Tuesday, June 29, 2004

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:


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.”

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