Wednesday, August 30, 2006

California's Discrimination Policy:

I agree with Ed Brayton's sentiments entirely. California has just added the category of "sexual orientation" to its pre-existing list of protected civil rights categories.

A few comments. First, keep in mind these antidiscrimination codes almost always come from statutes, not judicial decisions. And the California code is a democratically enacted statute signed into law by an executive. This demonstrates what a canard is the antigay right's oft-repeated notion that the judiciary, not legislatures reflecting "the will of the people," primarily advances "the gay agenda."

Second, although these antidiscrimination laws do indeed limit private freedom, that's an issue not particular to "sexual orientation codes," but to antidiscrimination laws in general. Given what's on the "official list" of protected categories, nothing inherent in the "sexual orientation" category should disqualify it from the list. As I wrote recently:

Granting "sexual orientation" some official status as a civil rights category is a controversial issue. Some on the right fault gays for even "asking" for such, noting that you can't compare race with sexuality. And while many gay rights advocates often invoke the racial analogy, it has become, in my eyes, more of a thoughtless platitude of the anti-gay right to claim "you can't compare sexual orientation with race, therefore no civil protection for you." If we lived in a world where race and only race was the only protected anti-discrimination category, the point might be apt. But that's not the world we live in. Instead, it's race, color, gender, religion, ethnic origin, age, disability, pregnancy at the federal level and many others, including "sexual orientation" at the state level.

And of course, the antigay right evidences utterly faulty logic whenever it tries to argue that presently existing antidiscrimination statutes are just fine, as long as sexual orientation is kept off the list, because it's not like the other categories. From WorldNutDaily:

"As a citizen of California and a religious person, I am terribly disappointed in Gov. Schwarzenegger," said Meredith Turney, the legislative liaison for CRI. "It is bad public policy to add to the list of protected classes a sexual behavior.

"Equating sexual preference with the immutable characteristics of age [sic], national origin or race will result in other variable behaviors being added to the list of invariable classes rightfully protected," she said.

Notwithstanding the fact that most experts who have studied the issue believe sexual orientation to be immutable, at least for most people, mutability is not a prerequisite for official civil rights protection. Age certainly is not immutable, as erroneously claimed. Age is the very opposite of immutable; it is in a constant state of change as we are growing older by the moment. Of course, age isn't chosen. But one's religion is entirely a matter of choice and thus mutable. It could be argued that "religion" is special because such rights are enshrined in the Constitution. Sure, but that justifies prohibiting public, not private discrimination on the basis of religion. Before the Civil Rights Act of 1964, it was entirely legal to discriminate on the basis of religion in private markets. Likewise disabilities often are 1) mutable (they can be cured) and 2) result from activities that are entirely a matter of choice. For instance, Christopher Reeve became disabled and thus covered under the ADA only after he made the choice to engage in a risky behavior -- jumping horses. Finally, pregnancy is protected at the federal level by the Pregnancy Discrimination Act. And unless the pregnancy results from rape, such is entirely a matter of chosen sexual behavior.

All of this isn't to justify antidiscrimination codes as they apply to private markets but rather to debunk the notion that antidiscrimination codes traditionally protect racial categories only and all other categories on the list are "just like race" in the sense that they are immutable and sexual orientation is not. What nonsense.
This Guy has Excellent Taste in Music:

Jeremy Pierce of Parableman.
Kyra Phillips is Lucky:

They say life imitates art. Well, Kyra Phillips forgot to turn off her mic when she went to the bathroom, while CNN televised a Bush speech. A very similar thing happened in The Naked Gun.

Just imagine what we could have heard!

I checked YouTube, but they didn't have that scene in The Naked Gun.

Monday, August 28, 2006

YouTube Rules:

I saw this episode of Tom Snyder guest hosting the Bob Costas show where he interviews Howard Stern when it first broadcast and I didn't think I'd ever see it again. While they didn't like one another to begin with, this very hostile interview set off their long running feud. The video is in four parts (my favorite is part three, where Snyder begins, "you made one day of my life especially miserable..."). This train wreck of an interview, for some reason, fascinates me. My favorite part is where Stern tells Snyder the names of his daughters -- Deborah and Emily -- and Snyder mistakenly calls Stern's daughter "Evelyn." Stern rightly decries Who names a child, "Evelyn"? (which is the name of an old woman, like Edith or Gertrude). LOL.

Update: YouTube, alas, seems to have pulled the videos. Oh well. It was fun while it lasted.

Sunday, August 27, 2006


Here is a clip of the recent Kansas show from Atlantic City which I neglected to attend. When I lived in New Jersey, I lived closer to AC (I lived near the intersection between Routes 206 and 38), and saw Kansas play there about 5 years ago. AC's about two hours away from where I live now.

I didn't see them in AC because they are playing, 11/18/06 at the Keswick Theater in Glenside PA -- about 35 minutes away -- where I've seen them play twice already. One of those times, I ran into progressive rock fan, and conservative media personality, Michael Smerconish, who told me he too has seen Kansas live countless times.

About Kansas now. Their original violinist, Robby Steinhardt is out. And David Ragsdale, who replaced Steinhardt in the early 90s, is back in. Steinhardt's absence makes the band somewhat less "authentic." But, when established bands replace original members, invariably better technicians (given the nature of the music business, there is no shortage of virtuosos willing to fill a slot in an established band) are brought in to "fill the shoes." And indeed, David Ragsdale is a monster on the violin whose abilities far exceed Steinhardt's. So I'm looking forward to seeing Ragsdale shred.

Original bass player Dave Hope is now a Christian minister. Billy Greer, who played with Steve Walsh's post-Kansas band Streets has been with Kansas for 20 years. And unlike Hope, Greer sings (and quite well).

The other three members -- singer/keys Steve Walsh, drummer Phil Ehart, and guitarist Richard Williams -- are original. The band now has 5-members instead of six. Guitarist/keyboardist Kerry Livgren -- the guy who pretty much wrote all their tunes -- is also a Christian minister and currently plays with a band called Proto-Kaw who are in fact, an earlier version of Kansas (before they had a record contract) recently reunited.

Walsh's voice isn't what it used to be; but Billy Greer picks up a lot of the slack. Because the band has only one keyboardist and because Walsh is a the lead singer as well, the band is less "keyboard heavy." And while Walsh's Kurzweil sounds nice, it doesn't sound nearly as good as the multiple analog keys they used in the 70s (Keith Emerson and Rick Wakemen still use their 70s era analog keyboards, along with newer models).

Here is a clip of Kansas in their 70s era prog-rock glory.

Saturday, August 26, 2006

Babka Replies to Frazer II:

The conversation winds down. Here is Jim Babka's reply to Dr. Frazer's latest remarks:

Gregg, I'm going to wind this down because you have classes to prepare for, and I a business to run.

At those points where you assert that I was refuting points you did not make, I was taking the entire conversation into context -- including Jon Rowe's original post (which I assumed you were defending). The points needed to be made. Oh, and you did note that I said, with some embarrassment that I was quoting web sources including Wikipedia, right?

One can safely (and probably should) assume, based on the preponderance of material -- and especially the Adams citation I provided -- that the original thesis that Unitarianism was necessary because "Calvinism was inconsistent with revolution," was incorrect. This was the core of the issue (and everything else was window dressing). I note that you haven't returned to counter that point.

Regarding my "lenses," you should know that assertions about what goes on in people's minds, like their motives or knowledge, is dangerous territory and nearly impossible to prove. I was not always a libertarian. I came into libertarianism from the opposite direction. It's been a decade; Harry Browne's '96 campaign recruited me. But if I couldn't square what Harry said with Scripture, it probably never would've happened.

Until the late 90s, it was true that the overwhelming majority of libertarians had a strong Randian streak that embraced selfishness. But a large and growing plurality are like me. They believe that liberty promotes responsiblity and results in increased virtue. My Biblical example for this is Adam and Eve. Was God caught off-guard by their decision to eat the fruit, or did He value their liberty (often called Free Will) more? I think the answer is obvious.

Thanks for the respect you've shown me in responding. I've learned a great deal here. **Jim Babka

Friday, August 25, 2006

Frazer Replies to Babka II:

Here is Frazer's response to Babka's latest remarks:

Jim, I appreciate the kind words about my dissertation.

I won’t argue with you about which of us knows the Bible better, but methinks you think God is a libertarian because you’re a libertarian and you, therefore, read the Bible through libertarian glasses. Without going into great detail, one significant problem with such a view is that libertarianism is essentially self-centered and self-interested. The Bible, however, teaches believers to be self-sacrificing and self-effacing – to prefer others to self.

Moving beyond that parenthetical comment, it seems to me that you’ve done a fine job of refuting points/arguments THAT I DID NOT MAKE.

