Thanks to Prof. Paul Horwitz:

For kindly responding to my comments on the Constitution's "No Religious Test" Clause. Here are some excerpts from his post:

History: First, Jon Rowe, who had many valuable comments, asks a basic question: What was Rhode Island's religious test during the Founding era? Let me quote from Gerard Bradley, whose article I cited in my first post: "Rhode Island, as in many church-state matters, was a special case: the Protestant monopoly there flowed from an exclusion of Catholics and Jews from citizenship, and not, precisely, from political office." Mr. Rowe also makes a series of broader points, arguing that we should draw some significance for our historical reading from the assertion that a number of key framers were not orthodox Christians. I don't dispute that assertion, but would say two things. First, those admittedly central individuals are not the only or even the authoritative figures here. In thinking about the historical understanding of the Clause, their views must be counted alongside the views of those whom they sought to convince — the other framers and the ratifiers of the Constitution. I have no algorithm to apply here in weighting their respective views; but my holistic reading of the history surrounding the debate over the Clause suggests to me, at least, that we should not read the Clause too broadly in light of these standout examples, especially in light of the real historical evils the Clause appeared fairly clearly to address. Second, as Mr. Rowe notes, although unorthodox, those key framers, and certainly many other framers, did not think virtue and character were irrelevant to political office; for most framers and ratifiers, religion (however broadly defined) was certainly a vital aspect of one's character.

[...]

To say that religion may sometimes be relevant to public discussion and decision on nominees and other matters, and that the Religious Test Clause doesn't bar the use of religion in this way, although it does bar certain formal barriers to public office, is of course not the end of the story. We are then left to deliberate together about how and when (if ever) religion should enter into the public debate, or into the decisions of public officials. Although I clearly disagree with those who have answered "never," I also think we can invoke religion more or less wisely and carefully, and have said something about what that might entail. Jon Rowe concluded his comment yesterday by saying, "Personally, I'd rather live under a system of 'etiquette' where one's religion or lack thereof — whether one be a fundamentalist Christian or an atheist — is viewed as simply not related to one's fitness for public office." Taken at that broad level of generality, I can sympathize; but it is a short step from that principle to a public square that is denuded of useful, meaningful discussion. It also removes, one should acknowledge, much of what might be shallow and provocative sniping and religious bigotry — but that language, too, is the price of open debate, and knowing of that risk should remind us all the more of our own responsibility to enter into these discussions, and use both our votes and our voices, with some kind of sense of underlying principle and integrity that I've simply labeled "constitutional etiquette." Better, in my view, to have a system of etiquette where we can openly acknowledge and discuss religion, while remembering that it can never be a formal bar to public office — and in which we can add our own voices to the debate in pointing out that the mere labels "fundamentalist Christian" or "atheist" (or "Muslim") are far from descriptively complete, that they say very little about how particular individuals will carry out their offices, and that on such a broad level, they may not even say much about character.

As the always valuable Mr. Rowe commented, my reading of the Religious Test Clause can cut both ways politically. More on that tomorrow, with some concluding remarks on the differing reactions I've received to this article, and what they may suggest.

His normative point on "constitutional etiquette" is, admittedly, a difficult issue. As I said, I want to live in a world where one's religion is viewed as irrelevant to one's being "fit" for public office. Indeed, James Dobson's recent comment that he didn't think Fred Thompson was a "Christian" and its implication that this makes Thompson unfit or less fit for public office, I found offensive. Yet, if a Presidential candidate was discovered to be a "Young-Earth-Creationist" who explicitly stated his belief in the literal six thousand year age of the Earth led him to reject evolution -- I seriously doubt my friends at Scienceblogs would deem that irrelevant to his qualifications for public office.

One of the Worst Moments in Rush Limbaugh's Life:



Amusing!

Bad Article by Farah on Separation:

In yesterday's WND Joe Farah failed in an attempt to "fisk" Rep. Pete Stark, D-Calif. for claiming, "Like our nation's founders, I strongly support the separation of church and state." Farah responded:

When I hear statements like this, from people who have been around the block a time or two, I have to wonder if the man is knowingly lying in support of his perverted beliefs or whether he is hopelessly ignorant of history.

Let me put it this way: None of America's founding fathers supported -- strongly or not -- the notion of separation of church and state. None. Nada. Zip. Zilch. Bupkis.

Such a strong statement. He must really be confident that the historical record supports his side. The rest I'm going to have to handle line by line.

If someone out there in Internet-land would like to challenge that statement, please simply provide some evidence. And please don't tell me about Thomas Jefferson's 1802 letter to the Danbury Baptist Association in Connecticut. It is in this letter -- and only in this letter -- that any founder ever used the phrase "separation of church and state."

The only problem with this is that it isn't true. First, Jefferson used that phrase or similar ones other times. In fact, here he is using it in a letter to Attorney General Levi Lincoln discussing his letter to the Danbury Baptists:

The Baptist address, now enclosed, admits of a condemnation of the alliance between Church and State, under the authority of the Constitution. It furnishes an occasion, too, which I have long wished to find, of saying why I do not proclaim fastings and thanksgivings, as my predecessors did.

Or see Jefferson's letter to Moses Robinson from Jefferson, March 23, 1801:

The eastern states will be the last to come over, on account of the dominion of the clergy, who had got a smell of union between church and state. and began to indulge reveries which can never be realized in the present state of science.

Madison too often pushed the concept of "separation," as documented on this website. Here are just a few of his quotations:

"The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State." (Letter to Robert Walsh, Mar. 2, 1819)

"Strongly guarded as is the separation between religion and & Gov't in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history." (Detached Memoranda, circa 1820)

"Every new and successful example, therefore, of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together." (Letter to Edward Livingston, July 10, 1822)

Farah's article gets worse. More misstatements of fact:

Yet, throughout Jefferson's long life in politics and government, we see a man who, by today's standards, would be viewed by people like Stark as a card-carrying member of the religious right.

Jefferson not only went to church as president. He did so inside the House of Representatives. That's right. This man who supposedly believed in an eternal wall of separation between church and state regularly attended church services inside Congress. The church services were presided over by every Protestant denomination. And this was really Jefferson's idea of separation of church and state -- meaning no establishment of a state sect.

It would never have occurred to President Jefferson that America was not a "Christian nation." Jefferson was not nearly so hostile to religion, or, more specifically, Christianity, in government than those who zero in on the Danbury letter as evidence the founders were secular jihadists like the American Civil Liberties Union or Pete Stark.

Jefferson viewed as a carrying member of the religious right? This is a man who like Stark described himself as a "Unitarian" and was such a fervent anti-Trinitarian that he compared the Trinity to a three-headed monster and once termed it a "metaphysical insanity." Further, he rejected every single tenet of the creeds of orthodox Christianity. This would go over with today's religious right?

Whether Jefferson thought America was a "Christian nation," he once said that "Christianity neither is, nor ever was a part of the common law."

Finally Farah declares:

On March 4, 1805, President Jefferson offered "A National Prayer for Peace," which petitioned "Jesus Christ our Lord, Amen."

Again, the only problem with this is that it isn't true. Jefferson never issued national days of prayer and that was the subject of his letter to the Danbury Baptists where he used the phrase "separation of church and state." He also wrote to other so concerned pious figures and Christian groups of the era explaining why, unlike Washington and Adams, he categorically refused to issue such prayers.

This website further sheds light on the false national prayer quotation:

March 4, 1805 was the date of Jefferson's Second Inaugural Address and there is no such prayer included in it. This "prayer" shows up on a number of religious web sites on line, and is either attributed to Thomas Jefferson, with no other information or as above "Thomas Jefferson, March 4, 1805". Nowhere is there a complete valid cite given.

So when Farah ends his article with, "So, where's the evidence for this notion? What does Pete Stark know that I don't know?" Hopefully now, Mr. Farah you are better informed. Please issue a retraction for your errors or else we can accuse you of being either "lying" or "delusional."

Why Did the Founders Support "No Religious Tests" in the Constitution?

Paul Horwitz, an Article VI -- "no religious test" -- scholar, has his first post on Volokh today.

Particularly, I'm interested in why the Founders chose to ban such tests federally, and not at the state level. One reason why the original Constitution didn't ban such tests at the state level is because, as with slavery, even if many or most of the Framers wanted to do this, the states probably wouldn't have ratified the Constitution if it meant abolishing their religious tests which most states at that time had.

Here is how Horwitz in today's post deals with what the Framers were concerned with in the context of state v. federal religious tests:

We might read that fact as having purely jurisdictional significance: the ratifiers were willing to see such a test at the federal level but not the state level. But I think it also adds to our understanding of the federal clause. It makes us understand just how revolutionary the federal clause was (a point several commenters have already recognized), and that may lead us to favor a somewhat narrow meaning for the clause. We might be more inclined to read the Clause as focusing more specifically and narrowly on the kinds of historical evils it was aimed against....

