Monday, February 07, 2005

Separation of Church & State in the Blogsphere:

Ann Althouse has an interesting post where she criticizes an article in The Nation for misusing the history of our Founders' views on religion to score political points against the Bush administration.

Although the Nation's article is not without its merits, I agree with Althouse that it comes off as too hostile to religion. Althouse focuses in on its biggest error when discussing Madison's Memorial and Remonstrance. The article states:

James Madison ... spoke of the "almost fifteen centuries" during which Christianity had been on trial: "What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry, and persecution."


When in reality, Madison didn't say Christianity was on trial, but rather Christian Establishments; there is a big difference between the two. There was a big effort made by some of our framers to convince Christians that their religion, properly understood, was not only compatible with the Separation of Church & State and Religious Liberty, but actually demanded it; hence, the rights of conscience which in turn demand state religious liberty and neutrality ultimately are God-given. And in making this claim, Madison drew upon the tradition of dissident Protestantism which ultimately traces back to Roger Williams and his split with the Puritans over the issue of Religion & the State.

As Althouse writes:

Madison's Memorial makes a brilliant appeal to religious people to see the importance of separating Church and State. Convincing religious people to want to see religion separated from the government remains one of the very most important efforts in the world today. The Nation is not helping!


I found out about Althouse's post from Jim Lindgren over at Volokh where he wrote:

In the course of effectively fisking Allen, Althouse several times says that James Madison in the 1780s favored Separation of Church and State. As University of Chicago legal historian, Philip Hamburger, has shown in his prize-winning history of the Separation of Church and State, none of the major framers favored Separation until about the election of 1800, when the Jeffersonians urged Separation to silence Northern clergy. Indeed, in the 1780s some religious leaders who were accused of wanting Separation denied such a misreading of their position. In the 1780s and early 1790s, a few religious dissenters favored Separation, but none of the insiders--certainly not Madison.


I'm not so sure that I agree with the statement that "none of the major framers favored Separation until about the election of 1800....In the 1780s and early 1790s, a few religious dissenters favored Separation, but none of the insiders--certainly not Madison."

I've not yet read Hamburgers book, but surely will in the future. (Although I did see him speak at Princeton University.) I think much of this turns on what "Separation of Church & State" means. If it's the ACLU's absolute interpretation, then Lindgren may have a point; but Madison used a very similar phrase to describe his ideal vision of religion & government: "Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance." (See the linked article for other quotes).

Now this quote was from late in his life -- 1822. But what about the claim that none of the founders, certainly not Madison, favored Separation in the 1780s or 1790s? Well Madison was essentially in passing Jefferson's 1786 VA Statute on Religious Freedom, and that statute (one that was based on natural right -- meaning it wasn't just appropriate for Virginia; this is how all states, ideally ought to treat religion & government) certainly seems to demand some significant degree of Separation of Church & State.

Lindgren argues that "What Madison wanted in the 1780s was disestablishment of religion and equal liberty for different religions, not a 'wall of separation.'"

But I think, that begs the question whether Separating Church & State, for instance, in the manner called for in Jefferson's statute, is necessary to secure the "equal liberty for different religions" (or the "equal rights of conscience" as Madison put it in his original draft of the First Amendment, which he desired to apply to the states).

Earlier I had written a post on scholar Phillip Munoz's description of Madison's views on religion and government. Munoz wrote:

By “non-cognizance” Madison means that the state may not recognize or acknowledge the religious affiliation of individual citizens or associations of citizens. Literally, the state may not take religion into its view. To adapt a term from civil rights discourse, the state must remain “religion blind.” The state, therefore, may neither privilege nor penalize [Rowe's emphasis] a citizen or an organization on account of religious affiliation. It may not grant exclusive privileges to one sect or to all religions generally. Ecclesiastical establishments, accordingly, violate the legitimate constitutional authority of any social compact. By definition, they fail to respect the “unalienable” character of man’s natural right to religious liberty.


Don't these principles require at least some type of Separation of Church & State?

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