Wednesday, April 22, 2009

Tillman Keeps Stone on His Toes:

A while ago I blogged about University of Chicago Law Prof. Geoff Stone's Law Review article on the "Christian Nation" controversy. You can read Stone's article here.

Seth Barrett Tillman kindly alerted me to his working paper responding to Stone found here.

A few words on Tillman's critique of Stone. First, Tillman specializes in meticulous fact checking detail; he's an expert footnoter. But parts of his paper come off as a little too pedantic. Still I found much of value in those footnotes.

I think the overall criticism Tillman directs at Stone is valid and that is Stone -- like his "Christian Nation" opponents -- overstates his case, and otherwise does not specifically enough define concepts or fully develop his thesis.

Here is the first passage of Stone's at which Tillman takes aim:

Indeed, it is quite striking, and certainly no accident, that unlike the Fundamental Orders of Connecticut, the U.S. Constitution made no reference whatsoever to God and cited as its primary source of authority not "the word of God," but "We the People." The stated purpose of the Constitution was not to create a "Government established to God," not to establish a "Christian nation," but rather to create a secular state. The only reference to religion in the original Constitution prohibited the use of any religious test for holding office, and the First Amendment made clear that there "would be no Church of the United States."4

Here is how Tillman responds to this argument, first in footnote 4:

4 Id. at 5. How is it "striking" that the Constitution of 1787 stylistically veered from the Fundamental Orders of Connecticut -- an instrument 150 years older than the Constitution at the time of ratification? Is not the relevant benchmark how the Constitution veered from contemporaneous instruments of a similar character? See infra note 5.

Maybe "striking" is too strong a word; but Stone's original comparison is apt. The FOC and some other original colonial charters demonstrate what a "Christian" government looks like. It explicitly cites the Bible and the Christian religion as authority and makes a covenant to the Triune God. All these are missing from the US Constitution. That may not make the US Constitution a document of ideal secularism; but it does make the US Constitution not a "Christian" document. The US Constitution differs in principle from the earlier explicitly Christian colonial charters in this very meaningful sense.

Next Tillman responds to Stone's claim that the US Constitution makes no reference whatsoever to God:

....Is it true that the text makes "no reference whatsoever to God"? Is it true that the "only reference to religion" in the original unamended text was the Religious Test Clause? To me at least, these seem to be an unusually strong set of (textual) claims for a law review article: claims lacking recognition of ambiguity and contrary points of view.

Tillman then talks about how the Attestation Clause mentions God and here is his footnote 5 which summarizes his research on such other contemporenous clauses:

5 U.S. CONST. art. VII, cl. 2 (Attestation Clause). See generally Seth Barrett Tillman, Humanities and Social Sciences Net Online, Constitution's References to God (Nov. 3, 2003), (noting potential significance of dual dating in Article VII) (last visited Jan. 26, 2009); EDWIN MEESE ET AL., THE HERITAGE GUIDE TO THE CONSTITUTION 301-02 (2005) (same). But see Steven D. Smith, Our Agnostic Constitution, 83 N.Y.U. L. REV. 120, 125 n.19 (2008) (stating that "[t]he reference to 'the Year of our Lord' simply employed the conventional dating method of the era....") (emphasis added). What is important to note here is that Professor Smith's view is neither an interpretation of a legal instrument nor a (pure) legal intuition; rather, it is his understanding of an eighteenth century cultural convention or folkway. Because his opinion here is one unrelated to legal expertise, it is entitled to no special deference. In other words, although Professor Smith's position is common wisdom, early American legal materials, in fact, used a variety of dating conventions. Simply put, there was no single "conventional dating method." See, e.g., Articles of Association of 1774 (dated "In Congress, Philadelphia, October 20, 1774"); Declaration of Independence (dated "July 4, 1776"); Delaware Constitution of 1776 (dated "Friday, September 10, 1776"); New Hampshire Constitution of 1776 (dated "January 5, 1776"); New Jersey Constitution of 1776 (dated "July 2, 1776"); North Carolina Constitution of 1776 (dated "December the eighteenth, one thousand seven hundred and seventy-six"); Pennsylvania Constitution of 1776 (dated "Passed in Convention the 28th day of September, 1776"); South Carolina Constitution of 1776 (dated "March 26, 1776"); Virginia Constitution of 1776 (not internally dated); New York Constitution of 1777 (dated "20th April, 1777"); Massachusetts Constitution of 1780 (not internally dated). This is not to say that the dating convention used in the Constitution of 1787 was new. It was not. See Articles of Confederation of 1777 (using the same dating convention later used in the Constitution of 1787); Georgia Constitution of1777 (dated "in convention, the fifth day of February, in the year of our Lord one thousand seven hundred and seventy-seven, and in the first year of the Independence of the United States of America"); cf. Maryland Constitution of 1776 (dated "14th day of August, anno domini 1776"). Of course, neither Connecticut nor Rhode Island and Providence Plantations had revolutionary era state constitutions. (The quoted material is available on The Avalon Project-Documents in Law, History and Diplomacy: 18th Century Documents: 1700-1799, (last visited Jan. 30, 2009), on The Constitution Society, (last visited Jan. 30, 2009), and on Constitutions of the World Online/The Rise of Modern Constitutionalism 1776-1849, (last visited Feb. 12, 2009).)