Re Rutherford: again, I emphasize Locke because he’s the one emphasized by the Founders and by the Revolution-supporting preachers. I did NOT say that he was the only person who had such ideas (or the first to have certain ideas) or that the Founders read no one else but Locke. I said that they quoted Locke extensively and that they did not quote Rutherford – both of those statements are true. I also said that Rutherford appears to have been relatively obscure in his own day and that he is far more influential today than in his own time. The only examples you gave of Rutherford being cited were “libertarians and gun rights advocates like Dave Kopel” – both 20th/21st century examples which make my point.

In response to “is it reasonable to insist that Locke wasn’t influenced by Rutherford?”: first, I did not INSIST that Locke was not influenced by Rutherford; I a) asked who said it, b) asked if Locke acknowledged a debt to him, and c) said that “we have evidence linking Locke to Shaftesbury and Hooker, but not to Rutherford (as far as I know)” [emphasis added] You gave no such evidence, other than a conjecture that “it’s likely” he had read him and mentioning that “writers on the web” and Wikipedia “suggest that Rutherford was influential on Locke.” First, the conjecture is just that. Second, one can find “writers on the web” who deny the Holocaust and the moon landing and Elvis’s death. Third, the problem with Wikipedia is that ANYONE can submit to it – it’s a useful tool, but hardly authoritative. By the way, even Wikipedia does not suggest that Rutherford influenced Locke; it says that the “theory of limited government and constitutionalism” espoused by Rutherford “laid the foundation for later political philosophers such as Thomas Hobbes and John Locke.” Advancing a theory (along with others) which lays the foundation for someone and personally influencing them are entirely different things – and it says the same for the monarchist Hobbes! As to the suggestion that “it would seem almost certain that a man of letters like Locke would’ve been aware of Lex Rex,” that assumes what you’re trying to prove – which is that it was not obscure, but influential. A man of letters would not necessarily be familiar with an obscure work. Further, as you note, Rutherford’s ideas were not unique to him; so it’s quite possible someone who came later who shares the same views got them from someone else. In sum: I think it is perfectly reasonable to question whether Rutherford influenced Locke – especially in light of the absence of evidence to the contrary. You then say that Witherspoon was “almost certainly, directly influenced by Rutherford.” Do you have any evidence for that besides the fact that they shared the same national heritage? Did Witherspoon ever quote or credit Rutherford?

We could also discuss the extent and nature of Witherspoon’s influence on Madison – which I do in chapters 6 & 7 of my dissertation – but that seemed to be just a “parenthetical note” on your part.

A second argument THAT I DID NOT MAKE which you refute at great length is the idea that everyone who supported the Revolution (or the idea of revolution) was Unitarian and that “Unitarianism was required to get around” Divine Right of Kings. I SAID NO SUCH THING – nor did I imply it. I said (and I quote): “one must move away from Calvin (whether to Arminianism or Unitarianism) in order to support the revolution.” Your extensive quest to show trinitarian support for revolution is interesting, but irrelevant. No one denied that one could be trinitarian and support the Revolution. You then list a number of Calvinists who supported revolution, but I never denied that people identifying themselves as Calvinists supported revolution. I said that Calvin did not and that many churches held Calvin’s view and that that was a hurdle which had to be overcome – hence, the significance of Mayhew’s landmark sermon (which would not have been landmark if Rutherford’s view were the norm).

I also did not say or even imply that Unitarians “had the next largest plurality” after Calvinists – I said nothing about unitarianism as a denomination. I also said nothing about Calvinist denominations in terms of percentages of churches – I spoke about the theology. I said (and I quote again): “Calvin’s view was the majority view in the century leading up to the Revolution.” [emphasis added] One need not be a Calvinist or a member of one of the 1300 Calvinist churches (compared to <900 Baptist/Episcopalian/Anglican churches) to hold Calvin’s view of Romans 13 and against revolution. That view – based on what Romans 13 actually says -- was the majority view throughout the history of the church up to that point. Jonathan Boucher and Samuel Seabury (for example) were prominent Anglican ministers who argued the traditional literal (and biblical) view of Romans 13 and against revolution.

As to the two passages of Scripture: you say here that “we’re on my turf” – I could argue pedigrees of biblical training/degrees/etc., but that would be pointless and schoolyardish. Suffice to say that I’m not unfamiliar with this turf. Regarding I Samuel 8, you suggest that I “wish to miss the point.” With all due respect, I might say the same to you. First, the primary point is that Israel rejected God as their king and that any human regime which follows will inherently be inferior. Second, a warning about kings is not equivalent to support for political liberty. Before this time, Israel was ruled by a series of judges and before that by Moses. All of them, like the first two kings to follow, were appointed by God – not expressions of political liberty. The reason rule by the kings would be worse was that they had rejected God – not because they would lose political liberty. They had no less political liberty under the kings than they did under Moses. In fact, they ended up with more “liberty” (in the libertarian sense) under the kings because the kings abandoned the Law of God which regulated every aspect of their lives! As Jonathan Boucher pointed out, God does not express concern about political liberty in the Bible. God is concerned about spiritual liberty – freedom from the bonds of sin.

Regarding Acts 5:29, I must congratulate the works you mention for originality and creativity in their “interpretation” of this passage, since there is no king involved in the passage and the apostles are, in fact, refusing to obey ecclesiastical authorities! Excuse me for saying so, but I think here you’ve stepped over the “distort or ignore facets of Scripture” line. OK, the apostles didn’t organize a rebellion because it wasn’t their mission (rebellion is not the mission of any believer in Christ) – but I also pointed out that they did not demand any rights or make any appeals to political liberty and that they affirmed the authority of the council and submitted to the prescribed punishment (and, by the way, “rejoiced” about it rather than protesting [vs.41]). You see, they were concerned about the Gospel – not political liberty.

It’s been fun exchanging ideas with you. I hope I’m prepared for my classes on Monday – you’ve caused me to use a lot of my time today on this. :)

Gregg Frazer
Frank Kameny's Papers:

A few days ago Dale Carpenter and others noted gay rights legend, Frank Kameny's papers are archived online. You can find them here.

I must confess I've gotten to know Frank, somewhat personally, through a private listserv to which we both belong, and while I don't always agree with his politics (which are further to the left than mine) or his religion (he's a fervent atheist along the lines of Dawkins and Dennett) he's one of the most spirited men I've ever run into.

And, with a Ph.D. from Harvard in Astronomy, he's a brilliant dude.

But more importantly, his papers are useful. Granting "sexual orientation" some official status as a civil rights category is a controversial issue. Some on the right fault gays for even "asking" for such, noting that you can't compare race with sexuality. And while many gay rights advocates often invoke the racial analogy, it has become, in my eyes, more of a thoughtless platitude of the anti-gay right to claim "you can't compare sexual orientation with race, therefore no civil protection for you." If we lived in a world where race and only race was the only protected anti-discrimination category, the point might be apt. But that's not the world we live in. Instead, it's race, color, gender, religion, ethnic origin, age, disability, pregnancy at the federal level and many others, including "sexual orientation" at the state level.

And while many of these groups have been mistreated by society (though none worse than blacks), Frank Kameny's papers document the sometimes terrible mistreatment gays suffered at the hands of the law. Kameny himself was disqualified for work in the federal government and had a prospective career as an astronaut ruined simply for being gay. If you want it spelled out more clearly, "[r]ead this 1960 Letter from the U.S. State Department (John W. Hanes, Administrator) to Dr. Kameny confirming that the Department 'does not hire homosexuals and does not permit their employment.'"

Thursday, August 24, 2006

Babka Replies to Frazer:

Jim Babka has emailed me a response to Frazer's post, which I've reproduced below. I'm trying to independently research these issues further by reading and re-reading in detail, Bernard Bailyn's work, The Ideological Origins of the American Revolution. Bailyn's work argues that our Founders were pro-liberty radicals who drew from a variety of sources, including the Bible and the Enlightenment -- from wherever they could -- to support their notion of political liberty and revolution. Whether such uses of the Bible to support political liberty and revolution involved sound interpretations...I'll continue to let Babka and Frazer fight it out. And I'll have a word later. Anyway, here is Babka's reply:

Gregg, First, I must say, that because of Jon's work, I almost feel like I've read your thesis. What I've read by Jon, up to this point, I've largely agreed with and appreciated.

I should say up-front that I know my Bible and I'm convinced that God is a libertarian. I don't have to distort or ignore facets of Scripture to demonstrate my case. This message will be a long one, so I won't devote any time to that, except for the specific references you've questioned.

I should also say, again up-front, that I'm interested in history, but not a historian and certainly not of your caliber. What follows may be off-base. I may be all wet. If so, I eagerly await being set-straight where that is the case.

Looking over your response to my questions and statements, I think only one of my questions/challenges has been answered, and that about how widespread Unitarianism was (even if it was "underground"). I'll simply accept your argument, but with a caveat, which I will cover below.

