Thursday, August 17, 2017

Cato's Encyclopedia of Libertarianism: George Washington

The Cato Institute's "Encyclopedia of Libertarianism" can now be accessed online here. I wrote the entry on George Washington which you can view here. The way it worked was I wrote something and submitted it to Cato. The late, great Dr. Ron Hamowy -- one of the premiere scholars of the Scottish Enlightenment -- then extensively edited it and made it into a much better piece.

Here is an example of how it worked:
Washington, like the authors of The Federalist Papers, had a particular affinity for ancient Rome. His favorite play was Joseph Addison’s 1713 work about the implacable enemy of tyranny, Cato the Younger, and throughout his life, he saw the play numerous times. He commonly quoted from it and had it performed before his troops at Valley Forge. The play concerns the Roman Senator who committed suicide rather than submit to the tyranny of Julius Caesar. Washington’s stoic sense of honor developed, in large part, from the profound influence this play had on his character.
Many people think that "Cato" of the "Cato Institute" is an acronym. It's not. It's actually named after the subject of this play. I wrote this passage, but the phrase "the implacable enemy of tyranny" was added by Dr. Hamowy.

Here is what I wrote about Washington and religious issues:
Enlightenment writers also contributed to Washington’s belief that men of all religions—Christian or non-Christian, orthodox or heterodox—should possess full and equal rights under the laws of the United States. That religious liberty was granted to all Americans, at least at the federal level, was unprecedented. As Washington wrote on January 27, 1793, to the New Church in Baltimore, whose founder, Emanuel Swedenborg, taught novel doctrines not in accord with prevailing Christian orthodoxy:
We have abundant reason to rejoice that in this land the light of truth and reason has triumphed over the power of bigotry and superstition and that every person may here worship God according to the dictates of his own heart. In this enlightened Age & in this Land of equal liberty it is our boast, that a man’s religious tenets, will not forfeit his protection of the Laws, nor deprive him of the right of attaining & holding the highest offices that are known in the United States.

Wednesday, August 09, 2017

Throckmorton: "Dear Robert Jeffress: The President’s Authority to Wage War Does Not Come from God"

From Dr. WT here. A taste:
Historically, Baptists Believed in Church-State Separation

Biblically and politically, Jeffress is just wrong to insert himself as a spokesperson for God into the situation.He should turn in his Baptist card.

During the revolutionary and post-revolutionary period, Baptists were among the staunchest supporters of separation of church and state. Now the Baptist-in-name-only Jeffress advises Trump that God has given the green light for lethal action in North Korea.

Romans 13 Doesn’t Apply

First, in our non-theocratic republic, the authority for Trump’s actions comes from the Constitution, not God. America is not a new Israel where the prophets advised the King when to attack an enemy. Jeffress is not God’s mouthpiece to the president with orders from on high.

Second, the Romans passage doesn’t apply in this situation.

Although rulers come and go in accord with God’s providence, the rulers do so within God’s timing and the political structure of their state. Paul does not establish a mechanism for a ruler to discern God’s plan.
Regarding citizens of a nation, they are to respect the authority of that nation’s rulers. The words are addressed to citizens of a nation, not to our president about strategy for deposing rulers of other nations. This isn’t a mandate for America to become take out evil dictators around the world. While in some cases it may further America’s interests to do so, the authority and mandate don’t come from these verses.

Monday, August 07, 2017

Taking David Barton Seriously

From Religion in US History here. A taste:
Charlie pointed out to us that white evangelicals often take the brunt of academia’s ironic superiority. There is perhaps a no more popular (and, for some, no more deserving) target of this academic ridicule than David Barton. Circa 2012, when his publisher Thomas Nelson pulled his book The Jefferson Lies from print after finding “some historical details included in the book that were not adequately supported,” Barton found himself the topic of numerous biting blog posts. For a while, academics had a field day on the internet with a collective reaction of “can you believe this guy!” coupled with “this is crazy, right?” Barton’s book, and his obtrusive Texas flag button-downs, became a meme for bad scholarship.
Yeah, I realize there is a much larger and more interesting world relating to religion and the American Founding than David Barton's missteps.

It's interesting the position we have found ourselves in. It's almost as though in order to begin discussing the topic, whether one is on the left, right, center or libertarian, one is obliged to give Barton a (metaphorical) kick in the stomach and then get to business. It's almost like a throat clearing "may it please the court" that appellate attorneys give during oral arguments.