So after that big footnote, the entirety of which I didn't even reproduce (there was a second, smaller paragraph), we are left with "in the year of our Lord" was not *the* convention, but *a* common convention. But make no mistake, that's all it was. A more balanced way to make Stone's claim would note the Constitution does not mention God other than in the most nominal perfunctory way. And the fact that the original US Constitution accomodates those nominal conventional references to the people's common religion is instructive of the softer secularism of the American Founding. It was not the harsh take no prisoners secularism of the French Revolution, but more moderate. That nuance is missing from Stone's paper. Likewise the failure to see how the US Constitution comes from a different philosophical mindset than that of the FOC is the nuance missing from the "Christian America" crowd's understanding of history.

On to Tillman's second major critique:

Nowhere in Professor Stone's article is there any discussion of the arguments or any acknowledgment, by name, of the persons he is opposing. He asserts that someone somewhere has made the argument that America is a "Christian nation." He cites, but does not quote, a single article in The New York Times20 (ostensibly, not by one of his intellectual opponents, but merely by a reporter reporting on events) and two books,21 the more recent of which dates from 1987 -- over twenty years ago. ...

Okay, maybe Stone could have done a better job naming names; but the figures to whom he responds do exist and continue to be quite influential in certain corners, especially among homeschoolers and megachurches. You could look at the work of Chris Rodda for the exact names, dates, and footnotes. The crowd is led by David Barton, the late D. James Kennedy, Peter Marshall, William Federer and others. I think I can safely list the late Kennedy as currently relevant because his Coral Ridge Program continues to run Christian Nation programs featuring DJK in almost a morose "Weekend at Bernie's" way.

In footnote 19, Tillman criticizes Stone for writing:

Indeed, as we shall see, many of the leaders of the Revolutionary generation were not Christians in any traditional sense. They were [by contrast?] broad-minded intellectuals....

To which Tillman responds in that very footnote:

Such claims as this are not capable of falsification or validation in any meaningful sense. It strikes me that this is an unnecessarily contentious pseudo-religious-type claim.

I agree that the second phrase (broad-minded intellectuals?) was kind of a silly phrase. However the first point has something to it. Jefferson, J. Adams and Franklin wrote the Declaration of Independence and they rejected virtually every single tenet of orthodox Christianity (while strangely enough thinking of themselves as "Christians"). Likewise there is good reason to believe Washington, Madison, G. Morris, Hamilton and others were not orthodox Christians but pick your term ("Christian-Deists," "unitarians," "theistic rationalists"). The same can be said of many notable patriotic preachers (Jonathan Mayhew, Charles Chauncy, Samuels West and Cooper, and others).

