Daniel Lapin, full of it:

You can tell the recent study purporting to demonstrate that religious beliefs are harmful to society because more religious societies, like the US, suffer from higher levels of social pathologies than more secular nations, like those of Western Europe, has really gotten under the skin of some religious conservatives. Daniel Lapin, an otherwise intelligent fellow, puts forth a theory that is not only falsifiable, but also demonstrably false, and obviously so. If he really believes what he writes, on the other hand, then he is one deluded fellow.

Mind you, I don't at all endorse the results of the study (that religion is the cause of social pathologies); the real world is far more complicated than the claims of the study's thesis. But let's look at Lapin's erroneous assertion. He states:

My problem with the Pledge of Allegiance is of course not with the phrase “Under God” but with the phrase, “One nation.” We are no longer one nation. A nation is not a racial grouping but a grouping of people with common beliefs and value systems. That makes us two nations occupying the same piece of real estate.

One America regards Judeo Christian values as vital to our nation’s survival. The other America regards them as primitive relics obstructing progress. My America believes in one man married to one woman and both dedicated to their children. The America of secular fundamentalists believes in zero restraint on sexuality....

In my America, religious America, for the most part families are intact, the crime rate is negligible, and children do not drop out of school and give birth to children. In my America, abortion is not an acceptable form of birth control, and in religious communities, both Jewish and Christian, people still leave doors unlocked. In the other America, secular America, many social ills are prevalent.

Mainstream media regularly resuscitate the hoary old myth that divorce plagues the Bible belt at higher than the national average. They do so, again, by averaging out the entire population of those states they consider to be the “Bible belt.” In reality, some of the citizens of Alabama and Mississippi are religious while others are secular. It doesn’t surprise me that secular citizens in the south divorce more than their secular northern counterparts. Economics does play a role in divorce.

Of course you are free to average out the crime rate across both Americas and I can understand why advocates of secularism would want to do so. It would be hard for them to face the virtual monopoly of dysfunctionality they have created. We would stand a better chance of repairing the other America if we faced up to the truth.

The truth is that if religious America were its own country, its crime rate, its illegitimacy rate, and all other indicators of trouble would be only a tiny fraction of those figures for England, Sweden, France, and Germany. If secular America were also its own separate country, its indicators of hopelessness would be completely off the scale and vastly outpace the same figures for most of Europe. Viewing us Americans as just one country and averaging all the figures together still makes us look only a little worse than other countries. America is pulled down by its dysfunctional secular half.

How desperate that half must be to conceal the evidence of its failure by dishonest averaging.

How fervent must be the faith of secular fundamentalists that they prefer the disease to the cure.

But we don't have to do "dishonest" averaging; we can look at data that examines rates of "social pathology" for "religious America." For instance, a survey conducted by the Barna group, a Christian market research group, found that the divorce rate among born again Christians is 35%, equal to the population as a whole.

And by the way, atheists and agnostics had the lowest rates of divorce.

Another study found that a quarter of a million abortions are performed each year on born-again or evangelical Christians. The very anti-abortion website to which I linked says:

Approximately 1.37 million abortions are performed in the United States each year. According to a startling and little publicized survey by the Alan Guttmacher Institute, 37.4% of those abortions are performed on Protestant women -- approximately one-half (about 18%) of whom profess to be born-again believers. That 18% of the estimated annual total accounts for 246,600 aborted babies each year in America.

The same study also found that "Catholic women have an abortion rate 29% higher than Protestant women" and "one in five women having abortions are born-again or Evangelical Christians."

I've only scratched the surface of the available data; please feel free to send me other data demonstrating the absurdity of Lapin's thesis. If you want to go into those neighborhoods where "people still leave doors unlocked," then study the demographics of the elite suburbs, filled disproportionately by well-educated Americans. There, I'm sure you will find secular elites and atheists and agnostics are overrepresented. Examine poor America where out-of-wedlock births, crime, poverty and illegitimacy are overrepresented and you will likely see traditional religious beliefs overrepresented.

Update: Dr. Frank Kameny (gay rights legend) writes that Daniel Lapin clearly is not "an otherwise intelligent fellow," but generally a deluded crank in his perspective. He's probably right. I should have chosen my words more carefully. I think what I meant was Lapin is smart enough to know not to make an assertion that can be easily refuted with data. And there are data that show self-described "religious Americans" -- "born-again" and "Evangelical Christians" -- suffer from "social pathologies" at the same, similar, or even greater levels (depending upon which "pathology" we are talking about).

And even those on Lapin's side have long recognized this (see here). Check out this aricle entitled "Christians are no different" which links to this article which states:

How many times are freethinkers harassed on the street or on internet channels by those who pretend to be "born-again" ? You'd think that reasonable people would be content with being born only once. These people are praised as models of piety and virtue. However a survey, conducted by the Roper Organization, has found the exact contrary (6) - their behaviour deteriorates. 12% of the respondents have claimed to driving intoxicated after being-born again, compared to 4% before. Same result for drugs - 5% were drug-users before they converted, and 9% take drugs now. Also, interestingly, illicit sex was also more frequently done by born-agains (the percentage after being born-again jumps from 2% to 5%).

Happiness and personal fulfillment are more difficult to appraise than criminality. It is not as simple as counting heads - the only possible option here is surveys.

The Barna Research Group is the author of a much celebrated study. Its president, George Barna, is an avowed born-again. His group has a religious clientele and tends to their prejudices. However it is a tribute to his honesty that he does not lie about the results of his studies. He reports that the present Christian church has failed in its mission of instilling a greater sense of morality in its parishoners.

Statistics given in his book, The Second Coming Of The Church, include :

Took medication for depression in the past year - born-agains 7%, non-christians 8%

Feel completely or very successful in life - born-agains 58%, non-christians 49%

Impossible to get ahead because of financial debt - born-agains 33%, non-christians 39%

Have not figured out the purpose of your life - born-agains 36%, non-christians 47%

Satisfied with your life - born-agains 69%, non-christians 68%

Personal financial situation is getting better - born-agains 27%, non-christians 28%

Barna is forced to admit on page 7 of his book that : "We think and behave no differently from anyone else."

And I think an anecdote that perfectly illustrates that "born-again Christians" are every bit as susceptible to social pathology than non-religious folks is Ashley Smith, the "Christian" who subdued Brian Nichols who "shot and killed a judge, stole a car and fled the courthouse, leading to a big manhunt" with Rick Warren's The Purpose Driven Life, a bestselling Christian motivational. As it turns out, she also subdued him with some of her own personal stash of crystal meth.

Linked:

Always nice to get a link from Randy Barnett over at Volokh (on my post about original meaning interpretation). Some very good comments were left as a result of the link.

Thanks again Randy.

Rights and Modernity:

This essay is an historical look at the origin of the doctrine of political "rights," in particular the natural "unalienable rights" of "conscience," which in turn gave rise to religious rights.

Earlier while discussing this issue with Matt Scofield I noted a parallel development of the rights of conscience, that this doctrine literally was a cooperative project between Protestant dissidents and Enlightenment rationalists.

The rights of conscience doctrine developed because there was a need to "solve" the "religious problem" of bloody persecution that so plagued the West before liberal democracy emerged as the dominant form of government. To be sure, Protestant dissidents got the ball rolling and started calling for religious toleration before the Enlightenment. For instance, Roger Williams in 1644, well before Hobbes and Locke, famously wrote:

All civil states with their officers of justice, in their respective constitutions and administrations, are . . . essentially civil, and therefore not judges, governors, or defenders of the Spiritual, or Christian, State and worship. . . . It is the will and command of God that, since the coming of His Son, the Lord Jesus, a permission of the most Paganish, Jewish, Turkish or anti-Christian consciences and worship be granted to all men, in all nations and countries; and they are only to be fought against with that sword which is only, in Soul matters able to conquer, to wit; the sword of the Spirit--the Word of God. . . . God requireth not an uniformity of religion to be enacted and enforced in any civil state; which enforced uniformity, sooner or later, is the greatest occasion of civil war, ravishing consciences, persecution of Christ Jesus in His servants, and of the hypocrisy and destruction of millions of souls. . . . An enforced uniformity of religion throughout a nation or civil state confounds the civil and religious, denies the principles of Christianity and civility, and that Jesus Christ is come in the flesh.