Saturday, August 05, 2017

Chris Rodda on New White House Chief Of Staff, Constitution, Oaths & Affirmations

Check it out here. A taste:
Really? As George Washington was about to step out on the balcony to be inaugurated somebody suddenly thought, “Oh shit, we need to have some kind of oath for him to take?” But this is the ridiculous story that the new White House chief of staff actually believes is “generally accurate” — a story that would be hard to believe even if the president’s oath weren’t right there in the freakin’ Constitution. But it is in the Constitution, a “piece of paper” that you would hope that someone who has risen to as influential a position as John Kelly has would be intimately familiar with.
When Ray Soller, who deserves the credit for catching Kelly’s historically absurd oath story, emailed a number of people, including myself, about this back in May, I was appalled by it for two reasons — not only because I’m someone who has been fighting the Christian nationalists’ revisionism of American history for over a dozen years, but also because I work for the Military Religious Freedom Foundation (MRFF) and have been watching with horror as the same historical revisionism that for years has been steadily making its way into our public schools, the halls of Congress, and even Supreme Court opinions, has also been creeping into our military, with the most well-known Christian nationalist historical revisionist, David Barton, speaking at our military bases and his books and videos being found in military base libraries — including the libraries at several of the military service academies and the military’s other colleges.
Not only did Kelly tell his completely insane story (which of course also included the long-ago-debunked myth that George Washington added the words “so help me God” to his oath) at the commencement at one of our military service academies, but his not knowing that the president’s oath is in the Constitution went completely unnoticed by every news organization that covered this commencement. The only attention at all that was given to John Kelly’s incredible display of constitutional ignorance came from a few bloggers who, thanks to Ray Soller’s alerting them to it, posted about it on their blogs.

Thursday, August 03, 2017

Reynolds, Throckmorton and Baker

On religion and the American Founding.

The estimable John Mark N. Reynolds sparked a discussion on the proper way to understand religion and the American Founding and picked fellow Drs. in the American Christian academy Warren Throckmorton and Hunter Baker as worthy discussants.

Here is Dr. Reynolds' introduction. A taste:
Christians in the academy disagree on many things, but nearly universally reject the historical analysis of David Barton. This is not because they are liberal (though some are) as many of his critics are very conservative politically. It also is not because the “guild” is protecting anything: good high school teachers who compare what Barton claims to the source material one can Google are disappointed in his work. Barton is, at the very least, incompetent.

Let’s move past Barton. How should we view the Constitution?
Here is Dr. Throckmorton's first. A taste:
Despite Sherman’s confidence in the liberal times, the delegates approved the motion without opposition. Pinckney later wrote that he included the no religious test clause because it was “a provision the world will expect from you, in the establishment of a System founded on Republican Principles, and in an age so liberal and enlightened as the present.”

Compared to many of the states at the time, Christianity was not denied, but rather dethroned by the national Constitution. The rule of law and the liberty of conscience was elevated. People of any and no religion can believe what they want in their hearts but the Constitution is the law of the land. In my opinion, the Constitution is neither godless nor biblical. Rather, it is god-neutral, where the believer and unbeliever stand on equal ground before the law.
Here is Dr. Baker's first. A taste:
But what did the founders think of religion?  I’ve made a case that they largely avoided the matter in the federal constitution in deference to the states.  But what about the men, themselves?  They are a mixed bag.  Jefferson was more of an enlightenment deist.  Thomas Paine certainly continued to move in that direction.  Benjamin Franklin probably fits there is some sense, too, but he was also highly pragmatic and was a great friend of the Great Awakening mega-preacher George Whitefield.  Patrick Henry was quite devout.  Benjamin Rush was a Christian.  George Washington sounded like a deist, but also was careful to observe the Christian faith by attending the Falls Church.  I think Philip Hamburger is correct in his assertion that the founders believed different things but were practically united in their conviction that a free people need to be virtuous and religion is critical to virtue.  For that reason, I doubt they intended to found a model secular republic.
Here is the link to Drs. Throckmorton and Baker responding to one another.

First Baker:
I think I could find my way toward agreeing with this statement if we were talking about the second half of the twentieth century.  My view is that the founders intended nothing so grand (or outrageous in the minds of the people of 18th century America) as “dethroning Christianity.”