It was merely a parenthetical note on my part that Rutherford influenced Locke. In my comment, I didn't extend the claim to influence of the Founding Fathers, though I will add the following observation. Perhaps the Divine Right of Kings was absolute, as the quotes by Calvin might seem to suggest, and maybe it extended over the church in Calvin's era. But the principle was broached and the battle joined in the arena of church government well over 100 (and arguably as many as 220) years before the American Revolution; and still several decades before Locke wrote his Second Treatise.

And it was from this atmosphere, these battles, that Rutherford derived his thoughts on limited government...

* Natural law instructs us that man is born free.
* This means no one is born a ruler by right. As Rutherford put it, "no man bringeth out of the womb with him a sceptre and a crown on his head."
* Kings were also subject to the law. And those who behaved otherwise were tyrants.
* Tyrants were to be resisted.

These ideas weren't Rutherford's, exclusively. In varying degrees they were shared by many others, many of which I will cite below.

Rutherford did not limit his comments to the battle over church government. For example, he advocated a vigorous self-defense, and was clearly concerned with what the Biblical perspective was. He lived in an era of civil war -- the "Bishops wars." His family had taken a side in them. Rutherford spoke of the use of violence in self-defense, as well as opposing a tyrant by force, and that led libertarians and gun rights advocates like Dave Kopel to cite his influence on our 2nd Amendment.

Oh, and I almost feel embarrased mentioning this, but several writers on the web, including Wikipedia, suggest that Rutherford was influential on Locke.

But seriously, is it reasonable to insist that Locke wasn't influenced by Rutherford? The best hypothesis should be that he was. Locke was also caught up in a not-too-distinct political intrique, himself -- down the road a-piece and in virtually the same era. It would seem almost certain that a man of letters like Locke would've been aware of Lex Rex. Given the topics he wrote about, it likely he read it.

If Rutherford and the others I'm about to list inspired Locke, Trinitarian thought would have at least an indirect influence on the Founders. And were it notfor the "Rutherfords" of that era and the battles within the church, would we have had Puritan settlers pioneering the first communities in this country? Would so many preachers, of various stripes, have played a role in the American revolution?

But I can go further. The idea that the Calvinism of the revolutionary period, reprehensible though it may be, was knee-jerkingly in support of the Divine Right of Kings, and worse, that Unitarianism was required to get around it, seems to be false. [Note: I'm not a Calvinist. I think Calvinism portrays God in a negative and inaccurate light.]

There were Calvinist works saying the King was under the law and could be resisted if he became tyrannical more than 200 years before the American revolution and more than 100 years before Locke's 2nd Treatise. For example...

* How Superior Powers Ought to Be Obeyed by Their Subjects, Christopher Goodman (1558). Goodman justifies the Christian's right to resist the rule of a tyrannical Catholic leader. He claimed Calvin himself approved the piece.

* The First Blast of the Trumpet Against the Monstrous Regiment of Women, John Knox (1558). Moving now to the land of Rutherford, the great Calvinist reformer launches a strong critique of "Bloody Mary's" reign and advocates resistance. There are those who claim that Calvinist/Puritans who fought in the American Revolution were devotees to Knox's doctrines as published in this document.

* Foxe's Book of Martyrs (1563). This work told of the bloody persecutions of Puritans during the reign of Mary I. This incendiary book is believed by several historians to be second to the Bible in its popularity in the American colonies. It remains in print and is readily available to this day.

* The Right of Magistrates Over Their Subjects, Theodore Beza (1574). This work by Calvin's successor in Geneva was published in response to the growing tensions between Protestant and Catholic in France, which culminated in the St. Bartholomew Day Massacre in 1572. Beza suggests that it is the right of a Christian to revolt against a tyrannical King.

Which sets the stage and brings us to who influenced Locke, and even the Founders. Who influenced the Founders? John Adams seems to have a great deal of credibility with both you and Jon, so we'll cite him first.. There are Trinitarian Christians on Adam's list -- even Calvinist/Puritans.

For example, A Short Treatise on Political Power by John Ponet (1556). Adams credited this work as being at the root of the theory of government adopted by the Americans. According to Adams, Ponet's tome contained "all the essential principles of liberty, which were afterward dilated on by Sidney and Locke" including the idea of a three-branched government.

Adams went on to say, "In the course of those twenty years (1640-1660), not only Ponnet and others were reprinted, but Harrington, Milton, the Vindiciae contra Tyrannos, and a multitude of others, came upon the stage."

* The Commonwealth of Oceana (1646) by James Harrington

* Areopagitica (1644), as well as A Treatise of Civil Power in Ecclesiastical Causes; Showing That it Is Not Lawful For Any Power on Earth to Compel in Matters of Religion by John Milton (1659).

* Vindiciae Contra Tyrannos (English title: A Vindication Against Tyrants) (1579). It would be fair to call this a Calvinist work. It is also one of the first to set forth the theory of "social contract" upon which the United States was founded.

But who could the "multitude of others" be? Well, in the time frame Adams cited you have...

* John Lilburne of the Leveller movement, who has been cited in Supreme Court opinions and was probably the primary human inspiration for our 5th Amendment.

* Rutherford, whose work was published in 1644. He wrote, "The Scripture's arguments may be drawn out of the school of nature." This is not a novel concept to the Founder's era. And I think it's also important to note that via Rutherford and his contemporaries this idea preceded the Enlightenment. Some would even say Rutherford was merely quoting a 1500 year old idea by the Apostle Paul (see Romans 1:16-24, especially verses 19-20).

Jefferson seems to have drawn inspiration from Calvinist sources as well. There's the Dutch Plakkaat van Verlatinge (a.k.a., the Dutch Declaration of Independence)(1581). In his autobiography Jefferson indicated that the "Dutch Revolution" gave evidence and confidence to the Second Continental Congress that the American Revolution could likewise commence and succeed. A University of Wisconsin, Madison professor has suggested that Jefferson may have consciously drawn on this document when he drafted the American Declaration. John Adams said that the Dutch charters had "been particularly studied, admired, and imitated in every State" in America, and he stated that "the analogy between the means by which the two republics arrived at independency... will infallibly draw them together."

At least one Founder was, almost certainly, directly influenced by Rutherford; John Witherspoon, President of what was to become Princeton University and signer of the Declaration of Independence, came from the Scotland (the land of Knox and Rutherford) where he was trained as a Presbyterian minister. His students included James Madison and Aaron Burr, Jr., and there's solid evidence that his influence on Madison was profound.

But Gregg, you appear to be making a claim for which I haven't seen any data. You wrote: "while Baptists and Methodists and others played a role in the Revolution, they were minority groups. The key for the revolutionaries was to find a way around Calvinism (because it was the majority theology – particularly in the hotbed of New England) in order to fill the ranks of the revolutionary armies."

It appears you're suggesting that Calvinists were the dominant majority and, if I'm reading you correctly, that it was the Unitarians that had the next largest plurality. Are you counting all Anglicans as Unitarians? That would seem to be a leap.

According to Roger Finke and Rodney Stark in their book, The Churching of America, here are the rates of religious adherents by denomination as of 1776:

Congregationalist 20.4%
Episcopalian 15.7%
Presbyterian 19%
Baptist 16.9%
Methodist 2.5%
Catholic 1.8%

How do we know how many Unitarians there were? Washington, Jefferson, and Adams all felt they needed to hide or disguise their views. Perhaps you know the answer. But from what little I know, it doesn't appear that there's sufficient data amongst the general public. I would expect still less available data on who fought in the revolutionary military.

Unitarianism may have been widespread -- especially amongst the Founders (the elite of their day). But were Trinitarians in support of the revolution? Did they need the prompting of Unitarians to get them to fight? I don't see sufficient reason to adopt that idea.

Finally, I come to the subject of my use of Scripture. While everything I've said about history to this point has the risk of being incomplete and presented from ignorance, now we're on my turf.

I cited two Scriptures as, for lack of a better term, "libertarian." With explanation, I could cite several more. Those two Scriptures were I Samuel 8 and Acts 5:29.

Excuse me for saying so, but your analysis of these passages seems like you wish to miss the point.

Where is the political liberty in I Samuel 8 you ask? In God's warning about Kings! It's so libertarian that David Boaz, the Executive VP of the CATO Institute, and a non-believer, cited it right in the beginning of his anthology, Libertarianism: A Primer.

Acts 5:29 is cited in several of the works I've mentioned in this piece as an example that ecclesiastical authorities are not under the King. Or, put another way, the King has no Divine Right. But you want to know why the apostles didn't organize a rebellion? It wasn't their mission! One doesn't have to organize a single soul in order to be libertarian. The bloggers at Positive Liberty speak about many things and stake many claims for which they'll never march, organize, or outright rebel. That doesn't make their statements any less libertarian.

The Divine Right of Kings was promulgated in an era when magesteriums still controlled the study and interpretation of scriptures. With increasing literacy and Bible's in their own languages, people began to discover that their self-interested leaders had sold them a bill of goods. As illustrated above, when they began to do their homework, they found ample justification in Scripture to stand up to tyrants. They didn't need to wait for Unitarians to do so.