A few important notes on Williams: First, as I learned from Philip Hamburger, it's unlikely that Roger Williams cared at all about the welfare of those being persecuted but rather had a fanatical desire to keep the Christian Religion "pure" from "corrupt" world influences, of which civil government was certainly one. Second, keep in mind that Williams's sentiments were absolutely novel and anomalous for his time and didn't really catch on until later. And third, notice how Williams phrased his words: "a permission [my italics] of the most Paganish, Jewish, Turkish or anti-Christian consciences and worship be granted to all men, in all nations and countries...." Today, or even one hundred and some odd years later in the 18th Century, we would instead assert "a right, or an unalienable natural right, of the most Paganish, Jewish, Turkish or anti-Christian consciences...." Williams did not use the word "right," "unalienable" or otherwise to describe religious freedom/toleration, but rather "permission." Now, Williams did not purposefully avoid using that word, but rather (interestingly) at that time, no one had yet begun speaking in the language of rights which governments were in the business of securing.

[Note: This is something I learned from Allan Bloom, and the other Straussians. Their interpretations of history and philosophy have been criticized from both the left and the right and they do endorse the controversial notion that philosophers wrote in code and could say one thing while meaning another. Therefore, when they make a claim, it's best for the reader to go to the primary source, read it in its context and decide for him or herself whether the Straussians are right. And although I'm not an expert reader of manuscripts, nothing that I have uncovered has contradicted the following Straussian theory which I am about to explain].

So when did we start speaking in language of "political" rights? Allan Bloom in The Closing of the American Mind explains:

[Enlightenment] provides the structure for the key term of liberal democracy, the most successful and useful political notion of our world: rights. Government exists to protect the product of men's labor, their property, and therewith life and liberty. The notion that man possesses inalienable natural rights, that they belong to him as an individual prior, both in time and in sanctity, to any civil society, and that civil societies exist for and acquire their legitimacy from ensuring those rights, is an invention of modern philosophy. Rights...are new in modernity, not a part of the common-sense language of politics or of classical political philosophy. Hobbes initiated the notion of rights, and it was given its greatest respectability by Locke. p. 165

Thus, the notion of the social contract, that governments are in the business of securing individual rights is a Hobbsean notion. Locke gave "rights" their greatest respectability because Hobbes was not an orthodox Christian and his theory challenged the existing order -- divine right of Kings -- defended most notably by Filmer on explicitly orthodox Christian grounds. It was Locke who successfully argued (rightfully or wrongfully) to a Christian audience that the notion of "rights" and the social contract was perfectly compatible with Christianity.

This is why the Straussians understand Locke to be a "Hobbsean"-Locke, because he took Hobbes's (seemingly un-Christian) ideas and made them palatable to a Christian audience.

Thus, when thinkers like Jefferson and Madison speak of "unalienable rights," even God-given unalienable rights, they are speaking in an Enlightenment language and in Hobbsean-Lockean terms. The theory of "natural law" on the other hand, is quite ancient and traces back to Aristotle and was adopted into Christendom by Aquinas. The theory of "natural rights," as we have seen, is a modern-Enlightenment notion. Natural law and natural rights, however, are both supposed to be "self-evident Truths" ascertainable to man as man, through his unaided Reason. (If one believes that natural law and natural rights are the objective immutable Truth, we could say that "natural rights" were a much later "discovery" than natural law.)

The three documents which best encapsulate America's foundational notion of "natural rights," specifically, natural religious rights, are the Declaration of Independence, Madison's Memorial and Remonstrance, and Jefferson's Virginia Statute for Religious Freedom.

Note though, a populace composed primarily of Christians (many of them orthodox) signed onto the Enlightenment theories espoused in these documents. Indeed, many orthodox Christians adopted in their arguments the language of natural rights. For instance, the Baptist leader John Leland, in 1791 could write pamphlets like the one entitled The Rights of Conscience Inalienable, and Therefore, Religious Opinions Not Cognizable by Law.

[Note: Allan Bloom talks about this phenomenon where he discusses the power of language and that the post-Nietzschean language of "value relativism" had altered the way we think of ourselves by seeping into not only the vocabulary of the friends of relativism, but also its enemies, and into the language of the common American man. For instance, the term "values" itself -- a creation of German nihilists -- implies the relativity of Truth. Therefore, when Christian Conservatives use terms like "Family Values" or "Traditional Values," they have already ceded to the relativists, so Bloom's theory goes. Ironic though that Straussian Bill Kristol, who himself was intimately familiar The Closing of the American Mind, helped coin the term "Family Values" when he worked for Dan Qualye. I guess it flowed better than "Family Virtues."

Anyway, Bloom's passage on this is as follows:

When Bishops, a generation after Hobbes's death, almost naturally spoke the language of the state of nature, contract and rights, it was clear that he had defeated the ecclesiastical authorities, who were no longer able to understand themselves as they once had. pp. 141-2.]

And indeed, even though the theory holds that natural rights are granted by [Nature's] God, the Bible nowhere speaks of "unalienable rights" which governments are in the business of securing. Therefore the Declaration of Independence, Memorial and Remonstrance, and Virginia Statute on Religious Freedom are not "Christian" documents espousing a "Biblical" creed, but rather Enlightenment documents which are compatible with certain forms of orthodox and unorthodox Christianity, and let us not forget, also incompatible with certain forms of orthodox Christianity.

This is why, I think, the Straussians argue that Locke was trying to "secretly" subvert revealed Christianity: The Declaration, Memorial and Remonstrance, and Virginia Statute are all incompatible with (at least one important feature) of the dominant, traditional understanding of orthodox Christianity up until that time. Traditionally, both Catholicism and orthodox Protestantism (ala John Calvin and John Winthrop, men who knew the Bible as well as anyone else) made little or no distinction between Church and State and frequently violated the unalienable rights of conscience. Calvin, as governor of Geneva, had one of his Unitarian critics, Michael Servetus, put to death for publicly questioning the Trinity, and Winthrop as leader of Puritan Massachusetts (like most other colonies) attempted to incorporate the entire Bible into the civil codes, even and especially all of those sections where the "Jealous" God of the Bible forbids the worship of false Gods. In those colonies (all but Roger Williams's Rhode Island) non-Christians merited punishment, often the death penalty, for publicly practicing their religion (as the Old Testament dictates).

Keep in mind the First of the Ten Commandments: Whereas the Jealous God of the Bible forbids the worship of any God but He, Jefferson's and Madison's "Nature's God" grants men an unalienable right to worship no God or twenty Gods.

Therefore, the Declaration and its cognate documents are simply not compatible with Winthrop's or Calvin's understanding of Christianity, or with what the Catholic Church's understanding was up until that time. However, these documents were entirely compatible with Roger Williams's (what was, in Williams's time, novel and anomalous) understanding of Christianity (which was, to be fair, fanatically orthodox). In time, Williams's understanding of the Bible and "the permission" of "Paganish, Jewish, Turkish or anti-Christian consciences" to freely worship became more dominant among Christians, especially among the dissidents. And that is why Enlightenment rationalists and Protestant dissidents could cooperate to create and establish the doctrine of "natural rights," in particular the "unalienable rights of conscience."

Mazel Responds:

The following are responses to critical letters that Dr. Mazel received regarding his column which I reproduced on my blog over the weekend.

