Sunday, June 10, 2007

Idea for Thesis:

As I noted in this past post, "religion" in the original Constitution meant and still means "religion" not "the Christian religion." Thus whatever rights or restrictions attach to "religion" in the Constitution attach to Islam, Hinduism, Christianity, or whatever qualifies as a "religion." This is uncontroversial among both liberal and conservative scholars. As far as I know, every single member of the Supreme Court believes this. When I saw Gerard V. Bradley, one of the most notable religious conservative law professors, speak at Princeton and someone asked whether "lowering the wall of separation" (what he argues for) would mean Islamic schools could get voucher $$, his reply was simple: Yes. Islam is a "religion," therefore such schools would be entitled to government aid which can go to religious schools. Period. (For his exact words, see the lecture to which I am referring.)

I will argue that the original meaning of the Constitution protected "religion" not the Christian religion, just as the text says, and as the framers and ratifiers so understood. And, as expected, I'd show that when the key Founders (Washington, Adams, Jefferson, Madison, and Franklin, et al.) spoke of "religion," in the generic sense, they meant all religions (even non-biblical ones) not the Christian religion.

In addition, I will explore how the key Framers' unitarian/theistic rationalist religious beliefs -- the notion that most or all religions, even those outside of the "Judeo-Christian" tradition are "sound" -- may have especially influenced the novel notion of granting religious rights to all religions.

Finally, I will examine how, in so protecting religion generically, refutes the notion that we are a "Christian Nation" in a public sense. Indeed, as I will note below, one of the dubious claims of the "Christian Nation" crowd is that "religion" meant the "Christian Religion" as it would have to were America truly founded to be a "Christian Nation" in a public sense.

That would be the narrow claim. The thesis would not, for instance, touch how broadly or narrowly the Establishment or Free Exercise Clauses should be interpreted. Indeed, my theory is entirely consistent with an ultra-conservative reading of the religion clauses. For instance, someone could argue, consistent with this theory, it's constitutional for government to endorse, in its speech, any religious point of view, so long as it doesn't constitutionally grant more protection to one religion over another. So government could post the Ten Commandments in a court house. Or Utah could say "we are the Mormon state," or a town in Vermont could say "we are under no God," or San Francisco could proclaim "we are under the flying green spaghetti monster." Whatever degree of constitutional protection/restrictions government grants "religion," it must grant to all religions equally. (And the way to enable governments, through the democratic process, to endorse one religious point of view over others, is to grant very narrow constitutional restrictions under the Establishment Clause.)

So what the Supreme Court could not say is that the Establishment Clause forbids government from endorsing one Christian sect over another, but may endorse Christianity (or the Christian sects) over non-Christianity (or the non-Christian sects). If government, pursuant to the Establishment Clause, can't discriminate between the Christian sects, it also can't discriminate between the Christian and non-Christian religions.


1) Is this novel? I know all sorts of articles have covered how broadly or narrowly the religion clauses be interpreted, but have any examined this specific claim?

2) Is it non-obvious? As I noted, most religious conservative scholars and every Supreme Court Justice probably already believes this. The conservatives just want to drastically lower the so-called "Wall of Separation," which can be done without granting greater constitutional protection to some religions over others.

A few points lead me to believe that the thesis is not entirely non-obvious. First, millions of people (those misled by Wallbuilders and D. James Kennedy) believe the Christian Nation fraud which peddles the notion that "religion" as generically defined in the original Constitution actually meant, the Christian religion. See for instance, this page which erroneously claims:

Modern secularists have problems understanding the American relationship between religion and government because they do not understand that the Founders believed that

1. Christianity was the true religion, others were "false religions." It would be suicidal to base a commonwealth on a false religion.

2. Forming a civil government was a religious duty imposed by the God of the Bible, and hence all governments must be "under God."

3. The God of the Bible answered the prayers of the colonists by directly and supernaturally intervening in human history, aiding their revolution against the British Empire to ensure American victory. Not a single "deist" ("clockmaker god") signed the Constitution.

4. It is the duty of all governments to endorse and promote the true religion, and make sure the statutes they pass conform to the Bible.

Every single person who signed the Constitution agreed with these four premises, and they agreed that the true religion was Christianity.

Yet, though many non-academics do believe this, in the academic realm, such is likely to be written off as extremist, uninformed crankery. Even though the author targets "modern secularists," few if any notable conservative academics, religious or otherwise, would endorse such a notion. So we are still in "straw man" land. (And no, I do not count the professors at Regent or Liberty Universities as "notable academics.")

And indeed, though they are sort of "staw manish" in their arguments, presently books knocking down such claims are very popular, with Alan Dershowitz being the latest intellectual to offer one.