Earlier in the post Horowitz specified what that "historical evil" primarily was:

[T]he framers and ratifiers of the Religious Test Clause had a specific historical evil in mind when they crafted the Clause: that set of formally imposed oaths and very closely allied practices that were used to restrict office-holders in England to those willing to follow the doctrines of the established church. Second, we must consider the enforcement device by which these tests were imposed: the swearing of an oath, a device by which an individual risked his eternal soul or earthly honor should he swear falsely. The importance with which the members of the founding generation took oaths and the importance of their honor cannot be overstated.

While this much may be true, I think it misses a big reason why the key Founders may have wanted to abolish religious tests federally: Self-interest. They couldn't pass most of the religious tests that existed at the state level. Jefferson, Adams, and Franklin all disbelieved in the Trinity, Incarnation, Atonement, and Plenary Inspiration of Scripture. And Madison too was a secret closet theological unitarian. As I've written and published, I think Washington was as well, but given his reticence to speak on matters of his personal faith, the historical record is in dispute in this regard (though I think it points strongly towards his heterodoxy). Hamilton didn't convert to orthodox Christianity till the end of his life after he did his work "Founding" the nation. And James Wilson and G. Morris likewise were "theistic rationalists"/"unitarians" like Franklin, Adams, Jefferson, et al.

While it may have been "unthinkable" to electable elect a Catholic or a Jew to federal public office back then and whereas most of the above listed Founders had some kind of nominal affiliation with a Church which professed orthodoxy, Washington, Adams, Jefferson, and Madison all were elected President. The fact that these unitarian "infidels" didn't have to take an oath to Trinitarian Christianity or belief in the Divine Inspiration of the entirety of Scripture made their rise to office much easier. Perhaps they had that in mind when writing Article VI?

Franklin, though never elected President, was acting governor of PA and PA's Constitution, which he helped write had a religious test (I think not for the executive but for the representatives) which Franklin himself couldn't pass! Indeed, he wrote in a private letter (which I've blogged about here) explaining why he was against the religious test, in part because he couldn't pass it! (It required belief in the divine inspiration of the Bible and Franklin noted that parts of the Bible were impossible, in his opinion, to have been given by Divine Inspiration.) Intuitively, Franklin as a public official in PA, helped rid the offending clause.

If Franklin, Washington et al. were to construct a national religious test, it would be much simpler than what we see with most of them at the state level; it would require simple belief in a governing Providence who will ultimately reward good and punish evil; this is something all of them, at the very least, believed in. But they didn't even do that.

Finally, I think Horwitz should also consider what Gary North has written regarding oaths and covenanting. Most of the states, North argues, put forth religious tests in the context of making a covenant with the Trinitarian God of Christianity. The federal Constitution does not do this. And, if the leading Framers were not Trinitarians, they understandably would not want to covenant with the Trinitarian God of Christianity.

Horwitz seems more concerned with determining exactly what the clause forbids and dismisses such search for "expressive" meaning (in other words, regardless of what the clause exactly forbids, what does such a clause say about who we are/ought to be as a nation?). Lawrence Tribe, for instance, as quoted by Horwitz noted, the framers and ratifiers were moving to "prioritize[] the secular over the religious in the [federal] public realm." Kramnick and Moore, two Cornell scholars made a similar point in their book, The Godless Constitution. Gary North more or less agrees with Tribe and Kramnick and Moore that whatever the clause exactly forbids, it did make a meaningful, indeed revolutionary expressive statement about the federal government of the United States, who we are/ought to be as a "nation" and a "people." His point was that by purposefully not covenanting with the Trinitarian God of the Bible in the form of an oath to Him, and replacing such covenant with a "no religious test" clause, we are covenant breakers, and not a "Christian Nation." Even if courts in the 20th Century made technically "wrong" decisions secularizing the public square through the Establishment Clause, they did so, North argues, in large part because of the break with the orthodox Christian worldview the Founders set forth in Article VI's "no religious test" clause.

Such decisions, I suppose North would argue, were not within the "letter" but certainly were within the "spirit" of the Constitution.

Jefferson Calls the Trinity a Three-Headed Monster:

From his letter to Rev. James Smith, December 8, 1822:

No historical fact is better established, than that the doctrine of one God, pure and uncompounded, was that of the early ages of Christianity; and was among the efficacious doctrines which gave it triumph over the polytheism of the ancients, sickened with the absurdities of their own theology. Nor was the unity of the Supreme Being ousted from the Christian creed by the force of reason, but by the sword of civil government, wielded at the will of the fanatic Athanasius. The hocus-pocus phantasm of a God like another Cerberus, with one body and three heads, had its birth and growth in the blood of thousands and thousands of martyrs....In fact, the Athanasian paradox that one is three, and three but one, is so incomprehensible to the human mind, that no candid man can say he has any idea of it, and how can he believe what presents no idea? He who thinks he does, only deceives himself. He proves, also, that man, once surrendering his reason, has no remaining guard against absurdities the most monstrous, and like a ship without a rudder, is the sport of every wind. With such persons, gullibility which they call faith, takes the helm from the hand of reason, and the mind becomes a wreck.

The entire thing is worth a read.

Sunday Music:

"It Makes No Difference" by The Band, sung by the late Rick Danko. I'm glad I got to see him about a decade ago with The Band before he passed away. It was at Trenton's Waterfront Park, which is about ten minutes away from where I live. They were joined by none other than Stephen Segal who played a number of songs with them (I'm serious).

Article VI Scholar Blogs on Volokh:

Article VI's "no religious test" clause of the US Constitution is much neglected with a dearth of scholarship on its proper meaning. Arguably this clause was a revolutionary (for its time) statement of religious neutrality. Why is this clause so ignored?

Prof. Paul Horwitz, from Southwestern Law School will be blogging this coming week on Volokh. And Eugene already posted Horwitz's main article on the subject.

Horwitz argues for a very strict reading of this clause. When I first read his paper, it struck me as a politically conservative reading of Article VI. However, as with the Free Exercise Clause, narrow or broad readings cut both ways politically. EMPLOYMENT DIV., ORE. DEPT. OF HUMAN RES. v. SMITH seemed on its surface a narrow "conservative" reading of the Free Exercise Clause; indeed it was written by Justice Scalia. However, many religious conservatives vehemently disagree with Justice Scalia's decision in the Smith case. While some secular liberals like Marci Hamilton enthusiastically support it.

In doing research on this issue I found this article by Manuel Miranda, a conservative, arguing contra Horwitz, for a broad reading of Article VI. Horwitz's interpretation is much closer to Cathy Young's or E.J Dionne's in the article.

In Monday's Boston Globe, columnist Cathy Young, also a contributing editor of the libertarian Reason magazine, concludes: "A candidate's or nominee's ideology should be fair game whether it's religious or secular in nature, whether it's rooted in conservative Catholicism or liberal feminism."

More interesting is how Ms. Young gets to this conclusion. While applauding John F. Kennedy's milestone election as the first Catholic president, Ms. Young recites Article VI, but she conflates the religious test clause with the provision that officeholders "shall be bound by oath or affirmation, to support this Constitution." She interprets this to mean that "an officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God."

[...]

In Wednesday's Washington Post ("Why It's Right to Ask About Roberts's Faith"), columnist E.J. Dionne asks: "Is it wrong to question Judge John Roberts on how his Catholic faith might affect his decisions as a Supreme Court justice? Or is it wrong not to? . . . Why is it wrong to ask him to share his reflections with the public?" It would be helpful, Mr. Dionne concludes, "if Roberts gave an account of how (and whether) his religious convictions would affect his decisions as a justice."

[...]

Journalists believe that the religious test clause guards against simple discrimination against Catholics or Jews or any other particular denominations. It does not. It prohibits a probe of what the potential officeholder believes derived of his religious convictions. [my emphasis] It is not about what he lists on a questionnaire under religion, as if it were like race or sex. That is why the liberal press has mocked the concern raised by conservatives that the abortion litmus test and other lines of inquiry are a constitutionally prohibited religious test.

In other words, according to Horwitz, Article VI really does mean only that "an officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God." And if a liberal Congress wants to probe into Justice Roberts' religious beliefs and vote him down because he, as a conservative Catholic, may be so influenced on the Court, Art. VI provides no constitutional barrier to their so doing.

Yet, such a reading cuts both ways. If a liberal President appointed an insufficiently religious Supreme Court nominee, a religiously conservative Senate could so inquire and refuse to confirm the nominee on that basis.