By the way, I find it interesting that the Christian-nation crowd has never, to my knowledge, covered any of the stuff I just mentioned. Perhaps I missed something. It seems to me that they choose to twist facts about the Founders, invent quotes, or just plain make things up. Writing this piece leaves me wondering about these guys, more than ever. Are they purposely lying?

Writing this response was an interesting exercise. I've learned from it, as I learn from Jon Rowe (and indirectly, from you) on a regular basis. I look forward to learning more from you, including where I've gone wrong in this piece. -- Jim Babka

Wednesday, August 23, 2006

Frazer replies to Babka:

Jim Babka was one of the folks who criticized my post Was the American Revolution Consistent with Calvinism? which drew largely from Dr. Gregg Frazer's thesis. Frazer has replied to Babka in an email to me which I've reproduced below, and he left a comment at Postive Liberty's website.

Jim, while I cannot speak for Jon, it seems to me that his point was that one must move away from Calvin (whether to Arminianism or Unitarianism) in order to support revolution. Also, while Baptists and Methodists and others played a role in the Revolution, they were minority groups. The key for the revolutionaries was to find a way around Calvinism (because it was the majority theology – particularly in the hotbed of New England) in order to fill the ranks of the revolutionary armies.

Second, I find your suggestion that I Samuel 8 and Acts 5:29 provide evidence for political liberty as a biblical concept puzzling. In I Samuel 8, the people reject God as their ruler and demand an earthly king. God lets them have a king, but spends the bulk of chapter 8 warning them of the dire consequences. Political liberty? Where? In Acts 5:29, Peter and the apostles refuse to quit preaching the Gospel (as they did previously in 4:19-20); but they make no claims of political liberty and organize no rebellion. In fact, they make it clear that they are under the authority of the Council by affirming its authority to judge their actions (4:19) and by submitting to the punishment prescribed (flogging) in 5:40. No one demands any rights or appeals to political liberty or calls for rebellion – quite the contrary.

Third, while the Adams quote from Jon is indeed “solitary and unspecific,” a specific account of all of the evidence for the long-time influence of prominent and influential Unitarians would require much more space and time than any blogger is likely to invest. If you want to see lots of specific evidence, check out chapter 7 of my dissertation. There I spend 90 pages recounting the influence of Unitarian ministers such as Jonathan Mayhew, Ebenezer Gay, Charles Chauncy, and others. To be fair, I don’t think Jon suggested that one must be Unitarian to strenuously disagree with Calvinism or to emphasize reason. He merely pointed out (accurately, I might add) that the people he was talking about were Unitarian and anti-Calvinist and that their Unitarianism facilitated opposition to Calvinism and an over-emphasis on reason.

Finally, I don’t think Jon (or I) asserted that Calvin’s view of the Bible is more biblical than the others you mention. The point was that: a) Calvin’s view was the majority view in the century leading up to the Revolution and, therefore, had to be removed as an obstacle in order to get majority support; b) that Calvin’s view was more biblical than that of the Unitarians and/or theistic rationalists; and c) that many of the patriotic ministers (those who were theistic rationalists) were much more concerned with what Locke said than what the Bible said. They quoted Locke far more frequently (and accurately) than they did Scripture.

As to the remarks about Rutherford: while it is true that Rutherford developed similar ideas and that reconstructionists today are enthralled with him – there is no evidence that the American revolutionaries had read Rutherford. They didn’t quote Rutherford or cast arguments in his language. Personal library lists do not find Lex Rex on their shelves. They DID quote Locke EXTENSIVELY and authoritatively. Further evidence that they were not influenced by (familiar with) Rutherford is the fact that Mayhew made such a splash by making the same basic arguments as Rutherford. Mayhew was hailed as the “Morning Gun of the Revolution” for removing the Calvinist obstacle – why would that be such a big accomplishment if they already were versed in Rutherford? By the way, who says that Rutherford influenced Locke? Did Locke say so? We have evidence linking Locke to Shaftesbury and to Hooker, but not to Rutherford (as far as I know). It seems to me that Rutherford was fairly obscure in his day and that he’s much more influential today than he was in the 17th or 18th centuries.

Gregg Frazer
MacDonald on Religion:

Heather MacDonald has been brilliantly raising some serious questions about "religious Truth" on National Review's website. See her latest remarks here.

I've long pondered these questions -- questions about the moral claims of religion, whether the Bible is compatible with the ideas of liberal democracy, how the Bible scores on the big moral issues of the modern era like slavery and genocide.

One of the most apt observations MacDonald made is that "The Bible is as open-ended a text as any other." I wouldn't go so far as to say that the Bible can be read to support any position. But I will assert that the Bible, read "literally," can support a whole slew of contradictory positions and outcomes. That indeed, many passages seem to contradict one another. And a "literal interpretation" is a theory which invariably focuses on certain parts of the good book and conveniently explains away or ignores other passages.

You can compare the Bible to the Constitution by way of an analogy. The "legal realist" argues that judges invariably will make policy judgments, that indeed, everyone is a legal realist whether they admit it or not. Likewise, it could be argued that everyone is a cafeteria or liberal Christian, whether they admit it or not. The biggest difference between constitutional and Biblical interpretation is that the Constitution is a much briefer document, and thus easier lends itself to one "correct" interpretation, with one "right" set of outcomes.

Let us raise a half dozen vital moral and political issues and see how they fair according to the Bible. First slavery and genocide. I've heard it argued that the Bible supports anti-slavery and anti-genocide positions because the notion of human equality and dignity is rooted in the fact that we are all born in God's image. Now, indeed, that can be plausibly gleaned from certain parts of the Bible. Yet, as Ed Brayton recently noted, in parts of the Bible, God explicitly orders the genocide, complete with the slaughter of innocent women and children, of certain "tribes" of people. And the Bible is replete with references that seem to endorse the institution of slavery. So in order to get an "anti-slavery" position out of the Bible, what do we do? Glean a theory from it which holds that all human beings derive inherent dignity rights by being created in God's image. Impose that abstraction as the dominant view of the Bible. And then ignore or explain away all of those other passages that seem to contradict such theory.

Such explanations often invoke "context." But while historical context can explain away human error -- for instance, for thousands of years slavery went unchallenged as an institution; because the notion of human rights just hadn't yet been "formulated" or "discovered," people weren't aware that slavery was wrong; thus I can accept that we don't treat famous historical figures who held slaves with the same moral outrage that we would direct against a present person who holds slaves -- historical context cannot, however, explain away the error of an omnipotent God, or the words of a book, eternally true, today as yesterday.

See this thread on worldmag's blog where I wrote: "If you can explain away 'the [Biblical passages which seem to call for genocide and slavery] by historical context, then why can't we likewise explain away God's prohibitions on homosexual sex in Leviticus by 'historical context?'"

To which a commentator replied:

When God demanded what you call genocide, it was in a particular moment in time and for particular moral reasons at that time--and applied to a particular people. It was not an open-ended timeless call to kill certain people.

When God prohibited homosexual sex, he was not couching that prohibition in a particular setting nor did He intend for the historical context to mitigate His point. The intended application of the passages that prohibit homosexuality are clearly more open-ended.

The commentator did exactly what I described above: Use certain passages in the Bible to support a particular position -- in this case anti-genocide, anti-slavery -- and otherwise minimize or explain away the importance of contradictory passages. And I would argue that a clever interpreter of the Bible, for instance, John Boswell, likewise could abstract a pro-homosexual message from the Bible, impose that as the "open ended and timeless Biblical norm" and use "context" to argue that the anti-homosexual passages are only applicable to "a particular moment in time and for particular moral reasons at that time."

Likewise with religious liberty rights. Many parts of the Bible explicitly forbid the worship of any God but the Biblical God (and, I might add, impose the death penalty for the open worship of false gods in the OT) and for thousands of years, "Biblical Governments" literally interpreted such passages to justify civil governments punishing non-believers simply for their non-belief. Eventually, because of the problems resulting from persecution of minority sects, Christians had to "rethink" their way through those passages to come forth with an interpretation which supports religious liberty rights.

Likewise with the right to rebellion. Many passages in the Bible unquestionably tell believers to obey magistrates. And such passages were used by Biblical literalists to support the notion of Divine Right of Kings and quell the notion of a right to revolt. I got some criticism on my last post for suggesting that anti-Revolution is the only "proper" literal interpretation of the Bible. And I will concede that using the same technique of "interpretation" that yields outcomes which differ on such things as slavery, genocide, and religious liberty, you probably can derive a "Biblical" position that supports a right to revolt.