My column of two weeks ago showed how you can’t get even two paragraphs into Campus Crusade for Christ International's official Statement of Faith without finding it nonsensical. Its claim to being based on the Bible alone is false. Its description of the teachings it accepts is tautological. And, rather amazingly, it denies “freedom of conviction” for beliefs that are in the Bible.

In sum, as I wrote back then, the Statement of Faith is “a farrago of self-contradiction and absurdity.”

Last week Kari Christoferson, a former student of mine (a smart one, too), wrote in response about how wonderful it makes her feel to be loved by Jesus. I have no problem with that. On the other hand, her personal feelings do nothing to untangle the defective logic of CCCI’s Statement of Faith.

I imagine the residents of Jonestown felt loved, too, but that didn’t make it a good idea to drink the Kool Aid.

Corbin Lambeth also wrote in to respond. (If memory serves me right, I once spent a pleasant day with Corbin hiking up to Willow Lake.) Corbin told us that atheism and Christianity “are mutually exclusive philosophies/religions” and that, because “they cannot both be true at the same time,” we therefore “must choose” between them.

That, however, is false.

After all, the spiritual landscape extends beyond just atheism and Christianity. One can also choose to be a Muslim, a Buddhist, a Wiccan, or (like so many of America’s Founding Fathers) a Deist. One can even decide simply to enjoy life and not worry about the Big Questions.

Corbin’s claim is a bit like this one: “Flying and driving are mutually exclusive ways of getting from Denver to San Francisco. Therefore one must choose between them.” But obviously one could also take the train, or go to New York instead, or just stay home.

This particular logical fallacy is called false dilemma.

There’s another problem with Crobin’s letter, namely, that its logic can be used to justify any religious belief and therefore serves to justify no one belief in particular.

He tells us that whether we consciously reject Christ or simply “choose not to decide,” we still have made a choice. “There are consequences for each choice,” he adds, “some of which are potentially eternal, so choose carefully.”

Exactly the same argument might as easily be made by a Mormon, by a Hindu—or by Osama bin Laden.

Corbin has himself made an almost infinite number of choices of this sort, and the consequences of many of them are “potentially eternal.” For example, by choosing the God of the New Testament over the God of bin Laden and Abu Musab al-Zarqawi, he has foregone an eternity of bliss in the company of 72 nubile virgins.

Crobin has also decided not to be a Mormon. He has thus lost his chance of being exalted into a God and presiding for eternity over his own planet in the company of his plural wives.

But that’s still not all. By rejecting certain Eastern religions, he has condemned himself to being reborn as a dung beetle.

And by “choosing not to decide” to join the Heaven’s Gate sect, he has entailed the terrible consequence of not being transported to the next dimension aboard the starship lurking behind the comet Hale-Bopp.

So many religions, and such fatal consequences!

What is the poor lost searcher to do?

Far be it from me to tell anyone what to believe. But is it too much for me to ask of college students that they think these things through as clearly as possible?

The "Living" Original Constitution:

The notion of a "Living" Constitution is often directed as a charge against out of control "liberal" activist judges. However, some jurists embrace the term "living" as properly descriptive of constitutional interpretation -- most prominently, Jack Balkin. Recently Sandefur responded to Balkin's embrace of a "Living Constitution."

Sandefur asked "[A]re we going to be faithful to the actual text of the Constitution, or are we going to alter the public understanding, or even manipulate that understanding, so as to accomplish ends that some people consider politically desirable?" Interestingly, although Balkin did not (as far as I know) respond to Sandefur's criticism, Balkin has responded to another "originalist," Akhil Amar, who like Sandefur, endorses an "original understanding" that radically differs from the originalism of thinkers like Robert Bork (the archetypical "conservative" Original Intent jurist).

Balkin notes the difference between his "living" Constitution and the "originalism" of thinkers like Amar (and presumably Sandefur, Randy Barnett, and others) may be more semantical than substantive. Indeed, both Barnett and Sandefur as "originalists" have endorsed the Lawrence outcome. And the Robert Bork types of originalists use that case as a hallmark for the "living Constitution" of "activist" judges (in other words, if you endorse Lawrence then you endorse "judicial activism" and a "living constitution" regardless of how you label yourself).

Many "originalists" of the conservative bent (Scalia) stress the text of the Constitution as the ultimate authority. Balkin doesn't disagree (and neither do I). However, there is remarkably little law written in the actual text of the Constitution. And many provisions of the Constitution are written in such broad generalities that they potentially apply to an almost infinite number of specific factual scenarios. So when a court is charged with applying a specific factual case to a broadly worded constitutional text, it inevitably will have to formulate doctrine -- words and rules not found in the text -- to "fill in the gaps."

This is why the remark we hear coming from some "conservative" originalists (forgive me, I mean not to smear all or even most conservative judicial thinkers, like John Roberts. I just don't know what label to give members of the idiot right like Mark Levin), "the Constitution doesn't say that" is just a stupid retort. For instance, the 14th Amendment never uses the word "race," although we know that race was one of the central concerns of that Amendment. A doctrine formulated from the Amendment is "government cannot discriminate on the basis of race...." But, "the Constitution doesn't say that!" It simply says, "Nor shall any State deny to any person within its jurisdiction the equal protection of the laws."

Kermit Roosevelt, guest blogging at Balkin's site, gives a textbook example of the impotence of the critique, "the Constitution doesn't say that." Directing his comments at "conservative originalist" Mark Levin:

Levin says, for instance, that Plessy v. Ferguson is activist because it upheld a state law (racially segregating rail cars) that violated the plain text of the Constitution, and that Eisenstadt v. Baird is equally activist, because it struck down a state law (denying contraceptives to single people) even though the text of the Constitution doesn't say that married and single people must be treated the same. The text in each case is the Equal Protection Clause, which prohibits states from denying "the equal protection of the laws." It doesn't say anything about marriage, but in fact it doesn't say anything about race, either. The plain text simply doesn't tell you very much about what kinds of discrimination are prohibited. You need some kind of theory for that, and Levin doesn't have one.

More importantly, Balkin explains how his jurisprudence is compatible with "original meaning" originalism and not "original intent" (or a better term would be "original expectation") originalism.

Now look at Akhil's reading of Brown v. Board of Education. For Akhil, the key question is not whether the framers of the Fourteenth Amendment thought that segregation of schools and other facilities was constitutional. What counts are the *principles* enunciated by the constitutional text....I can sign on to the idea that the purpose of the Fourteenth Amendment was to secure equality before the law for all citizens, and in particular between blacks and whites. I also agree with Akhil that the framers of the Fourteenth Amendment who thought that this principle of equal citizenship was consistent with segregated facilities were incorrect, and that we are not bound by their expectations about how the text would be applied in practice. Do we have a disagreement yet?

In other words, what isn't dispositive is how the Framers expected the principles to apply in specific circumstances. For instance, in adopting the 14th, the framers could ask "are we illegalizing segregated schools and bans of interracial marriages and striking down sodomy laws?" Arguably the answer to all of the questions is No. Original meaning doesn't ask the politicians who drafted the words how they expected those words to apply. Nor does original meaning try to ask "the people" as a whole who ratified the words how they expected those words to apply. Rather original meaning asks what "the people" would understand those words to mean in a dictionary definitional sense.