As I have stated before, the U.S. Constitution is not a document about ultimate truth or even something that sets out the proper course of law and religion.  It had the specific purpose of navigating this new type of government in which the states (traditional governments of inherent authority) would coexist with a federal government that possessed only limited powers delegated by the states and the people.  Surely, it has grown into the type of thing Dr. Throckmorton talks about, but it wasn’t that sort of thing at the time.
Next Throckmorton:
... However, I don’t believe the historical record supports a view that the delegates were united in believing that state governments ought to maintain religious tests or have a state religion. For instance, Jefferson opposed that view. He authored and Madison supported Virginia’s statute on religious freedom which passed in 1786.

In 1780, Ben Franklin wrote to Richard Price about religious freedom in Massachusetts:
I am fully of your Opinion respecting religious Tests; but, tho’ the People of Massachusetts have not in their new Constitution kept quite clear of them, yet, if we consider what that People were 100 Years ago, we must allow they have gone great Lengths in Liberality of Sentiment on religious Subjects; and we may hope for greater Degrees of Perfection, when their Constitution, some years hence, shall be revised.
Seven years prior to the Constitutional Convention, Franklin took the long and liberal view and hoped Massachusetts would revise the state Constitution to eliminate religious tests for office. This was the liberal and enlightened view adopted by the national Constitution in 1787 and which is true in the states today.

Monday, July 24, 2017

Caron on Hamilton & Christianity

See this link for a very moving story from the current Dean of Pepperdine Law School, Paul Caron. It references Dean Caron's personal faith, the currently popular Hamilton play, and a scholarly article I have long championed that I think gives the best account of Hamilton's religious journey. Yes, Hamilton did not become an "orthodox Christian" until the end of his life, after it all came crashing down, after his son died in a duel.

A taste:
For me, the "grace too powerful to name" is the central message and beauty of Christianity.  It alone is what empowers Eliza to forgive Hamilton and restore their marriage amidst "unimaginable" pain.

Seeing this wondrous depiction of forgiveness in the play left me hungering for more detail. What enabled Eliza to forgive Hamilton?  What was Hamilton's actual faith journey? Thankfully, a reader sent me a wonderful article that answers both of these questions:  Douglass Adair & Marvin Harvey, Was Alexander Hamilton a Christian Statesman?, 12 Wm. & Mary Q. 308 (1955).

The article lays out the case that Hamilton's extraordinary fall led him to faith:
Hamilton, who in the years of his early success had almost forgotten God, who in the years of his greatest power had tried to manipulate God just as he manipulated the public debt to increase that power, began sincerely seeking God in this time of failure and suffering.
For twenty-five years his genius, his driving ambition, his energy, his will had carried him from triumph to triumph. His pen and literary talent had transported him from his obscure and unhappy status in the West Indies to what seemed to be the beginning of a respectable, but dull, professional career in provincial New York. Then, adventurer with his obsessive ambition and his arrival coincided with the outbreak of cataclysm that not only overstimulates ambition in some men, but also provides opportunities of magnificent scope for those who dare to take advantage of them. Now his talents and luck carried him ahead by leaps and bounds. By the time he was twenty-two, Hamilton had begun that association with Washington — the most potent figure in all America — which was to serve him so marvelously for the next two decades. By the time he was twenty-five he had allied himself with the Schuylers and automatically gained a top position among the elite of New York. Ten years more and he was Washington's "prime minister," the most influential man in the nation after his chief. Then after 1797, though Washington voluntarily resigned his supreme authority in the state to bumbling John Adams, the President's Cabinet was still made up of Hamilton's men, who could manage Adams for him. When the first test came in the war crisis of 1798, Hamilton, in spite of Adams's violent objections, gained control of the new army recruited according to his own specifications. With his army, and with a certain French war impending, Hamilton could feel he had the game in his hands. He had enemies, it was true, but they were no longer dangerous; for now no competitor could threaten his power and his ability to drive the United States along the path he knew it ought to follow. In 1798 everything that Hamilton had willed had come to pass; everything that he still desired had almost been achieved. His virtuous pursuit of power — to be used virtuously, of course — had been successful even beyond the soaring dreams of the immigrant boy of 1772. Who can blame him for feeling omnipotent? Who can wonder that by 1799 Hamilton confused himself with God.
But within one year Hamilton's power vanished, first by slow degrees, then with sudden and cataclysmic completeness. ... Perhaps never in all American political history has there been a fall from power so rapid, so complete, so final as Hamilton's in the period from October, 1799 to November, 1800. Twelve months earlier his party had seemed stronger than at any time since 1792. His position in the party was unchallenged and seemed unchallengeable. He had every reason to believe that soon his party would advance him to the chief magistracy. ... By 1801 Hamilton, whose will had mastered every obstacle, whose power so recently had seemed firmly consolidated and impregnable, suddenly experienced the nightmare sensation of impotence. ... [T]his sudden political tempest had wrecked his hopes, stripped him of his last chance for glory, ended his power to do good for his country, and stranded him a derelict on the shoals of a petty civilian life. No wonder Hamilton felt himself a failure in 1801. No wonder he suffered the tortures of a potent man suddenly become impotent. No wonder that in his despair he finally turned to God for help and support. ...

