Tuesday, October 12, 2004

McConnell at Princeton:

Last night my father and I attended an outstanding lecture given by 10th Circuit Judge Michael McConnell on religion and the founding, at Princeton University’s James Madison Program in American Ideals and Institutions. Princeton is only about a half-hour drive from where I live and the lecture was open to the public. In fact, the institute is giving a whole slew of presentations open to the public, and I plan on attending them as time and my schedule allows.

A few words about the lecture: McConnell is known for being a strong advocate for free exercise of religion and seems to be a moderate on establishment. He challenged the conventional ACLU, “the Establishment Clause demands public secularism,” line of thought, yet to his credit (against the religious right revisionists), he recognizes that our founders favored disestablishment and enacted (some kind of, not necessarily the ACLU’s version of) a separation of Church and State.

And his lecture was to put all of this into perspective. At first the Bill of Rights only applied to the federal government, therefore, establishment was something that states had to decide on their own. And the states, in time, chose to disestablish…but not because they were hostile to religion. To the contrary, because disestablishment was GOOD for religion. And it was evangelical Christians (for instance, the Baptists) who led the way to disestablish in many if not most cases. Religion would be better served if the government, be it federal, state or local, just kept its damn hands out of it. But this in turn, did require separation of the two to avoid entanglements. Government aid will lead to an entanglement between the two that ultimately will end up hurting religion.

No doubt that evangelical Protestants played a key role in disestablishment in this nation. Still I thought that he downplayed the Enlightenment’s influenced and overstated the extent to which free exercise and disestablishment were authentic orthodox Christian doctrines.

Here is the moment of the lecture I found most interesting: Robert P. George, the head of the James Madison program, of course was there and tried to get the group to come to an “epiphany” regarding the Establishment Clause and challenged the room to find a flaw with his logic (this should be familiar to my readers):

The Establishment Clause was simply intended to restrain the federal government and allow states to handle the matter of religion their own way. Therefore, it was a states’ rights provision. How can we incorporate this clause? It’s like trying to incorporate the 10th Amendment.

(not verbatim, my summary)

The flaw in George’s reasoning was that the Establishment Clause was intended to be a “states’ rights” provision, like the 10th Amendment; it was not. It was a restraint on the federal government, and did preserve states’ freedom to set their own religious policy, but only as a matter of incidence, not because the founders thought it appropriate for states to establish religion any more than they thought it appropriate for states to violate free exercise or free speech.

Before the 14th Amendment, the balance of power between the states and the federal government was such that the federal constitution secured our rights against federal violations and state governments were supposed to secure them against state violations. So of course, the big question that is begged is, is incorporation of the Establishment Clause necessary to secure a right?

McConnell put it this way:

The 14th Amendment’s privileges or immunities clause was intended to incorporate the entire bill of rights (Amendments 1-8) against the states. During the ratification, when asked, “what are the ‘privileges or immunities’ which ‘no state shall abridge’” someone got up there and read off the entire bill of rights, Establishment Clause included. By 1833, Massachusetts was the last state to disestablish. So by the time that the 14th Amendment was ratified, the citizens of each state probably felt as though they had a right to live in a state without an established church.

(not verbatim, my summary)

And that was where McConnell left it. I would have gone a little further. According to the VA Statute on Religious Freedom, which is not just a state statute, but a document of “natural right,” some significant degree of separation of Church & State, beyond merely no officially established church is necessary to comport with natural right. This clearly seemed to be not only Jefferson’s views (who McConnell described as “outside of the mainstream” for his time), but also Madison’s, the primary architect of the Constitution and the Bill of Rights. (Madison essentially secured the passage of the VA Statute that Jefferson authored). Of course, it could be argued that Jefferson’s AND Madison’s views as expressed in that statute simply weren’t dominant. But then again, we must also ask, where they, as a matter of natural right, correct? Natural right doesn’t care whose views were dominant. Even if the majority favored slavery, natural right still holds slavery to be wrong.

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