Wednesday, July 19, 2017

Fea & Throckmorton on Barton's Contuined Use of an 1813 John Adams' Quote

I'm trying to lighten up on following David Barton's continued historical malfeasance. I think other people are better suited to it than I am and there's a world beyond him that interests me. However, sometimes when those other people make a good point, I will chime in, now and then.

John Fea and Warren Throckmorton have good posts on David Barton's use of a "proof quote" from one of John Adams' letters to prove the "Christian America" thesis.

This is from Fea:
 In the second and third paragraphs, Adams notes that the group who met in Philadelphia was so religiously diverse that the only ideas holding them together were the “general principles of Christianity.”  What does he mean by this phrase?  It is hard to tell at first glance.  But if there were indeed “deists” and “atheists” in the room, these “general principles” must have been understood by Adams as a system of belief that was far less orthodox than the Christianity of the ancient creeds.  An “atheist” might be able to find common ground around a Christian moral code (say, for example, the Sermon on the Mount), but could not affirm the existence of God. A “deist” would have rejected the Trinity, the deity of Christ, and, in some cases, God’s providence in human affairs, but he could certainly unite behind a moral code based on the teachings of Jesus. (I titled my chapter on the highly unorthodox Thomas Jefferson, “Thomas Jefferson: Follower of Jesus”). So let’s return to our original question.  What did Adams mean when he said the Continental Congress was held together by “the general principles of Christianity?” If we take the beliefs of the “atheists” and the “deists” (and, I might add, the “universalists, “Socinians,” and “Preistleyans”)  seriously, the “general principles of Christianity” was a phrase Adams used to describe a very vague moral code that all of these men–the orthodox and the unorthodox–could affirm.

[...]

The fourth paragraph tells us that Adams believes that these “general principles” of Christianity and liberty could be easily affirmed by a host of secular writers, including Hume and Voltaire, two of the Enlightenment’s staunchest critics of organized Christianity. These “general principles of Christianity” must have been pretty watered-down if Hume and Voltaire could affirm them.  Again, the reference here is to a vague morality, not the particular teachings of orthodox Christianity.
Here is a rule I follow: In general it's not a good idea to quote John Adams or Thomas Jefferson to prove the "Christian Nation" thesis. However, it's a really, really bad idea to quote the correspondence of Adams and Jefferson in the year 1813 to try to do such. 

Sunday, July 16, 2017

Just "Amend the Constitution"

A lame response. 

I've been reading the comments here on Professors Randy Barnett and Bruce Ledewitz's debate on originalism. One mantra the right of center originalists there seem to repeat is, (me paraphrasing) "if you don't like the Constitution the way it was originally understood, simply amend it."

Yeah, easier said than done. And do we really want or need more amendments?

Why do I think it's a lame response? Put the shoe on the other foot. Don't forget, if we don't like the way the Supreme Court interprets the Constitution, we can always amend the Constitution to overrule said understanding. Similarly, we can amend federal statutory law when the Supreme Court interprets a federal statute in a way in which we disagree. And though it's not necessarily an easy thing to amend a federal statute, it's much, much easier to do that than to amend the US Constitution.

The US Constitution has been amended only 27 times!

Roe v. Wade and Obergefell v. Hodges are two cases with which socially conservative originalists strongly disagree. Well, just amend the Constitution. It was tried. How did that human life amendment or marriage amendment go down?

There is actually a much better answer. We don't see it because most socially conservative originalists don't seem interested in defending arguably the "rightest" original understanding of the 14th Amendment. And I understand why, this understanding holds Brown v. Board of Education to be wrongly decided.

And there an unwritten rule that any theory of constitutional interpretation that holds Brown to be wrong is not viable.

And by the way, this is not the kind of originalism that I defend. I don't trust majorities on matters of fundamental rights. I strongly value individual rights that are antecedent to majority rule and sympathize when majorities who might impinge on such are so frustrated.

So much of our constitutional law involves the 14th Amendment and the federal Constitution constraining state and local governments on matters of civil rights that relate to race, gender, religion and a bunch of other things thing.

