I don't.
I am fully of your Opinion respecting religious Tests; but, tho' the People of Massachusetts have not in their new Constitution kept quite clear of them, yet, if we consider what that People were 100 Years ago, we must allow they have gone great Lengths in Liberality of Sentiment on religious Subjects; and we may hope for greater Degrees of Perfection, when their Constitution, some years hence, shall be revised. If Christian Preachers had continued to teach as Christ and his Apostles did, without Salaries, and as the Quakers now do, I imagine Tests would never have existed; for I think they were invented, not so much to secure Religion itself, as the Emoluments of it. When a Religion is good, I conceive that it will support itself; and, when it cannot support itself, and God does not take care to support, so that its Professors are oblig'd to call for the help of the Civil Power, it is a sign, I apprehend, of its being a bad one. But I shall be out of my Depth, if I wade any deeper in Theology.
-- letter to Richard Price, 9 Oct. 1780

Friday, April 05, 2019

Mark David Hall at Cairn University

On Monday I saw friend of American Creation, Mark David Hall speak at Cairn University (geographically, in my backyard practically). He spoke on his forthcoming new book -- which I can't wait for -- that joins among others John Fea and Gregg Frazer on the "Christian America" question. 

Dr. Hall's book will stress the Christian component of the American founding as profoundly influential, while conceding the influence of the other components. Personally, I agree with the thrust of what I heard from Hall in that Christianity did strongly influence the American founding. He perhaps would stress it more than I would.

The question I asked was on the Treaty of Tripoli and here we might differ. Hall noted that indeed his book will discuss this Treaty, ratified during the founding era, that in Article 11 says, "As the government of the United States of America is not in any sense founded on the Christian Religion...." Hall tried to explain this away as something diplomatic. And I would agree the context of the treaty was diplomacy with hostile Muslims. However, I also think it's an accurate statement. The new federal GOVERNMENT was "not in any sense founded on the Christian Religion."

I don't think such contradicts the notion that Christian principles nonetheless were profoundly influential in a variety of ways in the American founding. It's a Christian principle after all to draw a distinction between the secular and the sacred, between Caesar and God.

Thursday, March 28, 2019

Two More Interpretations of the P or I Clause @ Law & Liberty

We have seen, at the Law & Liberty site, Kurt Lash argue that the Privileges or Immunities Clause of the 14th Amendment incorporates the first eight amendments of the federal Constitutions to apply against state and local governments.

At that site, Devin Watkins just argued that the P or I Clause protects in addition to the enumerated rights Lash notes, unenumerated natural rights. This position is similar to Randy Barnett's and Timothy Sandefur's and also happens to be one with which I sympathize.

Finally, David Upham argues that the P or I Clause protects neither the enumerated federal bill of rights, nor unenumerated natural rights, but rather something else. Something more limited. Upham explains more his idea we have seen before that P or Is have to trace back to 1776, not 1787-1791. As he writes:
Hence, as Senator Howard indicated by quoting Justice Washington, the privileges of U.S. Citizenship are as old as the Republic; to find them, we should look back to Year 1 of the United States—or 1776. 
Why then, did Senator Howard look to rights listed in constitutional amendments adopted in 1791—the sixteenth year of the “Independence of the United States”? Probably for the same reason he looked to the “privileges and immunities of citizens” of Article IV, as expounded by Justice Washington in 1823. As Howard noted, such constitutional law merely “secured,” “guarantied” or “recognized” pre-existing rights. Such law did not create these rights, but provided very strong evidence thereof. And to identify the fundamental rights of citizenship, severally recognized by the American states from 1776, perhaps the best place to look would be the fundamental rights that the same American states jointly enumerated in the Constitution just a few years later.
Let me note that while I love the spirit behind the 14th Amendment -- of liberty and equality, classical liberalism's twin pillars -- the actual text and historical record surrounding it is, quite frankly, confusing and messy. Plenty of things to cherry pick and hang one's hat on. Give an inch, and take a mile. In for a penny, in for a pound.

Friday, March 22, 2019

Kurt Lash @ Law & Liberty on the P or I Clause

Kurt Lash has a new post on the Law & Liberty site about the Privileges or Immunities Clause and unenumerated rights. Note Lash disagrees with among others Randy Barnett that the P or I Clause validates unenumerated rights. I'm pretty sure I agree with Barnett here, but I'd have to refresh my recollection on the research.

