Constitutional Ideals & Compromises on Religion:

Here is my response to Dennis Teti’s objections to my claims on the founding and religion:

Dennis,

I think it’s fair to assert that Jefferson’s VA Statute on Religion and Madison’s Memorial and Remonstrance represent certain natural rights “ideals” upon which this nation was founded. I think that the standard that you posit for what constitutes an ideal—“a philosophic or systematic treatise on the question of government and religion [or whatever],” is too strict. It’s true that both of these documents “are pieces of ‘practice’ as part of a political debate,”—but so was the Declaration of Independence. And it’s likewise true that the VA Statute was written “to satisfy the lawmakers and interest groups involved in its passage” and the Mem/Rem “was written in the name of a group of subscribers who all had to be satisfied,”—but again, we can say the same (or something very similar) about the Declaration. Indeed, our critics from both the left and the right—those who do not believe in the legal authority of the Declaration—argue that it was just a statement of political rhetoric, something needed to list our grievances against England and give some sort of quasi-legal authority to justify the revolution. But we argue that the Declaration is something more—a statement of natural rights that no government—federal, state, local, or international—may properly infringe, and of “organic law” that undergirds our founding. Finally, we call it a statement of “ideals,”—or at the very least, a document that perfectly recites certain foundational “ideals.”

And the Declaration, like Jefferson’s VA Statute, initially contained other language first offered by Jefferson, but that had to be altered because of political disagreement. I think what is key about both the Declaration and the VA Statute is that while there were political compromises involved in tweaking the language and all that, from an historical analysis, there is no evidence that any ideals were compromised in any significant way, and there is much evidence that these “natural rights” ideals made it into both documents to the great satisfaction of Jefferson. For one, Jefferson believed his three greatest accomplishments were (not in any particular order) 1) the Declaration of Independence, 2) the founding of the University of VA, and 3) the VA Statute on Religion. Jefferson does not mention, for instance, that the VA criminal code that he helped revise—certainly a law that had to satisfy many politicians who weren’t exactly likeminded to him—as one of his crowning achievements as he does these other three accomplishments. (And we all know what controversial language that criminal code contains.)

Finally, you say that the religion statute is simply “an ordinary state law” (boy you really sound like a strict legal positivist here), but the statute claims to be much more: It states “that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right.”

Thus, it’s possible for something to be both a political document—drafted to perform a particular function—and to perfectly encapsulate certain “natural rights” ideals as well, which is what the VA Statute claims to do and what the Declaration clearly does. Now, the Constitution was drafted to secure these natural rights as well, but it did so in a clearly imperfect way—therefore it represented not only the natural rights ideals, but also political compromises with them—the Constitution compromised in ways that neither the Declaration nor the VA Statute did. And slavery wasn’t the only natural right that was compromised with in the Constitution, so were the rights of conscience (In other words, Jaffa’s statement about “ideals” and “compromises” logically applies here as well).

The bottom line is this: The rights of conscience—“liberty” and “equality” of conscience,—are the most fundamental—the most inalienable if you will—natural rights that our founders were concerned with when we Declared our Independence. The entire First Amendment—all of its clauses—as originally understood, restricted the federal government only only. Therefore, states were free not only to enact establishments, but also to prohibit free exercise and impose religious tests, which many of them did. But the rights of conscience are natural rights! Madison was perfectly aware of this. And this is why his first draft of the First Amendment prohibited the states from violating, “the equal rights of conscience.” But that was voted down for political reasons.

It’s true that the term “establishment” may have meant something relating to particular sects only—or it may have meant more (See Leonard Levy, Origins of the Bill of Rights, Chapter Four). (Madison certainly desired that it mean something more than what ended up in the text). But we have more that just the “historical understanding” of the term “establishment of religion” to make our case. We also have the Declaration of Independence with its organic natural law. And we have the 9th Amendment which tells us that there are certain unenumerated rights—which Randy Barnett argues are synonymous with natural rights—that the federal government may not violate, and we also have the “privileges or immunities clause” of the 14th Amendment—again another gateway to natural rights—that the states must follow.

These provisions can serve to buttress, or “pick up the slack” of any separation of church and state claim that the Establishment Clause, with its peculiar historical understanding, may leave off.

The next question that must be answered is what must a state do in order to be the guarantor of “the equal rights of conscience?” Can a state that establishes or endorses a religious sect or that aids religion over non-religion, etc., etc., still guarantee the rights of conscience at the same time? This is a topic of another discussion. But I will conclude by asserting that Jefferson & Madison believed that only a state that enacted “a perfect separation between Church & State” in Madison’s words (or built a “wall of separation…” in Jefferson’s)—one that took no stand on the matter of religion—could effectively guarantee the rights of conscience.

(See my posts that I first made while guest blogging on Timothy Sandefur’s Freespace where I deal with this issue in more detail:

Everson was consonant with our original principles

Religion and our Founding—Buttressing the 1st Amendment with the 9th and 14th)

Teti’s Objections:

Writer Dennis Teti responds to some points that I have been making on this Claremont thread.

I have reproduced his latest post:

Jon,

In your reply above, you paraphrase Professor Jaffa’s distinction between “ideals” and “compromises.” Jaffa has raised that distinction in the context of a discussion as to how to interpret the Constitution, his point being that the Constitution’s text is not, or not always, self-determining without reference to the principles of the Declaration of Independence, which describe the purposes and ends of legitimate government. Insofar as, for example, the Constitution included several protections for the institution of chattel slavery in States that had legalized it, the Constitution had “compromised” the principle that all men are created equal.

You write that Jefferson’s Statute on Religious Liberty is Jefferson’s “ideal” on the relations between government and religion, and the same is true of Madison’s Memorial and Remonstrance. And you object to the examples I gave of Jefferson’s and others’ encouragement of Christianity or religion on the ground that 'we don’t look to historical practice because our founders were full of contradictions and inconsistencies.'

Now I ask you again to explain what method allows you to discern that, say, the Va Statute and Mem & Rem are “ideals” whereas the other examples I pointed to are mere “compromises.”

The trouble with this is, the whole Constitution is mere “practice” on your terms. Yet the Constitution is a higher law than Jefferson’s Statute, a law he drafted of course to be enacted by a legislature and therefore potentially full of “compromises” meant to satisfy the lawmakers and interest groups involved in its passage. Madison’s Mem/Rem too was written in the name of a group of subscribers who all had to be satisfied, not just himself, as a document sent to the legislature for a specific purpose of opposing religious legislation then being considered. To use John Locke’s objection, what we have here is half of a dialogue. Neither of these documents is a philosophic or systematic treatise on the question of government and religion, they are pieces of “practice” as part of a political debate. So it is likely, to say no more, that they overstate some things and understate others for the immediate purpose.

I by no means intend to denigrate either document, and certainly am in agreement with nearly all of both. My objection is that you have chosen arbitrarily, in my view, to project them to Holy Writ (pardon the expression) in order to throw doubt on, for instance, over two hundred years of practice of presidential inauguration ceremonies (including TJ and JM themselves) by every President and every Chief Justice! Your good sense should tell you that you need to say a whole lot more than you have as to why we should consider every President and every Chief Justice to have been doing something radically unconstitutional because they had not considered a propaganda piece and an ordinary state law, both written before the Constitution even existed. Will you next tell us that a phrase in some personal letter written by Jefferson says more about the issue of church and state than the language of the First Amendment? (Oh, sorry, our robed masters have done that already.)

You say the founders were full of inconsistencies. I agree. But you haven’t shown that the VaStat and Mem/Rem are not themselves merely inconsistent with other views or practices. We can all play this game. Jefferson and Madison collaborated on the well-known Kentucky and Virginia Resolutions which suggested the theory of state “interposition” or “nullification” of federal laws. Indeed the Resolutions were written years after the Constitution was ratified. It is at least as reasonable to say that those theories express their “ideal” understanding of the “compact” between the States and the federal government as it is to claim that the VaStat and Mem/Rem are somehow their “final word” on church and state. How do you distinguish the one case from the other?

The question I think is not so much a matter of “ideal” and “practice” as simply how to come to an understanding of the Constitution’s meaning, since it is not always self-evident. In this respect, long-term practice sheds light at least on the meaning of the Constitution in the eyes of the practitioners, e.g. presidents and Chief Justices. Their actions "count" strongly on the Constition's meaning when they are unanimous in practice.

You ask (on your blogsite) “What part of ‘Congress shall make no law’ don’t you understand?” I ask, “What about 'an establishment of religion' do civil libertarian lawyers not understand?" It’s a term with a specific historical meaning. It addressed a specific problem whose history was known by every American. It was put into the Constitution so that CONGRESS could not do what the STATES believed themselves allowed to do. This is simply a brute historical fact the civilibs have yet to come to terms with.

It is pretty apparent on reading the Mem/Rem, that the author does not claim that every time a public school teacher tells her students “thou shalt not kill,” she establishes a religion. Madison’s argument is the ‘slippery slope’: get used to having government speak the Holy Name of Christ today, and some day you will have an officially preferred sect, with oaths of office, exclusive public subsidies, etc. Then you have ‘established a religion.’ So understood, this raises a question of prudence, not of principle. It cannot be taken as a definitive statement of an eternal “ideal” of Madison’s, let alone a constitutional “ideal.”

This looks interesting:

If anyone has HBO and reads this post before 10:00 pm Eastern, you might want to check this program out. Or catch it when it is rebroadcasted, as all of these HBO shows are.

