Wednesday, January 18, 2006

Thoughts on Blackstone, Religion and the Founding:

I agree with what both Brayton and Sandefur have written on Blackstone, religion and the civil law. I'd like to point out how this dispute illustrates how Reason (Athens) and Revelation (Jerusalem) have played a central role in virtually all aspects of Western Society (especially politics), but how ultimately, the public foundation of the United States rests on the sovereignty of Man's Reason and consigns the Truth of Revelation to the realm of private conscience.

The common law is based on the natural law. And natural law is synonymous with what is discoverable by man through Reason. Natural law is an extremely ancient concept. It traces back to Aristotle (so it has Pagan roots) and was adopted into Christendom by Aquinas (and Christian roots). The Anglican Church (I do believe) inherited the natural law from its Catholic roots. And these Christians generally used the natural law to support Church teachings. This pre-Enlightenment natural law existed at a time when Church and State were one, and as Sandefur pointed out, it shouldn't surprise us that religious freedom was not part of the common law of England (or the then understanding of the natural law).

Blackstone understood that the natural law was a type of organic law that trumped all human positive law. It was, in theory, "binding over all the globe, in all countries, and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original." This theory was helpful to judges, especially when deciding novel cases with no underlying statute. They could operate under the assumption that they were not "making the law," but rather, "discovering" through the use of their Reason what was already there.

But Blackstone then discusses how man's Reason was corrupt and Revelation could be used to guide reason in discovering what the natural law held. Hence Roy Moore could write (in the case Brayton discusses): "Natural law is the law of nature and of nature's God as understood by men through reason, but aided by direct revelation found in the Holy Scriptures". And it was on this basis then that Christianity could be incorporated into the common law.

This represents more of an "old-school" (Thomist) pre-Lockean, pre-Jeffersonian-Madisonian understanding of the natural law where the concept was used by ecclesiastical Authorities to support Church doctrine and power. But America was founded on a more modern understanding of nature and reason. And by "modern" I mean that "reason" had "discovered" certain errors in the older version of the "natural law" and hence corrected them, or otherwise incorporated "new" discoveries. The "old" (Thomist) version of the natural law justified such things as slavery and burning heretics at the stake and knew nothing of the concept that men existed in a "state of nature" and possessed unalienable natural rights.

Our Founders, the American Whigs that they were, were keen on these "new discoveries" of man's reason which had the effect of pulling the rug from underneath the divine rule of kings and ecclesiastical authorities. As Allan Bloom wrote in The Closing of the American Mind:

From his reflection on the state of nature, Locke drew the formula of Enlightenment, with its particular combination of natural and political science. Its starting point is the untrammeled use of reason....Freedom for man consists in ordering his life according to what he can see for himself through his most distinctive faculty, liberated from the force of tyrants and the authority of lies, i.e., myths. Through unaided reason, man as man, as opposed to the man of this place or time, nation or religion, can know the cause of things, can know nature for himself. p. 163-4.


It had to be, for in order to have rulers who are reasonable, many of the old rulers had to be replaced, in particular those whose authority rested upon revelation. The priests were the enemies, for they rejected the claim of reason and based politics and morals on sacred text and ecclesiastical authorities. p. 257-8

As Sandefur and Brayton pointed out, the writings of the American Founders are replete with natural law references which contradict Blackstone's views on religion and government. Religion, to our Founders, was an unalienable natural right -- a right that was equally possessed, in Jefferson's words, by "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination," and that men had the unalienable right to worship not just the God of the Bible as he saw fit, but also, again in Jefferson's words, "twenty gods, or no god." Because every man's religion, no matter how unorthodox, is an unalienable right which government must respect, religion is wholly within the realm of man's private conscience or opinion. It logically follows then that Madison and Jefferson would call for a "separation of Church and State" to ensure that such rights are not violated. And the notion that Christianity is part of the common law (hence something judges could enforce) completely contradicts these new natural law discoveries. Hence Jefferson's assertion "that Christianity neither is, nor ever was a part of the common law."

Such a notion was an "error" that "reason" had discovered and corrected, just as Newton's science replaced earlier errors and how Einstein's discoveries replaced some of the things Newton believed.