The "rightest" original expectation of how the 14th Amendment's text was meant to apply is as follows: The Equal Protection and Due Process Clauses are entirely procedural. They were meant to grant no substantive rights whatsoever. The Privileges or Immunities Clause was meant to grant substantive rights. The Supreme Court's Slaughterhouse Cases were wrong. But it was Congress' role to define and guarantee those rights that constitute Privileges or Immunities.

Brown was wrong NOT because the framers of the 14th Amendment didn't think it would potentially outlaw government mandated segregation. But rather because it's Congress' role, not the Courts to outlaw such by means of statutory law which the 14th Amendment was meant to constitutionalize. Otherwise for Congress to attempt to do such would be an unconstitutional exercise of its powers pursuant to the doctrine of limited, enumerated powers.

So if we don't like the way the Supreme Court understands matters of fundamental rights, the proper response is indeed, "amend." But it's not the Constitution that needs to be amended. Rather it's extant federal statutory law relating to matters of fundamental rights that Congress has power over pursuant to the Privileges or Immunities Clause of the 14th Amendment. Much easier than amending the US Constitution.

Again, this isn't a constitutional world in which I endorse; but it's a better use of the "amend" response than telling your opponent to simply amend the US Constitution if you don't like the way the courts deal with matters of fundamental rights.

Friday, July 14, 2017

Barnett's Response to Ledewitz's Rejoinder

I promised that the last post wouldn't be the last word on the subject. Here is Randy Barnett's most recent post responding to Bruce Ledewitz. Over the years, I followed this "originalism" debate in constitutional law fairly carefully. Perhaps I could be categorized as a "faint hearted originalist." The kind of originalism I would endorse is similar to that which has been espoused by among others, Barnett, Akhil Amar, Jack Balkin and Timothy Sandefur.

One issue I have is I often see it framed as though if we don't interpret the Constitution as "originally" intended, the Constitution can mean "anything." Well, here I stand for the proposition I don't think the Constitution should mean "anything" five members on the Supreme Court decide; there should be constraints and unhappy endings.

Where I do get a bit perplexed is given the broad generalities contained in the Constitution's text, and other ambiguities in the record, there often is more than "one" right answer to legal questions presented such that Justices will often have latitude on fundamental constitutional questions by virtue of the way the system is structured. Yet only one view can prevail. And issues of fundamental import turn on which view prevails.

What to do then?

Interpreting the Bible is analogous. We often hear certain preachers who argue for "one correct" understanding of the Bible say "it means X and only X" in an objecting sense, when in reality it's possible that it could also mean Y and Z.

Yet it's also true that certain positions -- A, B & C -- are not tenable. Certain understandings are more plausible than others; but there are also multiple plausible understandings of the text that contradict one another, where only one outcome is entitled to prevail.

So if someone said that the Bible teaches a Giraffe tempted Adam and Eve in the Garden of Eden, that's an easy one. It's false. End of discussion. Other questions aren't so easy (like what fruit was it that Eve was tempted with? Or what did Jesus mean when He said you should eat His flesh and drink His blood?).

That's what comes to mind when I read Randy Barnett's most recent post. Professor Ledewitz's claimed:
To put it simply, by 1954 de jure school segregation did not constitute equal protection of the laws, whether it did before or not.
To which Professor Barnett responded:
Fact check: Misleading. As Michael McConnell showed in the 1990s (see here and here), nearly everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it. As a constitutional scholar, Professor Ledewitz must be aware of this.  ...
Yes, I've heard it argued that under the original expected application of the 14th Amendment's text, the political legality of racial segregation was preserved (that is, the framers and ratifiers didn't think they were making racial segregation in railroads, public schools, marriage, etc., unconstitutional or something potentially outlawed by the 14th Amendment). Others, like Judge McConnell differ. And currently, as we know, the Supreme Court rules such unconstitutional under the Equal Protection Clause of the 14th Amendment.

Yet, as Barnett alluded to above, it was the Privileges or Immunities Clause that was meant to deal with this. Indeed, there is a strong case to be made that neither the Due Process NOR the Equal Protection Clause guaranteed ANY substantive rights, not against racial discrimination or ANYTHING. That both were entirely procedural clauses. The Due Process Clause targeted courts while the Equal Protection Clause targeted the executive. And held that if you were a "person" -- i.e., a human being -- you had to be held to the exact same set of procedural rules. And this was whether one was black, a Mormon, a Hell's Angel (of whatever the mid-19th Century equivalent thereof) or a thief.