The Nature of Hell:

If anyone is so interested, I debated the nature of Hell on this post on World Mag's blog. I had two basic claims. The first is, because all men's sins are finite, it would be fundamentally unjust to impose eternal punishment on anyone even Hitler or whatever evil incarnate you may imagine. Imposing it on the mass of humanity would be the worst case of cosmic injustice or the punishment not fitting the crime. Even in the Christian religion, there are alternatives. For instance, the Catholic notion of purgatory -- where individuals are temporarily punished -- purged of their sin -- and then eventually redeemed. (Our key Founding Fathers -- the "theistic rationalists" -- believed in something similar. Though, unlike Catholics who elevate works more so than orthodox Protestants do, the theistic rationalists believed that works were more important than faith in determining salvation. They argued God cares more about what you did than what you believed.) The notion of temporary, proportionate punishment, eventual salvation is far more "rational" and "just" than eternal damnation. But both orthodox Christians and atheists would instruct me that just because something sounds nicer doesn't make it true.

John Adams said the following, in his letter to Jefferson dated Sept. 14, 1813, one of the many times he denied eternal damnation in his writings:

God has infinite wisdom, goodness, and power; he created the universe; his duration is eternal ... his presence is as extensive as space. It is said that he created this speck of dirt -- the earth -- and the human species for his glory. And then, the orthodox theologians say, he chose to make nine-tenths of our species miserable forever, for his greater glory.

Now, my friend Jefferson, can prophecies and miracles convince you or me that infinite benevolence, wisdom, and power created and preserves for a time, innumerable millions, only in the end to make them miserable forever, and for no other purpose than his own glory? Wretch! What is glory? Is he ambitious? Does he want promotion? Is he vain, tickled with adulation, exulting and triumphing in his power and the sweetness of his vengeance? Pardon me, my Maker, for these awful questions...but I believe no such thing. My adoration for the author of the universe is too profound, too sincere. The love of God and his creation -- delight, joy, triumph, exultation in my own existence -- are my religion. The Calvinist, the Athanasian divines ... will say I am no Christian. I say they are no Christians, and there the account is balanced.

Keep in mind that Adams, though he fervently worshipped God as he understood Him, to our best knowledge died a fervent unitarian, which according to the "orthodox theologians" would make him in Hell right now.

The second claim I made on the discussion thread was that the first claim -- that eternal damnation is fundamentally unjust in all circumstances -- depends on what Hell is really like. In studying the issue, I've noted that orthodox Christians don't at all agree on this matter. Some have said it's eternal separation from God (the most common claim I'm now hearing); some say no, Hell is torment because God is there, not because He's absent. Some say Hell is just annihilation of the soul -- the very same "grave" that atheists believe we all go to. I've seen one theologian argue for temporary punishment and then annihilation.

The "Hell is separation from God" crowd often makes what sounds to me like Arminan arguments for Hell, that this is place where people choose to go because they reject God. Or CS Lewis' famous line about the doors of Hell being locked from the inside.

One fundamentalist minister, Rev. John Rankin, with whom we at Positive Liberty debated in the past made an argument for Hell that actually caused me to rethink the fundamental unjust nature of it: that Hell is place where people voluntarily choose because they are happier not in God's presence. Though Christians deny that non-believers have true happiness, there are plenty non-believers here on earth who genuinely seem to claim happiness. If eternal separation from God means people can basically continue such separation that they are happy with here on Earth, the justness of such a concept, and why people would voluntarily choose to be in such a place, seems more understandable. If in Hell, we can be with our fellow unsaved loved ones, play pool with our buddies, listen to Howard Stern, philosophize with Jefferson and Voltaire, make music with Jimi Hendrix, John Lennon and Frank Zappa, drink, tell dirty jokes, continue to have the "unbiblical" sex that we enjoy here, etc. etc., well it sounds like Hell wouldn't be such a bad place to be for many folks (perhaps most folks would prefer such a place).

Most of the folks on the blog, even those who initially claimed that Hell wasn't eternal torture, just eternal separation from God -- balked at this notion. One person went so far to argue that because everything "good" comes from God, including our five sense and our ability to enjoy life using those senses, eternity in Hell means not just eternity alone, but devoid of all five senses. Sort of like God sentencing people to be Helen Keller for eternity but instead of the loss of two sense, we lose all five. I couldn't imagine a worse form of torture. And anyone who would impose this on a single soul, much less the majority of the human race for eternity is a cosmic sadist who would impose punishments which exceed the crime in the grossest way. (As I noted it would be the worst form of cosmic injustice, ever.) You don't chop someone's foot off for speeding; you give them a reasonable ticket. Hence, this can't possibly be true. Even were I an orthodox Christian believer who ended up in Heaven, were masses souls eternally tortured, I would remonstrate with God everytime I saw Him and beg for the eventual release of all souls from Hell.

And if Hell is a place where the doors are locked from the inside no one would choose to live in eternity like Helen Keller but devoid of all five senses, instead of two.

My own beliefs, more specifically: Who knows what comes next (though, the mere existence of time/space/matter and energy makes the notion of a supernatural creation of existence just as rational a belief as a self-existing universe, with no original creation)? But if there is something, I can't imagine it being unjust or unfair. Cosmic justice can't be achieved here on Earth. But if there is a hereafter, that's where such a concept comes into play. Asking me to believe the mass of humanity -- all the people who die not believing in the "right" religion -- are in Hell tortured in eternally misery -- would be like asking me to believe those 19 highjackers who crashed into the World Trade Center possessed the right theological answers. It's something to which I've closed my mind. I'm not buying it, ever.

Gays and the Civil Rights Movement:

I've made this point a number of times through the years. One of the talking points of the gay rights movement is to invoke the civil rights movement, to which the other side responds (obviously) gay is not black, sexual orientation is not race. See for instance this thread on WorldMagBlog; as one commenter put it:

Comparing the struggle of gay people to what happened in the civil rights movement indicates that we can tell who is gay by their outward appearance. THE CIVIL RIGHTS MOVEMENT WAS ABOUT CLEARLY VISIBALE DIFFERENCES. I do not know what brain cramp homosexuals are suffering from that they cannot see this clear truth.

Richard Posner, certainly not a man known for suffering from "brain cramps," had a passage in Sex & Reason which well puts the issue into perspective:

[G]iven Title VII and cognate laws, is there any reason to exclude homosexuals from a protected category that already includes not only racial, religious, and ethnic groups but also women, the physically and mentally handicapped, all workers aged 40 and older, and in some cases, even young healthy male WASPS? Is there less, or less harmful, or less irrational discrimination against homosexuals than against the members of any of these other groups? The answer is no.

-- Sex and Reason, p. 323

Jefferson on the Presbyterian Clergy and Paul:

The Presbyterian clergy are loudest; the most intolerant of all sects, the most tyrannical and ambitious ; ready at the word of the lawgiver, if such a word could be now obtained, to put the torch to the pile, and to rekindle in this virgin hemisphere, the flames in which their oracle Calvin consumed the poor Servetus, because he could not find in his Euclid the proposition which has demonstrated that three are one and one is three, nor subscribe to that of Calvin, that magistrates have a right to exterminate all heretics to Calvinistic Creed. They pant to re-establish, by law, that holy inquisition, which they can now only infuse into public opinion.

Ouch! That was from his letter to William Short, April 13, 1820. The entire letter is worth a read. Jefferson discusses how Jesus' "biographers" had corrupted his original message, Paul being the first "corruptor" of Jesus' messages. In one letter Jefferson talked about separating the "diamonds" from the "dunghill" in order to extract the truth from the corruption in the Bible. Here, he uses the phrase separating "the gold from the dross."

Among the sayings and discourses imputed to Him by His biographers, I find many passages of fine imagination, correct morality, and of the most lovely benevolence; and others, again, of so much ignorance, so much absurdity, so much untruth, charlatanism and imposture, as to pronounce it impossible that such contradictions should have proceeded from the same Being. I separate, therefore, the gold from the dross; restore to Him the former, and leave the latter to the stupidity of some, and roguery of others of His disciples. Of this band of dupes and impostors, Paul was the great Coryphaeus, and first corruptor of the doctrines of Jesus. These palpable interpolations and falsifications of His doctrines, led me to try to sift them apart. I found the work obvious and easy, and that His past composed the most beautiful morsel of morality which has been given to us by man.

Double ouch.

For Cathy Seipp:

http://cathyseipp.journalspace.com/



'nuff sung.

