Newdow, Equality, & Establishment:

Michael Newdow is at it again, this time trying to get "In God we Trust" off our currency. I have seen him talk about this on a few TV shows and he explicitly makes appeals to equality and Founding principles, asserting they are on his side. And he is half-right.

He makes an analogy, quite apt, to segregation. When asked on FOX News, "How could you compare the two?," he replied "How can you not compare the two?" He argues that "In God we Trust" is even worse than race segregation because with Jim Crow, at least there was a pretense of equality as long as things were kept separate. With "In God We Trust," atheists are categorically treated like second-class citizens with no pretense of their consciences being equal.

The ideals of the Founding contained in the Declaration of Independence, the Constitution, and the 14th Amendment are generally speaking, Liberty and Equality. Religious rights stem from our unalienable rights of conscience, which apply equally to all religious creeds no matter how orthodox or unorthodox.

And while we can argue whether its proper to extend liberty and equality to certain specific matters with which the founders were unconcerned, for instance, sexual orientation, we cannot argue over religion: Liberty and equality of conscience are at the heart of our founding principles of natural law and natural rights.

[Note: See some of Clayton Cramer's recent posts where he cites some founding era state constitutions which may conflict with my assertion that "our unalienable rights of conscience...apply equally to all religious creeds no matter how orthodox or unorthodox." There is no question that the natural rights theory which undergirds our founding protects all religions, and that our most philosophically minded founders like Jefferson, Madison, Washington, and others, believed this way too. Apparently, not all of the states would go so far. However, as Cramer notes, many of those states believed in protecting Protestants only -- sometimes going so far as to impose Protestant religious tests for public office -- and we wouldn't dream of imputing this as a constitutional standard today. How would Jews, Catholics, and Mormons feel if we determined that the First Amendment didn't protect their religious rights? And those provisions of those state constitutions sharply contrast with the federal Constitution's Article VI, which by its very text prohibits all religious tests for public office, and was understood by those who ratified it (prompting some folks to vote against the Constitution) to apply equally to all Christian sects and "Jews, Mahometans, pagans." The proper way to interpret this contrast is not that the Federal government gave its stamp of approval to such state religious tests, even though they were constitutionally permitted, but that the federal Constitution's Article VI helped to fully secure the rights of conscience at the federal level, while leaving the states free to violate the rights of conscience with such illiberal religious tests.]

Sometimes technical constitutional matters can confute the proper analysis. For instance, it's possible to argue convincingly that the Establishment Clause simply refers to a national sect or "Establishment" of religion, e.g., the Anglican Church, or the Catholic Church. But even if we conclude this, the inquiry doesn't stop there; we still have other doctrines which may be relevant. For instance, the federal government could not violate liberty or equality of conscience because it is (or at least it was) one of limited, enumerated powers and was never granted any power over the rights of conscience. Such an understanding would render the Bill or Rights superfluous. And indeed, some key framers argued exactly that: We don't need a Bill of Rights because of the doctrine of limited, enumerated powers. And once those specific rights are enumerated, government may then get the wrong idea that it can abridge whatever has not been put on the list. Hence, Madison et al. gave us a Ninth Amendment.

While seeing Philip Hamburger, author of Separation of Church and State (which argues against that constitutional doctrine), speak at Princeton, he noted that "the Establishment Clause is not an Equal Protection Clause," to which university provost Christopher Eisengruber, in his rejoinder, cleverly replied, "yes, but the Equal Protection Clause is an Equal Protection Clause."

