Wednesday, August 25, 2004

What a confused bunch of loons:

The Constitution Party is inaptly named, as their platform misunderstands and misrepresents the US Constitution and our founding principles. The following is my dissection of their preamble:

The Constitution Party gratefully acknowledges the blessing of our Lord and Savior Jesus Christ as Creator, Preserver and Ruler of the Universe and of these United States. We hereby appeal to Him for mercy, aid, comfort, guidance and the protection of His Providence as we work to restore and preserve these United States.

The first part of their preamble explicitly does what the neither the US Constitution, nor the Declaration of Independence do: Invoke explicitly Christian language. The Declaration does invoke God, but eschews Christian language and instead appeals to a generic “nature’s God,” who most certainly is not readily identifiable as the God of the Bible. The Constitution leaves God out all together. If our founding documents did use this language that the Constitution Party uses (which many of the state governments at the time used), then their next claim might be accurate.

This great nation was founded, not by religionists, but by Christians; not on religions but on the Gospel of Jesus Christ.

Boy does that language sound familiar. It’s taken verbatim from David Barton’s made up quote attributed to Patrick Henry, who never said it. But if it were true, by reading the plain text of the Constitution and the Declaration, which mention nothing of the sort, you could have fooled me.

For this very reason peoples of other faiths have been and are afforded asylum, prosperity, and freedom of worship here.

Nope: There is nothing in the text of the Bible or the first 1700 or so years of the historical practice of orthodox Christianity that demands, giving “peoples of other faiths…asylum, prosperity, and freedom to worship.” Arguably, this represents the antithesis of Christianity up until a particular point in Western history when Protestant dissidents began calling for tolerance. People of other faiths have the freedom to worship in American because “nature’s God” grants men the inalienable right to worship no God or twenty Gods (in Jefferson’s words).

If America were founded on Biblical Christianity and if “nature’s God” were the God of Biblical fundamentalism, then please tell me how to square God granting men the inalienable right to worship false gods (something that the Bible does not say God does and something that a jealous God probably would not do), with the First Commandment of the Bible. Good luck.

The goal of the Constitution Party is to restore American jurisprudence to its Biblical foundations and to limit the federal government to its Constitutional boundaries.

Jurisprudence and Biblical foundations? Constitutional boundaries? Given that the Constitution says nothing about God and the Bible, I find it hard to believe that these Biblical foundations exist in the American jurisprudence of Constitutional law.

Perhaps they were talking about the common law. So let me note a few things about the common law. First, it’s true that some judges, back in the day, held Christianity to be part of the common law. This doesn’t mean they were right. Just as present day social conservatives might argue that Roe v. Wade or Lawrence v. Texas got it wrong, so too did many believe that those judges who held Christianity or the 10 Commandments to be part of the common law got it wrong. Most notably, Jefferson believed this. In fact, he called holding the 10 Commandments as part of the common law to be a “judicial usurpation.”

Second, the common law is old—it goes back hundreds of years prior to even the formation or “discovery” of the modern principles of political and natural rights that found our nation. This nation was founded on such principles articulated by the Declaration and then secured by the Constitution (and the various state constitutions and laws as well). But it’s entirely possible -- and in fact this often occurred -- that certain decisions of the common law were just plain incompatible with the political principles that found this nation.

And there is no question which law would trump: Not all law was created equally. Natural law has the highest authority, then Constitutional law (if you are a positivist, then you would argue that Constitutional law is the highest authority). All the way at the bottom of the totem poll is the common law. The common law can be modified (or, as is often the case codified—and modified when it is codified) by a simple state statute!

Walter Berns, in Making Patriots, has written an instructive passage on Christianity as part of the common law and how this fits together with our founding principles:

Liberty of conscience was widely accepted at the time of the Founding, but this did not prevent some jurists and legislatures from insisting, at least for a while (and given our principles it could be only for a while), that Christianity was part of the law, meaning the common law. So it had been in England, and so, it was assumed by some (but not Jefferson), it would continue to be in America. But there was no disagreement about the place of the common law [my italics]. Indeed one of the first things done by the states after independence was to declare (here in the words of the New Jersey constitution of 1776) that “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution].”

But if the “rights and privileges” contained in the various state charters or constitutions included the right of liberty of conscience, and if, in turn, this right required, in Madison’s words, “a perfect separation between ecclesiastical and civil matters,” what did it mean to say that Christianity was part of the common law? Very little, as it turned out; and it turned out as it had to turn out. Consider, for example, the case of blasphemy in America…. pp. 32-33.

Berns then notes how blasphemy laws remained on the books, but in post-Founding America, the judges, in maintaining their consistency with the rights of conscience, had to “redefine the offense” to include utterances against any religion that would tend to cause a breach of the peace. In other words, the policy behind the offense was now to protect the peace, not the Christian or any religion. These state courts had effectively “stripped blasphemy of its religious character.” Leading Berns to ask, rhetorically, “who can quarrel over a blasphemy law that protects one and all [religions] alike”?

But the bottom line of all this is that our founding principles presuppose religious neutrality. And to the extent that old common law decisions contradict this, the common law gets trumped.

Back to the Constitution Party’s platform:

The Constitution of the United States provides that "no religious test shall ever be required as a qualification to any office or public trust under the United States." The Constitution Party supports the original intent of this language. Therefore, the Constitution Party calls on all those who love liberty and value their inherent rights to join with us in the pursuit of these goals and in the restoration of these founding principles.

Huh—I’m glad they recognize Article VI. But it seems to me that most of everything else they stand for (what I have examined above), directly contradicts this. And some of what they write below contradicts Art. VI as well. For instance this:

The U.S. Constitution established a Republic rooted in Biblical law, administered by representatives who are constitutionally elected by the citizens. In such a Republic all Life, Liberty and Property are protected because law rules.

What “no religious tests” has to do with “a Republic rooted in Biblical law” is beyond me. Please someone inform me.

We affirm the principles of inherent individual rights upon which these United States of America were founded:

That each individual is endowed by his Creator with certain unalienable rights; that among these are the rights to life, liberty, property and the pursuit of happiness;

Good, now if only they would recognize that these are Enlightenment platitudes that have nothing to do with orthodox Christianity.

That the freedom to own, use, exchange, control, protect, and freely dispose of property is a natural, necessary and inseparable extension of the individual's unalienable rights;


That the legitimate function of government is to secure these rights through the preservation of domestic tranquility, the maintenance of a strong national defense, and the promotion of equal justice for all;


That history makes clear that left unchecked, it is the nature of government to usurp the liberty of its citizens and eventually become a major violator of the people's rights; and


That, therefore, it is essential to bind government with the chains of the Constitution and carefully divide and jealously limit government powers to those assigned by the consent of the governed.

Ditto: I might add that such a government binds religious fundamentalists like those in the Constitution Party from using the state to enforce their particular version of “virtue.” Howard Phillips, their last candidate, is a Christian Reconstructionist, who believes that the state must enforce Biblical law, even going so far as to execute adulterers and homosexuals (last time I saw him on CSPAN, Phillips used “incest” as the classic case of a capital offense). However, they are wrong. Statecraft is not soulcraft. Our Founders understood this. They don’t.