How Not to Act When Getting Pulled Over:

I tell my community college students (some of whom sometimes have problems with the cops), the smartest thing you can do when you are pulled over by the police is act as polite and cooperative as you can imagine. Drop the attitude. Call him "sir" (or "maam") and "officer" and act as benign as possible (although, be smart; you do have the constitutional right to remain silent and you don't have to spill your guts; you can keep your mouth shut). Doesn't mean the police are always right; often they are wrong and deserved to be vigorously challenged. But there is a time and place for everything. And the time to fight with the cops is in court, not when they are pulling you over. Being polite and cooperative -- as opposed to having the attitude -- often will get you out of a ticket and is worth it just for that. Even if you get the ticket, at the very least you won't get punched, billy-clubbed, tasered, or worse.



The woman was under the apparently mistaken assumption that cops aren't allowed to radar people when they are driving and thought, since the cop is in the wrong, I don't have to cooperate. There are a number of urban myths about policing -- the most famous one I've heard is that undercover cops must let you know they are undercover if you asked them. Even if these were the case, you bring that up in court and see what the judge/ the law has to say.

The War over America's "Christian Heritage":

Here are a few recent articles which illustrate the controversy. First one from Jerry Falwell. He begins by noting Jefferson's Virginia Statute for Religious Freedom which begins:

"Almighty God hath created the mind free. All attempts to influence it by temporal punishments or burthens ... are a departure from the plan of the Holy Author of our religion. ..."

Note though while the Statute was theistic in its premises, its content was neither "Christian," nor "Biblical," so this is hardly evidence that "America was founded on Christian principles" -- the thesis of Falwell's article. Jefferson's VA Statute perfectly illustrates how America's Founding political order had theistic but not necessarily Biblical or Christian premises.

Falwell also quotes from John Witherspoon, Benjamin Rush, John Dickinson, and John Hancock, all of whom were orthodox Christians (though Rush eventually converted to Universalism). While no doubt these men were important, they weren't the "key Founders" -- the ones whom we think of when we mention the words "Founding Fathers" -- the men on our currency. They -- Washington, Adams, Jefferson, Madison, Franklin and some others -- weren't orthodox Christians; they were the ones who came up with the ideas upon which America was Founded; and those ideas did not come primarily from the Bible or the Christian Religion. Not to downplay the importance of the others; Witherspoon, for instance, was extremely important in educating some Founders like Madison and otherwise arguing for Revolution. However, Witherspoon's arguments for the Revolution came largely from Locke and the Enlightenment, not the Bible.

The day before Falwell's article, WND featured an article from Doug Phillips about the 400th birthday at Jamestown in 1607. While he decries modern "revisionism" about the history of that colony, his article engages in precisely such revisionism, from the other side:

The Jamestown settlers gave the Holy Scriptures a permanent home in America. This is perhaps the most enduring legacy of Jamestown. The coming of the Bible to America fundamentally changed the history of the North American continent. It was the Bible that communicated the hope of personal redemption and the basis for stable civilization.

This is one reason why Jamestown would become the first permanent settlement to establish a legal system based directly on the moral law of God and the applicable principles found in the case laws of Holy Scripture. This Christian "common law" was later incorporated by direct reference into our United States Constitution. Jamestown also gave us our first experiment in republican representative government, a model that finds its origins in the Hebrew Republic of the Old Testament, and was formally adopted by the Founding Fathers of a later generation.

While the US Constitution does say something about the common law, it says nothing about the "Christian" common law, (or God, Jesus or the Christian Religion itself, except perhaps in the customary way of stating the date), and Jefferson believed "Christianity neither is, nor ever was a part of the common law." Further, the Hebrews didn't have a "Republic." Nor did our Founding Fathers think they were implementing a constitutional system that derived from the Old Testament Hebrews. I challenge someone to show me one place in the Declaration, Constitution or Federalist Papers where they claimed this.

There was a sermon from the Founding era from one Reverend Samuel Langdon which claimed something along these lines. But that doesn't mean his sermon was sound. In fact, Langdon's sermon was a piece of Whig-propaganda which radically reimagined the history of the Ancient Israelites. Scripture warns against either adding to or removing from "God's Word." This is exactly what folks do when they claim the Hebrews had a "Republic" or when they otherwise try to "read in" extra-Biblical Founding-era ideas to the Bible's text to try to credit "Christianity" or "Biblical principles" for the ideas upon which we declared independence or constructed the Constitution.

Christian nationalists, in their historical revisionism, ultimately invariably refuse to distinguish between the old colonial orders which were founded according to one set of ideological principles and the Founding from 1776-1789, the ideas of the latter which, in many ways, dramatically broke with the ideas of the former. There was of course, some overlap in ideas between the two eras and the Founding Fathers retained what they thought "rational" from the earlier era.

However, on religion and government, some key difference existed which folks like Jerry Falwell or Doug Phillips ignore to their peril. Frederick Clarkson's article on this very controversy nicely shows how the differences made a difference. Indeed, he quotes from Thomas Jefferson's "Notes on the State of Virginia" which passage discusses everything wrong with the way the early colonies dealt with religion and government:

The first settlers in this country were emigrants from England, of the English church, just at a point of time when it was flushed with complete victory over the religious of all other persuasions. Possessed, as they became, of the powers of making, administering, and executing the laws, they shewed equal intolerance in this country with their Presbyterian brethren...

The poor Quakers were flying from persecution in England. They cast their eyes on these new countries as asylums of civil and religious freedom; but they found them free only for the reigning sect. Several acts of the Virginia assembly of 1659, 1662, and 1693, had made it penal in parents to refuse to have their children baptized; had prohibited the unlawful assembling of Quakers; had made it penal for any master of a vessel to bring a Quaker into the state; had ordered those already here, and such as should come thereafter, to be imprisoned till they should abjure the country; provided a milder punishment for their first and second return, but death for their third; had inhibited all persons from suffering their meetings in or near their houses, entertaining them individually, or disposing of books which supported their tenets.

If no capital execution took place here, as did in New-England, it was not owing to the moderation of the church, or spirit of the legislature, as may be inferred from the law itself; but to historical circumstances which have not been handed down to us. The Anglicans retained full possession of the country for about a century. Other opinions began then to creep in, and... two-thirds of the people had become dissenters at the commencement of the present revolution. The laws indeed were still oppressive on them, but the spirit of the one party had subsided into moderation, and of the other had risen to a degree of determination which commanded respect.4

Clarkson also deals with, more specifically, how Jamestown dealt with religion and government:

In other words, Jamestown was to be a bastion of the Anglican Church, the established faith of England. The local government was to enforce religious conformity, not religious freedom. According to Leo Pfeffer's Church, State and Freedom, the leaders of the Virginia settlement wasted no time in carrying out that edict. Governor Thomas Dale in 1612 mandated "Lawes Divine, Moral and Martial" that decreed the death penalty for those who "speak impiously of the Trinity... or against the known articles of the Christian faith."

Those who cursed would have a bodkin (needle) "thrust through the tongue," and all immigrants to the new land were to report to the Anglican minister for "examination in the faith." Anyone who refused faced a daily whipping "until he makes acknowledgement."2

Consider Jefferson and Adams -- two fervent theological unitarians -- and their correspondence about which I've longed blogged. Jefferson repeatedly brutally savaged the Trinity, once calling it a "metaphysical insanity"; Adams claimed that even if he were on Mt. Sinai with Moses and God had revealed the Trinity to him there, Adams still wouldn't believe it because man's reason dictates 1+1+1 = 3, not 1. Both of them wrote these things in private, because had these thoughts been made public their reputations would have been greatly damaged (Jefferson's already was damaged for some of the things he wrote about in "Notes"). But had those letters been made public in Jamestown in the earlier colonial era, they could have been executed like Servetus, whom Calvin helped to have executed for publicly criticizing the Trinity in Geneva.

No, according to the ideas that Jefferson, Adams and company gave us, the rights of conscience were unalienable and if a man wanted to, in contravention to Scripture, openly worship no God, twenty Gods or deny the Trinity, he had the absolute right to do so. That's one key difference between the ideas of America's national Founding and the colonial foundings of Jamestown and Plymouth Rock. And what a profound difference it was.

Brad Delp's Suicide and the Reality of Mental Illness:

This is sad. Brad Delp seemed like he was in really good shape for a guy in his mid-50s, so I wondered how he died. Like Richard Jeni, it was suicide.

These two recent suicides bring to mind something that disturbs me about the thesis which some libertarians accept, most notably put forth by Thomas Szasz, that mental illness doesn't exist. Though, I note he's done some great work in the profession and I'm with him to some extent. I just can't accept the entirety of his argument. If I understand the argument, if the brain is not "sick" with a virus or cancer or something along those lines -- in other words, if a physiological test reveals a "healthy" brain like a healthy heart and set of lungs, there is no mental illness. And all categorizations have been somewhat arbitrary exercises of power (which thesis was pushed hard by the likes of Foucault).