Thus, much of what the Supreme Court has the Establishment Clause doing -- perhaps improperly -- under the doctrine of Separation of Church and State, would be better done under the Equal Protection Clause or under the recognition that individuals have a constitutional right to equality of conscience, that, just as with race, government must treat the religions or lack-thereof, equally. This is what Akhil Amar argues for. See my past post, where I reproduce an argument from his book on the Bill of Rights and the 14th Amendment:

Perhaps the greatest elaboration came from Thomas Cooley's influential 1868 treatise. Under prevailing state constitutions, wrote Cooley, states generally could not enact "[a]ny law respecting an establishment of religion....There is not religious liberty where any one sect is favored by the State....It is not toleration which is established in our system, but religious equality." Even a noncoercive establishment, Cooley suggested, violated principles of religious liberty and religious equality -- violated norms of equal rights and privileges. And once we see this, it turns out that the question -- should we incorporate the establishment clause? -- may not matter all that much, because even if we did not, principles of religious liberty and equality could be vindicated via the free-exercise clause (whose text, history, and logic make it a paradigmatic case for incorporation) and the equal protection clause (which frowns on state laws that unjustifiably single out some folks for special privileges and relegate others to second-class status). Surely Alabama could not adopt a state motto proclaiming itself "the White Supremacy State"; such a motto would offend basic principles of equal citizenship and equal protection. And so a law that proclaimed Utah a Mormon state should be suspect whether we call this a violation of establishment principles, free-exercise principles, equal-protection principles, equal-citizenship principles, or religious-liberty principles. Once we remember that we are not incorporating clauses mechanically but reconstructing rights, we reach the unsurprising conclusion that our basic touchstones should be the animating Fourteenth Amendment ideals of liberty and equality. pp. 253-4

Madison too desired to impute the principle of equality of conscience into our constitutional framework. His first draft of the First Amendment (voted down) said exactly this. And his Memorial and Remonstrates argues that equality of conscience is an unalienable natural right. Further, in his Detached Memoranda, Madison argued that Congressional Chaplains were unconstitutional, at least, in part because they violated such religious equality, where he stated, "The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles."

However, Newdow, I think has a larger problem. Clayton Cramer argues that the notion of constitutional "neutrality between religion and irreligion" is improper. I would argue, as would Newdow, that the notion that the irreligious citizen's conscience is entitled to "Equal Protection" under our Constitution is without question grounded in natural rights originalism, that Jefferson and Madison certainly recognized such rights. However, we run into a problem when we see at bottom, Jefferson, Madison and other Founders needed some sort of ultimate trump for natural rights in order for liberal democracy to refute divine right of Kings and divine right of ecclesiastical authorities to rule. And what is the ultimate trump? Why God himself (upon which the old order we were revolting against also explicitly relied). Hence the notion of a generic Nature's God as the guarantor of all of our rights. I don't think that an atheist's "equal rights of conscience" should be able to trump the source to which Madison, Jefferson et al., tied rights.

Let me attempt to propose a compromise for atheists such as Newdow on the "under God" issue, perhaps a way in which they could view invoking God as consistent with their equal rights of conscience. As long as we are referring to a generic God, we should read God as a metaphor for non-negotiability of rights. What is good about liberal democracy is that individuals have liberty and equality rights which are antecedent to majority rule, that they preexist civil government and that civil governments gain their legitimacy by securing such rights. I'm not sure if I can "prove" this as a mathematical truth, but as long as we liberal democrats believe and defend such a notion, that we would tie such rights to God, whether God exists or not, demonstrates our commitment to such abstract principles.

If the theocrats want to believe that its their Biblical God who grants such rights, let them. Our Founders like Washington, Adams, Jefferson, Madison, and Franklin never identified the rights granting God as the God of the Bible. And the Bible never states that God grants unalienable rights. One could view the rights granting God as a lowest common denominator God of monotheism, as did Justice Scalia in his dissent in McCreary. This doesn't fly with some evangelicals, (see Joe Carter's post where he notes that Jews, Muslims, unitarians, and Trinitarians do not worship the same God). And even though such Founders did draw an LCD "Nature's God," such a God was a very low LCD. We can't even say that invoking such a God supports displaying the Ten Commandments (as Scalia erroneously argued) because those Founders didn't believe that Nature's God revealed the Ten Commandments to Moses.

I guess what I'm arguing for is a "ceremonial theism" exception to the equal religious rights of atheists and polytheists rule.