Towards a Deistic—Unitarian—Universalist—Secular—God:

I am enjoying Susan Jacoby’s book Freethinkers, A History of American Secularism. Let me highlight one interesting passage (more to come in the future). She nails the philosophy that undergirds our nation’s founding, and how that philosophy exists alongside religion:

What did distinguish the most important revolutionary leaders was a particularly adaptable combination of political and religious beliefs, constantly subject to revision in an era when modern views of nature, science, and man’s place in the universe were beginning to take shape. These views included skepticism vis-à-vis the more rigid authoritarian religious sects of their day; the conviction, rooted in Enlightenment philosophy, that if God exists, he created human rationality as the supreme instrument for understanding and mastering the natural world; and the assignment of faith to the sphere of individual conscience rather than public duty. The logical extension of such beliefs was a civil government based not on the laws of God, as promulgated by self-appointed earthly spokesman, but on the rights of man.

p. 14.

Our framers’ understanding of Reason—what grounds our public laws and institutions—did seem to presuppose the existence of God. “Nature’s God,” is of course found in the Declaration. And even Jefferson’s VA Statute for Religious Freedom—a statute of “secular scripture” as Jacoby puts it—begins, “Whereas Almighty God hath created the mind free…” (although our most important founding document—the Constitution—conspicuously leaves out any mention of God). We must keep in mind that our framers were fighting an ideological war against the old order, and it was extremely useful for natural rights to tie itself into God’s Will, in order to trump any other claims (hence Jefferson’s claim: “And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are a gift of God? That they are not to be violated but with his wrath?").

But in any event, natural rights theory does invoke God—it does presuppose that a “Creator” exists—hence I can’t really find a problem with public references to God—even if it does appear to endorse the notion that a Deity exists—as long as these references are “ceremonial,” that is, they are not coercive, or forced upon non-believers. And I’m not sure if I feel that the pledge is coercive. I’d let it go under the doctrine of “ceremonial deism.”

Speak of this doctrine, I have been taken to task for endorsing it by writer Dennis Teti on a Claremont thread. Let me elaborate on some of the criticisms of it, what that doctrine means to me, and why I find it defensible. Teti writes, “Deism is a specific religious belief which is in conflict with Christianity and other faiths. So it turns out that the Constitution does prefer a specific religion after all: Deism.” He then calls this claim “silly.”

I replied that we should view ceremonial deism not as the most we can know of God, but the least we can know. But it is the most our reason can tell us about God. That is, [the founders would argue] our reason tells us that God exists and He created Man with inalienable rights…but not much more, if anything more. Man’s Reason does not tell us that the God who gave us our rights is the God of the Bible or the God that gave us the 10 Commandments. However, He could be. That’s where our faith must kick in. It’s an inclusionary deism, not an exclusionary one. In this respect, nature’s God is the God of the least common denominator.

Teti also objects to the notion that “strict” deism was common among the founders—especially Jefferson:

You say that we can ascertain no more than that God created Man with inalienable rights. But Jefferson – the chief “deist” of the Founders – said far, far more. He said that God is just and has the virtue of Justice. He said that God has “wrath.” In fact he said we can know God’s “attributes” clearly enough to recognize that He could not “take side with us” – meaning white slaveowners – if a black slave revolt occurred. He even said that “supernatural interference” with the system of slavery “may become probable.” In other words, God punishes social injustices. (Notes on Virginia, Q. XVIII.)

I think that Teti is making a big deal out of nothing here. Yes, I have seen that many of our founders, from Jefferson to George Washington, made public utterances that belie the notion that they were “strict deists” in the sense of believing in a God that created us and never intervened—that they alluded to “Providence”—a God that perhaps could, in some way or another, intervene in our affairs. I replied that based on Jefferson’s other writing, we have good reason to believe that He didn’t believe in an interventionist God (he thought the supernatural and miracles in the Bible to be absurd), that his utterances perhaps were meant to be taken figuratively, as “terms of art,” so to speak. But still, other founders—founders steeped in Enlightenment dogma—did make allusions to a God that, in some way, might intervene. But this by itself—believing in possibile deity intervention—by no means transforms any of these founders or their political principles into orthodox Christian ones. That’s because as I’ve written before there is a less strict version of deism—we can call it deistic-unitarianism—that allows for the possibility of an interventionist God, but still does not endorse the concept of a Biblical God. Here is how I described it before:

Deism is based on what we can know of God based on Man’s Reason….What is known as ‘liberal’ Christianity is simply the rejection of some ‘orthodoxies’ because they don’t comport with “Reason.” Christians who rejected a fair amount of orthodoxies, but retained others, were known as ‘Unitarians,’ around the time of the founding (and this evolved into today's very leftist Unitarian Church). Going beyond “Unitarianism” and rejecting even the notion of a God who intervenes at all is where we arrive at Deism. But we see how we start with orthodox Christianity, and through reliance on Reason, we begin to reject various orthodoxies, then we get to “liberal-Christianity/Unitarianism” and finally Deism. We begin with pure “Revelation” (orthodox Christianity) on one end of the spectrum and get to pure “Reason” on the other (deism). Many of our founders were somewhere in the middle, but I'd argue the most influential tilted heavily towards “Reason.”

If we look at the Founding documents that do contain references to God, as well as most of the prominent founders' (the first 4 Presidents) Deity utterances, they eschewed specifically Christian language, but referred to God in a more universalistic sense. And it’s true that this God, perhaps in His Providence, could intervene in our affairs in some way, this doesn’t take such references out of the “deist” box and place it into the “Christian” box, rather I’d argue that such references are better categorized as "deistic-unitarian-universialist" references. Again—the God of the least common denominator. A God that, by reasonable deduction, does exist, but is not, by the same use of reason, identifiable as the God of the Bible (but he may, or may not be).

And I think this accurately reflects Jefferson's philosophy. If we want to get technical, we should call Jefferson a "deist-unitarian," which is, for the most part, a deist who might allow for *something* beyond deism's strict belief in a non-interventionist deity. This also comports with the way Jefferson identified himself: Jefferson, at times, called himself a “deist,” a “Unitarian” and a “Christian.”

In any event, it is this universalistic God—“nature’s God,”—who “created human rationality as the supreme instrument for understanding and mastering the natural world” that appears to have made it into our public documents, when a deity is in fact mentioned. If there is a God who has a place in our public life, it is this one.

Brock Lesnar quits Wrestling and tries at the NFL:

26-year-old, 6-foot-4, 290-pound—pretty much all muscle—Brock Lesnar is quitting Wrestling and trying to make it in the NFL. Being in both sports is not rare; many wrestlers were former NFLers. What is rare—I think Lesnar would be the first—is that he is trying to go from Wrestling to the NFL—all the others started with football first.

Lesnar didn’t play college football, but was a star college athlete. He was the 2000 NCAA heavyweight wrestling champion for Minnesota. And based on what I’ve seen from such big wrestlers in no-hold-barred circumstances, they are some of the most effective and dangerous martial artists on the planet.

Next I’d love to see Lesnar join the UFC. I’m sure he could thrive there too. In a hypothetical no holds barred fight between Lesnar and the late Bruce Lee, I’d put all my money—literally the mortgage to my house—on Lesnar, and I doubt the fight would last more than a few seconds.

Apples & Typewriters:

Whoever coined the phrase, “you can’t compare apples & oranges” should have been shot. That’s because when we make analogies in our logical arguments, this is precisely what we do. To compare “apples to apples” is to compare duplicates and that’s not what is done when we reason by analogy. (Lawyers, like philosophers, must deal with this issue because case-law involves reasoning by analogy. Extending past precedent to future analogies is what makes the legal system a mechanism for possible slippery slopes. This is what Eugene Volokh argues. Even though the slope is a logical fallacy—the slope can literally go on and on forever and swallow every rule as invalid, even all of the good ones—because our legal system is built upon reasoning by analogy, the slope is alive and well in our court cases and thus is something that we ought to be concerned about).

All analogies have distinctions—otherwise we would have duplicates—the question is how meaningful the distinctions are. And when we compare things that are otherwise distinguishable, even in a very meaningful way, we can always find similarities—the question is how meaningful the similarities are. That is, when you have, let's say three different things A, B, & C, no matter what they are, you can always find ways to analogize A to B, but distinguish it (them) from C, analogize B to C but distinguish it (them) from A, and on and on.

Let’s actually do apples v. oranges. Both are fruits. Both are roughly the same “baseball” size. Both have similar colors (one red—if we are talking about typical red apples, and one orange). An orange is a far better analogy to an apple than a “typewriter” would be (maybe that would be a better term of art, “you can’t compare apples to typewriters.”) But even a typewriter would be a better analogy to an apple than an apple would be to a piece of real estate (both apples & typewriters are pieces of personal property, while real estate is real property). But real estate would be a better analogy to an apple than a patent (because real estate and apples are both pieces of tangible property, while a patent is an intangible). A lemon would be a better analogy to an orange than an apple to an orange because lemons contain just about all apples' similaries to oranges, plus lemons are, like oranges but not apples, a citrus fruit.

We can see how reasoning and distinguishing by analogy can go on and on forever.

Now let’s take these same rules and apply them to something interesting. Rick Santorum invoked the slippery slope before the Lawrence verdict came down. He argued that if homosexuality must be okay then so must a whole host of parade of horribles—polygamy, incest, bestiality, etc. All of these things are distinguishable. The only thing that logically groups together these phenomena with homosexuality is that they have been frowned on by tradition. But so too have interracial couplings been condemned by tradition.

When the analogy between homosexuality is made to interracial couples, social conservatives argue that this insults “race” (and by the way, this is a different analogy than the comparison between homosexuality per se and race per se—the distinction there is that one involves a behavioral element the other doesn’t. That’s true. But interracial couplings equally involve a behavioral element as homosexual ones). But then these same social conservatives can compare homosexuality with incest, bestiality, and pedophilia, and homosexuals aren’t supposed to be insulted?