This is important. Let's focus on the Declaration of Independence. The words state "All men are created equal." The original intent of the Framers might ask, "how did Jefferson, Adams and Franklin, understand and expect those words to apply?" Did they, for instance, think blacks are covered under the norm? If we asked instead, how did "the people" expect those words to apply, arguably we get an outcome that is far more illiberal than asking the Framers that question. Jefferson et al. because they were more reflective than the average Joe of the Founding, arguably did think that blacks had rights under the Declaration and were thus very troubled by the institution of slavery. Your average Joe of the Founding thought "all men are created equal" meant "all white Protestant Males" were created equal. But again, regardless of how the average Joe expected the words to apply, the Declaration doesn't say that. It makes no distinction between blacks and whites. Original meaning would instead ask what did those words generally mean in a dictionary sense. For instance, "All" meant "every"; "men" arguably meant "mankind" (which term would include women with men) or "human beings," and "equal" meant, not "equal in abilities" but rather equal in deserving certain basic rights which governments are in the business of securing. So as a matter of logic, we would ask not, "did the Framers or the people" think that blacks and women had equal rights under the Declaration. The answer is arguably "NO"; but rather, "are blacks and women human beings?" And the answer to that is most certainly yes. Thus blacks and women by nature are entitled to "equal rights."

I think Balkin's sentiment here parallels my analysis of the Declaration:

That's because focusing on the original meaning of the text requires that we focus...in the context of what the words chosen by the framers and adopters are trying to convey. So Akhil would argue that the purpose of the Fourteenth Amendment is to secure civil equality before the law for all citizens, and the purpose of the due process and equal protection clauses is to extend basic rights to persons who are not citizens. Again, this seems right to me. Original meaning requires a focus on underlying principles which are to be derived from a study of the historical record. History counts. It also allows (or even requires) supplementation by structural principles. And finally, it also allows the interpreter to reason from past precedents if they are reasonable ways of fleshing out the meaning of the constitutional text and the principles that underlie the text. Those precedents need not be consistent with the original expected application of the text if they better articulate the larger purposes of the Constitution.

Moreover, note that Akhil's method requires that sometimes you must read the purposes behind the text at a fairly high level of generality. Akhil's view is that the sex equality cases in the 1970's are correct because the Fourteenth Amendment's guarantee of civil equality, together with the Nineteenth Amendment's guarantee of suffrage secured equal rights for women. That is so despite the fact that there is evidence that the framers of the Fourteenth Amendment did not wish to disturb the coverture rules which effectively denied married women almost all of their civil rights, and the Nineteenth Amendment applies to voting, not to coverture. To reach this conclusion Akhil must construe the principle of equal citizenship and the principles behind the text of the Nineteenth Amendment at a fairly high level of abstraction; even if the framers thought the coverture rules were perfectly constitutional in 1868 such rules would be unconstitutional today. Again, I have no problem with this line of reasoning. But if one is willing to read constitutional texts in that (in my view enlightened) way, the differences between people who call themselves "originalists" like Akhil and people like me who believe in a Living Constitution start to vanish.

To be sure, there are plenty of people who consider themselves originalists, like Justices Scalia and Thomas, who would reject reading the Fourteenth Amendment at that level of generality, arguing instead that we are bound by the expected application of the text at the time of its adoption. Akhil, I believe, rejects that view. Does that mean that he is not an originalist? He would strongly disagree.

One final note, my definition of "Living" Constitution or "Activist Judges" -- the only one that I think makes coherent sense -- is blatantly disregarding the text of the Constitution. If for instance, a court were to say, "the President can be any age" that would be activist. Or to use a more real example of "cutting out" parts of the Constitution (on both the left and the right): The leftists who argue that the Second Amendment means nothing. And Robert Bork who wants to cut out the 9th Amendment and the Privileges or Immunities Clause of the 14th.

As Balkin would note, the "text" of the Constitution supports outcomes that are commonly associated with the "Living" Constitution. For instance, our free speech norm that comes from the First Amendment. The Amendment says "Congress shall make no law...abridging the freedom of speech." And constitutional doctrine has interpreted that as "government can't censor." The text makes no distinction between different types of speech. An original meaning inquiry might ask "what is speech?" and I think a proper answer would be "words and pictures." This would include newspaper articles, cartoons, movies, the radio, TV, the Internet, etc. So the question of whether for instance, hard core pornography is protected "speech" doesn't turn on "did the Framers expect this to be protected?" but rather, "is pornography speech?" and to that we would ask, "is pornography words and pictures?" and the answer is YES. The text of the Constitution makes no distinction whatsoever between the words and pictures found in say "CSPAN" or those found on "the Spice Channel." So the notion that pornography is protected speech is entirely supported by the text of the Constitution.

Mazel on Conservative Christian Orthodoxy:

David Mazel is writing a weekly column for his campus's student newspaper this semester. He has given me permission to reproduce the text of his first piece taking a critical look at the content of the Bible and orthodox religious doctrine. Tomorrow, I'll post Mazel's response to some critics of the article.

Anyway, here is the text:

According to a poll released last week by the Pew Research Center, 42 percent of Americans reject evolution, believing instead the creationist fable that humans and other living things have existed only in their present forms.

White evangelical Protestants are more than twice as likely as other groups to believe this, which should surprise no one; what is surprising is that 31 percent of Catholics believe it as well, even though evolution is accepted by the Vatican.

One reason for these disappointing numbers is the increasingly sophisticated and well organized effort being mounted against evolution, in particular the superficially plausible idea of "intelligent design" (ID), which holds that some biological structures are too complex to have been created through natural selection and can only have been the result of intervention by an "intelligent designer."

(Virtually all ID proponents assume this designer to be their own God, though of course they take care not to say so within earshot of a federal courtroom.)

I'll leave it to the biologists to debunk ID. (If you're interested in what's dumb about ID, visit www.talkorigins.org or www.pandasthumb.org.)

What I want to do is to take the spotlight off of evolution, where the creationists prefer it be kept, and shine it on the other side, on the conservative Christian orthodoxy underlying creationism.

It seems only fair-if the proponents of ID can relentlessly pick away at science, then nonbelievers like me should be able to take an equally skeptical look at evangelical dogma.

To do so, of course, I will need some orthodoxy to examine. Since Campus Crusade for Christ International (CCCI) has been quite active in opposing evolution, I will take as my sample dogma a few statements from CCCI's "Statement of Faith" (available at http://www.ccci.org/statement_of_faith.html).

Statement 1: "The sole basis of our beliefs is the Bible, God's infallible written Word, the 66 books of the Old and New Testaments."

This cannot be true. To see why, note first that the notion of "the Bible" being "the 66 books of the Old and New Testaments" is itself a belief. To the Jews, "the Bible" is the 37 books of the Old Testament (which they do not call the "Old Testament," never having had a new one).

To the Catholics, "the Bible" is the 66 books of the Protestant Bible plus the additional works known as the Apocrypha.

How does one choose which of these Bibles is the Bible? What is the "sole basis" of the belief that the Bible is the Protestant Bible with its 66 books, and not one of the other ones? However one decides, one is making a choice that has to be made before one can speak of having a Bible at all; the basis of the choice cannot be "the Bible," for it is precisely "the Bible" whose identity the choice will establish.

Thus the sole basis of the Campus Crusaders' beliefs cannot be "the Bible." Statement 1 is incoherent.

Statement 2: "We accept those areas of doctrinal teaching on which, historically, there has been general agreement among all true Christians."

And just whom do the Campus Crusaders consider to be "true Christians"? Surely not the Catholics; they don't even agree on what the Bible is. And surely not the Mormons, with their revival of polytheism and their still-evolving canon of scripture. And just as surely not those liberal Unitarians.

So who are the "true Christians"? Who could they possibly be, if not those whose "doctrinal teaching" Campus Crusade happens to find acceptable? Statement 2 can be rephrased as "We accept those areas of doctrinal teaching that we accept." Wonderful.

Statement 3: "Because of the specialized calling of our movement, we desire to allow for freedom of conviction on other doctrinal matters, provided that any interpretation is based upon the Bible alone, and that no such interpretation shall become an issue which hinders the ministry to which God has called us."

Let's unpack the several ideas that are here bundled into one:

a.) Any interpretation or doctrinal conviction is to be based upon the Bible alone.

b.) It is possible that some interpretations, even though based on the Bible alone, might become an "issue which hinders the ministry," that is, gets in the way of converting nonbelievers.

c.) The Campus Crusaders do not "allow for freedom of conviction" on any doctrinal matter unless it satisfies a.) and does not lead to b.)