There was no substantive right in either the Equal Protection OR Due Process clauses to be free from racial discrimination, to practice one's religion, to be a member of a rebellious club, or to steal. Rather, by virtue of your humanity, the same set of rules -- whatever they may be -- had to apply to all people.

This is something many people unaware of historical nuances of the civil rights don't "get." If a black person beats up a white person or vice versa, that's assault and battery. There are laws on the books against assault and battery that have always dealt with this. Yet, law enforcement and courts run by majorities or those in power might simply decide not to apply the same already existing rules to selective disfavored groups. If doesn't matter if it's blacks, Mormons or members of the Hells Angels. If you are a person, regardless of character or trait, the same set of rules have to apply. But if the Hells Angel committed robbery, he could be so punished.

The right to be free from racial discrimination, as it were, is a substantive rule and not something the procedural clauses of the 14th Amendment (i.e., Equal Protection) were meant to deal with. However, the 14th Amendment DID intend to give substantive rights, but it was through the Privileges or Immunities Clause, not Equal Protection OR Due Process.

So provided we just switched the Privileges or Immunities Clause for the Equal Protection Clause, Brown, Loving, etc., would be kosher? Not so fast. Even if Judge McConnell's account is correct, look closely to what Barnett reported:
[N]early everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it.
Yes, it was the House and Senate's responsibility to prohibit racial discrimination as a "privilege or immunity" of the 14th Amendment. There is a strong originalist case to be made -- arguably the strongest -- that it's the jurisdiction of Congress to define by statute those substantive privileges or immunities. That the original meaning of the 14th Amendment was meant to provide a constitutional basis for the original post Civil War mid-19th Century Civil Rights Acts.

That would mean that even though such originalism teaches Brown was wrongly decided, Congress would still have the constitutional authority to enact such a decision and the Congress who passed the Civil Rights Act of 1964 could still have statutorily enacted Brown, Loving, etc. as a "privilege or immunity." And they would have.

One day a few years ago, I was in a room full of very distinguished originalists in a private meeting at an ivy league location, where I was the least important person in the room. They agreed what I reported above was the best originalist understanding of the 14th Amendment. Since it was off the record, I'm not going to name names.

One person in the room noted that this understanding, though correct, was awkward. Given the original meaning of the Privileges or Immunities Clause of the 14th Amendment, we could get a new constitutional conventional with every new Congress. The response from the group was that originalists have to do the right thing and deal with unhappy endings.

There's debate as to whether the 14th Amendment was even meant to incorporate ANY part of the Bill of Rights to apply against the states. Justice Scalia has admitted he's not convinced it was, but accepted incorporation because of Stare Decisis. Philip Hamburger, one of the brightest conservative law professors, doesn't think it was. And that means everything in the Bill of Rights -- freedom of speech, establishment, free exercise of religion, rights of criminal defendants -- is left to the states. That would mean Trinity Lutheran was wrong and Professor Ledewitz is right because "religion is left to the states." If a state wants a Blaine Amendment or to establish the Roman Catholic Church, or the Unitarian Universalists for that matter, they could because religion is left to the states.

Or even if the Privileges or Immunities Clause was meant to include both rights contained in the Bill of Rights as well as rights against non-discrimination (i.e., rights to equal treatment) on the basis of race, religion (and other issues) it's still Congress' responsibility to pass legislation to protect those and for courts -- including the Supreme Court -- to attempt to do this is judicial usurpation of Congress' role.

Don't forget, even if religion is otherwise "left to the states," all federal law trumps all state law. Federal statutes trump state constitutions. So if Congress wants to guarantee the free exercise of religion against state and local governments, that would trump any state law that would attempt to do otherwise.

This is a much different constitutional world than the one in which we currently live. And it's one that most notable originalists don't seem interested in publicly defending. But it's arguably the most correct one according to the method of original expected application of the texts.

Wednesday, July 12, 2017

Barnett v. Ledewitz on Religion & the Original Constitution

This is the original offending article by Bruce Ledewitz. This is Randy Barnett's response. And this is Ledwitz's rejoinder.