Or to take another set of comparisons: Homosexual, interracial, and pedophilic couples. We are dealing with the "wrong" gender, race, and age, respectively. Let’s also say that both the interracial and the pedophilic couples involve males & females so as to not make 2 things “wrong” with them. As with our past comparison, all three have been condemned by tradition. They have all also been tarred as unnatural, considered “sins,” and been made illegal. 1&2 can be distinguished from 3: The homosexual & the interracial example have all adults, the pedophile involves a child. 2&3 can be distinguished from 1—the pedophile & interracial couple are male/female, while the homosexual couple is male/male, etc., etc.

A social conservative would need to be able to make a meaningful analogy between the homosexual and pedophilic couple that distinguishes it from the interracial couple. I’d like to see them try because I can’t think of a way that this can be done that is not frought with error.

One might argue “nature”—but naturalistic arguments have also been made against interracial couples. One could say interracial couples don’t run afoul of the “male/female” order—but neither does a 30 year old man and a 10 year old girl couple! One could say that a homosexual couple, like the man/girl couple (or like a human and an animal), can’t breed, while the interracial couple can. But neither can infertile heterosexual couples breed (and a just as a pre-pubescent girl is naturally infertile, so too is a post-menopausal woman—thus it would seem equally “unnatural” for a post-menopausal woman to have sex as a pre-pubescent girl under this standard. And when does the pedophilic sex cease becoming "unnatural"? When the couple can breed, when the girl is like 13?).

The defining feature of “wrongness” for pedophilia is that it harms children. And that is wholly absent from adult homosexual relations. And it’s also absent from adult interracial couples. That would seem to be the element needed by our side to distinguish homosexuality from pedophilia and logically group it with interracial couples.

The two strongest analogies to homosexual couples, as I understand them, are to either interracial couples or infertile heterosexual couples. Of course the response can be made—“there are differences”…but there are differences that can be made with every analogy. The burden is on the other side to come forth with better analogies to homosexuality with meaningful similarities and lack of meaningful distinctions.

What really goes on underneath those black robes?

You don't want to know!

What part of "Congress shall make no law..." do you not understand?

And for all of you social conservatives who think this is wonderful, when Janet Reno II becomes Attorney General and criticism of homosexuality becomes "indecent," don't expect me to shed a tear....

A Guilty Pleasure:

I just purchased a copy of Ultimate Fighting Championship: UFC 44, As Real as it Gets. I must confess that I enjoy watching “no holds barred” mixed martial arts. This sport has an interesting and controversial history. It plays almost like “what if those WWE wrestlers were to fight for real?” The original goal was to get a bunch of expert fighters together, each specializing in a different discipline, let them fight it out with no rules, and see who wins (like a real street fight). Who really would win in a fight, a boxer or a wrestler, a black belt in Kung-Fu or one in Judo? The original rules were only 2: no biting and no eye-gouging. Everything else goes. And boy did it go. Viewing the early matches you would often see the fighters take advantage of things like groin strikes and hair pulling (those are no longer allowed). (This is why I sometimes feel guilty about watching—a little bit like I am in Ancient Rome….)

Much has changed in the UFC in the past decade since it debuted. Originally, the only way to end the fight was by 1) submission, 2) knock-out, and 3) your side throwing in the towel. Now the referee (Big John McCarthy) has the power to stop the fight once one side is being beaten and not adequately defending himself, and he often does.

Also, it has evolved into a “sport,”—no longer with the goal of getting together fighters of different disciplines to see which is superior in a “no-rules” circumstance. The reason why is we quickly found the answer: The two disciplines that emerged as “superior” to all the others were 1) Brazilian Jujitsu—a grappling style that often involves defeating your opponent while lying on one’s back, and 2) Wrestling—no not “fake” stuff, but the real sport that they do in colleges and the Olympics (in fact, many UFC Champs were former college and Olympic champs as well).

What we learned by watching the early UFC events was that many of these “pure” disciplines had huge weaknesses. The main weakness was lack of ground training. After watching a few of these mixed style matches, we could make one easy prediction: If a fight involved a “grappler” v. a “striker” who had no ground training, the grappler would always win. It really puts to rest all of those Karate movies as pure fiction. If Bruce Lee could complete in the UFC, it would only be because he could handle himself on the ground (and I think knew submission—still most of the UFC Champions probably could take him in within a few seconds). The expert strikers—those who were multi-degree black belts and/or champions in Karate, Kung Fu, Tae Kwon Do, and Jeet Kun Do (Bruce Lee’s style), Boxing, and Kickboxing—literally would be taken out within seconds by a Wrestler or a Jujitsu fighter (or submission fighter—a generic name for those who learn jujitsu moves without all of the ritualistic crap of studying under a sensei, etc.). Fighting almost always turns into grappling (police reports in fact, bear this out)—thus if you are not lucky enough to take someone out with a quick strike, you will be on the ground in a few seconds.

To stress the point again—real martial arts fighting neither looks nor functions like it does in the Van Damm or even Bruce Lee movies.

A couple other things learned while watching these events: Size and strength do mean something. “The bigger they are the harder they fall” is a myth. Oh size and strength aren’t everything. Ultimately, the discipline is most important. And there were plenty of examples of smaller guys beating the larger. But if someone knows how to use their size and strength, these are of the most important tools to work with. This is why boxing and wrestling institute, and why the UFC eventually instituted, weight classes (originally there were none).

But to illustrate how size and strength are important but not the be-all end-all, in UFC 4, 6’2, 260 Greco-Roman wrestler Dan “The Beast” Severn plowed through the competition of boxers and black belts in various styles only to be defeated by 180 lb jujitsu master, Royce Gracie. Brazilian jujitsu is the one style that gives a fighter who is significantly smaller & weaker the best chances of defeating a larger opponent. For the 15 minutes of the match Severn tossed Gracie around like a rag doll. People feared for Gracie’s safety. Eventually Gracie, on his back, used his legs to choke Severn out. That was Wrestling’s one big weakness: not knowing how to defend against submissions. Wrestling is one of those sports where size and strength especially matter—wrestling involves getting your opponent into a “submissive” position. Wresting doesn’t teach how to finish the job. Thus, the wrestler usually closes by either “choking” the opponent out, or pounding him into submission, often with head butts (many wrestlers have utilized and beaten the best of ‘em with the “ground and pound” strategy). Many big wrestlers would ground & pound their way through every other style only to be defeated by a smaller jujitsu or submission fighter.

After watching the UFC, if I wanted to learn to defend myself, I wouldn’t take Karate, Kung Fu, or Tai Kwon Doe, but rather Brazilian Jujitsu. If I were larger (I’m 5’11, 158lbs), I might take wrestling lessons. But since I’m not, jujitsu gives the best chance of defeating a larger foe in a close-contact/grappling circumstance.

A couple notable changes have occurred in the past 10 years. 1) Governments began to use their heavy hands to try to crush the UFC—mainly because of the efforts of one Senator John McCain. McCain actually ordered one of their “pay-per-view” events. He was shocked and disgusted by what he saw and tried to shut it down. And he almost succeeded. So the UFC decided to change its rules, “go legit,” so to speak to get the state off its back. It instituted weight classes and rounds. All fighters are required to wear small gloves. The ref, exercising great prudence, stops the match and award victory to the other side before things got too bloody (no more, “I’ll weight till I submit or my side throws in the towel”) and a whole plethora of moves besides biting & eye-gouging were outlawed—hair pulling, groin strikes, head butts, kicking someone when they are on the ground and you are not….

The biggest change however, was instituted by the fighters themselves. Because they realized that many “pure” disciplines had weaknesses, everybody began to cross train. Now practically every fighter, no matter what his background, trains in 1) Wrestling, 2) Jujitsu/submission, and 3) Striking. UFC 14 featured a match that signified this change: Undefeated Champion Mark Coleman, who had a Wrestling (NCAA & Olympic champ.) background, seemed unstoppable. He fought champion kick-boxer Maurice Smith. Coleman was bigger & stronger and he was a grappler. Everyone expected him to win. The match proceeded as expected. Coleman quickly got Smith to the ground and began to dominate him. But unexpectedly, Coleman didn’t quickly win. Smith knew how to defend himself on the ground. He was in a jujitsu “guard position” (the position where a fighter defends himself on his back; it also functions as an “offensive” position, where a fighter has a plethora of “clinching” moves that can be utilized). Smith had studied the wrestler and learned how to hold him off. He also studied Coleman’s biggest weakness: stamina. Coleman always beat his opponents early. If someone could learn to last about 15 minutes with him, Coleman would get winded. And that’s exactly what happened. After dominating Smith for that time, Coleman became winded, the two fighters soon got to their feat, and then Smith could use his kickboxing skills on Coleman who was too tired to defend himself. Smith the striker handed Coleman the grappler his first defeat. Eventually other fighters learned to exploit Coleman’s weakness and he suffered a string of defeats. Then Coleman made a comeback, but he only could do so by working on his biggest weakness, his stamina. And he did.

Eventually all serious fighters began to implement this “chess-match” strategy: Strikers had to learn the ground, Wrestlers had to learn to defend against submissions, submission fighters had to adapt to Wrestlers and Strikers who had “figured out what made them (the jujitsu fighters) tick.” Everyone pretty much has the same “cross-trained” style now. Personally, I think the earlier events, before the cross-training took effect, were more interesting.

Establishment Clause is more than just a “federalism” provision:

There has been talk after the Pledge case that the Establishment Clause was only intended to act as a “federalism provision”—that is its sole purpose was to prevent the federal government from interfering with state Establishments. This view is at best a half truth. While it is true that under the original pre-14th Amendment conception of the First Amendment, that entire Amendment would not apply to the states.

Therefore if a state wanted to effect an “establishment of religion” it could. Moreover, if a state wanted to interfere with “free exercise” or “free speech,” likewise it could. (This is complicated by the fact that for a state to violate free speech and free exercise inarguably violates “natural rights”—in fact violating all three arguably violates natural rights—but it is not as settled that state establishments violate natural rights. Before the 14th Amendment’s “privileges or immunities clause” the federal courts didn’t have the recognized legal authority to enforce natural rights against the states).