As it happens, my own rejection of Christ is a conviction I hold "based upon the Bible alone." When I was young and impressionable, earnestly reading the Bible and The Origin of Species and much else in all my wide-eyed innocence, what was it that revealed to me the monstrous immorality of the God my classmates were urging me to worship?

It was not Charles Darwin. It was the Bible-in particular the Book of Joshua, with its depiction of God supervising the genocidal slaughter of thousands of women and children in Canaan.

My conviction that God condoned the Canaanite genocide, and abetted King Solomon's polygamy, and calmly licensed Satan's cruelty to Job and his family-all these are quite reasonable interpretations "based upon the Bible alone."

I quite understand, however, why the Campus Crusaders would not want such things trotted out before the impressionable lost souls they're trying to save. My convictions satisfy condition a.) above, but they also lead to condition b.), so according to c.) I am not to be allowed the freedom to hold them.

It's in the Bible, but because it makes the faith a harder sell I'm not free to believe it!

I haven't even gotten to the really juicy stuff-such as the barbaric assertion that "divine justice" required a human sacrifice on the cross-but already the Crusaders' "Statement of Faith" has turned out to be such a farrago of self-contradiction and absurdity that one wonders how anyone could possibly accept it.

Give me Darwin any day.

Rauch & Meezan on Same Sex Parenting:

Check out this, what is certain to be a groundbreaking article on Gay Marriage, Same-Sex Parenting,and America's Children by William Meezan and Jonathan Rauch.

Pedophilia, non-Chic:

This post by Eugene Volokh about Justice Ginsburg and her support for lowering the age of consent to 12 brings to mind a past post of mine (which got cited by Andrew Sullivan), about the notion that we shouldn't be having sex until we are 18 (a norm, by the way, which I support; though I don't support draconian criminal punishments for behavior which seems to be entirely consensual and non-abusive), is what is "chic" and "modern."

The Privileges or Immunities Clause, Much More than an Inkblot:

It's easy to lambast Supreme Court decisions finding all sorts of rights within the Due Process Clause of the 14th Amendment. This is exactly what Princeton's Robert George does in an article criticizing the Court's privacy/substantive due process decisions. The Due Process Clause is just that, a "process" or procedural clause (i.e., contains no substantive rights). Arguably the Equal Protection Clause is also a procedural clause demanding the equal application of whatever general laws are on the books.

HOWEVER, the 14th Amendment, properly understood, does indeed contain substantive rights. Indeed, there are so many substantive rights contained within the 14th Amendment, they are, like those of the 9th Amendment, enumerated because they are unenumerable. And they all are properly derived from the Privileges or Immunities Clause.

It's interesting, the unenumerable specific rights contained within both the 14th and 9th Amendments stem from the general rights of liberty and equality. And of course, liberty and equality are the twin pillars of (small l) liberalism, with the United States being the first true liberal democracy. After the Slaughterhouse Cases, after the Court, in one of its worst decisions, eviscerate the Privileges or Immunities Clause, without overturning that decision, it had to look elsewhere in the text of the Constitution in order to place substantive guarantees of liberty and equality. So the Court, arguably looked to the next most logical places, where the words "liberty" and "equality" are actually contained in the text of the 14th Amendment, in the Due Process and Equal Protection Clauses, respectively.

US Constitution v. Mayflower Compact:

Check out a comment that Dr. David Mazel left comparing the wording of the Mayflower Compact and the US Constitution; the difference is like night and day. If our Founders intended the US to be a "Christian Nation" in a public or civil sense, the wording of the Constitution would have looked a lot more like that of the Mayflower Compact.

I always address the "Is America a Christian nation?" question early in my American literature classes. Instead of asking them simply to answer the question, I ask my students what "Christian nation" might mean, and which of the meanings might make sense when applied to the United States.

Does it mean "Most Americans are Christians?" Then perhaps America is a Christian nation. But then, what does it mean to be "Christian"? Do most Americans (or the nation as a whole in, say, its foreign policy) exemplify the pacifism and anti-materialism of the Sermon on the Mount? Of course not.

Or does "Christian nation" mean a nation founded upon Christian principles and toward Christian ends? This is the point at which I have the students read and compare the wording of two charters, the Mayflower Compact and the U.S. Constitution:

The Mayflower Compact (1620)--"In the name of God, amen. We, whose names are underwritten . . . having undertaken for the glory of God, and advancement of the Christian faith, and the honor of our king and country, a voyage to plant the first colony in the northern Parts of Virginia; do by these presents, solemnly and mutually, in the presence of God and one another, covenant and combine ourselves together into a civil body politick, for our better ordering and preservation, and furtherance of the Ends aforesaid."

The Preamble to the United States Constitution (1787)--"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." (I also throw in Article VI, Clause 3: “no religious test shall ever be required as a qualification to any office or public trust under the United States.”)

The first gives us a crystal-clear example of how a charter is worded by people deliberately founding a Christian polity. We are told directly that the colony is being "undertaken for the glory of God, and advancement of the Christian faith." The Founding Fathers could have used similar wording, but didn't. The rationales for creating the Union is purely secular: insuring tranquility, providing for defense, promoting the general welfare, and securing the blessings of liberty.

Certainly the United States is not a Christian nation in the sense in whic Plymouth was a Christian colony. Still, some students typically insist that it is a Christian nation in some other sense, in a way that falls short of the Plymouth standard yet means more than the mere demographic fact that most Americans identify themselves as Christians. Funny thing--they can never seem to figure out what sense that is, though.

The French and American Revolutions:

An oft-repeated claim comparing the American and French Revolutions goes something along the lines of "the French Revolution was based on the Enlightenment, while America's was based on Christianity," or another variation is, "the American Revolution holds that rights come from God, while the French believed rights come from the people or government only." Admittedly, I know more about the American Revolution than the French (so perhaps Kuznicki will chime in), but my research tells me these claims are wrong, that both the American and French Revolutions were based on the same Enlightenment principles, which were relatively novel for the time ("the new science of man").

As Francis Fukuyama put it in a Booknotes interview about his classic, The End of History and the Last Man:

Now, by the French Revolution, we don't mean just the limited historical event; what we mean is the emergence of what we understand as modern liberal democracy because in the French Revolution, ultimately what it was about was a revolution in favor of the principles of liberty and equality. Now you could substitute the American Revolution for that because, I think in that kind of ideological sense, those two revolutions were equivalent. I mean, they were both revolutions to create what I earlier defined as a liberal democracy as a political system based on popular sovereignty with guarantees of individual rights.

This isn't to say there weren't profound differences between the two revolutions; clearly there were. But at base, they appealed to same Enlightenment principles. This shouldn't be surprising; Jefferson, the author of our Declaration of Independence also, while in France, assisted in writing the French's Declaration of the Rights of Man. The Declaration of Independence was also heralded in France and helped spark their revolution. It's no wonder that the two documents are quite similar in what they say.

The way both nations approached these revolutionary ideas was quite different. To repeat, these Enlightenment principles were revolutionary, that is they were anti-traditional. In both societies many traditional practices, customs, laws, and institutions were antithetical to these principles, slavery being the most obvious, but also monarchy, feudalism, established Churches, religious tests, and many others. The French attempted to "sweep away" all those practices and institutions, inconsistent with these Enlightenment principles, and remake society, going so far as to start the calendar over from "year one." Their society went into convulsions.