Now, one could assert that nonetheless, the Lockean-Jeffersonian-Madisonian "updated" version of the natural law is still largely consistent with and complementary towards Biblical Revelation -- that such an understanding, for instance, improved orthodox Christians' ability to "understand" the religious toleration that exists within the pages of the Bible (this is the position that West Coast Straussians, Michael Novak, and some orthodox Protestants would endorse). The East Coast Straussian would argue that, no, Reason and Revelation are not quite so compatible. And many of the "discoveries" of Locke, Jefferson, et al. entirely contradicted the traditional classical/Christian understanding of nature. Leo Strauss held that Locke and Hobbes's "State of Nature" theory was wholly alien to the Bible. And indeed, the notion that men have an unalienable right to worship no God or Twenty God means that men have an unalienable right to break the First Commandment!

Just how compatible the "natural law/natural rights" theory of the Declaration of Independence is with traditional orthodox Christianity, cannot be resolved in this post as it is a subject of great controversy. It is interesting to note that the "natural law/natural rights" theory which founds our government does have a theology that goes with it (see this article by Thomas West). We might even call this a "public theology" or a "civic religion." It should be stressed that this public theology is not orthodox Christianity, rather, it is a natural (meaning discoverable by reason) theology. It holds that there is a Creator, Nature's God, that He grants men unalienable rights, that He created men free and equal, and may intervene when we don't respect each other's natural rights. It could be argued that this theology is, in some ways, consistent with traditional Christianity, but it is not orthodox Christianity. When Jefferson, Adams, Franklin and others explicated the finer details of their theology, it completely contracted orthodox Christianity. Reason discovered that God was unitarian not Trinitarian in nature, that He doesn't send men to Hell for eternity, that good works get one into Heaven, that Pagan religions contain the same Truth as Christianity and are also a valid way to God, that the Bible contains errors and amendments, and that God did not intervene in man's affairs in ways inconsistent with the laws of nature and science.

I point this out because there is an attempt by "Christian Nation" folks to connect our public principles in our public founding documents to orthodox Christianity, as though they "own" it, and, at best, make others who don't operate in such a tradition seem as "outsiders" or worse, argue that they ought not have equal constitutional rights. Justice Scalia endorsed the former view, and argued that while the Abrahamic religions (Judaism, Christianity, and Islam), have full and equal constitutional rights, "[w]ith respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists."

Scalia especially focused on the religious views of the first four Presidents as well as founding documents which invoked God. But those Founders and those documents speak in the language of "natural theology." And such a theology, as we have seen, is not consistent with orthodox Christianity in its finer details. Yet, orthodox Christians were not offended by our Founders supplications to God. But the Founders also never contradicted their unorthodox theology when they made such supplications. (This is why George Washington, though he spoke of a warm Providence, almost never publicly mentioned the words "Jesus Christ." It was as if that name was taboo to Washington's lips). So these Founders, when they invoked God, drew a Lowest Common Denominator between their unorthodox natural theology and the orthodox Christianity to which many common folks and ecclesiastical authorities in positions of social power adhered. This was our "civic religion." But it was a very low LCD: There is a God; He grants us unalienable rights; He is concerned about human beings and will intervene, especially if we don't respect the unalienable rights of others and nothing more. None of the above four Presidents ever more specifically defined the attributes of God when publicly acknowledging Him.

In other words, it is not Revealed religion, which is now consigned to the private sphere of society (the realm of "individual conscience" or "opinion") that founds our public order. It is the natural theology, but only invoked in a very vague and simple sense, otherwise, the consciences of orthodox Trinitarians would be "disregarded."


Clark said...