From the first link:
But, from the point of view of originalism, the decision [Trinity Lutheran] was ridiculous. If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches. And, even if a decision by Missouri to pay the church might somehow be thought not to violate the Establishment Clause, it could not possibly be argued that the original Free Exercise Clause required a payment from Missouri. You could have asked any member of the founding generation whether the Free Exercise Clause ever required the payment of public money to a church and the answer would have been a unanimous no.
My observation: So called "liberalism" has "liberty" and "equality" as ideological book ends. The First Amendment to the US Constitution is a "liberal" text. It's clear the Free Exercise Clause validates a "liberty" right. The Establishment Clause often (but not always) validates an "equality" right. I agree with Ledwitz that this doesn't seem to be a free exercise of religion/liberty issue.

However, Ledwitz's understanding of the Establishment Clause is questionable. Further, Trinity Lutheran did involve an equality or equal treatment issue. Whichever text ends up doing the work, arguably the outcome was correct on originalist grounds. Don't forget the 14th Amendment is part of the Constitution. So we might not necessarily be dealing with late-18th Century originalism,  but mid-19th Century, which incorporates back late-18th Century originalism through a mid-19th Century liberal lens (basically Akhil Amar's  thesis; though I don't think he's alone here). 

This is from Barnett's response:
I am not an expert on the Religion Clauses, so I am not as confident about their original meaning as Professor Ledewitz. But every originalist–indeed every living constitutionist–understands that neither the Free Exercise Clause nor the Establishment Clause originally applied to the states at all. Instead, it applied to Congress. What exactly an “establishment of religion” was in 1791 is a matter of good faith academic dispute. But some thoughtful originalists have maintained that, whatever constituted an “establishment of religion,” the First Amendment’s wording “make no law with respect to” forbade Congress both from establishing a national religion (at minimum) and also from disestablishing a state religion. On this account, the Establishment Clause operated–perhaps exclusively–as a federalism provision, expressly acknowledging that Congress had “no power” in this area, with all powers pertaining to religion reserved to the states. 
[...] 
In addition, some originalists maintain that, because the original meaning of the Establishment Clause was a federalism provision barring Congress from disestablishing state religions, it did not enunciate an individual right that could be considered a Privileges or Immunity of citizens of U.S. citizens. Others, like Kurt Lash, disagree on the ground that, by 1868, the meaning of the Establishment Clause had evolved so its public meaning at the time of the 14th Amendment did include an individual privilege or immunity. But if Lash and others are wrong about this, then the original meaning of the 14th Amendment protected only free exercise rights from state infringement; it did not bar states from making laws that could constitute an establishment of religion.  ...
 And from Ledwitz's rejoinder:
4. All of Randy’s discussion of the Fourteenth Amendment and related matters is beside the point. The Court did not mention those matters. I wrote that there are no originalists on the Court. A majority of the Justices wrote that the Free Exercise Clause required the payment of public money to a church. That is unjustifiable by any stretch of originalism. They wrote that way because they were assuming incorporation of the Free Exercise Clause against the States as it would be interpreted against the federal government. So they dealt with Free Exercise only and did so in an unsupportable way from an originalist perspective. Randy writes that they could have written a different opinion. But then they might be originalists. But they did not, so they are not. 
I should also add here that the bigotry of the Blaine Amendments adopted in State Constitutions after 1875, which Randy mentions, should be irrelevant to an originalist, though Justice Thomas has also mentioned them in a similar context. In originalism, original public meaning does not change. For the living constitution, on the other hand, the experience of the Blaine Amendments is part of political learning that demonstrates that our original understanding of Free Exercise was too narrow. Randy's reference to the Blaine Amendments just shows that it is impossible to be an originalist. We learn over time what the Constitution means. It cannot be, should not be and isn't fixed. (That was also true of Justice Scalia's majority opinion in Heller, in which Justice Scalia learned from 19th century state judicial decisions that the second amendment should not be interpreted to protect concealed carry--why are 19th century opinions relevant to the original public meaning of the second amendment?)  
The discussion doesn't end there. We will do a subsequent post to address some further issues.