Sunday, July 23, 2017

Why John Fea Does What He Does

He explains here. A taste:
My critique of the court evangelicals is a natural extension of my ongoing criticism of conservative activist Barton and other Christian nationalist purveyors of the past.  It is not a coincidence that First Baptist-Dallas pastor Robert Jeffress often preaches a sermon titled “America is a Christian Nation.”  In this sermon he says. among other things:

We don’t restrict people’s right to worship [they can] worship however they choose to worship.  But that doesn’t mean we treat all religions equally.  This is a Christian nation. Every other religion is an impostor, it is an infidelity.  That is what the United States Supreme Court said.

Someone can correct me, but I think First Baptist–Dallas is the largest Southern Baptist church in the world.  Jeffress is an influential figure.  He goes on Fox News and claims to represent American evangelicals.  His profile has risen immensely since he announced his support of Trump.

It’s important to remember that Jeffress’s political theology (if you can call it that) is based on a false view of American history.  And it is not very difficult to trace it to the teachings of Barton.

In the aforementioned sermon, Jeffress comments on a recent Barton visit to First Baptist–Dallas.  He then says, referencing the prince of Aledo, Texas, that “52 of the 55 signers of the Constitution” were “evangelical believers.” This is problematic on so many levels.  First, only 39 people signed the Constitution.  Actually, I think Jeffress might be referring here to the men who signed the Declaration of Independence.  Second, to suggest that most of them were “evangelical believers” is a blatant misrepresentation of history.  In fact, Jeffress doesn’t even get Barton right here.  Barton says (wrongly) that nearly all of the signers of the Declaration had Bible school and seminary degrees.  Jeffress is confused about his fake history. But that doesn’t matter.  People in his massive congregation applaud and cheer when he preaches this stuff.

Wednesday, July 19, 2017

Fea & Throckmorton on Barton's Contuined Use of an 1813 John Adams' Quote

I'm trying to lighten up on following David Barton's continued historical malfeasance. I think other people are better suited to it than I am and there's a world beyond him that interests me. However, sometimes when those other people make a good point, I will chime in, now and then.

John Fea and Warren Throckmorton have good posts on David Barton's use of a "proof quote" from one of John Adams' letters to prove the "Christian America" thesis.

This is from Fea:
 In the second and third paragraphs, Adams notes that the group who met in Philadelphia was so religiously diverse that the only ideas holding them together were the “general principles of Christianity.”  What does he mean by this phrase?  It is hard to tell at first glance.  But if there were indeed “deists” and “atheists” in the room, these “general principles” must have been understood by Adams as a system of belief that was far less orthodox than the Christianity of the ancient creeds.  An “atheist” might be able to find common ground around a Christian moral code (say, for example, the Sermon on the Mount), but could not affirm the existence of God. A “deist” would have rejected the Trinity, the deity of Christ, and, in some cases, God’s providence in human affairs, but he could certainly unite behind a moral code based on the teachings of Jesus. (I titled my chapter on the highly unorthodox Thomas Jefferson, “Thomas Jefferson: Follower of Jesus”). So let’s return to our original question.  What did Adams mean when he said the Continental Congress was held together by “the general principles of Christianity?” If we take the beliefs of the “atheists” and the “deists” (and, I might add, the “universalists, “Socinians,” and “Preistleyans”)  seriously, the “general principles of Christianity” was a phrase Adams used to describe a very vague moral code that all of these men–the orthodox and the unorthodox–could affirm.


The fourth paragraph tells us that Adams believes that these “general principles” of Christianity and liberty could be easily affirmed by a host of secular writers, including Hume and Voltaire, two of the Enlightenment’s staunchest critics of organized Christianity. These “general principles of Christianity” must have been pretty watered-down if Hume and Voltaire could affirm them.  Again, the reference here is to a vague morality, not the particular teachings of orthodox Christianity.
Here is a rule I follow: In general it's not a good idea to quote John Adams or Thomas Jefferson to prove the "Christian Nation" thesis. However, it's a really, really bad idea to quote the correspondence of Adams and Jefferson in the year 1813 to try to do such. 