America on the other hand, allowed as a compromise many of the institutions which were inconsistent with our ideals of liberty and equality. But in doing so there existed a great tension between the revolutionary anti-traditional principles upon which we were founded and the illiberal traditional practices like slavery, state-established Churches and religious tests, and other "compromises" with liberty and equality. But because there was such a tension, history in the US marched in the direction liberty and equality and most if not all of these illiberal institutions were eventually ended because of our foundational principles. Obviously the American approach to liberty and equality turned out to be superior to the French for no other reason than their society went into convulsions and ours didn't (but then again, they had an established Church to disestablish, and a monarchy to unseat).

Also, contra the claim "we followed Christianity, the French, the Enlightenment, or America is based on God given natural rights, the French, government granted positive rights," in reality, the theoretical approach to God and rights was nearly the same in both the American and French Revolutions.

Again, given that Jefferson was one of the main "idea-men" behind both Revolutions, this shouldn't surprise. Both made supplications to an always undefined, generic God, never explicitly referencing Him as the God of Scripture (even though, in many minds He probably was). And both invoked God as the ultimate guarantor of rights.

For instance, in all three Declarations of the Rights of Man (one, two and three), God is invoked. First, "Therefore the National Assembly recognizes and proclaims, in the presence and under the auspices of the Supreme Being, the following rights of man and of the citizen." Then in the following two Declarations, "proclaim(s) in the presence of the Supreme Being the following declaration of the rights of man and citizen."

True, these supplication are nominal and vague, but American supplications to God in our Founding documents and pronouncements (given by our key framers) are similarly nominal and vague! Indeed, the American Constitution is entirely Godless save for the customary way of stating the date, "In the Year of our Lord" and in invoking the "blessings" of liberty (and the French, likewise refer to natural rights as "sacred").

Separation, Hamburger, and Williams:

This post, I imagine, will be one of many on Philip Hamburger's book, Separation of Church and State (which I'm still reading). The recent decision by a federal judge declaring "Under God" in the pledge to be unconstitutional has made the Separation controversy a timely issue once again. And over at Volokh, Jim Lindgren is invoking Hamburger's book as *the* controlling authority on the subject.

Hamburger certainly is a brilliant scholar, and his book, a remarkable accomplishment; but that doesn't mean that his work is without its problems. One thing I find entirely off base about Hamburger's (and Daniel Dreisbach's) thesis is that Hugo Black, author of the Everson decision, gave us "Separation" as a constitutional metaphor because he was an anti-Catholic bigot, a former Klan member, and essentially acted on his Klan prejudices (the Klan were dedicated to the Separation of Church and State because of their anti-Catholic bigotry). Black's "Klan Kolors" certainly didn't show in his position on Brown and like cases! (In other words, while the history of Black, the Klan, and their support for Separation is quite interesting, it's also likely entirely irrelevant, a classic red herring.)

As Gary Wills said in this episode of Think Thank, (which examines Hamburger's book) "you can support the right thing for the wrong reason." As I understand, the Klan is against affirmative action as well. (And they probably want to teach Intelligent Design in the public schools too).

Hamburger similarly deals with Roger Williams, seeming to impugn his motives for Separation of Church & State, which again brings to mind Wills's saying. Anyway the rest of this post is based on this comment I left on Lindgren's thread discussing Hamburger, Roger Williams, and Separation....

Sometimes people have the most bizarre (or what we would consider irrelevant) reasons for supporting or coming forth with idea X, but X turns out to brilliantly solve an entirely different concern.

Facts: Roger Williams first coined the phrase (or a similar phrase) "Separation of Church and State," ("the hedge, or wall of Separation, between the Garden of the Church and the Wilderness of the world"), argued for religious liberty (even for non-Christians), and for government that was essentially "secular" in its purpose and functions. Williams was one of the first, if not the first Christian thinkers to argue for this, and keep in mind he made his case well before Locke and the Enlightenment.

Hamburger notes, correctly, that Williams was a fanatical fundamentalist. Now, the religious right may therefore endear Williams, as they sometimes argue that "religious toleration" is a "Biblical" idea brought to us by "Christians" like them. But wait, as Hamburger notes, Williams didn't really care about the well-being of those being persecuted, rather Williams, as a "religious nut" had a fanatical desire to keep Christianity "pure" from corrupt worldly influences of which civil government certainly was one.

And as Hamburger notes, Williams's views were not at all dominant; in fact, he was practically an anomaly (and was banished from Massachusetts to found Rhode Island for his dissident thoughts). Well, what then were the dominant views? You'd have to look to Massachusetts and other colonies: There was not only no distinction between Church and State, but the entire Bible was deemed appropriate to write into the civil code...and the results were disastrous. The God of the Bible is a "Jealous God" and as such civil codes forbade the open worship of any God but He, and prescribed the DEATH PENALTY for open worship of false Gods and Idols (this was the dominant view of the fundamentalists, as represented by John Winthrop, founder of Puritan Massachusetts, the antithesis of religious toleration).

Compare Winthrop's view with Williams's sentiment:

All civil states with their officers of justice, in their respective constitutions and administrations, are . . . essentially civil, and therefore not judges, governors, or defenders of the Spiritual, or Christian, State and worship. . . . It is the will and command of God that, since the coming of His Son, the Lord Jesus, a permission of the most Paganish, Jewish, Turkish or anti-Christian consciences and worship be granted to all men, in all nations and countries; and they are only to be fought against with that sword which is only, in Soul matters able to conquer, to wit; the sword of the Spirit--the Word of God. . . . God requireth not an uniformity of religion to be enacted and enforced in any civil state; which enforced uniformity, sooner or later, is the greatest occasion of civil war, ravishing consciences, persecution of Christ Jesus in His servants, and of the hypocrisy and destruction of millions of souls. . . . An enforced uniformity of religion throughout a nation or civil state confounds the civil and religious, denies the principles of Christianity and civility, and that Jesus Christ is come in the flesh.

Now, I don't care why Williams came forth with that sentiment, which was an absolutely novel way to interpret the Bible for his time. It's brilliant sentiments like that which, after becoming more influential, helped "solve" the "religious problem" of bloody Christian persecution in the US and Western nations.

In other words, it was the *right* sentiment, regardless of what motivated him to come up with it.

Jefferson and Historical Context:

The little conversion I've been having with Sudha Shenoy reminds of this past post of mine on historical context and the founding.

Our founders and the philosophers they followed invented rights based liberal democracy, where government's focus would be on "the rights of man." And all of man's unenumerable specific rights were derived from the two broad general rights of liberty and equality. This is, by far, the greatest political accomplishment in history and one in which we should all zealously defend.

But that said, depending on the context of how one looks at the founding, the founders may not seem so Enlightened after all. I mean, could you imagine any individual today openly owning slaves? Or even Jefferson, one of my intellectual idols, made observations about blacks which today would make him seem downright racist. From Notes on the State of Virginia (brief except):

Add to these flowing hair, a more elegant symmetry of form, and their own judgment in favor of the whites, declared by the preference of them, as uniformly as is the preference of the Orangutan for the black women over those of his own species. The circumstance of superior beauty is thought worthy attention in the propagation of our horses, dogs and other domestic animals; why not in that of man? . . .

They secrete less by the kidneys and more by the glands of the skin, which gives them a very strong and disagreeable odor. They seem to require less sleep. . . . Comparing them by their faculties of memory, reason, and imagination, it appears to me, that in memory they are equal to whites; in reason, much inferior, as I think one could scarcely be found capable of tracing and comprehending the investigations of Euclid; and that in imagination they are dull, tasteless and anomalous. . . . The Indians will astonish you with strokes of the most sublime oratory; such as prove their reason and sentiment strong, and their imagination glowing and elevated. But never yet could I find that a black had uttered a thought above the level of plain narration. . . .

This is why I don't take seriously social conservatives' claiming Jefferson for themselves when they note that he supported sodomy laws prescribing castration as a penalty. Keep in mind, Jefferson revised and lowered the penalty for preexisting sodomy laws, from death to castration. If you want the "socially conservative" Jefferson who supported castration for sodomy then you also have to take the socially conservative Jefferson who thought blacks smelled and compared their lust for white women to an Orangutan's lust for a black woman.

