Predicting Kennedy

Conventional wisdom holds Justice Kennedy will break the tie in SCOTUS' soon to be decided same sex marriage case.  Some time ago I predicted Kennedy would not vote for a full right to same sex marriage, but rather demand some compromise splitting the baby. 

When he authored Lawrence v. Texas, a ground breaking case holding same or opposite sex couples have the right to engage in the voluntary non-procreative sex act of their choice, the only guidance Kennedy gave for future same sex marriage cases was an assurance that Lawrence didn't "slip" (as in slippery slope, or "the logic of which demands") into a right to same sex marriage.  Distinguishing Lawrence from a potential parade of horribles, Kennedy explicitly said, "[t]he present case ... does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."

This was in response to Justice Scalia's fiery dissent which held the logic of Lawrence irresistibly demanded a right to same sex marriage. 

Kennedy may still vote for a constitutional right to SSM. But I doubt he'll offer Lawrence as authoritative precedent. (As in, "no Nino, you were really right after all; this case really DOES lead to same sex marriage.") There's something about the human ego, ESPECIALLY among intellectuals, that, except in rare mea culpa circumstances, seeks not to contradict itself. 

Indeed, Justice O'Connor's concurring opinion in Lawrence illustrates this dynamic. O'Connor obviously sympathized with the defendants. Yet, she had a problem. Just 17 years earlier in Bowers v. Hardwick, she voted with the majority which upheld a state sodomy statute that prohibited voluntary acts of oral and anal sex between same or opposite sex couples (even though Justice Byron White's opinion framed the issue in terms of "a fundamental right to engage in homosexual sodomy").

So instead of simply joining the majority which held same AND opposite sex couples, BOTH have a right to engage in voluntary non-coital sex acts, she held NEITHER do. Hence, the Bowers case which she joined was justly decided. Yet, the Texas Statute on review was unconstitutional because it permitted opposite sex sodomy while banning same sex sodomy. Hence it violated the equal protection of the laws guaranteed by the 14th Amendment to the Constitution. 

Justice O'Connor felt she needed to hold this way -- to thread the needle -- so her past and present decisions would not contradict one another.

The Supreme Court often overrules itself. Individual Justices rarely overrule themselves.

Religion and Revolution: A Review of James Byrd's Sacred Scripture, Sacred War

Religion in American History tells us about it here.

David Barton Attempts to Cover His Historical Tracks; Changes Capitol Tour Speech

By Warren Throckmorton here.

The Enlightenment And Why It Still Matters

As John Fea informs:  "Kenneth Minogue reviews Anthony Pagden, The Enlightenment: And Why It Still Matters."

"Constitutional Calvinist" Now Up At American Conservative

Here.

John Clarifies Confusing Johns

In case anyone missed this check it out here. And don't miss the comments. It's got D.G. Hart, John Fea, Gregg Frazer, Tom Van Dyke, John Calvin. As they said about Prego, "It's in there."

David Barton Changes His Story on Congress and the Aitken Bible

John Fea points us to the story here.

Mark David Hall Responds to D.G. Hart

Dr. Hall sent me the following note:

Jon Rowe sent me the following post [here] by D.G. Hart and asked me if I wanted to respond on AC.  I read it several times, but am not sure what to say.  Based on earlier conversations with Hart, I suspect he objects to Gutzman’s suggestion that I think Locke and Calvin had a  “consistent” approach to resisting tyrants.  This is a contested question, which I try to finesse as follows:

“Calvin, one of the most politically conservative of the Reformers, contended that in some cases inferior magistrates might resist an ungodly ruler. However, Reformers such as John Knox (1505–72), George Buchanan (1506–82), and Samuel Rutherford (1600–1661) of Scotland, Theodore Beza (1519–1605) of France and Switzerland, David Pareus (1548–1622) of Germany, and Christopher Goodman (1520–1603) and John Ponet (1516–1556) of England argued that inferior magistrates must resist unjust rulers and even permitted or required citizens to do so” (15). 