Finally, even on the claim made by Michael Novak and many other orthodox believers of "a loving God." As far as I know, there are passages in the Bible which suggest this and outright say that God is a "God of Love." Yet, there are other passages which clearly use the word "hate" to describe God. Christians have claimed that such a God "loves the sinner but hates the sin." But that notion is simply a theory abstracted from certain parts of the Bible, which ignores or explains away other passages. Parts of the Bible explicitly state that God doesn't just hate sin, but hates people. Indeed, as much of a lunatic Fred Phelps & co. appear to be, every single assertion they make is grounded in some passage of the Bible.

See this debate between Fred Phelps and a "kinder, gentler" fundamentalist, our old friend the Reverend John Rankin, where both use Biblical passages to support their positions; in Phelps's case it's that God doesn't just hate sin, but hates sinners as well; Rankin argues the old Chestnut that God loves the sinner but hates the sin. While I don't care for the positions of either, and find Phelps's position far more abohorrent than Rankin's, on Biblical grounds, I'd say their positions are evenly matched.

Monday, August 21, 2006

A Guilty Laugh:

This isn't the type of thing I would say (at least not publicly); but, as someone who regularly monitors D. James Kennedy and is aware of the way he grins, I burst out laughing when I read this.

The context is Scienceblogger Kevin Beck responding to D. James Kennedy's attack on Darwinism, from Kennedy's Truths That Transform website, which claims:

Reclaiming Science from Darwinism (Part 2) "Do you believe that Darwinism is a failed theory? Then you need to start acting like it! And you can! Why? Because the evidence points to a young Earth and a Creator! Want to know why? You can, when you join Dr. D. James Kennedy and his guest, Dr. Ken Poppe, on Truths That Transform."

To which Beck responds:

I didn't listen to this or any of the other programs listed on the Truths that Transform site and I probably won't, given that I don't feel like running out and purchasing a new monitor after this one flies out the window and is smashed to pieces in the driveway two stories below. Kennedy, smiling paternally from two different graphics on his home page as if he's just corn-hogged his favorite feline or farm animal, knows full well that there is no evidence for a "young Earth."

I don't think you or I will ever be able to look at Kennedy's smile the same way again.

Saturday, August 19, 2006

Was the American Revolution Consistent with Calvinism?

In a word, no. This is one of the points made in Gregg Frazer's Ph.D. thesis on The Political Theology of the American Founding. Calvinism actually better fits with the doctrine of Divine Right of Kings. Frazer cites George Willis Cooke, who, in 1902, wrote:

The doctrine of degrees, as taught by the Calvinists, was the spiritual side of the assertion of the divine right of kings. On the other hand, when the people claim the right to rule, they modify their theology into Arminianism. From an age of the absolute rule of the king comes the doctrine of human depravity; and with the establishment of democracy appears the doctrine of man's moral capacity.

Frazer goes so far as to assert that "Each of the so-called five points of Calvinism offended liberal democratic sensibilities." Calvin himself, in his Institutes of the Christian Religion, apparently addressed the question of Revolution and, according to Frazer, "made it abundantly clear that rebellion was never justified. He declared 'whatever they are and however they govern,' magistrates derive their authority 'from [God] alone.' And:

If we keep firmly in mind that even the very worst kings are appointed by this same decree which establishes the authority of kings [in general], then we will never permit ourselves the seditious idea that a king is to be treated according to his deserts, or that we need not obey a king who does not conduct himself towards us like a king."

Also, "we must honour [even] the worst tyrant in the office in which the Lord has seen fit to set him." And "if you go on to infer that only just governments are to be repaid by obedience, your reasoning is stupid." Finally, "make no mistake: it is impossible to resist the magistrate without also resisting God."

All of these are direct quotations taken from John Calvin, "On Civil Government," Book IV, Chapter 20 of Institutes of the Christian Religion in Luther and Calvin on Secular Authority, trans. & ed. Harro Hopfl (Cambridge: Cambridge University Press, 1991).

No wonder Jefferson and Adams ridiculed, often viciously, the doctrines of Calvinism. Clearly Calvin could not be used to justify revolt or rebellion. So the Founders had to turn to Locke. Indeed, John Witherspoon, an orthodox Christian and a Presbyterian minister, explicitly spoke in Lockean, not Calvinist terms when arguing for the Revolution.

Locke and the Enlightenment had to be where the Founders -- whether they were orthodox Christians, Deists, or Theistic Rationalists -- turned to justify the Revolution because the Bible itself is insufficient for establishing the principles upon which we declared independence and constructed the Constitution.

Here is where we get to an interesting and under-appreciated nuance of Founding theory. Churches, very important social institutions during the Founding era, played an important role supporting the Revolution. Because Unitarianism swept through Massachusetts Congregational Churches during the Revolutionary era, such Churches could effectively integrate pro-revolutionary messages into their sermons, and were thus particularly influential. Like the Unitarians of today, the Founding era Unitarians had a penchant for novel and unorthodox readings of the Bible.

Indeed, this blog has noted how theological unitarianism dominated the minds of the key Founders, many of them Virginia Anglicans. But let me now stress that the Unitarian ministers of the Unitarian Congregational Church in Massachusetts played a vital role in making theological arguments from the pulpit in favor of the Revolution. And they did so by integrating anti-Calvinist Enlightenment principles, which justified revolt, into their interpretation of the Bible.

There is a myth circulating that very few Unitarians existed among the Massachusetts Congregational Churches until sometime in the 1800s, well after the Founding. Apparently, this misconception existed in John Adams's time as well, and Adams himself addressed the matter:

I thank you for your favour of the 10th and the pamphlet enclosed, "American Unitarianism." I have turned over its leaves and have found nothing that was not familiarly known to me.

In the preface Unitarianism is represented as only thirty years old in New England. I can testify as a Witness to its old age. Sixty five years ago my own minister the Reverend Samuel Bryant, Dr. Johnathan Mayhew of the west Church in Boston, the Reverend Mr. Shute of Hingham, the Reverend John Brown of Cohasset & perhaps equal to all if not above all the Reverend Mr. Gay of Hingham were Unitarians. Among the Laity how many could I name, Lawyers, Physicians, Tradesman, farmers!

John Adams to Jedidiah Morse, May 15, 1815. Adams Papers (microfilm), reel 122, Library of Congress.

Calvin's anti-Revolutionary theology arguably was far more Biblical than the Unitarians' pro-Revolutionary theology. As Frazer comments on the Unitarian ministers:

When reading these sermons carefully, one is struck by the frequency with which passages of Scripture are interpreted in a manner convenient to the argument being made, but unrelated or opposed to their clear sense. Whether expounding upon a historical example or a statement of doctrine, the ministers were little concerned with standard rules of interpretation; such as adherence to context, comparison with similar passages, and fidelity to the clear sense of a passage when the terms are not ambiguous.

The controlling Biblical text on the right to revolt is Romans 13. Frazer notes Founding-era preacher Samuel West in one such sermon, "had to conclude that the apostle Paul meant the opposite of what he said." Frazer quotes Harry Jaffa's analysis, in A New Birth of Freedom, where Jaffa notes: "for more than a millennium and a half of the history of the Christian West, the prevailing opinion was that political authority descended from the top down, from God to kings and rulers, and that the obligation of the ruled was simply to obey." Another scholar noted:

Basing a revolutionary teaching on the scriptural authority of chapter 13 of St. Paul's Epistle to the Romans must rank as one of the greatest ironies in the history of political thought. This passage...served as the touchstone for passive obedience and unconditional submission from Augustine and Gregory to Luther and Calvin....The medieval church fathers as well as the reformers and counter-reformers of the sixteenth century all invoked this doctrine in denouncing disobedience and resistance to civil authorities.

And of course, the ministers who remained loyal to Great Britain argued their case from a literal reading of Romans 13 and Peter 2.

The Lockean notion of a right to revolt was discovered by "man's reason." This is one reason why our Theistic Rationalists Founders, though they believed some revelation was legitimate, had to elevate man's reason over Biblical revelation, because if revelation were supreme, then the philosophical case for the American Revolution would be greatly weakened.

Finally, a word on civil liberty and the Bible. As Frazer notes, "the Bible never discusses political freedom. Tory minister Jonathan Boucher correctly noted: 'The word liberty, as meaning civil liberty, does not, I believe, occur in all the Scriptures.'" What the Founding era preachers did was use the passages in the Bible which extol spiritual liberty meaning "freedom from sin" and substitute that with the notion of political liberty. Frazer writes, "God's purposes were to free His people to worship Him (e.g. Exodus 4:23; 5:1 & 3; 7:16) and to force Egypt to recognize Him as the true God (Exodus 5:2; 7:5 & 17; 10:2)." Indeed, as Robert Kraynak observed, "the Bible shows that God delivers the people from slavery in Egypt and supports national liberation, not for the purpose of enjoying their political and economic rights, but for the purpose of putting on the yoke of the law in the polity of Moses...the content of the divine law revealed to Moses consists, in the first place, of the Ten Commandments rather that the Ten Bill of Rights, commanding duties to God, family, and neighbors, rather than establishing protections for personal freedom" and such laws "regulate all aspects of religious, personal and social life."