William Livingston Loved His Wine

At least he loved collecting it. See here. A taste:
A one-of-a-kind wine collection featuring bottles that are nearly as old as the country itself has been uncovered behind a boarded-up wall in a New Jersey museum that was previously the home of the state's first governor.  

The stash of spirits was found hidden in plain sight at the Liberty Hall Museum, which was formerly the home of Governor William Livingston, who served in office from 1776 to 1790.

'It was an oh my God moment,' Bill Schroh, director of museum operations at Liberty Hall Museum at Kean University, told WCBS of the shocking discovery. 

During a six-month renovation of the wine cellar at the historic building, the team found three cases of Madeira wine believed to be from 1796. 

They also found an additional 42 demijohns covered in wicker that date back to the 1820s.

Friday, July 07, 2017

Mark David Hall: "A Calvinist Deist Polytheist Skeptic?"

Mark David Hall reviews Thomas Kidd's book on Ben Franklin's religion here. A taste:
Franklin may well have adopted radical religious ideas as a youth. But by the early 1730s he seems to have moved toward a “reasonable” version of Christianity that emphasized the necessity of living virtuously and that did not insist on doctrinal specifics. He delineated his core religious convictions in his autobiography:
That there is one God who created the universe, and who governs it by his Providence.
That He ought to be worshiped and served.
That the best service to God is doing good to men.
That the soul of man is immortal, and
That in a future life, if not in the present one, vice will be punished and virtue rewarded.
From a traditional Christian perspective, the problem with this list is not so much the tenets themselves (although some would quibble with the third point) but what is left out. At best, Franklin was uninterested in pondering doctrines such as the trinity, incarnation, or atonement. For example, in a 1790 letter to Yale president Ezra Stiles, Franklin admitted to having “some doubts as to [Christ’s] divinity: though it is a question I do not dogmatize upon, having never studied it.” He concluded that it is “needless to busy myself with it now, when I expect soon an opportunity of knowing the Truth with less trouble.”

Thursday, July 06, 2017

Kidd: "How Benjamin Franklin, a deist, became the founding father of a unique kind of American faith"

Check it out here. A taste:
Franklin adhered to a religion that we might call doctrineless, moralized Christianity. This kind of faith suggests that what we believe about God is not as important as living a life of love and significance. Franklin grew up in a devout Puritan family in colonial Boston, but by his teen years the bookish boy began to doubt key aspects of his parents’ Calvinist faith. Abandoning Christianity altogether, however, was not a realistic option for someone as immersed as Franklin in the Bible’s precepts and the habits of faith.

Although Franklin did at times toy with some radical anti-Christian beliefs, he settled on the conviction that Christianity was useful because of the way it fostered virtue. Franklin wearied of how colonial Americans incessantly fought about theological minutiae. But he still believed that Christianity represented a preeminent resource for benevolence and charity, qualities he considered essential to any worthwhile religion.

Franklin, John Adams and Thomas Jefferson all doubted some fundamental tenets of the Protestant faith. These could include salvation by God’s grace alone, the divinity of Jesus, or God’s Trinitarian nature. But leading patriots agreed that the new American republic depended upon having a virtuous citizenry. Although some elites might employ education to develop moral fortitude, the founders believed that average Americans needed religion for the inspiration to do good.

Tuesday, July 04, 2017

Meditations on a High Holy Day: The Fourth of July

By Walter A. McDougall, July 4, 2004, here: A taste:

II. Faith of Our Fathers

Civil religion broadly defined is a universal phenomenon. The ancient Greeks and Romans worshiped the gods and goddesses whom they believed to be patrons of their local city-states and regional empires. To chant “Great is Diana of the Ephesians” or to burn incense to Caesar was to pay political as well spiritual obeisance. The cults of the god-kings and god-emperors of Egypt, China, Korea, and Japan were civil as well as religious. Even monotheistic Judaism displayed features of a civic cult in the eras of its monarchy and two temples. In late medieval and early modern Europe, the divine right of kings conflated civil and religious loyalties, while the city-states of the Italian Renaissance, emulating as the ancients, inspired their own patronage cults albeit this time to saints (e.g., St. Mark in Venice). But the modern concept of civil religion was born of the Protestant Reformation’s notion of civic polity as a holy covenant or social contract made by the people themselves. James Harrington, theoretician of Cromwell’s Puritan Commonwealth in mid-17th century England, and Jean- Jacques Rousseau, philosopher from the Geneva Republic in the mid-18th century, asked, what might hold a government of the people together in the absence of royal or ecclesiastical hierarchy? Their answer was civil religion, a faith and commitment all the more powerful for being voluntary (not imposed), devoted to the unity and prosperity of the commonwealth (not a king or oneself), and inspired by devotion to God or Nature (rather than corrupt human authorities). Patriotic American choirs gave voice to such religiosity when they sang in 1778, “To the King they shall sing Hallelujah, and all the continent shall sing: down with this earthly King; no king but God.”