Note, Jefferson's thoughts on blacks and sodomy referenced above constitute Jefferson arguing against equality and liberty. Me on the other hand, I'll take the Jefferson who argued on behalf of liberty and equality. I'll take the Jefferson who said, "The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg."

Jefferson's illiberal beliefs, for the time however, were not at all taboo; they were entirely normal and in accord with the "traditional values" of the day. But the revolutionary ideals which Jefferson articulated so eloquently, I think, are directly responsible for both the racial equality ideal of today and decisions like Lawrence which push the edge on specific liberty rights.

As I wrote in my conversation with Dr. Shenoy: "[C]onstitutional natural rights ideals need to be liberated 18th Century prejudices, if that can be done. Otherwise we truly were founded on slavery, racism, sexism, conquest of Indians, anti-Catholicism, and other sorts of bigotry. And who the f*ck wants to be part of that system?"

Jefferson, apparently, shared a sentiment similar to mine. From his letter to Samuel Kercheval, July 12, 1810:

[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.

Can you Nuke a Nation into Liberal Democracy?

Look, I'm all for encouraging liberal democracy abroad in illiberal lands, but Roy Masters's approach goes a bit too far I'd say. Masters, if you don't know, is one of the more interesting right-wing crackpots. I've written about him before here. He calls himself a "Messianic Jew" and blends Christian Fundamentalism, Gnostic Mysticism, Eastern Philosophy, Freudian Psychology, and New Age meditation (all the while trying to well-position himself with the religious right, most of whom regard him as a cult leader and a theological heretic).

His followers include Michael Savage, Bob Just and Matt Drudge. Supposedly, John Wayne was a follower.

From his "Terrorizing the Terrorists" article:

Our enemies have struck a blow to the American Spirit, gunning for the downfall of mankind. To eradicate this diabolical evil we must not dilly-dally around with insufficient, military strikes or ground troops. We must strike a massive, shocking, Hiroshima-like blow so as to forever convert terrorism and its architects to liberty-driven spirit of the West....

What is needed, for its psychologically effect, is a massive shock not unlike that suffered by the Japanese in Nagasaki and Hiroshima . It is not the time or situation to seek morality from our violators. Our goal must be more defined, unwavering and definite. We must strike and secure a permanent change in behavior as well as a redirection of the current perverse loyalty terrorists have toward their anti-humans. Such a high-minded, even honorable purpose can only come from a massive shock to their death-centered system....

I know that this kind of conversion to Western thinking is not exactly the ideal. But conversion of loyalties through a greater shock than that caused by their corruption is absolutely necessary in order to reconvert the masses. They are born into a cultural violence, needing violent extraction from the influence of evil. This is the only paved road to genuine peace.

Japan has become a thriving democratic country from which have come noble leaders, creative thinking and philosophically sound national policies. All of this was born out of a saving violence.

But that would justify sodomy!

Great discussion from Richard Chappell on an issue about which I blogged a little while ago.

Madison's and Washington's Silence:

I decided to do some research on James Huston after seeing him on Coral Ridge's propaganda special. He's actually a legitimate scholar (Kennedy's special featured a few legitimate, well respected scholars like Daniel Dreisbach, along with hacks like David Barton and William Federer). On the special, Huston remarked that George Washington was a vestryman in the Anglican/Episcopalian Church (which proves nothing about Washington's orthodox belief, because so was Jefferson) and the notion that virtually all of our founders were Deists is historically false (I agree with him there, though, so too is the notion that virtually all but a handful of founders were orthodox, Trinitarian Christians).

Huston works for the Library of Congress and wrote a good paper on James Madison and religion. You can see that he's not a "Christian Nation" propagandist because he doesn't try to claim Madison as an orthodox Christian (which they all do). He gets to the bottom of Madison's religious belief or lack of evidence thereof:

Madison, on the other hand, defies definition or description. Seeking evidence of his faith quickly leads to the conclusion that there is, in the words of the poet, no there there, that in the mature Madison's writings there is no trace, no clue as to his personal religious convictions.

How do you know that you are about to read a very stupidly written piece?

When the author cites Paul Cameron's phony statistics.

And in terms of his assertion that belief in homosexuality's genetic origins and Darwinian evolution cannot be reconciled, this piece, written by an author far more intelligent and learned in the field of evolutionary biology than Mr. Tabor, shatters his notion.

"Dr.":

Congrats to Jason Kuznicki for successfully defending his doctoral thesis from John Hopkins and earning the title "Dr." As I noted in the comments I too (or anyone with a JD law degree) could demand to be called "Dr." as well. Technically "JD" stands for "Juris Doctor" and we are "Drs." But in reality, the JD isn't as onerous a task to complete as a Ph.D. (Mainly because we don't have a dissertation requirement. I did have to take two legal writing courses -- one that produced a law review style research paper and the other, a series of shorter papers. But again, those requirements aren't nearly as tough as the dissertation.)

I think it too pretentious for "JDs" to go by "Dr." (although some do). For an interesting history of the "JD" or how a standard law degree went from a "Bachelors" (LL.B.) to a doctorate (JD), see this wiki link, which is more or less accurate. Historically, and it's still this way in Europe and other foreign nations, a "law degree" was a standard 4-year bachelors. ("[A] law student would attend a four-year undergraduate program culminating in a LL.B. degree. He could then go on to get an LL.M., 'Master of Laws' and then an LL.D., 'Doctor of Laws' degree.") There still are LL.M. degrees (one of which I have in Transnational Law). And the "LL.D." is now usually referred to as an "SJD" (although, the wiki link refers to it as a JSD). The SJD does require a dissertation. And those who get them do deserve the title of "Dr."

BTW: My alma matter, from which I hold JD and LL.M. law degrees, recently enacted an SJD program. Something I might consider for the future. But with three graduate degrees (I also have an MBA from Temple) I think I have enough for now.

Reason's Inside Joke:

Reason magazine reproduced Jonathan Rauch's piece on Santorum and editorialized a new title. There is no possible way that Rauch, who tends to be very reserved and conservative in his writing style, wrote the additional phrase that Reason added to the title of his otherwise very serious piece: A Frothy Mixture of Collectivism and Conservatism.

If you want to understand the "inside joke" behind Reason's added phrase to the title, check out this link which is simply a google search for "Dan Savage" and "Santorum."

Rauch on Santorum:

Great piece by Jonathan Rauch entitled America's Anti-Reagan Isn't Hillary Clinton. It's Rick Santorum. My favorite passage:

"Freedom is not self-sufficient," writes Santorum. He claims the Founders' support, and quotes John Adams ("Our constitution was made only for a moral and religious people") and George Washington to that effect. But, notes William A. Galston, a University of Maryland political scientist, Washington and (especially) Adams stood at one end of a spectrum of debate, and it was a debate that they ultimately lost.

Other Founders -- notably James Madison, the father of the Constitution -- were more concerned with power than with virtue. They certainly distinguished between liberty and license, and they agreed that republican government requires republican virtues. But they believed that government's foremost calling was not to inculcate virtue but to prevent tyranny. Madison thus argued for a checked, limited government that would lack the power to impose any one faction's view of virtue on all others.

Freedom, for Madison, Thomas Jefferson, and others, was an end, not just a means. A government that allows individuals to pursue happiness in their own fashions, they believed, is most likely to produce a strong society and a virtuous citizenry; but the greatest benefit of freedom is freedom itself. Civic virtue ultimately serves individual freedom, rather than the other way around.

It was in this tradition that Goldwater wrote, "Every man, for his individual good and for the good of his society, is responsible for his own development." Note that first "and": Individual and social welfare go together -- they're not in conflict. All the government needs to do, Goldwater said, is get out of the way. "The conservative's first concern will always be: Are we maximizing freedom?" Reagan spoke in the same tradition when he declared that government was the problem, not the solution to our problems.