Perhaps my problem with Szasz is just semantics. Things like schizophrenia and severe depression which causes otherwise healthy people to take their own lives are real things, real problems, regardless of whether we call them "illnesses" or not. If we accept that they are real problems which ought to be recognized as such and treated to the best of our ability, that's all I care about. Often that treatment involves drugs like antidepressants. And Szasz has done Yeoman's work as an advocate for drug legalization. So I don't think he'd have a problem with a shrink recommending a certain amount of an antidepressant. Indeed he'd probably liberalize the requirement for a prescription and allow anyone to avail themselves of these drugs as well as illegal drugs.

Where Foucault, Szasz et al. have a kernel of truth (what I accept in their argument) is that the mental health industry has and continues to try to unjustifiably medicalize social norms or conventional morality. Just as things like masturbation and homosexuality were "illnesses" of the past, things like racism and homophobia, according to some practitioners, are present day "mental illnesses." Indeed, in the Soviet Union, those who questioned the party line could be institutionalized for mental illness.

My solution which both recognizes mental illness but tries to act as a check against the use of such categorization to enforce social norms is to decouple the notion of mental illnesses and social norms. Having a mental illness, even if it doesn't involve physiological sickness like being infected with a virus, ought to be understood as analogous to physical sickness. Finding out someone is mentally ill ought to be like finding out they have high cholesterol or diabetes. Such says nothing about a person's character or social norms.

If anything, because of the unchosen element of mental illnesses and given that they are presumptively covered under disabilities related civil rights laws, if a particular condition qualifies as a real mental illness, such ought to weigh in favor, not of its social stigma, but its socially neutral status.

Of course certain behaviors -- stealing, killing, hurting other people, and perhaps hurting oneself -- are almost always wrong no matter what the cause. But, if they do in fact result from a mental illness, such behaviors are wrong, not because of but in spite of that fact. And, in criminal law and in social morality, behavior which results from mental illness often acts a "mitigating" factor. Someone who chooses to do a bad act with a clear mind and a cold heart is more immoral and criminally culpable than someone who had an impulse, couldn't "help" himself and then felt terribly guilty about it afterwards. And if the resultant behavior is not harmful or immoral -- like for instance jumping over the cracks of a sidewalk (as people with OCD do), or yelping in class (as someone with tourettes syndrome does -- though I can understand how this might distract professors!) then there is nothing socially or morally wrong with either the condition or the behavior of the person and discriminating against or thinking less of a person because of their harmless eccentricities which might result from an underlying neurosis is morally wrong and ought to be frowned upon. (And while professors have no duty to accommodate a yelper without tourettes, if a student yelps because she has tourettes, otherwise inexcusable behavior must be accommodated to the extent that it is "reasonable" to do so).

As I noted before, Madison, Jefferson and Lincoln all likely suffered from moderate to serious mental illnesses of the depression and anxiety variety. Finding this out about them should be like discovering that some founding father had male pattern baldness under his whig. Contrast that with finding out that Lincoln might have been homosexual. Whatever we think of the morality of homosexuality, such ought to have nothing to do with whether homosexuality is a mental illness which would presumptively make that condition more like having high cholesterol, or an even closer analogy -- tourettes -- and demand its inclusion in various disabilities related civil rights legislation and "reasonable accommodations" for the underyling conduct which results from the illness.

Why Lillback's Thesis is Unconvincing, Take 57:

As I have noted many times before, George Washington was not a "strict Deist" like Thomas Paine and to the extent that some folks hold this misconception, Peter A. Lillback, the Novaks and other scholars who dispel this notion do relevant work. The problem, though, is many of them then argue Washington was a "Christian" (as though there were only two boxes "Christian" or "Deist"), but Washington's belief in orthodox Trinitarian Christianity simply cannot be gleaned from the historical record.

While it is quite easy to construct a strict Deist strawman and offer an avalanche of facts on Washington to knock it down, little if anything I have seen from Lillback or the Novaks demonstrates Washington believed any differently than Jefferson, Adams, Franklin, and Madison. If we call their belief system "theistic rationalism," this is not such an easy strawman to knock down. Lillback's book thus is full of non-sequiturs, offering many facts about Washington suggesting they demonstrate he was an orthodox Christian, when they do not. For instance, there is a chapter on Washington's prayers where they deal with Washington's "reciprocal prayers." As Lillback points out, "[t]his is a gracious custom that could be construed as a mere civility." He should have stopped there. But he goes on:

But in some instances, this cannot be offered as the explanation. That is because some of the prayers are so explicitly Christian and biblical, that to affirm a reciprocal prayer would be to confess a Christian faith. If Washington intended to be the honest, candid person that he claimed to be, and yet also was the Deist that so many have claimed him to be, he could not have offered a reciprocal prayer in such instances. Yet, that is exactly what Washington did on various occasions. p. 362-63

Lillback then quotes some of the original letters to whose prayers Washington reciprocated. For instance, one from the Reformed Protestant Dutch Church in Kingston which prayed, for Washington, an orthodox Christian prayer, talking about entering Heaven through the "Blood of the Lamb." Lillback writes, "[s]urely Washington, if he were a Deist, could not reciprocate such a prayer. But he did." p. 364. But notice, when Washington reciprocated, he repeats none of the orthodox language, just stated that his "wishes are reciprocal."

Convinced that our Religious Liberties were as essential as our Civil, my endeavours have never been wanting to encourage and promote the one, while I have been contending for the other; and I am highly flattered by finding that my efforts have met the approbation of so respectable a body.

In return for your kind concern for my temporal and eternal happiness, permit me to assure you that my wishes are reciprocal; and that you may be enabled to hand down your Religion pure and undefiled to a Posterity worthy of their Ancesters is the fervent prayer of Genre. Yrs. &c. 5

Now let us turn to Jefferson doing the same thing. In fact, let us turn to what is arguably Jefferson's most famous correspondence on church/state matters -- his letter to the Danbury Baptists. While many people are aware of the letter Jefferson wrote to them, few know of the letter they wrote to him, to which he responded. Here it is. And let me excerpt part of it: "And may the Lord preserve you safe from every evil and bring you at last to his heavenly kingdom through Jesus Christ our Glorious Mediator." This is an unequivocal statement of orthodoxy from a Church -- the Baptists -- which was unquestionably orthodox in its doctrines.

To which Jefferson responded with his famous letter stating the First Amendment instituted "a wall of separation between Church & State." But few people notice the very bottom of the letter where Jefferson reciprocated their prayer.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.

In short, Jefferson here does exactly what Washington did with his reciprocal prayer to Reformed Protestant Dutch Church. And we know from reading his private letters, Jefferson rejected almost all of the tenets of orthodox Christianity. It no more follows that Washington's reciprocation signified a belief in the orthodoxy of the original letter writers than Jefferson's reciprocation did.

As I noted above, Lillback had the common sense explanation for Washington's reciprocal prayers, that it was "a gracious custom that could be construed as a mere civility." He should have stopped there and not delved in deep to a non-sequitur. His book is 1200 pages of this kind of argumentation.

Sean Hannity Heretic:

A Catholic Priest calls Hannity a "heretic" for endorsing birth control. I absolutely disagree with the Church's position on birth control -- but then again, I'm not a Catholic (other than being baptized one). Hannity's rejection of birth control is a problem for a variety of reasons. One, the Catholic Church is hierarchical and good Catholics are supposed to listen to Church authority. But more importantly, the Church has tied its entire view on "natural sex" to a "procreative teleology." In short, it condemns homosexuality, contraception, and masturbation along the same lines. If one accepts contraception, one then loses the natural grounds for condemning homosexual acts. In other words, according to Church teachings, what Sean Hannity endorses is as "unnatural" as homosexual acts. Perhaps, then, one can still find a way (Scripture) to morally condemn homosexual acts, but not on "naturalness" grounds.

The Priest said he would deny Hannity communion. I don't see how Hannity's position in any way differs from that of other Catholic sexual dissidents like Andrew Sullivan.

Update: Welcome Andrew Sullivan readers. Some folks have noted that the link doesn't work for them. A reader commented that "going through the main Hannity & Colmes site works. Its in the right hand column under Fox News Video here." And here is a clip from YouTube.

Brad Delp RIP:

I thought Brad Delp, Boston's lead singer who just died at 55, had a cool voice -- real smooth and he could hit those high notes. Boston were a little too "corporate" sounding for my taste; but they wrote good tunes and were real musicians. This is a performance I found on YouTube from March 2nd which may be the last recording of Delp's.



And here is one from Nov. 2006 with John Popper. I'm really glad that Delp seemed to have a good time rockin' until the very end. RIP Brad Delp.