For one to say it is over simplistic that American law is based upon religious roots would be to ignore the concept of the Nature of law or God’s law that is truly unique within American Jurisprudence. The Founding Founders consecrated a new Nation with a redeeming authority above and beyond man’s poor authority to add or detract. The Founders wrote the Declaration of Independence to declare their separation from England and also to establish a unique religious foundation for their new government. It was the intent of the Founders to establish "Natural law" as the foundation of our government. Natural Law being, as you say, the "public or "civic religion" which includes all religions of divinity including orthodox Christianity. The Natural law is reveiled to man only through reason given to him by recognizing the existance of and trust in the Creator. Only Nature's God can grant men unalienable rights of freedom and equality. The Creator intervens into the affairs of man when mortals fail to honor each other's Natural rights. Thomas Jefferson professed the importance of God being essential to the foundation of a free democratic state when he stated, "Can the liberties of a nation be secure once we have removed the conviction that these liberties are the gift of God?" Clearly the majority of the Founding Fathers believed that it couldn’t be without a basic understanding that without individuals having rights beyond the power of the state, their rights can be sweep away when inconvenient to the State and people then suffer the consequences of Tierney. "The Declaration of Independence first organized the social compact on the foundation of the Redeemer's mission upon earth and laid the corner stone of human government upon the first precepts of Christianity." (John Quincy Adams, at an oration delivered before the inhabitants of the town of Newburyport, Massachusetts on the 61st Anniversary of the Declaration of Independence in 1837). It would be therefore bad logic to assert that the American colonies would call on the authority of God to conceive their new nation but not to include God as the fundamental inspiration of it’s laws, values and traditions.
One of the most important Founding Fathers involved in forging Natural law into the founding of our nation and government was James Wilson who was one of the only six men to sign both the Declaration of Independence and the Constitution. He was the second most active convention member (speaking 168 times). James Wilson was one of the original Supreme Court justices appointed by George Washington, wrote the first ever-legal commentary on the Constitution and has often been called the father of American law. Wilson gave a series of original lectures on the Nature of the Law at what is now the University of Pennsylvania. His lectures are considered to be “the best statement we have of the considered legal theories of a Founding Father”. ---Benjamin Fletcher Wright, “American Interpretations of Natural Law, A Study in the History of Political Thought, ” (Cambridge, 1931), pp 281-286---. Wilson’s lectures always emphasized a main theme that "Human law must rest its authority ultimately upon the authority of that law which is divine.... Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other. The divine law, as discovered by reason and moral sense, forms an essential part of both… the will of God is the supreme law" This means that a religious foundation to our Constitution was established by our Founding Fathers’ by a trust in the Christian God that gives individuals a rooted consciousness of God’s superintending power promoting a gift of reason and the intuition for separating right from wrong for which men should dutifully use to govern soundly. “Our instincts,” James Wilson declared, “are no other than the oracles of eternal wisdom; our conscience…is the voice of God within us…Every man who will listen to this voice may play a creative role in a democracy”. Wilson attacked Sir William Blackstone's definition of the law- “that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.” The arguments of Blackstone, while some of his words helped shape the Declaration of Independence and our Constitution, have also been used to cloak the designs of despotism. The ACLU and radical liberal jurists today are using Blackstone’s law definition upon us to rationalize their godless state as the ultimate “superior” that all Americans must submit to. Mankind’s basic struggle in the universe is dealing with the forces of good and evil. History has given us plenty examples where because of the basic nature of man, he fails to make moral choices. Man alone is basically incapable of recognizing what is ultimately good or bad, but by professing a trust in God and loving his neighbor as himself, man is given the intuition of governing what is right. Conversely, atheistic secularism forced upon on our nation would compel the forces of evil to prevail and destroy the most precious foundations of The United States of America. No one can say that religious people are all moral or that moral people are all religious. The point is that if our nation was not anchored in the timeless ethical standard of God, there is no good and evil, just opinions about good and evil. You cannot rationalize any ethical standard as having ultimate validity unless it gains moral force and authority by appeal to some principle higher than that of the state or the individual. “In God We Trust” is an authority base valid today for ethics in government that is independent of culture and race, and in conflict with only a small number of religions. “In God We Trust” is valid within the full context of the First Amendment because it only implies that our government promotes God within the limits that Thomas Jefferson so simply professed; “The sum of all religion as expressed by, its best preacher (Jesus Christ), fear God and love thy neighbor, contains no mystery, needs no explanation.”

Karen McL said...

The "old" (Thomist) version of the natural law justified such things as slavery and burning heretics at the stake.

Great post Jonathan (and intend to link to it soon). But something stuck me in the above quote and I had to comment.