Douglas Laycock informs us of the 2nd half of the equation that is missed by the “federalism only” crowd:

I do not doubt that one meaning of the Clause in 1791 was that the federal government could not interfere with establishments in the states. But I am equally sure that one meaning of the Clause in 1791 was that the federal government could take no steps toward a federal establishment of religion -- not in the states, and not in the federal district either. Either a federal establishment or a federal interference with a state establishment would be a law respecting an establishment.

For more on this -- the implications of what else arguably is unconstitutional under the original conception of the Establishment Clause besides interfering with state establishments -- see Timothy Sandefur’s post, Is Thanksgiving Constitutional?

Is the Establishment Clause necessary to Effectively Enforce Free Exercise?

Let me use the recent decision of the Supreme Court essentially “ducking” the Pledge issue as opportunity to update my thoughts on whether the Establishment Clause is properly incorporated against the states. What reignites this debate is that Justice Thomas, in his concurrence, held that based on an originalist reading of the First and Fourteenth Amendments, the Establishment Clause should not be incorporated.

Randy Barnett, someone with whom I agree almost all of the time, based on what he has written before, agrees with Thomas’s assessment. His argument is that the “privileges or immunities” clause refers to rights, both natural and positive. That’s what is incorporated—if we can’t find a particular “right” that the Establishment Clause would protect, then it doesn’t get incorporated. According to Barnett, the Free Exercise Clause does indeed refer to a "natural right" and as such ought to be incorporated. However...

In contrast, the Establishment Clause of the First Amendment describes neither a natural liberty right or "immunity," nor a positive individual right or "privilege" of citizens. It is simply a limitation on the power of Congress simpliciter. Therefore, the plain and original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment has no relevance to the state establishment of religion. State endorsements of religions are not unconstitutional….

I responded to Barnett’s post and noted that Jefferson & Madison, (and other founders as well) were against state Establishments, that Madison tried to (and failed) to outlaw state Establishments in his first draft of the First Amendment, and that the Virginia Statute on Religious Liberty—which gives the Madisonian-Jeffersonian view on what the natural rights theory that undergirds our Founding has to say about religion & government—demands disestablishment as necessary to protect, “the natural rights of mankind.”

(BTW, Lawrence Solum has a link to an article by Professor Marci Hamilton’s and her view of the Pledge case, where she analyzes Thomas’s view on incorporation—her assessment is pretty much in line with what I have written. Anyway it’s an interesting article).

Then Timothy Sandefur objected to my analysis and defended the Barnett/Thomas view, and he did so while analyzing (and criticizing) the Virginia Statute’s rationale as to why establishments violate “rights”:

More importantly, can it really be said that the Establishment Clause protects a specific right, above and beyond the right not to be taxed for anything? That is to say, it violates our rights to degree X to be taxed, regardless of where that funding goes: if it goes to support sex ed, or the building of a post office, or for the arming of soldiers, or for the support of a church whose doctrines I despise, it still violates the same right, and to the same degree. For a Quaker to be taxed to pay for the army surely violates his conscience as much as my being taxed to support an established church with which I disagree.

Moreover he notes, "if we confine the discussion to the First Amendment itself, it’s not clear, either from the text or from principles of political philosophy, that the Establishment Clause either does, or can, protect an individual liberty—as opposed to simply limiting federal power."

Okay—so let me take another stab at why incorporating the Establishment Clause relates to protecting the “equal rights of conscience” as Madison would put it (it’s my opinion that the Free Exercise Clause and the Establishment Clause were necessary—that they go together—in order to protect our inalienable rights of conscience): Madison, et al. clearly believed that only a secular state, that is one that takes no stand on matters of religion, (one that effected “a perfect separation of ecclesiastical civil matters") could effectively enforce the equal rights of conscience. Somehow I don’t think that a “Christian Commonwealth” run by the likes of Roy Moore can effectively enforce the Free Exercise of Religion. Am I wrong?

Reason & Revelation, agreeing, disagreeing, and creating together:

I want to thank Sandefur for his discussions of my posts, as well as his comments on the origins of the Separation of Church & State. Personally, I would give the Enlightenment philosophers the most credit in getting this done. But there is no doubt that this doctrine has Christian roots as well and that Protestants starting “working” on this problem before the Enlightenment philosophers did.

From what I have been able to learn, the Protestant dissidents started talking about the need for separation of Church & State because they suffered the brunt of persecution. And men like Roger Williams did Yeoman’s work arguing exactly why a secular state would benefit Christianity and why, in his words, “No civil state or country can be truly called Christian, although the Christians be in it.” And my fundamentalist reader let me know that in 1614, before Locke was even born, dissident Protestant sects had written: "The magistrate is not by virtue of his office to meddle with religion, this or that form of religion, or doctrine; but to leave Christian religion free, to every man's conscience, and to handle only civil transgressions."

I think what was special about the Enlightenment was that it crafted a theory of political science that our founders followed, by “discovering” certain “truths,” ascertainable by Man’s Reason, unaided by Biblical Revelation, one of which was that we had an “inalienable right” to “liberty of conscience.” This theory put into practice, “solved” the theological/political problem that the Protestant dissidents were so (painfully) aware of. This is why Protestant dissidents were willing to work with Enlightenment rationalists in separating Church & State. These two groups together succeeding in founding America in a Godless and secular way much to the chagrin of the forces of “religious correctness,” President of Yale, the Reverend Timothy Dwight, et al.

But in order to solve the “political/theological” problem is was necessary to consign religion to the realm of the “private,” or “opinion.” We had to get the Churches off the backs of the state to get the state off the backs of the Churches in order to “ensure domestic tranquility” (as Walter Berns argues). The men of the Enlightenment did the brunt of the Epistemological work in getting these doctrines formulated. And protestant dissidents signed onto this plan, because they realized it would benefit them.

But I don’t want to make it look like I am giving short shrift to Christians. Yes, Christians started itching for a solution—calling for “religious tolerance” before the Enlightenment philosophers came forth with the theories of “rights” that acted as “trumps,” that demanded that government respect the rights of conscience and otherwise pulled the rug from underneath doctrines like Divine Rule of Kings (as Allan Bloom would put it).

Sandefur emailed me a very witty observation regarding Protestant calls for religious tolerance:

There's an old saying that it's no wonder that the loudest yelps for freedom come from the drivers of slaves, because they see slavery every day, and they know just how awful it is. I think the same is true of religious sects. Religious toleration was very largely the invention of Christians--but only those Christian sects that were on the bottom of the heap. As soon as they got on the top of the heap, they started cooing about the social importance of religion and saying that religious ideas should be regulated by the state, because now they were the state. I think it was Frederick Douglass who said that when we Anglo-Americans were on the bottom, they proclaimed that all men are created equal--but when they got to be on top, they changed their story.

Ain’t that the truth. Ultimately, Reason & Revelation cooperated to separate Church & State in the West. Leo Strauss notes that what makes the West what it is is the ongoing “conversation” between Reason & Revelation. They agree on some things, but disagree on others (And as Camille Paglia notes, we don’t want them to agree on everything or even on most things, just some things—the “disagreement,” the tension between Reason & Revelation, is something that we ought to value).

Many of the “traditions” and “doctrines” of the West are inseparable combinations of these two twin sources of civilization. Christians might argue “It comes from us,” rationalists might counter, “no we deserve the credit.”

Take deism for instance—the religious philosophy that was followed by many Enlightenment rationalists. I have heard it argued, by Michael Novak and others, that since deism believes in a monotheistic God, and since deists had Christian backgrounds, that the “Judeo-Christian” tradition should get the “credit” for it. Deism is based on what we can know of God based on Man’s Reason. And it was the Greeks who invented the concept of “Reason.” Then the Catholic Church, through Aquinas, adopted the teachings of Aristotle and we got and we got a “Christian” natural law. Then Locke, who professed to operate in the tradition of “Christianity” picked up the natural law from there and put more of a focus on Man’s Reason, separate from religious doctrine. Eventually the Enlightenment, through the use of Reason, rejected so much Christian orthodoxy that it ceased to be “Christian” anymore. What is known as “liberal” Christianity is simply the rejection of some “orthodoxies” because they don’t comport with “Reason.” Christians who rejected a fair amount of orthodoxies, but retained others, were known as “Unitarians,” around the time of the founding (and this evolved into today's very leftist Unitarian Church). Going beyond “Unitarianism” and rejecting even the notion of a God who intervenes at all is where we arrive at Deism. But we see how we start with orthodox Christianity, and through reliance on Reason, we begin to reject various orthodoxies, then we get to “liberal-Christianity/Unitarianism” and finally Deism. We begin with pure “Revelation” (orthodox Christianity) on one end of the spectrum and get to pure “Reason” on the other (deism). Many of our founders were somewhere in the middle, but I'd argue the most influential tilted heavily towards "Reason."

So when did political philosophy, or the formulators thereof, stop becoming “Christian”? It depends on who you ask—Jefferson was certainly a man of Reason and the Enlightenment, but even he called himself “Christian” at times. Fundamentalists tell me that if one doesn’t believe in the Trinity, then they aren’t real Christians. And Jefferson termed the Trinity to be “insane.” Locke, after Newton, denied the Trinity (Locke apparently became a “Unitarian” later in his life). And I’m pretty sure that Milton, whom Sandefur describes as, “a rather unimpeachable Christian” did too.

Let me close with Camille Paglia who gives a fascinating anecdote on the interplay between Pagan/Secular/Reason & Christian/Sacred/Revelation—how combing these two forces that will perpetually be “in tension” with one another results in the marvel of Western Culture—the greatest culture there ever was:

“And Michelangelo, adorning the Sistine Chapel with twenty homoerotic ignudi (nude Greek youths), made the most radical statement of the enduring duality of pagan and Christian in our culture.” Vamps & Tramps, p. 94.