The Original Public Meaning of "Religion" in the Constitution:

The Constitution mentions religion in Article VI, section 3 ("no religious tests") and then again in the Establishment and Free Exercise Clauses. It's fairly uncontroversial among scholars that religious rights apply to more than just the "Christian" religion. Still, I have seen some originalists argue that the term "religion" meant Christian sects only. (Indeed, it's accepted "fact" among the Christian Nation crowd that "religion" which was protected by the Constitution only meant "Christianity".) Justice Rehnquist, although to my knowledge never held such rights should be restricted to Christians or Protestants, in his dissent in Wallace v. Jaffree seemed to imply that "religion," as originally understood, meant exactly this at least in the Establishment Clause (though like Scalia, I think he accepted that the Constitution's meaning can change over time if such meaning is consistent with the text of the Constitution and traditions of the nation; and indeed, extending "religious rights" beyond Christianity would qualify as such).

Rehnquist relied on Joseph Story's commentaries in that decision, and offered the following much cited quotation:

The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects, and to prevent [p105] any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. . . .

Now, this may well have been one of the "underlying purposes" of the First Amendment, but it would be a mistake to therefore conclude that the First Amendment, because one of its purposes was "to exclude all rivalry among Christian sects" protected "Christianity" only. For one, the text says nothing about "Christianity" but "religion," and the writings from the Founding era record make clear that everyone knew other "religions" existed besides Christianity.

Whether we call it "original intent" (at a general level) or "underlying principles" or "purposes" of the Constitution's text -- however useful these may be for explicating meaning or "filling in gaps" when needed -- such ought never be used to supersede the text of the Constitution. This is exactly what Randy Barnett warned against in this post where he wrote:

I do have one caution about Jack's [Balkin's] appeal to what he calls the "underlying principles" of the text. When the text is vague, appealing to the underlying principles to determine whether or not it covers a particular situation is appropriate and inevitable. But what is not kosher is to dive beneath the surface of the text to ferret out the "underlying principles" and then resurface somewhere else entirely. This is a standard technique by which the text itself can be replaced with the interpreter's version of the "underlying principles" that may even contradict the text itself.

What is appropriate is using the principles underlying the text to interpret its reach, when that reach is in doubt. In other words, when you dive beneath the surface to find the "underlying principles" you must reemerge in the text itself and apply the text (not the principle) to the facts of a particular case.

This post need not exhaust the public record to show that both the framers and the ratifiers of the Constitution, when they used the term "religion," knew that other religions besides the "Christian" one existed and were protected; trust me, they did. If they meant to give rights to the Christian religion only they could have worded the text that way, but they didn't. Though, I will show a little on the debates over Article VI's "no religious tests" clause. The ratifiers knew that by prohibiting religious tests for public office, non-Christians would be able to secure election and many were opposed to the Constitution for that very reason. But, since the Constitution ultimately was ratified, their view lost.

A North Carolina minister, for instance, in his state's ratification debate, noted that Article VI was "an invitation for Jews and pagans of every kind to come among us." At the Massachusetts convention, one speaker noted that unless the President was forced to take a religious oath, "a Turk, a Jew, a Roman Catholic, and what is worse than all, a Universalist, may be President of the United States."

Ultimately the original public meaning of the term "religion" in the Constitution demands that whatever "rights" or "prohibitions" attach to religion, attach to "religion in general" not the Christian sects only. Therefore, a view which I have seen put forth, similar to Rehnquist's dissent in Wallace v. Jaffree and Joseph Story's above quoted passage -- the Establishment Clause originally meant to prohibit a national Church plus discrimination or preference among the Christian sects, is untenable. If the EC demands any kind of sect neutrality, it must apply to all religions and therefore government could not promote Christianity in general while excluding "Mahometanism, or Judaism, or infidelity" from whatever program of aid is at issue. Perhaps government could promote "religion" over non-religion. But, if atheism or lack of religion qualifies as someone's "religion," (arguably it does), then government may not be able to do this either. Abolishing sect preference suggests a right to religious equality and religious equality may lead us down the road to government being forbidden from preferring one religion over another or preferring religion over non-religion (in other words, the post Everson line of cases).

Of course, if government were restricted from erecting a national establishment only it could promote Christianity over non-Christianity or one sect of Christianity over another (this is similar to what Philip Hamburger argues).

For a work which argues for a very strict reading of the Establishment Clause that avoids falling into the sect-preference pitfall and some of the problems with Philip Hamburger's "Separation of Church and State," (for instance that what Jefferson, Madison and the religious dissenters fought for in Virginia in the 1780s did not fall under the rubric of "separation of Church and State," an extremely contentious claim which Hamburger puts forth) see Vincent Phillip Munoz's "The Original Meaning of the Establishment Clause and the Impossiblity of its Incorporation" . University of Pennsylvania Journal of Constitutional Law, Vol. 8, 2006.

This passage on the meaning of "respecting an" impressed me:

The key to unlocking the meaning of the Establishment Clause lies in understanding the words "respecting an,"236 which were added by the joint committee. Then, as now, the present participle "respecting" means "with reference to, [or] with regard to."237 The added words reveal a precise intention -- to indicate that Congress lacked power with reference or regard to a religious establishment. By adopting "respecting an," the joint committee drafted a solution to the problem of how to craft language that would specify that Congress lacked power to legislate a national establishment or to interfere with existing state establishments (or lack thereof) without implicitly granting to Congress power to pass church-state legislation short of the stated prohibition.238 To restate the problem, if the committee drew a specific line that Congress could not pass (as proposed in the Senate), future congressional members might interpret their power to include everything short of that line. "Respecting an" offered a precise solution to this problem by indicating that Congress lacked power in the entire realm of religious establishments. Unlike the other First Amendment participles "prohibiting" and "abridging," which regulate but do not categorically deny Congress power, "respecting" indicates Congress's lack of jurisdictional authority over an entire subject matter. The Establishment Clause thus made clear that Congress lacked power to legislate a national establishment or to pass legislation directly regarding state establishments (or the lack thereof).239 Of course, Federalists in the First Congress, such as Roger Sherman, thought this was how the matter stood without an amendment.240 With the addition of "respecting an," Congress found language that did not affect the existing power of Congress (from the Federalists' viewpoint) yet would satisfy the fears aroused by Anti-Federalist criticisms that the Constitution threatened religious freedom. It was a remarkable feat of constitutional craftsmanship.

Note though, Congress wasn't just powerless over "religious establishments," but had no power over religion in general and arguably couldn't, as a general matter, promote religion for that reason. Munoz's paper avoids the pitfall of trying to read an empowerment over religion into the Constitution's text, which just isn't there.

However, if the Establishment Clause weren't incorporated, states could promote religion in general or a Christian or other sect in particular. For instance, Utah could promote Mormonism. Munoz's paper shows that while all of the Founders seemed agreed that Free Exercise for all religions must be guaranteed, they didn't likewise agree on Establishment policy. All three religion clauses -- the Establishment, Free Exercise and "No Religious Tests" -- were meant to secure the "unalienable rights of conscience." Jefferson and Madison endorsed the "Virginia" view or that strict separation of Church and State -- hence no government funds to promote religion -- was needed to secure those unalienable rights. Washington and Adams endorsed the "Massachusetts" view which thought a mild establishment didn't violate the rights of conscience. Hence even if the Free Exercise clause ought to be incorporated, because it is not clear that a mild establishment violates the unalienable rights of conscience and because of the precise way it is worded, the Establishment Clause does not neatly incorporate. The federal government, as originally conceived and persisting through the 14th Amendment, could make no establishment policy at either the federal or state level.

A couple of thoughts. First, even if it's true that certain types of establishments may not violate unalienable rights, certain types probably do. So even if states have leeway in their ability to establish and promote "religion," the rights of conscience will still demand *something* for those whose views aren't promoted by the state. This is what George Washington (and probably Adams and others who endorsed the "Massachusetts" view) believed. For instance, in commenting on Patrick Henry's bill to promote Christianity in general (which Madison remonstrated against and the contents of which were made illegal in Virginia according to Jefferson's Virginia Statute on Religious Freedom) Washington stated:

I am not amongst the number of those who are so much alarmed at the thoughts of making people pay towards the support of that which they profess, if of the denomination of Christians; or declare themselves Jews, Mahomitans or otherwise, and thereby obtain proper relief. As the matter now stands, I wish an assessment had never been agitated, and as it has gone so far, that the Bill could die an easy death; because I think it will be productive of more quiet to the State, than by enacting it into a Law; which, in my opinion, would be impolitic, admitting there is a decided majority for it, to the disquiet of a respectable minority.