I always understood the idea for *burning heretics* was not merely a barbaric form of punishment for heresy (while certain horrible and barbaric) but was based on the Biblical notion of the “cleansing of the soul with fire.” So it was supposed to “save” the very Soul of the poor, misguided, heretic from their corrupted views of the divine scriptures and thus help them to correct the error of their ways to achieve spiritual redemption. Such a Kindness (snark) – But was meant to be from Their religious enforcement point of view.

So, in my mind it wasn’t so much the Law as justified this horrifically barbaric method of death, but the very interpretation of the scriptures themselves that prescribed such a salvation from their own heresy for the condemned.

Really a minor point (I guess) but I’ve joked about the idea that if one followed the Biblical literalists back to these forms of strict interpretation and implementation of the Bible (as they argue so often) to be imposed on everyone – we could welcome the *burning of the heretics* once more.

Karen McL said...

Oh...and where does this Mr. Clark leap off the cliff into this absurd interpretation of either the mission of the ACLU or ANY liberals to force those "god-fearing folks" to Submit to a godless state?

"The ACLU and radical liberal jurists today are using Blackstone’s law definition upon us to rationalize their godless state as the ultimate “superior” that all Americans must submit to. Mankind’s basic struggle in the universe is dealing with the forces of good and evil. History has given us plenty examples where because of the basic nature of man, he fails to make moral choices. Man alone is basically incapable of recognizing what is ultimately good or bad, but by professing a trust in God and loving his neighbor as himself, man is given the intuition of governing what is right. Conversely, atheistic secularism forced upon on our nation would compel the forces of evil to prevail and destroy the most precious foundations of The United States of America."

YIKES! I hate to pick on your commentator - but Phuleease! More of the ""We are soooooo *persecuted*" insanity from the extreme religious wing-nut elements.

If they are prevented, by the very Constitution, from imposing their ultra conservative religious values on the Nation as a whole -then the Sky is Falling- Chicken Little.

Clark said...

Karen McL said:
"Oh...and where does this Mr. Clark leap off the cliff into this absurd interpretation of either the mission of the ACLU or ANY liberals to force those "god-fearing folks" to Submit to a godless state?"

Who is the ACLU?
The American Civil Liberties Union (ACLU) was founded in 1920. The founder of the ACLU and it’s main inspiration to this day, Roger Baldwin, who stated in the "Harvard Class Book of 1935; "I am for Socialism, disarmament, and ultimately for abolishing the state itself as an instrument of violence and compulsion. I seek social ownership of property, the abolition of the propertied class, and sole control by those who produce wealth. Communism is the goal. It all sums up into one single purpose-the abolition of dog-eat-dog under which we live.” Commenting on the public image of the ACLU, he said; “Do steer away from making it look like a Socialist enterprise...We want also to look like patriots in everything we do..” This quote from Baldwin's biography written by Peggy Lampson.
Baldwin wrote in the 1934 Soviet Russia Today, "When that power of the working class is once achieved, as it has been only in the Soviet Union, I am for maintaining it by any means whatever."

The former chairman of the Communist Party, William Z. Foster and ACLU co-founder, said: “The establishment of an American Soviet government will involve the confiscation of large landed estates in town and country, and also, the whole body to forests, mineral deposits, lakes, rivers and so on."

Earl Browder publicly described the importance of the ACLU functioning as "a transmission belt" for the Communist Party. Earl Browder was general secretary of the Communist Party of the United States from 1930 to 1944 and thereafter, when the party was reorganized as the Communist Political Association, he continued as its president.

The Special House Committee to Investigate Communist Activities stated that:
“The American Civil Liberties Union is closely affiliated with the communist movement in the United States, and fully 90 percent of its efforts are on behalf of communists who have come into conflict with the law. It claims to stand for free speech, free press and free assembly, but it is quite apparent that the main function of the ACLU is an attempt to protect the communists.”

When we look at the ACLU’s policies and case history, it is obvious they are today still very much dedicated to Communist and socialist goals. Just compare current ACLU goals to goals of the Communist party as evidenced by The Congressional Record, Appendix, pp. A34-A35 January 10, 1963, when Congressman Albert S. Herlong Jr. of Florida listed 45 goals of the Communist party in the United States. They include:

15) Capture one or both of the political parties of the United States.