(And yes, Michelangelo was homosexual!)

Joseph Farah and Secularism:

Joseph Farah of World Net Daily has a piece lamenting the fact that both Afghanistan and Iraq are being founded as “official Islamic Republics.”

I emailed him this:

As a secularist, I agree with your article one-hundred percent. Iraq and Afghanistan ought to enact, in Madison's words, "a perfect separation between ecclesiastical and civil matters." I only wish that this website were so enthusiastic about maintaining the separation of Church & State in America.

Farah and his web site officially posit the “Christian Founding” myth (they recently featured a publication, which I can’t find online, claiming to smash the "myth of Separation of Church & State”).

Farah replied, “Please provide citation for that quote from Madison?” So I did and here it is (Note this is also relevant to my reader's erroneous claim that “Jefferson's letter [to the Danbury Baptists] to reassure them…contained the one and only reference to the concept of "separation of church and state"—no, our founders often used the term “separation of Church & State,” which is what Madison’s term is virtually identical to):

Nothwithstanding the general progress made within the two last centuries in favour of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Gov' & Religion neither can be duly supported: Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded agst.. And in a Gov' of opinion, like ours, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Gov will both exist in greater purity, the less they are mixed together;

James Madison, Letter to Edward Livingston, July 10, 1822, The Writings of James Madison, Gaillard Hunt.

You can find that quote here with a bunch of other quotes by Madison that support the separation of Church and State (this is where I copied the first quote from—I did a search for the quote—I was already familiar with it and it has been substantiated by many scholars and can be found all over the Internet. I always substantiate before I quote—because there are tons of phony or unsubstantiated quotes by our Founders about religion—many of which have been pushed by World Net Daily).

Farah has yet to respond back. I was sort of surprised that Farah had never heard of Madison’s “a perfect separation between ecclesiastical and civil matters” quote. It’s commonly cited and Farah, who seems to be an intelligent man, has written as if he were some sort of lay-expert on our Founders and Religion. I guess I shouldn't overestimate people.

Enlightenment Liberalism Operating Today:

I planned on writing a whole response to my emailer’s letter, but I have gotten hung up answering her first paragraph. The rest will have to come later:

Regarding her assertion that the implication of an Enlightenment founding “is that the Founders put something over on ‘the people’”—I don’t endorse this notion and I hope to clarify my position on this in this post. But some conservative thinkers whom I read and respect do think exactly this. It is no secret that I have learned a great deal about political philosophy from the followers of Leo Strauss: Allan Bloom, Harvey Mansfield, Walter Berns, Thomas Pangle, and others (I’d even put Robert Bork in this category). And these men, who are by in large social conservatives with an intellectual axe to grind in favor of religious conservatism, believe exactly this.

Thomas West, in a paper he presented to the Family Research Council, entitled "Vindicating John Locke: How A Seventeenth-Century 'Liberal' Was Really A Social Conservative," explains this contention (which, as I will later note, he does not share):

It is easy enough to quote founding-era documents to bring out the consistent concern of that generation for the moral conditions of freedom. But the objection can be made, and often is made, that this only shows that the Founders did not really understand the radical implications of their own Enlightenment principles. In this view, the Founders were, in Michael Zuckert's words, "victims of bait-and-switch marketing." Zuckert means that the Founders were dupes of a radically modern project in which Locke, along with Machiavelli, Bacon, Hobbes, and others, succeeded in overthrowing the classical understanding of man as a being whose perfection and happiness can only be found in moral and intellectual virtue.

Thomas West is also a follower of Strauss’s, but of Harry Jaffa’s “interpretation” of Strauss’s teaching (known as Western Straussianism—not named after “Thomas West” by the way, but after the fact that these thinkers, after Jaffa, reside on the West Coast), which differs from all of Strauss’s other student’s teachings (Bloom, et al.—known as the Eastern Straussians). West is apart of Jaffa’s Claremont Institute, which claims to operate in the tradition of Enlightenment liberalism—but they are also social conservatives and argue that social conservatives, not libertarians and leftists, are the true heirs to Enlightenment liberalism (and they, to their credit, have a follower in none other than Clarence Thomas). Claremont argues that Enlightenment’s notion of Man’s Reason largely agrees with Biblical Revelation on all of those controversial social issues (as the Church Lady would say, “How convenient!”), that they in fact compliment one another.

According to these thinkers, Reason & Revelation might disagree on some of the larger issues, such as what we can know about God. But Claremont, operating in the tradition of Locke, duly notes that the United States was founded on Reason, and when it comes to what we base our public policy on, if there is a dispute between Reason & Revelation, Reason trumps (and as professed Lockeans, they must hold this way, because this is, after all, clearly what Locke taught).

For instance, here is West, from the same article, on the identity of the “God” in the Declaration of Independence: “The law of nature is also the law of ‘nature's God’ (meaning God insofar as we can discern his existence through our reason unassisted by faith).” In other words, nature’s God is God as he is ascertainable by Man’s Reason unaided by Biblical Revelation. Somehow I don’t think that the fundamentalists at the Family Research Council liked hearing that.

The notion of Reason, or “natural law” coming to the same conclusions as orthodox Christianity is not new. In fact, this is what Thomas Aquinas taught. And as such the Claremont Institute has built up a strong following among devout Catholics, with their natural law traditions. However, Protestant fundamentalists (like my reader), who never had much use for “Man’s Reason unaided by Biblical Revelation,” haven’t shown much interest in Claremont (understandably).

So Claremont turns Locke into a social conservative by positing the notion of a Thomist—Locke, making Locke’s teachings just a new version of the “Christian natural law,” after Aquinas. The Eastern Straussians don’t buy it and neither do I. These thinkers, after Strauss himself, write that Locke’s aims were clearly to break with the traditional Christian understanding of nature, ala Aquinas. Strauss posited the notion of a Hobbsean—Locke. Both Thomas West and the Eastern Straussians freely admit that it’s hard to ascertain exactly what Locke meant by plucking his quotes out of context. Locke could not write what he meant in a straightforward way because heresy (like denying the Trinity, which Locke, after his friend Isaac Newton, did in secret) could get you killed. Instead Locke would give his ideas and all along claim that they were compatible with orthodox Christianity. Then orthodox Christians would accuse Locke of heresy, and Locke would defend himself, claiming not to be a heretic.

But one thing is clear: Locke taught that Man’s Reason trumps. And that Biblical teachings were true only insofar as they were compatible with Man’s Reason. Locke’s The Reasonableness of Christianity was Locke reinterpreting Christianity through the lense of Man’s Reason (in which, Thomas Pangle argues that Locke “smashes” traditional Christianity), and along the way Locke manages to posit a “state of nature teaching” which is, in the words of Walter Berns, “wholly alien to the Bible.”

My reader has argued elsewhere that because Locke came from a “Christian environment” it was the Christianity that surrounded him that was responsible for his ideas, his formulation of “rights,” of liberty of conscience:

Locke was raised in a Puritan home, he was schooled under Puritan teachers. Empiricism which attracted Locke was proposed by the devoted Christian, Bacon. Where the Enlightenment became not only divorced from its Christian roots but antagonistic to them I'm not sure, but it wasn't with Locke, and in any case none of its best ideas could have occurred at all without the Christian culture they grew out of.

But this is not right. What distinguished Locke’s teachings were how they broke with traditional Christian dogma and practice. Yes, Locke grew out of a Christian culture, but so too did Protestantism grow out of Catholicism. Giving “Christianity” credit for Locke’s ideas is like giving Catholicism credit for Protestantism (which is precisely what some Catholics argue). I think mine is a good workable analogy: What distinguishes Protestantism is how it broke with Catholicism; ditto with Locke and orthodox Christianity.

For instance, Locke posited the notion of “self-ownership.” If ever there were an anti-Christian (that is, the traditional orthodox understanding) doctrine, it is that. Here is Robert Bork on the principle of “self-ownership”: “There are ‘moral facts,’ but that is certainly not one of them. It would mean that no one has any obligations as a family member or as a citizen, no obligations to anyone or anything outside his own skin….” Slouching Towards Gomorrah, p. 104.

Bork wasn’t specifically referring to Locke, but the dissent in Bowers v. Hardwick, the case recently overturned by Lawrence, which holds: “[T]he concept of privacy embodies the ‘moral fact that a person belongs to himself and not others nor to society as a whole.’” But Locke could have written exactly this. In fact, he did write something almost identical: “Every man has a property in his own person; nobody has any right but to himself….” Two Treatises on Government, edited by Peter Laslett, Cambridge University Press, London, 1988, pp. 284, 287-88.

Now, of course, I anticipate the social conservative response: Locke absolutely did not personally believe that “self-ownership” meant the “right” for same-sex couples to practice their relations in private. Just look at Thomas West’s quotes on Locke and sodomy. Let’s hold that thought for a second….

Locke’s principle of self-ownership was absolutely antithetical to slavery. It was perhaps the strongest anti-slavery principle ever posited. And this theory did in fact put the final nail in the coffin of that institution. But wait…Locke himself was not personally against slavery; in fact he constructed a “natural rights” defense of the institution (albeit a very weak one; he described slavery as “nothing else but the state of war continued between a lawful conqueror and a captive”). We see Locke positing a principle that he himself didn’t seem to logically apply. We’ve also seen how Lockean principles were used to justify the dissent in Bowers, which lead to the majority in Lawrence.