In other words, he was against the bill not because he thought, in principle, it violated natural rights, but rather because it was "impolitic." But while he believed that state governments could, by right, support Christianity in general, because men of non-Christian religions have equal rights, they are, by right, entitled to "obtain proper relief."

And this, in turn is suggestive of a natural right to religious equality between not just the Christian sects, but for all religions. Whether when government "aids" various programs it must do so in a "religion blind" manner or could in fact "take cognizance" of religion -- promote a particular religious point of view, and grant equal accommodations, or "proper relief" (as Washington put it) to those whose views are not advanced -- is something I haven't entirely figured out. It's possible that, as Munoz and others argue, modern Establishment Clause jurisprudence greatly misreads the original record, though it's doubtful that the Court will unincorporate it anytime soon. Even if the Court did, I strongly believe, after Akhil Amar, the notion of religious equality or equal rights will vet much of what the Court currently has the incorporated Establishment Clause doing.

Finally, check out this enlightening debate featuring these very concepts with, among others, Michael Newdow and Phillip Munoz. On the matter of "under God" in the pledge, Newdow's position takes Madison's and Jefferson's "Virginia" position probably further than they would (but still to its logical conclusion) and argues religious equality/non-cognizance demands no "under God" in the pledge. After all, "under God" is not neutral or equal any more than saying "under no God" would be neutral or equal. Munoz, on the other hand, more in line with the Massachusetts view thinks it fine for government to promote theism over non-theism as long as atheists like Newdow could "obtain proper relief." In this case, it would be recognizing that atheists or other religious dissidents have an absolute right not to say "under God" in the pledge and suffer no penalty for it.

Novak on the Founders' God:

Michael Novak's latest installment in his dialogue with Joseph Ellis about the Founders on Religion is up. His post summarizes an argument Novak made in his book On Two Wings. What Novak does here is try to find ways in which the Founders' God parallels the Biblical God but "differs from earlier pagan religions, from Islam, and from 18th century deism." He essentially plays a "glass is half-full/half-empty" game. He writes:

First of all, Biblical religion holds that the Creator is intimately concerned with the inner conscience of human beings (the principle Jefferson draws on in his Statute for Religious Freedom); and also that in reply to our prayers ("ask and you shall receive"), the God of the Bible "interposes" his divine action into the affairs of men, the rise and fall of nations, and even the inner thoughts and inspirations of human individuals.

Secondly, the Biblical God "who gave us life, gave us liberty at the same time" (Jefferson). He invited us into friendship with Him -- the friendship of free women and men, not slaves. As William Penn put it, if friendship, then freedom. From this insight flowed the Liberty Bell of Philadelphia. Thus, biblical religion conceived of history as a long-term effort to bring human freedom into fruition across this planet ("Go teach all nations"). As the historian Lord Acton wrote, the history of liberty is coincident with the history of Judaism/Christianity.

In other words, the Biblical God is "the god of liberty." It was for liberty that the Creator made the world. It is by giving humans liberty that He made them "in His image." Unlike the Greek Fates, the Biblical God is sovereign and free; unlike the Muslim Allah who is pure will (over-ruling reason and law), the Biblical God is the light that suffuses the intelligibility of all natural and human law, and all individuals and events. The Biblical God lives liberty through, not license, but self-government under law: "Confirm thy soul in self-control/ Thy liberty in law."

Problems with Novak's thesis: First, Novak only attempts to see how the Founders' God parallels the Biblical God, i.e., the Founders' God was not some remote watchmaker God but an active personal God, the Biblical God is an active personal God, hence the Founders' God is the Biblical God. But we could just as easily ask how the Founders' God differed from the Biblical God. For instance, the Founders' God clearly was unitarian, not Trinitarian in His attributes; He didn't damn anyone to Hell for eternity (just punished the bad temporarily); He was more concerned with works than faith; and though He was, as Novak notes, "concerned with the inner conscience of human beings," He was apparently not a jealous God as He granted men an unalienable right to worship false gods or no God at all (contrast that with the First Commandment). The Founders' God was viewed through the lens of "benevolence" and "rationality"; those parts of Scripture which confirmed God's benevolence and rationality were, accordingly, legitimately revealed; those parts of Scripture which conflicted with these notions (for instance, like God's jealousy, His wrath, His Triune nature, some of His more outlandish miracles) likely were "error" or not legitimately revealed.

So after seeing the full picture and asking how the Founders' God was both similar to and different from the God of traditional orthodox Christianity, then ask whether the Founders' God was "Biblical." The best answer for the affirmative would be yes, He was, but with a caveat: The Founders' God was "Biblical" minus everything written in the Bible conflicting with the findings of man's reason, which was designed to be supreme. See Jefferson taking his razor to the "unreasonable" parts of the Bible or Adams asserting even if he were on Mt. Sinai with Moses and God revealed the doctrine of the Trinity to him there, Adams still wouldn't believe it because man's reason dictates 1+1+1 = 3, not 1.

The second problem with Novak's thesis is that it disregards the universalism with which these Founders were so concerned. Novak essentially tries to argue: The Founders God was "Biblical" but not Allah, not Deistic, not the God of this or that pagan religion. The Founders asserted just the opposite. Their rational unitarian God was, according to them, the God of all. He was the (unitarian) Christian God, Jehovah to the Jews, Allah to the Muslims, "the Great Spirit" to the Native Americans, and so on and so forth. John Adams managed to "find" this monotheistic God in the religion of the Pagan Greeks and Romans and the Hindus. Now one can argue, whatever they asserted, the Founders' God differed in His attributes from Allah, and the rest of the pagan gods. But, He likewise differed from the triune God of the Christians!

See for instance this quotation from Adams in his letter to M.M. Noah, July 31, 1818:

"It has pleased the Providence of the first Cause, the Universal Cause, that Abraham should give religion not only to Hebrews but to Christians and Mahomitans, the greatest part of the modern civilized world."

Here Adams makes it clear that Jews, Christians, and Muslims worshipped the same God as all have "religion."

If one argues that "Allah" possesses different attributes than the "Biblical" God, one could just as easily argue that the Christian God possesses different attributes than the Jewish God. Indeed, while the Christian God is triune in nature, the Jewish God, Allah and the Founders' God are unitarian in nature. Consider this quotation from Adams to Mordecai Noah, March 15, 1819:

I really wish the Jews again in Judea an independent nation. For as I believe the most enlightened men of it have participated in the amelioration of the philosophy of the age, once restored to an independent government & no longer persecuted they would soon wear away some of the asperities and peculiarities of their character [and] possibly in time become liberal unitarian Christians for your Jehovah is our Jehovah & your God of Abraham Isaac & Jacob is our God.

Notice how Adams remarks both that he and the Jews worshipped the same God -- "Jehovah, the God of Abraham Isaac & Jacob," but that his God was aptly described as that of "liberal unitarian Christianity." Hence, from an outer level of generality, all theists worshipped the same God -- "the Providence of the first Cause" -- but from an inner level of specific attributes, Adams' (and the other key Founders') God was unitarian, not Trinitarian, benevolent, not wrathful and jealous, and above all rational. In sum, on specific matters, the Founders' God was their God -- benevolent, rational, and unitarian; and He differed not just from Allah, the God of the strict Deists, and the god(s) of the rest of the pagans, but He also differed from the God of the Jews and the God of orthodox Christians.

My final problem with Novak's thesis is that he imports an "a-biblical" attribute into the "Biblical" God and hence tries to credit the Bible for one of the attributes of the Founders' God which clearly the Enlightenment created. Novak was quoted above as saying "the Biblical God is 'the god of liberty.' It was for liberty that the Creator made the world." The God of the Founders, no doubt, was pro-political liberty; Novak nicely quotes Jefferson as stating the God "who gave us life, gave us liberty at the same time." The problem is the Biblical God seems wholly unconcerned with political, as opposed to spiritual liberty. Tory minister Jonathan Boucher correctly noted: "The word liberty, as meaning civil liberty, does not, I believe, occur in all the Scriptures." Thus, the notion that men have a God-granted right to political liberty is wholly a creation of Enlightenment, not Biblical, theology. As Novak's fellow conservative Catholic scholar, Robert Kraynak, once put it, the theory of liberal democracy as put forth by Jefferson et al. "needs God, but God is not as liberal or as democratic as we would like Him to be." In other words, the Biblical God is not as liberal or democratic as the key Founders made God out to be. Or at the very least, those attributes cannot be gleaned from the text of the Bible.