I was not aware of our American civil religion (ACR) until I began researching my new book, Freedom Just Around the Corner. Evidence of the ACR piled up until I was obliged to make it a major theme in the story of American independence and early national growth. Then, while preparing my seminar, I learned how few Americans in the 19th and 20th centuries were fully conscious of the religion they shared. Walt Whitman, the ACR’s poet laureate, certainly was, as was Whitman’s hero Abraham Lincoln, the ACR’s martyr and messiah. Later, when the United States got into the business of exporting its faith in the Spanish-American and First World Wars, a handful of scholars wrote books on “the American religion” and “the religion of the flag.” But otherwise American statesmen, artists, teachers, and preachers disseminated the creation myth, martyrology, moral code, theology, liturgy, and eschatology of American republicanism without explicitly acknowledging its status as a transcendental creed.

Indeed, not until 1967 did Berkeley sociologist Robert N. Bellah describe, in a celebrated article, what he christened “the American Civil Religion.” Curiously, what inspired him to think about the matter was the 1961 inauguration of the nation’s first Roman Catholic president, John F. Kennedy. Prior to that, intellectual scoffers could dismiss the “God talk” permeating American public life as evangelical cant aimed at Bible Belt voters. Bellah observed a young, hip, liberal, rich, Harvard-trained Catholic politician intoning “the belief that the rights of man come not from the generosity of the state but from the hand of God” and “asking His blessing and His help” in the knowledge “that here on earth God’s work must truly be our own.” Fascinated by the nonsectarian (or polysectarian) cast of this rhetoric, Bellah recalled President Eisenhower’s observation, “Our government makes no sense unless it is founded in a deeply felt religious faith—and I don’t care what it is!” Clearly there was more to this than feel-good piety or pandering to the “religious right” (or, in past eras, left). So Bellah turned to history and found he could trace the ACR back to the Founding Fathers. They had indeed preached a civil faith meant not to replace Bible-based denominations, but rather to stand above them in benign toleration so a disparate people might unite and fulfill the glorious destiny God planned for them.

But who is this God of the Founders, the God of the ACR, if not Jehovah or the Holy Trinity? He is the God with no name, but a hundred names. Franklin called him Father of Lights and Supreme Architect; Washington the Almighty Being, Invisible Hand, and Parent of the Human Race; John Adams the Patron of Order, Fountain of Justice, and Protector; Jefferson the Infinite Power; Madison the Being who Regulates the Destiny of Nations; Monroe merely Providence and the Almighty; John Quincy Adams the Ark of our Salvation and Heaven; Andrew Jackson that Power and Almighty Being Who mercifully protected our national infancy; and so on down to Lincoln who reached the tragic understanding that Northerners and Southerners prayed—as Christians—to the same God in the Civil War, but as Americans must hear “the mystic chords of memory,” indulge “the better angels of our nature,” admit “the judgments of the Lord are true and righteous altogether,” and strive to bind up the nation’s wounds “with malice toward none, with charity for all, with firmness in the right as God gives us to see the right.”

Lincoln never could bring himself to embrace Christian faith, but was himself the Christ of the ACR. Jackson posed for electoral purposes as a Presbyterian, but was in fact a fervent Freemason who believed in a God above all theologies, the very God whose All-Seeing Eye looks down benignly on the Unfinished Pyramid of the Great Seal of the United States and our one-dollar bill. Jefferson was an Enlightened philosopher who clung romantically to a faith in reason alone. Yet they, no less than devout Protestant presidents, swore fealty to the Providence that seemed to watch over the American people.

4th of July Music

Steppenwolf's Monster.