In order to find "political liberty" in the story of the Israelites, their history had to be "radically rewritten." Frazer's point, drawing from various scholars, was that the Unitarian ministers, who were more likely to throw out orthodoxy and adopt a more cafeteria like approach to Biblical interpretation, were better suited to argue that the Bible supports political liberty than the orthodox preachers.

But whether the interpretations were sound, the Bible was used to support the Revolution. Thus, Frazer's analysis might shed light on the "study" put forth by Donald Lutz, which I often see bandied about by the "Christian Nation" crowd. Here is a description of Lutz study:

Dr. Donald S. Lutz, a professor of political philosophy at the University of Houston, conducted a massive groundbreaking study in which he examined some 15,000 documents written during America's founding era. He and his research associate, Dr. Charles Hyneman, found that a third of the quotations in these documents were from the Bible. 'Deuteronomy is cited more than John Locke or anyone else,'

From this, the "Christian Nation" crowd concludes that we were founded on Biblical principles and the Declaration and the Constitution are "Christian" documents. Now, the odd thing is neither the Declaration nor the Constitution cite the Bible, Scripture, or Jesus (except in the Constitution as the customary way of stating the date, In the Year of Our Lord). Indeed, the Constitution doesn't even mention God, and the Declaration speaks of a generic "Nature's God" and doesn't otherwise cite Scripture. One might argue, though, because of the brevity of those documents, there wasn't room to explain the connection between the ideas contained therein and Scripture. But the Federalist Papers, which explicate in detail the principles behind our Founding, would seem the perfect place to explain the connection between the Bible and Founding ideas. But the Federalist Papers similarly ignore the God of the Bible and Scripture.

So, the context behind Lutz's study, which I believe argues that "sermons" comprise most Founding era documents, may be the attempt of ministers to take the Revolution and Founding principles, which came predominantly from Enlightenment thought, and argue in their sermons that such were consistent with the Bible and Christian principles. Indeed, this supports the theory I've posited, similar to Bernard Bailyn's, that our Founders drew from a variety of intellectual sources including 1) Christian/Biblical, 2) Pagan/Greco-Roman, 3) Traditional Rights of Englishmen/Common Law, and 4) Natural Rights/Enlightenment. But it was the last one, the Enlightenment, which dominated and was the lens through which all sources were to be viewed.

Friday, August 18, 2006

You May Hate this Band...:


But the fact is, their guitarist, Steve Lukather, kicks ass.

Deal with it.

Whiskey in a Jar:

What a great tune. Which version is better? Thin Lizzy's original*, or Metallica's cover. Personally, I'm impartial to Thin Lizzy's version.

*The song is actually a traditional folk song. But Metallica is covering Thin Lizzy's version of the tune.
Munoz on Scalia's Dissent in McCreary:

From the same Vincent Phillip Munoz article. I wanted to devote an entire post to this. As I noted before, something seemed wrong with Justice Scalia's analysis in his dissent in McCreary. A fair reading of it seems to imply that some religions receive more constitutional protection than others. While I've heard some folks argue that when the Founders used the word "religion" they meant "Christian" or perhaps even "Protestant Christian," Scalia intimated that the Abrahamic monotheistic religions -- Judaism, Islam, and Christianity, or the religions that follow the Ten Commandments -- received greater protection under the Establishment Clause than religions outside of such tradition. And that notion is entirely without foundation in the text or history of the Constitution.

As Justice Scalia wrote: "With 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."76

Here is Munoz's response:

His use of the word "disregard" suggests that the groups mentioned are not protected by the Establishment Clause or that they are protected differently than monotheists. But this suggestion is inconsistent with Justice Scalia's own legal coercion approach to the text.162 Presumably, under the legal coercion standard approach, all non-coercive public acknowledgments of religion -- whether monotheistic, polytheistic, or atheistic -- would be constitutional. Thus understood, the Establishment Clause would no more disregard polytheistic religious acknowledgements than it would monotheistic ones. America's tradition of non-denominational, monotheistic religious acknowledgements does not imply that only monotheistic acknowledgements are permissible today; rather, it indicates that many -- if not most -- of the men who wrote the Constitution did not think religious acknowledgements of any sort violated the First Amendment. The absence of a long American tradition of specifically Catholic or Jewish religious acknowledgements clearly does not indicate less Establishment Clause protection for these faiths, so Justice Scalia's singling out of polytheists, believers in unconcerned deities, and atheists for "disregard" seems unnecessary. His suggestion of different levels of Establishment Clause protection for different religious beliefs is contrary to both the text and the best of America's traditions.

Brilliantly put: Munoz's analysis is at once consistent with his notion that Establishment Clause erects a very low barrier between Church & State and that the religion clauses protect all religions, including atheism, equally.

To put Munoz's argument in Scalia's terms, the Establishment Clause, properly understood, and with regard to religious acknowledgements, permits this disregard of anyone's religious convictions, even the cherished traditional ones.

In shifting to a "legal realist" mode of analysis, I wonder whether, if we adopted Munoz's understanding of the EC, when government then inevitably "disregards" the consciences of traditional Christians, whether such conservative critics of modern Establishment Clause jurisprudence would be happy with the results.

The politics of republican federalism can be a strange thing. Not all "acknowledgements" would look like Roy Moore's. Conceivably, Utah might "acknowledge" itself as "The Mormon State" and "endorse" Mormonism over ordinary Christian sects. A disproportionate Muslim-American town in Michigan could make public supplications to "Allah." Or a Unitarian dominated town in Vermont could erect a monument endorsing Unitarianism over Trinitarianism; they might, in order to invoke Founding principles and pay homage to Roy Moore, put the Declaration of Independence on the stone and then quote from writings of the Jefferson, Franklin, and Adams -- the authors of the Declaration and all unitarians -- how irrational, absurd and incomprehensible the doctrine of the Trinity is. Indeed, they might want to include John Adams's 1813 letter to Jefferson where he states the Trinity is so unreasonable that had God himself revealed the doctrine to him, he would have still disbelieved it. At worst, an atheist town could erect a monument stating, "under no God." And all of these would be constitutionally permissible under such an original understanding of the Establishment Clause.

Would such a constitutional understanding "fly" among orthodox believers in a "legally real" world?

Tuesday, August 15, 2006

Munoz on the Ten Commandments Cases:

I want to thank Vincent Phillip Munoz, one of my favorite Establishment Clause scholars on the anti-Separation side, for sending me this article on the constitutionality of posting the Ten Commandments and asking for my comments.

The article comprehensively looks at all of the Supreme Court Justices' views on public displays of the Decalogue in the McCreary and Van Orden opinions, compares them with the personal views of the Founding Fathers so invoked in those cases, offers Munoz's opinion on the proper constitutional outcome according to the original meaning of the Establishment Clause, and finally, speculates on the future of such "display" jurisprudence.

I have a couple of comments on his article:

First, Munoz notes Justice Souter's majority opinion in McCreary, and that "[a]ccording to Justice Souter, the 'touchstone' of the Court’s Establishment Clause analysis is,

the principle that the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides."

This leads to an interesting comparison between the views of James Madison and Justice Souter. Souter's "neutrality" principle does have its roots in Founding thought. However, according to Munoz, Souter doesn't quite understand the principle of neutrality as James Madison did. As Munoz writes:

Madisonian non-cognizance differs from Justice Souter’s neutrality in that Madison would allow religions and religious citizens to participate in public programs so long as they did so along non-religious terms. Justice Souter’s neutrality, by contrast, necessarily requires government cognizance of religion in order to prevent governmental advancement of it.143

For more on the controversy over how to properly understand Madison's views via his Memorial and Remonstrance, see the illuminating exchange between Justices Souter and Thomas in Rosenberger v. University of Virginia, where Thomas argues Munoz's point, and notes the principle of "religious equality" drives the argument of Madison's Remonstrance: "The assessment violated the 'equality' principle not because it allowed religious groups to participate in a generally available government program, but because the bill singled out religious entities for special benefits."

While Souter claims, "JUSTICE THOMAS suggests that Madison would have approved of the assessment bill if only it had satisfied the principle of evenhandedness. Nowhere in the Remonstrance, however, did Madison advance the view that Virginia should be able to provide financial support for religion as part of a generally available subsidy program." Souter would thus disallow direct public aid to religion, even if available on generally applicable, neutral grounds.

Personally, I agree with the Munoz/Thomas view that government aid to religion would be perfectly okay with a Jeffersonian-Madisonian natural rights view, as long as the aid is available on neutral or "religion blind" grounds. But such "even handedness" also perfectly parallels Justice Souter's (and Everson's) assertion that "the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." Take vouchers as the quintessential example. Public monies to religion in the form of vouchers are just fine as long as government is neutral "between religion and religion" -- Christian schools, Muslim schools, Hindu schools, Scientologist schools, Unitarian schools etc., all would be eligible -- and "between religion and nonreligion" -- secular private schools also would be eligible for such aid.