Where Lash does fantastic work -- illustrated here -- is on the ENUMERATED rights that the P or I Clause was meant to incorporate to apply against state and local governments. Including but not limited to the first eight amendments of the federal bill of rights.

Lash reports:
The man who drafted the Privileges or Immunities Clause, John Bingham, could not have been clearer about his desire to enforce the Bill of Rights against the States. On February 28, 1866, when John Bingham submitted his first draft of the Privileges or Immunities Clause, he declared, “[t]he proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution to-day. It “hath that extent—no more.”[2] On March 9th, Bingham again declared that “the enforcement of the bill of rights [against the states] is the want of the Republic.”[3] On May 10, following the submission of Bingham’s final draft, once again Bingham declared “There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply.”[4] The Privileges or Immunities Clause would finally allow congress to enforce provisions like the eighth amendment’s protection against cruel and unusual punishments. Once again, Bingham assured his colleagues, “That is the extent that it hath, no more.”[5]  Finally, in 1871, Bingham explained: 
"Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.  . . . They secured  . . . all the rights dear to the American citizen. And yet it was decided, and rightfully, that these amendments, defining and protecting the rights of men and citizens, were only limitations on the power of Congress, not on the power of the States. . . . 
Mr. Speaker, this House may safely follow the example of the makers of the Constitution and the builders of the Republic, by passing laws for enforcing all the privileges and immunities of citizens of the United States, as guarantied by the amended Constitution and expressly enumerated in the Constitution.”[6]

Friday, March 15, 2019

Kurt Lash's Article on the Incorporation of the Establishment Clause: Its Important Answer

I don't think the Establishment Clause is going to be unincorporated anytime soon. However, I think it's important to answer good arguments. There is a good argument to be made that the Establishment Clause never should have been incorporated. There is also an argument to be made that NONE of the Bill of Rights should have been incorporated, which means that states would be free OR NOT to infringe on all of the Bill of Rights. There is also a good argument that the Privileges or Immunities Clause of the 14h Amendment in fact was intended to incorporate the Bill of Rights to apply against state and local governments. Then there is a refined argument that Justice Thomas is sympathetic to that yes, the P or I Clause was meant to incorporate the Bill of Rights, but not the Establishment Clause.

And that's because "Privileges or Immunities" relate to individuals rights. And whereas the Free Exercise and Free Speech Clauses of the First Amendment do relate to individual rights, the Establishment Clause does not. Rather it was understood, when constructed by America's founders to be a federalism provision. Incorporating the Establishment Clause would be akin to incorporating the 10th Amendment.

That's a good argument.

But here is a more specific answer to that claim that I didn't mention in my last post on this matter. You actually have to get to the end of Prof. Kurt Lash's 71 page article for him to make it. It is this: Whereas America's founders understood the exact words of the Establishment Clause to have a particular meaning, the framers and ratifiers of the 14th Amendment gave those same exact words a different meaning, one that reflected "anti-establishment values."

It should be noted that when John Bingham, a chief architect of the 14th Amendment, said on the floor of Congress "that the privileges and immunities secured by the Amendment were 'chiefly defined' in the first eight amendments, and then fully quoted all of these amendments," he included the Establishment Clause. He just read the first eight amendments verbatim.

We need to stress a point of interpretive contention: The argument is what is incorporated is NOT what America's original founders thought, rather it is what the framers and ratifiers of the 14th thought.

You are going to have to read Lash's entire article for his evidence, but I will provide one smoking gun in favor of this contention. It's on page 50/1133 of Lash's article. The 1857 Iowa Constitution and it reads: "The general assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

Try doing this with the 10th Amendment and see it totally doesn't work.

I know there is more to the argument. That provision of the Iowa Constitution doesn't demand the Establishment Clause in fact be incorporated against state and local governments. But I think it does demonstrate that it certainly is possible to view the clause as something other than a federalism clause.

Saturday, March 09, 2019

Poor John Dickinson: Who gets to be a "Founder"?

According to Bill Kristol and James Ceaser not John Dickinson. At least Dickinson doesn't get to be a first tier "key Founder." The reason why is because his major effort was the Articles of Confederation, which failed. If your most notable endeavors from the historical period didn't succeed, you don't get to be a "Founder" (at least not a notable one).