I address Calvin’s views in a bit more detail in the notes, but I am more interested in political ideas that developed within the Calvinist tradition.   My contention is that Sherman and other Reformed founders were significantly influenced by the Calvinist political tradition, not Calvin per se.  Similarly, I contend that Reformed thinkers played a major role in developing the idea that an important (but not the only) role of government is to protect natural rights.

To summarize a chief complaint of the book, I argue that “[a]lthough the days of Locke et praeterea nihil should be long gone, students of politics, law, and history are still too wont to attribute references to natural rights, religious liberty, consent, and the right to resist tyrannical governments to John Locke.  In doing so, they neglect the reality that for many founders, these and other political principles were derived from Calvinist thought—and that in each case that they were present in Reformed communities long before Locke wrote the Second Treatise” (5). 

---------

Best,

Mark 

Was Locke the First Liberation Theologian?

That question brings to mind the legendary Princeton scholar Paul E. Sigmund, who is one of the foremost scholars on both liberation theology AND John Locke (I may be wrong; but I think he sees a connection.)

As I noted earlier, I don't see this part of the Declaration of Independence as coming from Calvinist resistance theology:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

This is Lockean and it is revolutionary. Lino Graglia, who last I checked wasn't particularly religious (at least he wasn't when he wrote what follows), draws the necessary connection between God and revolutions:

"What [the Declaration of Independence] is, of course, is a document meant to justify revolution -- that is, illegal action. Having no human law to rely on -- being in defiance of authority -- revolutionaries necessarily come to rely on the law of God, who, happily, rarely issues a protest."

Kopel on Mayhew

That was the title of an old blogpost of mine from 2006. Here is Kopel's original article. Also see the comment at my blog where the commenter tries to make what America did "fit" with extant legal technicalities. That's Calvinist resistance speak.

Calvinism And Rights

Apropos of the discussion, I have concluded after much investigation that Calvin himself was not good on "rights." No right to rebel against tyrants; no right to religious liberty (liberty of conscience).

Then some of his followers (Calvinists) through experience with tyrannical rulers began looking for ways to get around Calvin's prohibition against revolt. Or more carefully, to make the most of Calvin's "interposition" idea that said lower magistrates could overthrow higher magistrates as long as they did so pursuant to recognized legal mechanisms (the analogy here is the legal way in which Congress can impeach a President; they do it pursuant to the civil law, not by revolting against a tyrant).

Hence Mark Hall's book on the way in which the tradition of these Calvinist resisters influenced the American Revolution.

So while there is some language in the Declaration that does seem to foment rebellion, there is other language which speaks of their rights under extant legal technicalities, to do what they did. It's the latter language, not the former which is Calvinistic.

The former language --

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

-- is Lockean.

Dr. Gregg Frazer’s thesis is the “Calvinist” churches and figures who supported the revolution actually turned to Locke, not Calvin and had their Calvinism so polluted.

The counter response is that the Calvinist resisters (Rutherford, et al.) predated Locke; so, a la Dr. Hall, this kind of resistance was well within the "Calvinist" tradition. They didn't need to turn to Locke. They had Rutherford et al.

Some go so far as to assert Rutherford taught Locke his principles. But, alas, there is no provable connection between Locke and Rutherford.

The American Clergy who supported Whig revolt mentioned some of the resisters (Daniel Dreisbach told me to look carefully at the Sandoz collection for these mentions). So did John Adams. But they cited Locke more.

I still haven’t gotten to the bottom of everything Rutherford, de Mornay, et al., wrote and stood for; but it seems to me that when you see preachers like Witherspoon, preaching for revolt using “state of nature” “contract and rights” buzzwords, this is Locke-speak not Calvinist resister-speak. The Calvinist resisters were also totally illiberal on religious liberty issues.

For religious liberty, the Quakers and Baptist Roger Williams broke new ground. The Calvinist resisters were busy defending what Calvin did to Servetus.

With Locke, a more complete liberalism -- religious liberty, the right to revolt against tyrants, and other issues -- was tied together. 

Constitutional Calvinist

"Roger Sherman and the Creation of the American Republic," Mark David Hall, Oxford, 224 pages. By KEVIN R.C. GUTZMAN here. Update: Try here.

Confusing Johns

By D.G. Hart here.