16) Use technical decisions of the courts to weaken basic American institutions by claiming activities violate civil rights.

24) Eliminate all laws governing obscenity by calling them censorship and a violation of free speech and free press.

25) Break down cultural standards of morality by promoting pornography and obscenity in books, magazines, motion pictures, radio, and TV.

26) Present homosexuality, degeneracy, and promiscuity as "Normal, natural”.

27. Infiltrate the churches and replace revealed religion with "social" religion. Discredit the Bible and emphasize the need for intellectual maturity, which does not need a "religious crutch."

28. Eliminate prayer or any phase of religious expression in the schools on the ground that it violates the principle of "separation of church and state."

40. Discredit the family as an institution. Encourage promiscuity and easy divorce.

It is obvious then that the ACLU’s original and continued purpose is to promote and defend socialism and communism in America, and the right for free speech for the communist agenda (no matter how violent or radical). However, the ACLU opposed the right to express anti-Communist sentiments. The ACLU has an agenda to eventually subvert the civil liberties it claims to defend. Why, because as we know, the ACLU has it’s roots in Marxist ideals. Those familiar with the ACLU's sordid history know that when the organization speaks of "rights" and the Constitution, it is invariably engaged in dialectical subversion. The ACLU claims to defend civil liberties based on the Bill of Rights. However, it is very selective in what it will defend as rights. For example, the ACLU does not support the Second Amendment and the right to bare arms. You would think that after the distortions and contortions of the First Amendment to drive God out of public life that the ACLU would fight vigorously against restrictions of any kind on civilian firearm possession. The ACLU’s selectivity in not protecting gun ownership stems from its basic doctrine in that a totalitarian government must disarm the populace before a Marxist government can takeover.
The ACLU has a long established strategy to actively mask its true intentions through its policy of occasionally defending a conservative to make the ACLU appear nonpartisan. The ACLU’s founder, Roger Baldwin, stated, “If I aid the reactionaries to get free speech now and then, if I go outside the class struggle to fight against censorship, it is only because those liberties help to create a more hospitable atmosphere for the working class.” This is the ACLU official policy as per the words of the ACLU’s William Donohue when he commented, “In other words, the occasional defense of right-wing extremists opens up the courts, thereby making it easier for the ACLU to defend its ideological kinfolk on the left.”
The ACLU often takes the Constitution out of context so as to champion strange cases that seem to favor an outcome that reinforces authoritarian government control. They more often than not favor the dictatorial concept of appointed Judges creating legislation from the bench. The ACLU manipulates the legal system to change the original intent of a law through a process they call "building precept on precept". Through this process, they have been successful in changing the original intent or meaning of laws by carefully crafting lawsuits leading to judicial rulings, which reconstructs the law, step by step, towards their own goals. These new laws, created by the judiciary, eventually lead to a deluge of decisions in their favor. The separation of church and state issue is but one example. The ACLU and its allies have reconstructed the Constitution’s First Amendment from which it was intended to be a shield for people of faith into a terrible sword against them. The creative twisting of the Constitution and the Fourteenth Amendment to provide constitutional protections to homosexual sodomy has evolved into the legal undermining of marriage, family and the weakening of parental authority. The ACLU is on a continual reign of terror in the U.S. as though they have been elected to dictate immoral and unethical standards for the entire country. The ACLU is against morality and Christianity. In the past, it has defended the Klu Klux Klan, pornography and pedophilia as freedoms of expression. It considers limitation to obscenity unconstitutional. The ACLU defends homosexual activism, pedophilia and a push for total sexual liberation. The ACLU supports the North American Man-Boy Love Association, an organized band of pedophiles and child rapists, while at the same time attacking the Boy Scouts for not allowing homosexual scout leaders to lead young boys. The ACLU is creating a climate where valid laws are to be unscrupulously challenged and distorted. The intention of the ACLU is to create social anarchy and a total breakdown morality in our society. The caustic arrogance of the ACLU is exemplified in the former ACLU Executive Director’s, Ira Glasser, reaction to the news that Alaska voters had overwhelmingly passed a constitutional amendment protecting marriage only between one man and one woman. She commented, “Today’s results prove that certain fundamental issues should not be left to a majority vote.” The ACLU will certainly be behind many future judicial actions to over-turn the majority vote and will of the people by forcing the legalization of same sex marriages everywhere in America through the courts. We can see then that all actions of the ACLU have the ultimate purpose of reinforcing its desired image of intellectual elitism over what it considers the ignorant faith of the masses. This type of thinking is necessary for them to achieve their goal of a totalitarian society in their transition struggle for socialism in America.
From its inception, the ACLU has worked to create a new America. To do so, the ACLU found it necessary to achieve two main things: first, the abolishment of Constitutional barriers to governmental power and second, the enervation of man’s soul to make him weak and dependent on government. Both of which move America towards a socialist state and, according to Dr. Krannawitter, are advanced by “removing God from the American mind.”