Response to Cars are Evil:

This blogger has got some issues. I've got a few responses. For instance, this one:



Or this:



Or this:



Or this:



Or finally, this:

Pictures at an Exhibition:

Emerson, Lake and Palmer's entire concert of Mussorgsky's "Pictures at an Exhibition" has now been posted on YouTube. In many ways, they cover Ravel's orchestral arrangement of Mussorgsky's piano piece (most are more familiar with the orchestral version which was arranged by Maurice Ravel).



Love it or hate it. I think it's great.

Out of all of the eras of concert music -- Baroque, Classical, Romantic, Modern, etc. -- the melodies and harmonies written in late Romantic pieces like those from Mussorgsky or Prokofiev fit best with the hard rock idiom. Earlier stuff like Bach, Beethoven and Mozart -- the melodies often are too elegant to rock; and contemporary concert music, post-Stravinsky -- the harmonies too dissonant, the melodies too atonal or unsingable. Late Romantic music has melodies that are closest to the "riffs" in rock music -- exotic and funky, but still very singable.

Even many of the rock guitarists who claim to be influenced by Bach and Pagannini (Yngwie Malmsteen) do things in their melodies/solos, like stress the augmented second of the harmonic minor scale, which Bach et al. would never do in their melodies. Hence Yngwie et al., whether they realize it or not, often give their melodies a late-Romantic feel even as they try to incorporate ideas from the Baroque and Classical era.

Bloomsday:

As Andrew Sullivan and R.R. Reno remind us, it's been 20 years since Allan Bloom's The Closing of the American Mind has been published.

A little while ago Karen tagged me with a "thinking" meme. Though not exactly what she asked for, I strongly recommend this book (if one can deal with the abstruse prose). Like all Straussian works, it makes some very controversial claims, and unless one toes the East Coast Straussian line (I certainly don't), no matter what one's political stripe, one will find much with which to disagree here. Yet, there are also shrewd insights into political philosophy and the human condition. Indeed, one can find ammo in this book to support neocon, paleocon, theocon, secularist, libertarian, or even leftist positions.

The book certainly challenges one to think.

Kind of Funny:

As a neither leftist nor rightist libertarian, I try to avoid taking overtly political stands on my blogs (except those that endorse libertarianism). I must say, though, that Max Blumenthal strikes me as what Bill O'Reilly would call a "smear-merchant." Still, this video has some fun moments.

The funniest moment -- one that plays on all sorts of Republican stereotypes -- is the black Republican featured at the four and a half minute mark. You have to see him to believe it. As someone who is 1/4 Lebanese in ancestry, I think I have as much black blood as this guy.

Recent Webcam Pic:

Ideas Have Consequences:

Most constitutional scholars who defend the concept of "originalism" no longer do so under the rubric of "original intent," but rather under "original meaning." The term "original intent" is more associated with a sort of reflexive conservatism; though, what many don't realize is that "original intent" could be, especially as applied to religious matters, a far more subversive concept than "original meaning."

"Original intent" is where the secret, perhaps "code," intentions of our Founders -- things that they wrote in their private letters but could not utter in public because such sentiments would be far too controversial for that time -- could supersede the original plain meaning of the text of the Constitution.

Enter religious establishments. The First Amendment to the Constitution clearly forbids in its plain text, at the very least, a national religious establishment for America. Yet, it's entirely possible that the key Founders secretly intended to de facto establish "theistic rationalism" -- their personal belief in that system of theological unitarianism and universalism -- as the religion of the United States. Clearly though, even if this were the case, most would agree that we are not ruled by these secret intentions but by the original public meaning of their words as written in the Constitution.

Still, ideas have consequences, and some of the present day outcomes of original public meaning may nonetheless coincide with those secret intentions. Indeed, those Founders may have been far more aware than the normal guy on the street in 1789, of the potential consequences of those ideas.

One thinks of the recent case involving the military chaplain where the military, entirely consistent with the religious ideals of our Founders, ordered that the chaplain not pray in Jesus' name but rather in generic God terms.

The Rutherford Institute responded that it seemed that the military was trying to establish unitarianism or universalism as a de facto religion. From the WorldNetDaily article:

And that, the Rutherford Institute charges, is an attempt by the Navy to assemble a "civic religion."

"There's a unitarian system of religion that's aimed at Christians," Whitehead told WND. "It boils down to that. We're seeing it all across the country, with council prayers, kids wanting to mention Jesus. What's going on here is it's generally a move in our government and military to set up a civic religion."

Some thoughts. First, it strikes me as odd that the Rutherford Institute would raise an Establishment Clause claim. Conservative Christians seem to me most likely to endorse the notion that the EC prevents the federal government only from establishing a national church like the Church of England. Well, telling a chaplain he can't pray in Jesus' name is not (anything) like establishing a Church of England.

Moreover, if government is constitutionally permitted to make religious acknowledgements at all, government must then dictate the content of such acknowledgements. The only alternative is to hold that government may not, under the Establishment Clause, make religious acknowledgements. And that's the outcome that Barry Lynn and Michael Newdow want.

And indeed the content of military's orders demanding the chaplain not pray in Jesus' name is entirely consistent with the ideals of the Founding. Indeed, there is a "civil religion" that founds America which aptly could be described as "a unitarian system of religion that's aimed at Christians," which was constructed not by the Navy but by our Founding Fathers. Consider Justice Scalia's words from his interesting dissent in McCreary and speaking of our Founders' acknowledgement of God: "This is not necessarily the Christian God (though if it were, one would expect Christ regularly to be invoked, which He is not)" and,

All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history, and all the other examples of our Government's favoring religion that I have cited, have invoked God, but not Jesus Christ.

Meticulously researching the primary sources over the past few years, I can confirm Scalia is right in this assertion.

Balkin on the Establishment Clause's Equality Norms:

A while ago I posted on Akhil Amar's views of the Establishment Clause and Equal Protection principles. His seminal book on the Bill of Rights notes that the original meaning of the Establishment Clause may make it hard if not impossible to incorporate. But he then asserts that because the Establishment Clause often acts like an equal protection clause, if the Court instead relied on the original meaning of the Equal Protection Clause on religious matters, the outcomes may not differ greatly were the Establishment Clause unincorporated. From his book:

Even a noncoercive establishment, [Thomas] 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.

Now, exactly how the Equal Protection Clause could do what the Supreme Court currently has the Establishment Clause doing needs much more scholarly explication than is currently out there. Jack Balkin's recent post on the Establishment Clause and issues of standing shows, using an analogy to racial discrimination, the parallels between what the Equal Protection Clause does with race and the Establishment Clause does with religion. Keep in mind while reading the following that the Equal Protection Clause could the same with both.

Frankly, I've always thought this entire line of standing cases is silly. Standing to sue should depend on the nature of the underlying substantive right. In my opinion, the Establishment Clause does not simply protect citizens from certain spending decisions (although it does do that). It protects them from certain dignitary harms caused by the government's endorsement of one religion over another, of religion in general over non-religion, or of atheism over religion. In other words, the Establishment Clause requires the government to give equal respect to its citizens with respect to religious questions, both in its symbolic activities as well as in its expenditures of money. Thus, if the Government were to erect a large sign from general appropriations stating "There is no God," this would violate the Establishment Clause because it imposes a dignitary harm on religious citizens. (Note: not everyone agrees with this view of the Establishment Clause-- some think it only protects against government coercion, for example. Justice O'Connor championed the endorsement view, which the Court later adopted, and I think she was essentially correct.).


If my substantive theory of the Establishment Clause is correct-- and it is more or less the theory that the Court currently holds-- then then any citizen of the U.S. who suffers a dignitary harm by reason of endorsement in violation of the Establishment Clause has standing to sue, and any citizen of a state who suffers dignitary harm by reason of endorsement by a state has standing to sue. A person's status as a taxpayer is irrelevant because it has nothing to do with the underlying nature of the substantive right.


The Establishment Clause is not the only clause in the Constitution that creates dignitary rights. The Titles of Nobility Clause protects citizens from the dignitary harms caused when the government bestows aristocratic titles on someone else. So if the federal government decided to make me Lord Balkin, any other citizen should have standing to sue, and I wish they would! Similarly, I have long been of the view that although the First Amendment protects various forms of racist speech by private actors, speech by the government is in a different position: the Equal Protection Clause prohibits states from making official pronouncements that one race is superior to the other. It would also prohibit states from having "colored" and "white" signs on restrooms or water fountains even if the state never required or enforced segregation of facilities by law. (Indeed, in Brown v. Board, when the states assigned pupils by race, they also sent a message of White Supremacy; this was a dignitary harm separate from the material harms caused by forcing blacks to attend inferior schools. That is, as Chuck Lawrence once put it, Brown is both a segregation case and a case of racist speech by the government.). According to this theory, any citizen who belonged to a disfavored or dispreferred race would have standing to sue if the government engaged in racist speech.