Sunday, July 16, 2017

Just "Amend the Constitution"

A lame response. 

I've been reading the comments here on Professors Randy Barnett and Bruce Ledewitz's debate on originalism. One mantra the right of center originalists there seem to repeat is, (me paraphrasing) "if you don't like the Constitution the way it was originally understood, simply amend it."

Yeah, easier said than done. And do we really want or need more amendments?

Why do I think it's a lame response? Put the shoe on the other foot. Don't forget, if we don't like the way the Supreme Court interprets the Constitution, we can always amend the Constitution to overrule said understanding. Similarly, we can amend federal statutory law when the Supreme Court interprets a federal statute in a way in which we disagree. And though it's not necessarily an easy thing to amend a federal statute, it's much, much easier to do that than to amend the US Constitution.

The US Constitution has been amended only 27 times!

Roe v. Wade and Obergefell v. Hodges are two cases with which socially conservative originalists strongly disagree. Well, just amend the Constitution. It was tried. How did that human life amendment or marriage amendment go down?

There is actually a much better answer. We don't see it because most socially conservative originalists don't seem interested in defending arguably the "rightest" original understanding of the 14th Amendment. And I understand why, this understanding holds Brown v. Board of Education to be wrongly decided.

And there an unwritten rule that any theory of constitutional interpretation that holds Brown to be wrong is not viable.

And by the way, this is not the kind of originalism that I defend. I don't trust majorities on matters of fundamental rights. I strongly value individual rights that are antecedent to majority rule and sympathize when majorities who might impinge on such are so frustrated.

So much of our constitutional law involves the 14th Amendment and the federal Constitution constraining state and local governments on matters of civil rights that relate to race, gender, religion and a bunch of other things thing.

The "rightest" original expectation of how the 14th Amendment's text was meant to apply is as follows: The Equal Protection and Due Process Clauses are entirely procedural. They were meant to grant no substantive rights whatsoever. The Privileges or Immunities Clause was meant to grant substantive rights. The Supreme Court's Slaughterhouse Cases were wrong. But it was Congress' role to define and guarantee those rights that constitute Privileges or Immunities.

Brown was wrong NOT because the framers of the 14th Amendment didn't think it would potentially outlaw government mandated segregation. But rather because it's Congress' role, not the Courts to outlaw such by means of statutory law which the 14th Amendment was meant to constitutionalize. Otherwise for Congress to attempt to do such would be an unconstitutional exercise of its powers pursuant to the doctrine of limited, enumerated powers.

So if we don't like the way the Supreme Court understands matters of fundamental rights, the proper response is indeed, "amend." But it's not the Constitution that needs to be amended. Rather it's extant federal statutory law relating to matters of fundamental rights that Congress has power over pursuant to the Privileges or Immunities Clause of the 14th Amendment. Much easier than amending the US Constitution.

Again, this isn't a constitutional world in which I endorse; but it's a better use of the "amend" response than telling your opponent to simply amend the US Constitution if you don't like the way the courts deal with matters of fundamental rights.

Friday, July 14, 2017

Barnett's Response to Ledewitz's Rejoinder

I promised that the last post wouldn't be the last word on the subject. Here is Randy Barnett's most recent post responding to Bruce Ledewitz. Over the years, I followed this "originalism" debate in constitutional law fairly carefully. Perhaps I could be categorized as a "faint hearted originalist." The kind of originalism I would endorse is similar to that which has been espoused by among others, Barnett, Akhil Amar, Jack Balkin and Timothy Sandefur.

One issue I have is I often see it framed as though if we don't interpret the Constitution as "originally" intended, the Constitution can mean "anything." Well, here I stand for the proposition I don't think the Constitution should mean "anything" five members on the Supreme Court decide; there should be constraints and unhappy endings.

Where I do get a bit perplexed is given the broad generalities contained in the Constitution's text, and other ambiguities in the record, there often is more than "one" right answer to legal questions presented such that Justices will often have latitude on fundamental constitutional questions by virtue of the way the system is structured. Yet only one view can prevail. And issues of fundamental import turn on which view prevails.

What to do then?

Interpreting the Bible is analogous. We often hear certain preachers who argue for "one correct" understanding of the Bible say "it means X and only X" in an objecting sense, when in reality it's possible that it could also mean Y and Z.

Yet it's also true that certain positions -- A, B & C -- are not tenable. Certain understandings are more plausible than others; but there are also multiple plausible understandings of the text that contradict one another, where only one outcome is entitled to prevail.