And Madison's ideals likewise reach the same result as Souter's majority opinion in McCreary. As Munoz puts it:

In the Ten Commandments cases, Madisonian non-cognizance likely would have reached the same results as Justice Souter’s “neutrality,” but the Madisonian approach would have approached the cases differently. It would not have inquired about advancement of religion but instead asked whether, in posting the Ten Commandments, the state become cognizant of religion as such. The answer in Van Orden would turn on the determination of whether Texas recognized only the Eagles’ civic contribution when accepting and erecting their Ten Commandments monument or whether the state also—as is likely—recognized religion as such. McCreary County would seem to contain a much more straightforward example of impermissible government cognizance of religion.

However, both Munoz and Thomas assert that such personal ideals of Madison are not properly part of the original meaning of the Establishment Clause. As Munoz writes: "It also should be noted that no evidence exists to suggest that when the First Congress drafted the Establishment Clause, it understood itself to be adopting Madison’s position of 'non-cognizance.'" And as Thomas noted in Rosenberger:

(Madison's views "as reflected by actions on the floor of the House in 1789, [indicate] that he saw the [First] Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects," but not "as requiring neutrality on the part of government between religion and irreligion"). Moreover, even if more extreme notions of the separation of church and state can be attributed to Madison, many of them clearly stem from "arguments reflecting the concepts of natural law, natural rights, and the social contract between government and a civil society," Cord, supra, at 22, rather than the principle of nonestablishment in the Constitution. In any event, the views of one man do not establish the original understanding of the First Amendment.

Both Munoz and Thomas support the view that the Establishment Clause was originally a "federalism only" provision and is thus not properly incorporated against the states.

As Munoz writes:

Justice Thomas is the only Justice who has offered an interpretation that appreciates the diversity of the Founders’ disagreement about church and state and what that diversity implies about the Establishment Clause’s original meaning. Because they disagreed, the Founders agreed to live with disagreement—that is, they agreed to keep matters pertaining to religious establishments at the state level. The Establishment Clause was drafted to recognize explicitly that religious establishments were the exclusive jurisdiction of the states.158 A jurisprudence faithful to this original meaning would require the dis-incorporation of the Establishment Clause, something that no Justice other than Justice Thomas seems willing to consider.

Indeed, Munoz has an article coming out entitled The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. PA. J. CONST. L. (forthcoming 2006).

Thomas offers as a "compromise" a way of properly incorporating the Establishment Clause. Munoz continues:

As a compromise, Justice Thomas suggests that either the Establishment Clause or the Free Exercise Clause may be understood to prohibit religious establishments, precisely and historically defined, at all levels of government. This interpretation fails to apply the historical meaning or purpose of the Establishment Clause and is contrary to the beliefs of those Framers who thought a mild religious establishment was compatible with religious free exercise.159 Nevertheless, Justice Thomas’s approach captures one of the Framers’ core constitutional values: the protection of religious liberty through the prohibition of religious coercion. Despite their disagreements, the leading Founding Fathers agreed that the coercion of religious belief and practice violated the right to religious liberty.160 Justice Thomas’s approach is most consistent with the thought and practice of the Founding Fathers, although he recognizes that it is not an exact application of the First Amendment’s original meaning.

My critique of the "federalism only" view of the Establishment Clause.

While no doubt, allowing the states to decide on establishment matters was a core purpose of the original Establishment Clause, it was also a core purpose of the entire Bill of Rights, all of which originally restrained the federal government only. If we accept the doctrine of incorporation, then what must be answered is why should the entire first eight Amendments of the Bill of Rights save the Establishment Clause be incorporated?

Perhaps this could be justified under a "selective incorporation" theory. But almost all originalists who support the doctrine of incorporation argue that the selective incorporation doctrine has no merit, that indeed, the entire first eight Amendments of the Bill of Rights are incorporated, as "Privileges or Immunities," which no state shall abridge. Indeed John Bingham, the principle draftsman of sec. 1 of the 14th Amendment, in an 1871 speech, read verbatim the first eight amendments, including the Establishment Clause, as part of the "privileges or immunities" of citizens of the United States. And by that time, all states had disestablished their official churches (Massachusetts being the last to do so by 1833).

Privileges or Immunities are by their very nature "individual rights." The strongest argument that can be made against incorporating the Establishment Clause is that it, unlike the rest of the Bill of Rights, doesn't relate to an individual right. This is a complicated question that needs to be more thoroughly explored in scholarly detail. But I'll briefly raise some relevant points here:

First, I would disagree that the only purpose of the Establishment Clause in 1789 was federalism. Rather, I would argue, while federalism was one core purpose, another core purpose was that the Establishment Clause, along with the Free Exercise Clause, Art. VI's "No Religious Test" Clause, and the oft-forgotten doctrine of enumerated powers all together acted to secure the unalienable rights of conscience against federal violations. State governments were responsible for guarding such rights against state and local violations.

So then, how would the Establishment Clause protect individual rights? At the very least, the Framers of the 14th would have it protect against the "coercive establishments" discussed above, perhaps more. But, a different part of the 14th Amendment may be the proper place for whatever protection beyond prohibiting "coercive establishments" is guaranteed. While "Free Exercise" clearly relates to a "liberty" right, "equality" is the other half of the twin pillars of liberalism that undergirds the Declaration, the original Constitution, and the 14th Amendment. And the Equal Protection Clause properly vindicates equality claims.

This is what Akhil Amar argues in his excellent book on the Bill of Rights. (See my past post.)

Amar writes:

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

Now, it might seem a little odd that the Supreme Court uses the wrong clause to achieve the right results. But, the Supreme Court has a perverse history of doing exactly this. Keep in mind, the Supreme Court currently has incorporation taking place, not through the Privileges or Immunities Clause, but through the Due Process Clause. And that clearly is the "wrong" place.

Moreover, as noted above, Madison's Memorial and Remonstrance (and much else in his writing) is driven by a notion of religious equality. Indeed in Madison's first draft of the First Amendment, he included a clause which stated "No state shall violate the equal rights of conscience." While that clause wasn't adopted in the original Constitution, arguably it is encompassed by the 14th Amendment's substantive guarantee of equality.

Another reason why Madison's Memorial and Remonstrance and Jefferson's Virginia Statute on Religious Freedom are relevant for determining constitutional religious rights is that they are "natural rights" documents. As Justice Thomas, quoting another scholar, above said: "Moreover, even if more extreme notions of the separation of church and state can be attributed to Madison, many of them clearly stem from 'arguments reflecting the concepts of natural law, natural rights, and the social contract between government and a civil society....'" This is the same Justice Thomas, keep in mind, who believes that the Declaration of Independence's organic natural law should be given constitutional status! But the Declaration doesn't exist in a vacuum. Madison's Memorial and Remonstrance and Jefferson's Virginia Statute are part-and-parcel of the same organic natural law as the Declaration of Independence.

So Justice Thomas needs to answer why he would give the Declaration status in constitutional law, but not the Memorial and Remonstrance or Virginia Statute on Religious Freedom.

Perhaps because doing so would validate at least some of the results of the Court's post-Everson rulings. But "originalists" are not supposed to be "results oriented."
Thanks to Sandefur:

For sending me a complimentary copy of his book, which I can't wait to read. A couple of quick remarks right off the bat. First, it's truly impressive to see who wrote blurbs on the back for it: Chip Mellor, President, Institute for Justice; Sen. John Cornyn (R-Texas); Richard Epstein, University of Chicago Law School; James W. Ely Jr., Vanderbilt University Law School; and Dennis Hayes, General Counsel, NAACP, Baltimore, Maryland.

Second, it's also nice to see that his editors let him speak in his personal voice, complete with influences, unique to Sandefur. In arguing that property rights are "natural" -- that is, they comprise a core need in human nature -- Sandefur cites the philosopher Daniel Dennett.

This is one of the few if not the only times that you will see Sen. John Cornyn who is associated with religious conservatives praising a book that relies on the very anti-religious thinker Daniel Dennett.

And that makes Sandefur's project all the more interesting.

Monday, August 14, 2006

Bigoted Morons:

I thought about ignoring this because I didn't want to give the time of day to these morons.

The headline of this post is Survey: One-Third Homosexual Foster-Parents Sexually Abuse Children. On further examining the article we see that the author of the study is, who else?, gay-hating crank Paul Cameron, who has carved out a niche spreading lies in the form of statistics about gays.

But it gets even worse, whoever wrote the headline misunderstood Cameron's study, adding a further libel against gays. From their article:

A tally from Illinois and Minnesota (2003-2005) showed that a third of foster-parent molestations of foster-children were homosexual. Both states permit homosexual foster-parents.

