Saturday, March 03, 2007

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.


Tom Van Dyke said...

Which is why the "Judeo-Christian" God is often invoked, even though the presence of actual Jews at the founding was virtually nil.

And the Founders' theological vocabulary was so acculturally limited that when they recast God into something more amenable to their druthers, He was still the God of the Bible, and corresponds to no other theology's.

Jefferson may have edited Him, but still He remained. (For instance, Jefferson did not edit out the Lord's Prayer.)

Jonathan said...

Well, perhaps what remained was a kinder, gentler, more rational and benevolent "Judeo-Christian" God. Not sure if Jefferson's or the traditional Christian God exists. But if I'd rather One exist, I'd choose Jefferson's benevolent rational God.

Tom Van Dyke said...

Jefferson's God is better than most, not as good as some.