Broadly understood this is a kind of "Protestant Christianity." However, the problem is, the aforementioned expositors of the "Christian Nation" idea don't define "Christianity" broadly. To the contrary, if you aren't an orthodox Trinitarian Christian, indeed a "born again" Christian, then you aren't a "Christian."

Folks like David Barton will give lectures to megachurches (for instance Robert Jeffress' of Texas and MANY others) arguing America was founded to be a "Christian Nation" and almost all of the Founders were "serious Christians." The next day pastors like Jeffress will give sermons on how "Mormons aren't Christians." Well sorry, if Mormons aren't Christians then neither are most of the "key Founding Fathers," the men whose faces grace US Currency and played leading roles during the American Founding. I agree it's currently impossible to determine what a majority of the 200 or so Founding Fathers were. We only know what the key Founders believed by meticulously examining their public and private writings. And even there GW, JM and others were good at covering their tracts, while TJ, JA and BF were not. On the surface TJ was, like GW a vestryman in the Anglican Church. If TJ didn't play such a big role, folks like Barton would look at his church membership and their respective creed and conclude TJ was an "orthodox Trinitarian Christian," when, as we know, TJ hated the Trinity. My friends and I have meticulously examined James Wilson's "Works" for his evidence of his creed. We've found evidence of Locke, Aquinas (thru Hooker), and Scottish Enlightenment in there. But still haven't found ONE of his private letters where he talks about his personal religious creed.

Towards the end of the paper Tillman criticizes Stone for not sufficiently establishing "Deism's" influence on the Founding (and I agree that Stone overstates the influence of "strict Deism"). In particular even if Washington, J. Adams, Jefferson, Franklin and Paine were "Deists" (I'd argue only Paine was) Stone still didn't established how their Deism impacted the US Constitution. As Tillman writes:

It has happened from time to time that religious men have worked towards pluralistic (and, even, secular) political orders. It has also happened from time to time that irreligious men have served inquisitors (of religious and secular varieties). The fact that the five Americans discussed by Stone may have been Deists, only, at best, opens as a possibility for our enquiry what they intended to build, what they hoped to achieve. So although it is a possibility that their religious or philosophical sensibilities influenced their political views, as to how the Constitution should be drafted, as to how the new Republic should be ordered, it is not self-evident that it did influence them.

I'll not defend Stone on this one but note that scholars as diverse as Gregg Frazer, Gary North, Thomas Pangle and Cushing Strout have detailed the connection between the key FFs' personal religious creed and Founding political theology. Note, all of the above understand that creed to be not quite Deism, but not orthodox Christianity. For more see these two past posts of mine.

This creed, warmer than strict Deism, thought quite highly of "religion" but was so ecumenical that it transcended not just "orthodox Christianity," but "Christianity" itself and embraced "true religion" in a general sense. True religion was that which was voluntarily undertaken and that which produced virtue. It was something on which "all good men" could agree. As such all good men were "Christians" regardless of whether they knew it or consciously accepted Christ. The FFs could be quite secretive about this heterodox sentiment but left their footprint of this heterodoxy in the original Constitution by not establishing Christianity, by forbidding religious tests and consequently by protecting "religion" not "Christianity." As Dr. Gregg Frazer put it in his PhD thesis:

It is difficult for those who believe in the importance of fundamental doctrines and a specific road to Heaven (for example, the Puritans in seventeenth-century New England) to allow “false” and “blasphemous” religions to be practiced within their sphere of authority. For the theistic rationalists [his term for the creed of America's key Founders coined to distiguish it from Deism and Christianity--JR], however, what was really important was not the flourishing of religious truth, but the flourishing of morality and society. Since they held to no particular creed but “essentials” to which “all good men” could agree, they had a profound indifference toward specific sects and doctrines. (PhD thesis, at 417-18).

Anyway be sure to check out the rest of Tillman's paper; it has many other important insights in there.

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