The right to be free from both slavery and anti-sodomy laws are wholly consistent applications of Locke’s own theory, even if Locke himself, subjectively didn’t understand what the logical outcomes of his theories ought to be in these circumstances. That is, the originators of certain ideals sometimes did not logically or consistently apply their own principles—perhaps because of “prejudices” of that particular time and place, or perhaps because it just wasn’t convenient or feasible to do so. But it’s not our role as “originalists” to get into the framers subjective mindset, and try to anticipate how they subjectively intended those principles to apply, or to otherwise look for inconsistencies between the broadly enunciated ideals and actual historical practice and then claim that those inconsistencies must be incorporated in order to limit the ideal. Rather we must pay homage to those timeless principles and realize that we can and must apply them in a more logical & consistent way than the framers, because we don’t live in the 18th Century and ought not be held captive to the “prejudices” of 18th Century sociology. “All men are created equal” clearly conflicts with slavery. Yet, when the Declaration was written, many founders, most notably the document’s author, held slaves. The proper way to understand the Declaration is not by subjectively asking whether the framers “really meant it for blacks,” but to ask whether a plain meaning of “all men are created equal,” logically applies to “all men,” blacks included.

Let me close by making an analogy to contract law. Because after all, what is our system of government but one big contract (or compact) between the government and the people? It is settled contract law that, when ascertaining how a contract should be interpreted, courts don’t inquire as to how each individual party “subjectively felt” the language should apply or be interpreted, rather, courts ask how an objective person, reading the plain language of the text, would think the words would apply. Therefore, individuals can’t agree to a contract with a particular set of words, but later back out saying, “I really didn’t mean it as applied to this particular circumstance” (not anticipated in the text of the contract). Individuals agree to contracts all the time where they understand what the general terms are, but they nonetheless do not appreciate all of the implications, or “what they were getting themselves into.” Sometimes people break their contracts and go into court arguing exactly that: “I know that’s what the contract says, but I never anticipated it applying this way.” And those parties generally lose those arguments, and always have. If the folks in the 18th Century didn’t know “what they were getting themselves into,” that they were agreeing to a Constitution guaranteeing individual rights that might one day lead to a “right” for consenting individuals to have sex within the privacy of their own home, then so be it. It’s not a valid excuse in contract law. And this is not a viable theory of Constitutional originalism.

If an individual “owns” himself and has the right to pursue happiness, then, in determining how these timeless principles apply in specific circumstances, we must ask how they should logically work themselves out in the present day—not by channeling 18th Century sociology, with all of its prejudices, asking whether “the people” would subjectively anticipate this outcome. And if we come to two different outcomes, then we choose the former.

A Reply to my Previous Post:


A Protestant Fundamentalist reader has replied to my previous post on The Godless Constitution. From my numerous debates with her on other websites, I know that she likes to argue that everything, literally everything, that is great about Western Civilization comes from Christianity ["Jerusalem" if you will], nothing from our secular/pagan source ["Athens"]. I will post a reply later.

She writes:

Your three categories of opinion about the proper relation between church and government take a little sorting out.

1) The Enlightenment Disciples: ...

Interesting implication here is that the Founders put something over on "the people" which I keep finding in what you've been writing -- as if they managed to get an Enlightenment program into the government design without the people's being any the wiser. So much for all those high-flown principles of government of, by and for the people as Lincoln later saw it, hm?

And this Enlightenment-produced vision of government is wholly "secular" according to you, although you haven't yet clearly defined what you mean by that and more than one meaning is possible -- which is going to become an issue when I get to your other categories. In fact defining this is of the essence.

Your reference to the Founders as representative of the "intellectual class" I find interestingly biased I must say especially in contrast with "the people" and the President of Yale, Timothy Dwight, who represents your Category 3, of whom it seems to me you speak in somewhat slighting terms, President of Yale, the Reverend Timothy Dwight, was a shining star of this movement of religious correctness. I guess to a follower of the Enlightenment an educated Christian who taught logic, literature and oratory as well as theology at Yale, wrote an eleven-volume epic, a satire on Voltaire and Hume, poetry and hymns, and was also President of Yale, doesn’t qualify as “intellectual.” The fact is that the intellectual life of Europe and America began with Christians, who founded all the first universities in both places. (Yeah, I know -- history was just biding its time until the superior intellectual understanding of the Age of Reason superseded them etc. etc. etc.)

Now, to your second category. You seem to have just discovered these orthodox Christians who were strongly committed to what you call "secularism or the separation of Church and State:"

2) Orthodox Christians committed to secularism or the separation of Church and State, because of the way secular government would benefit religion. Yes, I learned that there were strong forces within orthodox Christianity committed to separation of Church & State and they did so without appealing to Lockean theory. In fact, Roger Williams (the founder of this point of view) came forth with a defense of secular government shortly before Locke formulated his teachings! Williams, who once famously said, “No civil state or country can be truly called Christian, although the Christians be in it,” gave wholly practical grounds as to why religion (the Christian religion in particular) would be better off in a wholly secular state, one that takes no stance on religion.

Nothing could be more familiar to a Christian than this point of view, although it takes a moment to see it through your categorization as favoring “secular” government, which is not a term we/they use. This is really the view of the First Amendment that most Christians today have in mind as the original meaning of it, not your third category as you claim.

1] The story of the Christian preacher Roger Williams is interesting. I looked him up and get the impression that he was definitely in favor of separation of church and state in the sense of a complete absence of government jurisdiction over the churches – in the same sense that Madison was. On a quick skim-through it appears that he came up against some hidebound Puritans who did not recognize freedom of conscience and were happier with their state-established denominations and rules of religious conduct than he would have liked. At least that is how it is presented at the site I found:

http://www.guam.net/home/wresch/stories/churchhistory/13%20Roger%20Williams.html


2] However, it is hard to judge this, since, according to what I posted earlier about the various state constitutions as presented in the sermon of a New York pastor, they all acknowledged the necessity of freedom of conscience (and I quote this pastor partly to show that the idea of freedom of conscience is a Christian idea although it isn't his focus in the following quotes):

"The Constitution of Maryland ...until 1851 defined freedom of religion this way: “(I)t is the duty of every man to worship God in such manner as he thinks most acceptable to him.” Therefore, it went on, “all persons professing the Christian religion [rather than a particular denomination], are equally entitled to protection in their religious liberty.”

"The Constitution of Vermont was yet more specific: “(N)or can any man who professes the Protestant religion, be justly deprived or abridged of any civil right, as a citizen.” ...In promoting the free exercise of religious worship according to conscience...

"The Constitution of New Hampshire (1784), after guaranteeing the unalienable right to worship God according to conscience ...

"...That our Founding Fathers wanted no national denomination is obvious. That the Fathers who represented the States cited above would have understood the First Amendment as prohibiting States from establishing religions—well, history and fact stand against such a revisionist view."

3] Also consider the following from that same site about Williams:

... with the Mennonites and Separatists, Baptists promoted true religious freedom. In 1614 they declared, "The magistrate is not by virtue of his office to meddle with religion, this or that form of religion, or doctrine; but to leave Christian religion free, to every man's conscience, and to handle only civil transgressions."

This is already in 1614 a statement of the principle that became embodied some 175 years later in the First Amendment -- no meddling of government in religious questions, expanding on it as freedom of conscience.

And it also incidentally makes clear that when they use the term “religion” they had NO notion of any other religion than Christian.

4] I also showed you earlier how the concern with freedom of conscience is derived from the Biblical call to sincere faith and willingness to die for it when forced to deny it.

5] It was one of these persecuted minorities, the Baptists, who appealed to Jefferson to be sure that the Constitution would protect them from persecution at the hands of a federally established denomination, and it was Jefferson's letter to reassure them that contained the one and only reference to the concept of "separation of church and state."

So: Not only Williams but others among the Christians also emphasized the importance of freedom of conscience, which you denied has any Christian roots, claiming it came only from the Enlightenment. This category you call Christians in favor of secular government really amounts to no more than your misunderstanding of what Christians have always understood to be the main objective of the First Amendment, deriving from the concern of the minority churches not to be subject to the theology as well as the whims of a federally established majority creed -- this is understood from the letter of Jefferson to the Baptists. The rest I have added here merely underscores it.

This issue is in fact THE issue of "freedom of conscience." It is first and foremost a CHRISTIAN concern. If John Locke also wrote about it he was far from its originator -- as you yourself do finally acknowledge -- and the Founders did not need to go to Locke to derive it, as it was loud and clear enough from the religious situation in the colonies, and even spelled out in their constitutions, however imperfectly realized.

Parenthetical thought: Why the Enlightenment should make a big deal out of what particularly affects religious people is a question in my mind anyway. The conscience to a Christian is an extremely important spiritual reality, but to a rationalist atheist what is it more than just the right to one's opinion??

The Godless Constitution:

I just came back from Borders with a copy of Freethinkers, A History of American Secularism, by Susan Jacoby, and right now I am finishing up reading The Godless Constitution, by Isaac Kramnick and L. Laurence Moore. The latter was a truly superb read, and I seriously wonder if Jacoby’s book will break much new ground that wasn’t already done in The Godless Constitution (I’m sure she will).

Let me say a word on what I’ve understood about America’s Founding & Religion after reading Kramnick's and Moore's book. (Note, this is my original analysis/understanding of what they wrote. The authors don’t quite break it down this way).

We can categorize competing views regarding the proper way religion ought to be situated with government into three different groups of thought (or maybe I should say, three groups of thinkers). (Note—these are my crude categorizations—some historical figures might not be so easy to pin down.)