According to the tally of 40 foster-parents, 12 foster mothers sexually abused their charges and 28 foster-fathers sexually abused their charges. Overall, 65 percent of foster-parent perpetrators engaged in heterosexuality and 35 percent in homosexuality with their charges.

Got it. The study simply showed that one-third of molestations of foster children were same-sex in their nature. It doesn't show that those who committed the molestations were "homosexual" as that term is commonly understood -- someone primarily or exclusively attracted to a same-sex adult, who probably identifies as "gay." But even if every single molestation were committed by a self-identified gay, the study still wouldn't demonstrate that One-Third Homosexual Foster-Parents Sexually Abuse Children, but rather that one-third of the molestations were committed by homosexuals. The difference is not trivial. Consider, somewhat over 50% of robbery arrests in this nation are of blacks. The headline writer's logic would then hold: Over 50% of blacks commit robberies.

What would we call someone who so easily fell pray to such an error? A bigot.

Update: I didn't email them, but the title now reads: Survey: One-Third of Foster-Parent Molestations Homosexual

Saturday, August 12, 2006

One of the Best Living Blues Guitarists:

Gary Moore. Here is "Still Got the Blues," which received modest airplay. I'd put Moore up there with Stevie Ray. After SRV came out it was like, for the blues, okay what's next? I like Kenny Wayne Shepherd, Johnny Lang and company. But what do they really have to offer compared to Stevie Ray? They are just walking in his shadow. In the wake of SRV, Moore is one of the few who can still impress.

And check out his jam with B.B. King.

Friday, August 11, 2006

My Favorite John Lennon Song...:

From his solo era.

More Twaddle...:

From the Christian Nation crowd. This time it's the usual suspects. Here is a blogger's eyewitness account of a phony David Barton quotation making its way on a billboard, and sponsored by the above mentioned Oklahoma group.

"It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians; not on religions, but on the gospel of Jesus Christ!"

This quote can be found on a billboard here in OKC at NE 50th & Santa Fe. Next to the quote is a representation of the Statue of Liberty with a superimposed cross. The billboard also advertises a website address:

A look at the site reveals that Reclaim Oklahoma's goal is to "work towards the successful reestablishment of [fundamental, Biblical Christian] values in our society today." And, they even have a conference scheduled in October to educate and energize the flock.

I've looked at their site briefly and haven't seen any of the phony David Barton quotations; but the accurate quotations that I have seen on this page are, as usual, taken out of context in so gross a manner as to be fraudulent.

There is one factual error I've identified on Ben Franklin. They repeat Franklin's call to prayer at the Constitutional Convention. And at the end of the passage they write, "From that day until this every session of Congress is opened in prayer." Nope. The convention ignored Franklin's call to pray.

They also repeat this quotation in an 1813 letter from John Adams to Thomas Jefferson:

The general principles, on which the Fathers achieved independence, were the only Principles in which that beautiful Assembly of young Gentlemen could Unite....And what were these general Principles? I answer, the general Principles of Christianity, in which all these Sects were United: And the general Principles of English and American Liberty, in which all those young Men United, and which had United all Parties in America, in Majorities sufficient to assert and maintain her Independence.

Now I will avow, that I then believe, and now believe, that those general Principles of Christianity, are as eternal and immutable, as the Existence and Attributes of God; and that those Principles of Liberty, are as unalterable as human Nature and our terrestrial, mundane System.

But of course they leave out the part where Adams states (I'm going to reproduce some of the quotation from above for the sake of continuity):

Now I will avow, that I then believed, and now believe, that those general Principles of Christianity, are as eternal and immutable, as the Existence and Attributes of God; and that those Principles of Liberty, are as unalterable as human Nature and our terrestrial, mundane System. I could therefore safely say, consistently with all my then and present Information, that I believed they would never make Discoveries in contradiction to these general Principles. In favour of these general Principles in Phylosophy, Religion and Government, I could fill Sheets of quotations from Frederick of Prussia, from Hume, Gibbon, Bolingbroke, Reausseau and Voltaire, as well as Neuton and Locke: not to mention thousands of Divines and Philosophers of inferiour Fame.

Finding "general principles of Christianity" in the teachings of Enlightenment philosophers, like Locke, Newton? Perhaps. But also in the works of French philosophes, Rousseau, and Voltaire, and the atheist Hume?

Finally, their treatment of Jefferson shows how they are either utterly without a clue or worse, purposefully out to deceive people. Here are their excerpts, in their context:

In Thomas Jefferson's Republican Notes on Religion and an Act Establishing Religious Freedom, Passed in the Assembly of Virginia, in the Year 1786, reference is made to a law passed in 1705:

By our own act of assembly of 1705, c. 30, if a person brought up in the Christian religion denies the being of a God, or the Trinity, or asserts there are more gods than one, or denies the Christian religion to be true, or the Scriptures to be of divine authority, he is punishable on the first offense by incapacity to hold any office of employment, ecclesiastical, civil or military; on the second by disability to sue, to take any gift or legacy, to be guardian, executor, or administrator, and by three years' imprisonment without bail .

In 1781, Thomas Jefferson made this statement in Query XVIII of his Notes on the State of Virginia. Excerpts of these statements are engraved on the Jefferson Memorial in Washington, D.C.:

God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the Gift of God? That they are not to be violated but with His wrath? Indeed, I tremble for my country when I reflect that God is just; that His justice cannot sleep forever; That a revolution of the wheel of fortune, a change of situation, is among possible events; that it may become probable by Supernatural influence! The Almighty has no attribute which can take side with us in that event.

They make no attempt to explain, in the first excerpt, that Jefferson was vehemently opposed to such acts of the assembly of 1705, that indeed he thought one of his greatest life's achievement was overturning these laws in Virginia, which is exactly what he and Madison did in their 1786 Act Establishing Religious Freedom.

It's true, as their second excerpt shows, that Jefferson believed rights come from God. But Jefferson had flipped the earlier understanding of what God commands government to do, as illustrated by the 1705 law, on its head. The old understanding was that government may limit your freedom to permit you to do only what the Biblical God permits. Indeed, government may command you to do exactly what God commands in the Bible. Since God, in his First Command and elsewhere, mandates the worship of no other God but He, and since God is Triune in nature, then it follows that "if a person brought up in the Christian religion denies the being of a God, or the Trinity, or asserts there are more gods than one, or denies the Christian religion to be true, or the Scriptures to be of divine authority...." that he may be punished by the civil authorities.

Jefferson thought this to be grave error, that, on the contrary, Nature's God grants men an unalienable right to declaim there is no God or there are twenty Gods. This is why Jefferson thought that the unalienable rights of conscience belonged to not just Christians, but to all, to "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination."

When I was I think 20 (13 years ago). An old friend with whom I've recently caught up took the picture.

Thursday, August 10, 2006

Two Cheers for Billy Graham:

It's nice to see a little bit of "freethinking" from orthodox Christians these days.

After more than six decades spent preaching the Gospel – the truth that we can only be saved by God's grace through faith alone in Christ – Billy Graham now says non-Christians in other faiths (false religions) and secular humanists may be going to heaven.

In a profile of Graham in the current issue of Newsweek, managing editor Jon Meacham asks the 87-year-old evangelist whether those who belong to religions that reject Christ as savior (Judaism, Islam, Buddhism, etc.) and secularists will be saved.

"Those are decisions only the Lord will make," Graham replied. "It would be foolish for me to speculate on who will be there [in heaven] and who won't. ... I don't want to speculate about that."

Hear, hear.

The article to which I linked, on the other hand, was written by a fundamentalist, critical of Graham's remarks:

Meacham hails Graham's conversion (so to speak) on the primary issue of salvation as an enlightened ecumenism, when it's really nothing more than age-old universalism – the erroneous idea that all roads lead to God and we're all going to get to heaven one way or another. This is the "I'm all right, you're all right" philosophy of the world.

And that "age old" universalism, I might add, has a rich tradition in this country. Indeed, most of our key Founders (Washington, Adams, Jefferson, Madison, and Franklin) were, or probably were universalists. And that thought was so powerful, it even encouraged orthodox Christians like Benjamin Rush to eventually accede to the notion that salvation was for all.

A quotation of Rush's that I found in James H. Hutson's fine book of quotations:

At Dr. Finley's School, I was more fully instructed in these principles by means of the Westminster Catechism. I retained them but without any affection for them 'till abut the year of 1780. I then read for the first time Fletcher's controversy with the Calvinists in favor of the Universality of the atonement. This prepared my mind to admit the doctrine of Universal salvation, which was then preached in our city by the Revd. Mr. Winchester. It embraced and reconciled my ancient calvinistical, and newly adopted Armenian principles. From that time I have never doubted upon the subject of the salvation of all men. My conviction of the truth of this doctrine was derived from reading the works of Stonehouse, Seigvolk, White,Chauncey, and Winchester, and afterwards from an attentive perusal of the Scriptures. I always admitted with each of these authors future punishment, and of long, long duration.