In order for the ACLU to tear down constitutional barriers to governmental power, they must extinguish America’s fundamental trust or belief in God, since such a belief is an essential denial of the supreme power of law and government. Rights come from God, not government or man. We must as patriotic Americans prevent the day when God’s presence in the American mindset ceases and people no longer trust in God as the ultimate grantor of rights but to trust only in government for those rights. The ACLU believes that the more power the government has, the better off the people under it are. If one looks at the history of the Soviet Union and any other Communist country, one will be apt to find Communist leaders who predicated their form of government on atheism and a secular state religion. This sort of anti-religious atmosphere precludes the existence of any rights beyond that which the state has granted. In addition to the emphasis on the source of rights and governmental power, the ACLU has worked to make people needy and dependent on government. Alexis de Tocqueville warned of those like the ACLU who wished to exacerbate the malignant tendencies of democracy. He explained that the government, if people allow it to do so, will create an incessant dependency of the people on the government as it expands its power under the guise of utility, finally reducing “each nation to being nothing more than a herd of timid and industrious animals of which the government is the shepherd.” The ACLU seeks not only to create a people that are dependent and needy, but also a government that “little by little extinguishes their spirits and enervates their souls” by giving them all they want, so that they will be naively content without hopes, dreams, or a will of their own. This is a sort of despotism unlike any other. Religion is an antidote to the ACLU’s despotism and poison that is dependency on the government. It goes hand-in-hand with limited government and personal responsibility since it instructs individuals to trust in God for provision and it teaches people a strong work ethic. These are things that are not conducive to the ACLU’s ideal citizen. In short, religion creates a society of people who look not to government but to the Creator for support.

As the ACLU continues its assault on Christianity and limited government, every patriotic American must understand what is at stake: our liberty and freedom. Our hope as Americans lies in the foundations of America that, though undermined, still exist today. Though seemingly esoteric, the founding and moral principles present a hope to our country. George Washington said, "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports." While it is these “pillars of human happiness” that the ACLU has sought to destroy, Americans have the ability stand up to the ACLU and reclaim America.

Jonathan said...


I don't see how what you wrote contradicts anything that I wrote, but let me highlight some key points:

1) James Wilson was a "Deist." Though he may have believed in God (maybe even an intervening God) he didn't believe in the literal truth of the Bible and wasn't an orthodox Christian.

I made it clear in my post that some sort of vague theism (the natural religion) does indeed ground our public order, but stressed that this wasn't "orthodox Christianity," but rather what man can know about metaphysical theology from his unaided reason. I'm sure Wilson (and Jefferson, Franklin, Adams, and others) would agree with this.

" This means that a religious foundation to our Constitution was established by our Founding Fathers’ by a trust in the Christian God that gives individuals a rooted consciousness of God’s superintending power promoting a gift of reason and the intuition for separating right from wrong for which men should dutifully use to govern soundly."

All this depends on what it means to be the "Christian God." If you mean Trinitarian, Biblical inerrancy, believing in the miracles and the prophesies in the Bible, then no, this is not the "Christianity" that founds our public order.

If, on the other hand, we take a much more LCD approach, and invoke simple maxims like the Golden Rule, and "love thy neighbor,” then yes, I can agree that this is part of our foundational civic religion. said...

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