1) The Enlightenment Disciples: This view was arguably dominant among the framers. Just about all framers were influenced by the Enlightenment to some significant degree, some more than others. The Deistic-Unitarian religious philosophy was very influential here. John Locke was the initiator of this view and Jefferson was probably its most “pure” follower. “Christian” founders followed the Enlightenment as well. However, many were Christians in the most nominal sense (Jefferson professed to be a “Christian” at times!). Some professed orthodox Christianity though. I’d place Jefferson, Madison, Washington, and Adams, and many, many other framers in this category. These men appealed to modern (relatively new at the time) principles of natural and political right in founding this nation, and these principles are ascertainable by Man’s Reason, unaided by Biblical Revelation. As I said, this view was predominant among the “intellectual class” from which the framers were derived, but ultimately the Constitution was ratified by “the people,” many of whom might not have understood or endorsed the Enlightenment so keenly. So it’s necessary to inquire about those Christians who clearly weren’t Enlightenment Disciples.

2) Orthodox Christians committed to secularism or the separation of Church and State, because of the way secular government would benefit religion. Yes, I learned that there were strong forces within orthodox Christianity committed to separation of Church & State and they did so without appealing to Lockean theory. In fact, Roger Williams (the founder of this point of view) came forth with a defense of secular government shortly before Locke formulated his teachings! Williams, who once famously said, “No civil state or country can be truly called Christian, although the Christians be in it,” gave wholly practical grounds as to why religion (the Christian religion in particular) would be better off in a wholly secular state, one that takes no stance on religion. He truly believed that religion would better flourish, out of politics and under a secular state (with the caveat that orthodox Christians be absolutely free to practice their religion). And although Williams couldn’t appeal to the Bible for versus and chapters mandating secular government (after all, where does the Bible speak of “natural rights” like “liberty of conscience”?), nor could he appeal to the historical practice of Christianity—since time immemorial Church & State in Christendom were inexorably intertwined—he did explain why the Christian religion was wholly compatible with secular government, (Jesus did effect a separation of things spiritual & temporal—when they tried to make him a King, he replied “My Kingdom is not of this Earth”) and why secular government would serve Christianity better than any other form (you'll have to read the book for that explanation in full).

Those religious sects who were most sympathetic to this argument were the dissident sects, the ones most persecuted. And what do you know, America just so happened to be made up of many dissident sects. The Baptists—one of America’s most persecuted sects—pretty much threw their weight behind secular government. And Williams’s notion that religion would better flourish in the private sector under a secular state influenced our founders as well.

When Williams formulated his view of secular government, he was pretty much alone among orthodox Christians in his thoughts. The other orthodox Christians, those from group number 3, responded to Williams’s notion of secular government by banning him from Massachusetts, so he founded Rhode Island.

The Baptists of today have broken with their tradition of staying out of politics. The Amish sort of represent this tradition (most expositors of this philosophy at the time of the founding would not wish to exist so far outside of society as the Amish). The Amish could care less about imposing their religious point of view through government laws. In fact, Amish are perfectly comfortable with and prefer a secular set of laws, SO LONG AS THE GOVERNMENT LEAVES THEM ALONE TO PRACTIVE THEIR RELIGION ENTIRELY. If Christians don’t like the way society is going, don’t impose your religious opinions regarding living the virtuous life on everyone else thru the laws, but rather drop out of politics and society, and live your own lives as shining examples of Christian virtue. Cal Thomas to his credit seems to be coming around to this point of view. The Jehovah's Witnesses endorse this view as well -- but in an extreme way; they don't even vote.

3) The Forces of Religious Correctness. The orthodox Christians who didn’t believe in separation of Church & State and desired all governments to endorse the notion of a Christian Commonwealth or Republic. These folks represented “the old order.” Many religious institutions who compromised the dominant sects in each colony would fall into this category. This was the tradition in which the Enlightenment was attempting to break. These forces successfully got most of the colonies to official vet the notion of a Christian commonwealth—many colonies during the founding had state-established Churches and religious tests for public office—and that’s because this is the way it had been for hundreds of years, since these colonies existed. However, much to the chagrin of these folks, our Declaration of Independence and Constitution broke with this view. Our Declaration of Independence appealed to Enlightenment dogma, and “Nature’s God” was clearly an Enlightenment, not a Biblical reference to God. The Constitution failed to mention God or Christ altogether. It was truly a Godless Constitution (hence the title of the book), and this ticked off the folks in this category mightily.

While these Christians were comforted by the fact that the Constitution didn’t disrupt their ability to maintain their state establishments, they were nonetheless infuriated by the fact that the Constitution didn’t appeal to God or Christianity in the way their state Charters did.

President of Yale, the Reverend Timothy Dwight, was a shining star of this movement of religious correctness. He sums it up perfectly: “The nation has offended Providence. We formed our Constitution without any acknowledgement of God; without any recognition of His mercies to us, as a people, of his government, or even of His existence. The [Constitutional] Convention, by which it was formed, never asked even once, His direction, or His blessing, upon their labours. Thus we commenced our national existence under the present system, without God.”

Another expositor of this view, Reverend Mason complained in 1793 that “from the Constitution of the United States, it is impossible to ascertain what God we worship or whether we own a God at all.” The book has many other such quotes. Many of these Christians saw the Civil War as God’s punishment for a nation that slapped him in the face by leaving him out of the Constitution.

These forces of religious correctness repeatedly tried to amend the Constitution to correct this error…and failed. Here is one example of a proposed Constitutional Amendment—led by the Presbyterian laymen John Alexander—tried to pass. It would reword the preamble to the Constitution to say:

We, the people of the United States, humbly acknowledging Almighty God as the source of all authority and power in civil government, The Lord Jesus Christ as the Governor among the Nations, and his revealed will as of supreme authority, in order to constitute a Christian government…do ordain and establish this Constitution for the United States of America.

All such attempts to amend the Constitution failed. Kramnick & Moore argue and I agree that today’s religious right are the true heirs to this group. And here's how today's Christian right engage in historical revisionism: All three groups that I reference above realized that our federal government was a Godless secular one. Groups 1 and 2 supported it this way, group 3 didn’t. But all three understood that our system was not “founded on God and the Bible” as Roy Moore puts it. The religious right of the day wanted to change the system, and after repeatedly failing to do so today's religious right now rewrite history and fraudulently argue that the Declaration and Constitution were “Christian” documents, and that we had a Christian founding all along.

And as far as the state governments are concerned, most of them, within a very short period of time, voluntarily disestablished their Churches and separated Church & State. Then, in the middle of the 19th Century, the 14th Amendment was passed and the Federal government now had jurisdiction over the state violations of the rights of conscience, just as Madison (and presumably Jefferson who was in France when the Constitution was written) wanted it from the beginning.

Corporate Rights are Human Rights:

Professor Bainbridge makes the point that I was trying to make in my previous post much better than I ever could:

When you ask “what rights does a corporation have,” you are reifying the corporation – you are treating the firm as an entity separate from its various constituents. The prevailing law and economics account of the corporation, by way of contrast, views the firm not as an entity, but as an aggregate of various inputs acting together to produce goods or services. Employees provide labor. Creditors provide debt capital. Shareholders initially provide equity capital and subsequently bear the risk of losses and monitor the performance of management. Management monitors the performance of employees and coordinates the activities of all the firm's inputs. The firm is simply a legal fiction representing the complex set of contractual relationships between these inputs. In other words, the firm is not a thing, but rather a nexus or web of explicit and implicit contracts establishing rights and obligations among the various inputs making up the firm.

From this perspective, the correct question to ask is whether this set of stakeholders acting collectively through the board of directors and top managers should be able to exercise the same rights they could exercise individually....

I remember when I lived in Center City Philadelphia while I attended graduate law school (my LL.M. in International Law program), and around the same time I became familiar with Chris Stone’s argument about Trees having rights or "standing," I saw a program on a local cable channel, Drexel University’s DUTV (this channel didn't reflect just a “left-wing” perspective, but a Chomsky type radical "progressive" ideology that viewed Clinton/Gore/Kerry as “right-wingers,” and of course it was Drexel’s only channel, no competing conservative version) entitled something like (don't remember the exact wording) “How can property own property?” This referred to the fact that corporations weren’t human beings, but rather “property” (And in a sense, that’s true: A corporation is one big piece—or if we view every share as individual pieces, a bunch of pieces of intangible personal property). And the question that was begged was how can this non-human property own property (or how can property have “rights” that are intended for humans)? Bainbridge effectively answers this question in this short passage.

Should Trees Have Standing? Hell No:

Reading Eugene Volokh’s excellent post in defense of the corporate entity reminded me of a discussion in law-school, in International Environment Law, where we discussed Chris Stone's, “Should Trees have Standing?” Stone argued that animals and even lesser forms of life—like plants, the trees, vegetation—should have “rights” because this line was already crossed when we granted “corporations” rights. The most obvious response is that dispensing rights in this manner “trivializes” rights. The counter-response is that during the founding, the Declaration was only understood to grant rights to propertied white males and the notion of granting rights to blacks or to women might also been seen as a “mockery” of rights.

And there are some folks—mainly associated with the progressive left [Chomsky, Z-Mag types]—who think that the notion of granting “rights” to corporations—in essence allowing corporations to exist—was just a horrible thing, certainly something that makes a mockery of rights.

Personally, I think that expanding rights to blacks, women, non-Protestant sects, (and even homosexuals) was consistent with the ideals of the Declaration of Independence, hence consistent with originalism. Rights are for humans, not animals, certainly not for lesser forms of species.

Therefore, it must be argued, and I did argue that granting rights to corporations was in effect, granting rights to humans. Corporations are just voluntary associations of human beings. The “corporate entity” that is granted these rights—free speech, property ownership, due process, equal protection, etc.—is of course a “legal fiction." It’s really the people who own the corporation that are granted such rights. The corporate entity status—with its limited liability and permanence (death, disability, or bankruptcy of a shareholder won’t affect the status of a corp., as it would with a sole proprietorship or a partnership), is a necessary fiction in order to enable such a large amount of people to get together and pool their resources.