Goldwater and Reagan, and Madison and Jefferson, were saying that if you restrain government, you will strengthen society and foster virtue. Santorum is saying something more like the reverse: If you shore up the family, you will strengthen the social fabric and ultimately reduce dependence on government.

Where Goldwater denounced collectivism as the enemy of the individual, Santorum denounces individualism as the enemy of family. On page 426, Santorum says this: "In the conservative vision, people are first connected to and part of families: The family, not the individual, is the fundamental unit of society." Those words are not merely uncomfortable with the individual-rights tradition of modern conservatism. They are incompatible with it.

Wrestling with God:

I really love this article by Rabbi Shmuley Boteach (gasp! it's on Worldnutdaily). It's about the attributes of the God of the Bible, particularly whether that God is just, and how His believers deal with issues of God and Justice.

For many of the faithful, the closer they come to God, the more they become enemies of man. When a cataclysm renders tens of thousands of innocent people homeless, it is the victims who are guilty while God is always innocent. Perhaps these communities tolerated large homosexual populations. Maybe they allowed an abortion clinic in their midst. While God is perfect, man is inadequate. While God is righteous, man is sinful. I call this the submissive man of faith, the man or woman who believes that the foremost calling of religion is the erasure of their individuality and total blind obedience in the face of the divine will. And the principal characteristic of the submissive man of faith is to always implicate man and exonerate God.

The unique contribution of Judaism to world religion is a total rejection of a dejected and compliant religious posture in favor of a brash and audacious spirituality that is prepared to wrestle even with God in the face of seeming divine miscarriages of justice. In Christianity grace is not achieved without the total surrender of the believer to Christ. Likewise, the very word Islam means to submit. But "Israel" translates literally as "he who wrestles with God," the man or women who is prepared to rattle even the foundations of the heavens in the name of life and justice.

Judaism gave rise to the defiant man of faith, the man who like Jacob spars with angels and defeats them. The Jew is a child of Abraham, who went so far as to accuse God of injustice when the Almighty sought to the destruction of both the righteous and the wicked of Sodom and Gomorrah at once. He or she is the disciple of Moses who thundered to God that he wished to be disassociated with God's holy Torah if the Creator would proceed with His stated intention of wiping out the Jewish nation after the sin of the Golden Calf. Like King David who declares in Psalms, "I shall not die for I shall live," the Jew has achieved immortality through an impudent insubordination in the face of historical inevitability, daring to defy fate and forge an audacious destiny.

The world today is replete with too many negative religious stereotypes that have gravely harmed the cause of faith. Secularists point to fanatical Islamic terrorists who blow themselves up as proof that religion is dangerous to the body. On the other side, they point to crazy statements like that of Pat Robertson -- who last week said that the United States should assassinate Hugo Chavez -- as proof that religion is equally dangerous to the mind, causing one to suspend rational judgment in favor of the irrational and the idiotic.

What is finally needed, after thousands of years of religious unrest, is the defiant man of faith, who believes that his principal religious calling is to defy the heavens in defense of human life. The orthodox Jew, who when Israeli soldiers die never seeks to blame such deaths on Israeli desecration of the Sabbath. The religious Christian, who does not see America as a land of abortions and homosexuality that may therefore be punished by terror, but as a benevolent land whose soldiers fight and die for complete strangers on the other side of the globe. The moral Muslim, who despises and condemns Islamic terrorists who defile his glorious religion and commit an abomination against God by murdering in His name.

Like I've said before, unlike some on this site (Positive Liberty), I'm not an atheist. But if there is God, then I believe either a) He, She or It must be just, or b) ought to be just. And there are certain things written in the Bible where God appears to be not just unjust, but fundamentally immoral. Moreover, certain traditional religious doctrines like eternal damnation are morally unjustifiable. Unless you accept, as many orthodox believers do, that there are no independent standards of justice apart from what is literally written in the Bible (or more importantly -- how they understand and interpret what is literally written in the Bible). So if God tells you to murder your son, or another race of people or to practice slavery or incest, then that, ipse dixit is just because God said so.

Jefferson, Adams and other Enlightenment influenced founders questioned and downright ridiculed these traditional religious orthodoxies. Neither of them believed in eternal damnation because they knew that would make God into a vicious, sadistic monster. Jefferson wrote to Adams that Calvin's God was "a false god" and "a daemon of malignant spirit," that Calvin's religion was "Daemonism," and "[i]t would be more pardonable to believe in no god at all, than to blaspheme him by the atrocious attributes of Calvin." Instead, Jefferson wrote to Adams, "The being described in his 5. points is not the God whom you and I acknowledge and adore, the Creator and benevolent governor of the world." And Adams in his correspondence was in entire agreement with Jefferson.

If I ever do convert to Christianity, I'll probably become a Quaker or a Unitarian.

Speaking of Hell, one thing I've discovered by reading various interpretations of it by the traditional Christians is that there is absolute disagreement on the concept. Some say Hell is so bad because God isn't there. Other say Hell is bad because God is there. Some say it's eternal. Other's say Hell is finite and then souls simply don't exist. Some say Hell is a soul not existing at all while believers' souls go on into eternity. Some say Hell may not be so bad, a clear way to make God not seem so unjust: Hell is just like being unsaved on Earth, living separate from God. Well many people are quite happy being not religious on Earth; so that would make Hell like a place where you could play pool with your buddies or hang out with John Lennon, Jimi Hendrix, Frank Zappa, Voltaire, Jefferson and the other key framers -- Franklin, Adams, most likely Mason, Washington, and Madison -- who weren't orthodox Trinitarian Christians. Other fundamentalists take strong umbrage with that latter view (perhaps because they think people ought to be scared into salvation) saying Hell isn't a place where you play pool with your buddies, but an unimaginably terrible place.

It's this latter view which I cannot comprehend. Such a God in my mind would be worse than Hitler. In order to accept this as "Just," one must entirely detach oneself from rational, independent standards of justice. And these folks scare me because, even if such Christians are more "well behaved" than Islamofanatics, this belief they hold is no more rational, moral or Just than believing in an Allah that would command Mohammed Atta to fly a plane into the WTC and then reward him with Virgins in Heaven. It's this type of irrational fanaticism that leads to mass slaughter and terrorism.

Finally, if your personal faith operates in this latter tradition -- you believe that non-believers are headed to a Hell that is not like Earth, but unimaginably horrible place -- as a moral individual, wrestle with this belief. Don't be certain that it is true. If you believe you will die and immediately see the Trinitarian God, one of the first things that you should do upon death is stare Him straight in His eyes and demand the immediate release of most if not all souls from Hell (or their eventual release). If not, then you will be complicit in the greatest of "divine miscarriages of justice" ever.

Religious Right PosterBoys:

Michael Marcavage and his group Repent America are being a real class act in their analysis of the Hurricane. Basically, God did this to New Orleans because the city recognizes an annual homosexual celebration which begins this week and things like Girls Gone Wild and Mardi Gras parties.

In case you aren't aware, Marcavage and his group are the "Free Speech" posterboys that the religious right rallied behind a little while back when they were arrested for protesting a Philadelphia Gay Pride Event. (And just a few weeks ago, they also protested a gay friendly Phillies game.) Look, I support Marcavage's right to protest because I support free speech for everyone, not just for the speech with which I agree. If the Nazis have the right to march in Skokie, then Marcavage et al., have the right to protest gay pride events.

But that's not how the religious right portrayed the "Philadelphia Eleven" event. They acted as though these were "Christians" just like them being persecuted as "hate criminals" for entirely reasonable and just speech. No sorry, these were not a bunch of Joe Carters or Marvin Olaskys. The Philadelphia Eleven are one step removed from Fred Phelps.