More importantly, Justice Rehnquist, on one occasion, and Justice Scalia, on another sympathized with similar notions; but both ultimately rejected, or otherwise didn't seem to endorse "religion means Christianity" as a constitutional standard. First Justice Scalia in McCreary wrote:

Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today's opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another....That is indeed a valid principle where public aid or assistance to religion is concerned...or where the free exercise of religion is at issue...but it necessarily applies in a more limited sense to public acknowledgment of the Creator.

If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word "God," or "the Almighty," one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists. The Thanksgiving Proclamation issued by George Washington at the instance of the First Congress was scrupulously nondenominational, but it was monotheistic.

Now, Justice Scalia's words may not violates my thesis. Indeed, regarding free exercise and public aid or assistance to religion, Scalia endorses the notion that all religions are all equally protected. Regarding the permissibility of "public acknowledgment of religious belief," he simply could have said government can make whatever supplications it wants. Scalia may even believe that's the proper way to deal with the question of the constitutionality of government's religious speech.

But instead Scalia went off on a big tangent, while citing the God-talk of our key Founders, on how "the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists." To be consistent with my thesis, Scalia would have to note "the Establishment Clause permits this disregard of the Christian, or any religion." That he didn't, even though, ultimately, he may believe so, suggests that Justice Scalia might believe in granting some religions more protection than others under the Establishment Clause. Though he didn't limit such protection to Christianity, but to the "monotheistic" religions of Christianity, Judaism and Islam.

Justice Rehnquist in his dissent in Wallace v. Jaffree suggested that the Establishment Clause originally may have been understood to protect the Protestant sects only. Though, he never explicitly endorsed that the Christian religion ought to receive any greater constitutional protection than any other religious "sect." His quoting Joseph Story, however, could lead one to believe that's how to properly interpret the religion clauses.

"Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration [First Amendment], the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.

. . . .

"The real object of the [First] [Amendment] 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 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. . . ." (Footnotes omitted.)

Story's sentiments might shed light on one of the "underlying purposes" of the religion clauses. But we aren't ruled by "underlying purposes" but rather the original meaning of the Constitution's text which on its face protects "religion," not the "Christian sects."

But Story's thoughts show that, historically speaking, it was not always so "obvious" to everyone that "religion" meant "religion," not "the Christian religion." Indeed, the Supreme Court in The Holy Trinity case declared the US a "Christian Nation," and could read as endorsing the notion that "religion" meant "Christianity." Now, their dicta really proves nothing. After all, the Supreme Court is capable of getting it drastically wrong, as Dred Scott illustrates. And indeed, a few years after Holy Trinity that Court gave us Plessy v. Ferguson. Even Justice Scalia has scolded the Holy Trinity case as a textbook example of poor legal reasoning.

State courts too, historically, have grappled with the notion of whether "religion" means religion or Christianity. See for instance, this opinion by the Ohio's State Supreme Court, from 1872. They held:

The real claim here is, that by "religion," in this clause of the constitution, is meant "Christian religion," and that by "religious denomination" in the same clause is meant "Christian denomination." If this claim is well founded, I do not see how we can consistently avoid giving a like meaning to the same words and their cognates, "worship," "religious society," "sect," "conscience," "religious belief," throughout the entire section.


I do not say that such a reading of the sections in question is literally contended for; and yet I see no fair escape from it, if the word "Christianity," or the words "Christian religion," or "the religion of the Bible," are to be interpolated or substituted for the word "religion," at the place indicated.

If, by this generic word "religion," was really meant "the Christian religion," or "Bible religion," why was it not plainly so written?...The same word "religion," and in much the same connection is found on the Constitution of United States. The latter constitution, at least, if not our own also, in a sense, speaks to mankind and speaks to the rights of man. Neither the word "Christianity," "Christian," nor "Bible," is to be found in either. When they speak of "religion," they must mean the religion of man, and not the religion of any class of men. When they speak of "all men" having certain rights, they cannot mean merely "all Christian" men.

I will argue that this opinion gets it right, but also explore the historical dispute over the claim that "religion" really meant the "Christian religion." The thesis would be a law review article (or a series) and then perhaps a book. If part of a book, this may not be the main thesis but a sub-thesis.

Though I don't plan on going back to school until I get tenure (and probably my next promotion in rank), I could always use this as a thesis for an SJD (a PhD would be way too onerous). I already have JD, MBA, and LL.M. degrees from Temple. Though JDs can technically call themselves "Dr." most of us don't. But with the SJD, I would be "Dr."

If any law review editors actually read my posts and are interested, drop me a line. And, if any book publishers are interested, do the same.

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