Now anti-corporate types may still understand that corporate rights essentially derive from the private owners of the corporation, but such critics may nonetheless argue that such huge centers of power ought NOT to be allowed, because they will still do more harm than good (Chomsky refers to corporations as "tyrannical structures"). I disagree, because, as Volokh notes:

We'd probably also have far less wealth, technological progress, health, and military security (since wealth tends to on balance bring health and military security). The aggregation of economic and political power does create some risks for democracy, for instance by making it easier for power centers (whether corporations, unions, or other interest groups) to lobby for government handouts and protectionist measures. But modern economic history suggests that such aggregation of power is necessary to effectively develop and distribute consumer products, tools, medicines, food, and so on.

Does Traditional Judeo-Christian Morality Endorse Pedophilia?

Okay—now that you are all taken aback by my post’s title, let me explain it. Most of us are rightly concerned about sexual abuse of the under-aged—social conservatives especially, but they by no means have a monopoly on this concern. This post deals with my objection with the way that some prominent social conservatives frame their *concern* about sexual abuse of minors. I have observed an argument of theirs that goes something like this:

Pedophilia is the ultimate taboo. Homosexuality used to be such a taboo, but doesn’t seem to be anymore. Pedophilia seems to be the next logical slide down this slippery slope. Long-standing taboos against pedophilia seem to be eroding, and the same forces, the same logic that has led to the acceptance of homosexuality, is what is loosening the taboo against pedophilia.

Thus, they attempt to draw a connection between these otherwise wholly unrelated things.

There is even a term for this phenomenon: Pedophilia Chic. Mary Eberstadt coined that term and she is one such prominent “social conservative” to whom I refer. She describes it as “the last gasp of anihilism that has exhausted itself by chasing down every other avenue of liberation, only to find one last roadblock still manned by the bourgeoisie.” Robert Bork, in his 2003 afterword to Slouching Towards Gomorrah references Eberstadt’s argument. Bork perfectly sums up this concern: “’About pedophilia,’ Eberstadt concludes, ‘there remains one and only one proposition that commands public assent. It is this: If the sexual abuse of minors is not wrong then nothing is.’ That same statement could have been made about homosexual conduct a few decades back.” p. 372. And Eberstadt, (like blogger Clayton Cramer) places much blame for this eroding taboo on a radical but sizable minority of gay activists: “This ‘question,’ settled thought it may be in the opinions and laws of the rest of the country, is demonstrably not yet settled within certain parts of the gay rights movement.”

And many other of the various right-wing “Christian” organizations similarly attempt to connect homosexuality and pedophilia in this way. I personally find this argument to be insulting and bigoted. But my aim here is not to expose bigotry, rather to expose error.

The problem is that the question was never “settled” as Eberstadt claims. In fact, long standing traditions in this nation and in Western Culture dating back to the Jews of the Old Testament have endorsed what Eberstadt refers to as “pedophilia” (at least, in one particular form). And it’s only in this modern “sexually liberated era”—this era that has seen a greater acceptance of homosexuality—that a consensus has begun to emerge that sex between adults and the under-aged should be prohibited in all of its forms.

First let’s define what the “pedophilia” is that Mary Eberstadt refers to. She is not referring exclusively or even predominantly to sex between adults and pre-pubescent children. That indeed has been the subject of such a long-standing traditional prohibition. No, most all of her proffered examples refer to sex between adults and under-aged, but biologically mature, post-pubescent teens. It is very important that we appreciate this distinction. All of the examples attempting to “connect” homosexuality with “pedophilia”—from the under-aged Calvin Klein models, to XY Magazine (a magazine aimed at gay teens, which features alluring pictures of young males, some under-aged teens), to the recent scandal in the Catholic Church—deals with this type of “pedophilia.”

And it’s true that the forces of “sexual liberation,”—(including its component in the gay community)—have argued for lowering the age of consent. But what is the age of consent that they argue for? Is it 5, 8, 9? No, it’s usually between the ages of 12-14. And what does that time period in one’s life coincide with? Puberty or biological fertility. The problem is this: At one point in all of our lives, we are children and clearly ought not to have sex or do a whole host of other “adult” activities. And later at some point, we become fully mature adults. And we need to draw the line somewhere. The general consensus today is that 18 is where the line should be drawn and I agree that this is a good place to draw it. But it hasn’t always been that way. When folks argue that the line should be lowered to say 13, their argument is usually based on the fact that at that age, the teen has become “biologically fertile,” hence “ready” for sex. That nature, yes nature, has given us that line. And from a purely naturalistic perspective, this argument is valid: Nature doesn’t draw the line at “18”; nature does make us biologically fertile adults around the age of puberty. If a 14-year-old female successfully gets impregnated, then nature—and especially a natural teleology that views “procreation” as the ultimate “end” of sex—has just signaled that this act is “normal.”

But it’s still wrong. This line drawing at puberty is, in my opinion, another example of the naturalistic fallacy, that looks to nature for “cues” and then derives a “norm” from nature without the appropriate level of deliberation (in other words, inappropriately deriving a value from a fact of nature). We may be biologically fertile at the ages of 13, 14, or 15, but we are still too young for sex in general and especially too young for sex with adults in particular. This behavior, even if “natural” is still wrong, because it harms the under-aged. But ultimately, the forces of sexual liberation make a “naturalistic” argument when they argue that it is appropriate for teens to have sex because they are biologically mature.

And most importantly—this is *the* central point of my post—it wasn’t post-60s sex radicals or gay activists who first made this naturalistic fallacy: It was Judeo-Christian traditional morality. Let us not forget Judaic Law holds that we become full adults at the age of 13. The Ancient Jews needed a place to draw the line regarding when we become adults, and they looked to nature, observed that we become fertile around the age of 13, and drew the line there. Since then, it has been acceptable in many quarters of civilized Western society for 13 year olds to have sex with adults or older people, provided that it took place within the context of a marriage. And many states, in the “good old days,” of traditional pre-1960s morality had laws that explicitly allowed for such teens to get married—hence explicitly publicly vetting the notion that it’s okay for a 13-year-old to have sex with an adult, at least in that circumstance. Let us not forget that both Loretta Lynn and Jerry Lee Lewis, and many other non-celebrities were in marriages that involved a 13-year-old and an adult over 18. And this is far less acceptable today, in post-60s sexual modernity, than it was then.

I remember debating online an intelligent but very neurotic Christian fundamentalist about homosexuality in particular and sexual mores in general. She was neurotic because she felt she had to justify everything that the Bible, or traditional Judeo-Christian morality posited, down to the last dotted “i” and crossed “t,” concerned that her whole belief system would fall apart if she didn't. She too, attempted to draw some sort of equivalence between acceptance of homosexuality and of pedophilia, and I made my point about Judaic law and biological fertility. Her response was this: Sex between an under-aged post-pubescent teen and an adult is not pedophilia. She didn’t say that she approved of such relations and certainly didn’t believe we should lower the age of consent. But she did make it clear that this form of sex was not something that was “always wrong.” She felt she had to take that position because, as she herself informed me, the Bible alludes to women being perfectly suitable for wifehood well before the age of 18.

And she is correct that sex between an adult and an under-aged post-pubescent teen is not technically “pedophilia”; its clinical term is "ephebophilia." And this phenomenon—adults, either heterosexual or homosexual, having sex with post-pubescent, but under-aged teens—stems from a different “psychological condition,” than does “pedophilia.” Yes, there are some folks, who for some unknown reason, have the pathological urge to sexually violate pre-pubescent children. They are true pedophiles. Most of the sex that occurs between adults and the under-aged is not true pedophilia but stems from a “normal” heterosexual (or in some cases, homosexual) orientation. Take the example of golfer Michele Yie, for instance. She has been called the next Tiger Woods. She is 14 and she is already 6-feet tall. She is an attractive, fully mature teen. There is nothing “abnormal” about an adult male feeling sexual attraction towards her, as there would be with such an adult desiring a 5-year old girl. (Just as there was nothing “abnormal” about the desires that Jerry Lee Lewis or Loretta Lynn’s husband had towards their respective spouses.) And during the whole Catholic Priest scandal, critics pointed out that the pattern of abuse tended to involve post-pubescent under-aged teens, thus connecting the abuse to adult homosexuality more so than it would be if it involved pre-pubescent boys.

When I use the term, “normal,” please don’t misinterpret this as approval. It’s normal for an adult male to have sexual feelings for an attractive under-aged but fully mature female, just as it's normal for an adult male to lust (as Jimmy Carter put it) after many women other than his wife. Regardless of the differences in the etiologies of sexual acts between adults and pre-pubescent children on the one hand and post-pubescent teens on the other, both acts are wrong for the exact same reason: They both harm the under-aged, regardless of why they were committed.

But understanding the difference between “pedophilia” and “ephebophilia” is important because it shatters the notion that acceptance of homosexuality is leading to “pedophilia chic.” Almost all forms of “pedophilia” that critics attempt to tie to the gay community involve sex between adult males and post-pubescent teens. Indeed—from the Priest abuse scandal, to “surveys” attempting to demonstrate that a significant percentage of gay men have had sex with the under-aged (I know of one such survey that draws the line of childhood at 19!), to lowering the age of consent (and most gays want to lower the age to whatever the equal heterosexual age is anyway)—one will have to look long and hard to attempt to connect the gay community with sex or advocacy of sex with prepubescent boys. True pedophilia involves a different sexual orientation. Virtually all of these pedophiles (that molest boys) are self-identified heterosexual males and demonstrate no attraction to adult males.

To the extent that certain forces within the gay community, (or within the “sexually liberated” straight community) have endorsed sex between adults and under-aged post-pubescent teens, that is wrong, and that deserves condemnation. Yet “gay activists” were hardly the first to make the “fallacy” of thinking such relationships are okay (blame the Ancient Jews and customs of traditional morality and family law that permitted marriages of 13 year olds for that), and I haven’t seen any evidence that gays are more likely be involved in such relationships than straights.