Wednesday, July 13, 2005

Dr. Daniel Dreisbach & Coral Ridge:

Rev. D. James Kennedy has an amusing weekly broadcast where he mixes religion and right-wing politics and otherwise distorts America's History while positing the "Christian Nation" myth. He, like David Barton (one of his favorite guys) is an easy strawman to knock down.

As I wrote before, he is producing a special on our "Christian Nation" heritage that he intends for a national broadcast on mainstream stations (and look for me to refute it).

During that special, Kennedy will feature such schlock historians as David Barton and Gary Demar. But he will also feature some credible scholars who sympathize with his point of view (although I have a hard time believing that such credible scholars, that any credible scholars for that matter, think that the Declaration and the Constitution were taken right from the pages of the Bible, as Kennedy will argue). One such figure whom Kennedy will feature and whose arguments have to be taken seriously is Dr. Daniel Dreisbach. Philip Hamburger in his book on Separation of Church and State heavily relies on Dreisbach's work.

But just because Dreisbach is a good scholar who makes legitimate points doesn't mean he can't be answered. To hear some of Dreisbach on Coral Ridge, check out this, this, and this.

First, I think Dreisbach misrepresents Jefferson. Dreisbach claims that Jefferson's "Wall of Separation" was intended by Jefferson as a federalism provision, a wall between what the "federal" government could do on religious matters (very little), and what the states could do (much more). For instance, Jefferson refused to issue a Thanksgiving Proclaimation as President. Dreisbach asserts that Jefferson believed, while it was not appropriate for the federal government to engage in prayer proclamations, it would be appropriate for state and local governments to do so.

Dreisbach bases his claim in part on "the text and the context" of Jefferson's letter to the Danbury Baptists, where the phrase "Separation of Church and State" is found. Here are two drafts of his letter: The final one as sent and the original draft. Jefferson doesn't seem to be talking about federalism (at least I can't see it from the drafts), but rather natural right -- certain immutable principles that universally apply to all governments.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

The text of the letter in no way indicates that Jefferson thought, on the one hand, it inappropriate for the federal government to do X on matters of religion, but perfectly appropriate for state and local governments to do X on the other. Rather it recognizes that there are certain "natural rights," certain "legitimate powers of government" and that by "declar[ing] that [the federal] legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State," it is assured that the unalienable rights of conscience will be respected at the federal level.

Dreisbach bases his "federalist" conclusions in part because Jefferson acted in ways as an elected official in VA that both belied the strict separation ideal and that indicates that states, as a matter of right, could do things in matters of religion that the federal government could not. For instance, as an elected official in VA, Jefferson did issue official prayer proclamations as he refused to do when President.

He notes as "absurd" Souter's conclusion in Lee v. Weisman that

those practices prove, at best, that the Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day an turn their backs on them the next.

But Souter is exactly right. First off, Souter has none other than James Madison, the architect of the Constitution, who makes the exact same point. In his Detached Memoranda, Madison asserts that the practice of appointment of Chaplains to be "a palpable violation of equal rights, as well as of Constitutional principles." Madison, as President, issued a prayer proclamation in 1812, but later seemed to regret doing so, or at the very least believed he was under a constitutional obligation "to make the Proclamations absolutely indiscriminate, and merely recommendatory; or rather mere designations of a day, on which all who thought proper might unite in consecrating it to religious purposes, according to their own faith & forms...."

In order to fully understand Jefferson's and Madison's views on the proper relationship between government and religion, we must first understand that these men believed in natural right ideals -- certain principles that all governments, federal, state, local and international -- must, in theory, respect. But these ideals are high and lofty. And often they would be, in practice, not met. Slavery is the classic example. Slavery violated the natural rights of blacks as articulated by the Declaration; but the legality of slavery was preserved by the original Constitution. Was our founding pro-slavery or anti-slavery? It all depends on whether we were founded on our ideals or on our compromises with those ideals. If historical "practice" must inform our constitutional principles to the point where such practice is dispositive, then it's clear we were founded on slavery -- Jefferson and other founders owned slaves! And if we had a "pro-slavery" founding then, as Harry Jaffa aptly notes, it's nigh well impossible for originalists to claim the moral highground.

It may be a stretch (or not) for natural right libertarians to try to assert that such a theory, as understood by our framers, can be applied to justify sexual and personal liberties like homosexuality and drug use, which specific issues were not addressed by such theory (and yes, I know Jefferson wrote a VA criminal code criminalizing sodomy); but Jefferson and Madison addressed the issue of religion and natural right in great detail.

The kernel of truth in Dreisbach's "federalist" argument is that Jefferson believed that while states as a matter of right, may not be able to do X, he didn't believe that the federal government had the recognized power to prevent them from doing X. Under Jeffersonian principles of federalism, the federal government would address federal violations of natural right, the states would address state and local government violations. And he believed that state governments would be more effective in doing so than the federal government.

But as the Civil War demonstrated, Jefferson was wrong in this regard and we now have the Fourteenth Amendment. The real questions, it seems to me, that need to be grappled with are: If it is accepted that "religious rights" are properly incorporated against the state governments by the Privileges or Immunities clause, where the federal government now does have jurisdiction over state violations of natural rights, how would Jefferson and Madison desire these natural right ideals to apply against all governments in the United States? And secondly, is the "separation" that Jefferson and Madison both described really necessary to protect individual "rights" from real violations? For instance, Madison held that the appointment of Chaplains violates "Equal rights." Is that logically correct? Does it really violate anyone's rights to appoint chaplains? Or Jefferson wrote in his VA Statute on Religious Freedom (a self-described document of natural right), "that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical...." In other words, Jefferson argued that it violated natural right for government to aid religion with tax money. But is that logically correct? If government money going to religion violates natural right because it funds "the propagation of opinions which [some taxpayer] disbelieves," how many other government programs propagate opinions in which some taxpayer disbelieves?

I know these aren't easy questions and I'm still trying to think through them myself. I'm still working on Hamburger's book and Dreisbach's book entitled, Thomas Jefferson and the Wall of Separation Between Church and State, is on my reading list.


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