So if someone said that the Bible teaches a Giraffe tempted Adam and Eve in the Garden of Eden, that's an easy one. It's false. End of discussion. Other questions aren't so easy (like what fruit was it that Eve was tempted with? Or what did Jesus mean when He said you should eat His flesh and drink His blood?).

That's what comes to mind when I read Randy Barnett's most recent post. Professor Ledewitz's claimed:
To put it simply, by 1954 de jure school segregation did not constitute equal protection of the laws, whether it did before or not.
To which Professor Barnett responded:
Fact check: Misleading. As Michael McConnell showed in the 1990s (see here and here), nearly everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it. As a constitutional scholar, Professor Ledewitz must be aware of this.  ...
Yes, I've heard it argued that under the original expected application of the 14th Amendment's text, the political legality of racial segregation was preserved (that is, the framers and ratifiers didn't think they were making racial segregation in railroads, public schools, marriage, etc., unconstitutional or something potentially outlawed by the 14th Amendment). Others, like Judge McConnell differ. And currently, as we know, the Supreme Court rules such unconstitutional under the Equal Protection Clause of the 14th Amendment.

Yet, as Barnett alluded to above, it was the Privileges or Immunities Clause that was meant to deal with this. Indeed, there is a strong case to be made that neither the Due Process NOR the Equal Protection Clause guaranteed ANY substantive rights, not against racial discrimination or ANYTHING. That both were entirely procedural clauses. The Due Process Clause targeted courts while the Equal Protection Clause targeted the executive. And held that if you were a "person" -- i.e., a human being -- you had to be held to the exact same set of procedural rules. And this was whether one was black, a Mormon, a Hell's Angel (of whatever the mid-19th Century equivalent thereof) or a thief.

There was no substantive right in either the Equal Protection OR Due Process clauses to be free from racial discrimination, to practice one's religion, to be a member of a rebellious club, or to steal. Rather, by virtue of your humanity, the same set of rules -- whatever they may be -- had to apply to all people.

This is something many people unaware of historical nuances of the civil rights don't "get." If a black person beats up a white person or vice versa, that's assault and battery. There are laws on the books against assault and battery that have always dealt with this. Yet, law enforcement and courts run by majorities or those in power might simply decide not to apply the same already existing rules to selective disfavored groups. If doesn't matter if it's blacks, Mormons or members of the Hells Angels. If you are a person, regardless of character or trait, the same set of rules have to apply. But if the Hells Angel committed robbery, he could be so punished.

The right to be free from racial discrimination, as it were, is a substantive rule and not something the procedural clauses of the 14th Amendment (i.e., Equal Protection) were meant to deal with. However, the 14th Amendment DID intend to give substantive rights, but it was through the Privileges or Immunities Clause, not Equal Protection OR Due Process.

So provided we just switched the Privileges or Immunities Clause for the Equal Protection Clause, Brown, Loving, etc., would be kosher? Not so fast. Even if Judge McConnell's account is correct, look closely to what Barnett reported:
[N]early everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it.
Yes, it was the House and Senate's responsibility to prohibit racial discrimination as a "privilege or immunity" of the 14th Amendment. There is a strong originalist case to be made -- arguably the strongest -- that it's the jurisdiction of Congress to define by statute those substantive privileges or immunities. That the original meaning of the 14th Amendment was meant to provide a constitutional basis for the original post Civil War mid-19th Century Civil Rights Acts.

That would mean that even though such originalism teaches Brown was wrongly decided, Congress would still have the constitutional authority to enact such a decision and the Congress who passed the Civil Rights Act of 1964 could still have statutorily enacted Brown, Loving, etc. as a "privilege or immunity." And they would have.

One day a few years ago, I was in a room full of very distinguished originalists in a private meeting at an ivy league location, where I was the least important person in the room. They agreed what I reported above was the best originalist understanding of the 14th Amendment. Since it was off the record, I'm not going to name names.

One person in the room noted that this understanding, though correct, was awkward. Given the original meaning of the Privileges or Immunities Clause of the 14th Amendment, we could get a new constitutional conventional with every new Congress. The response from the group was that originalists have to do the right thing and deal with unhappy endings.

There's debate as to whether the 14th Amendment was even meant to incorporate ANY part of the Bill of Rights to apply against the states. Justice Scalia has admitted he's not convinced it was, but accepted incorporation because of Stare Decisis. Philip Hamburger, one of the brightest conservative law professors, doesn't think it was. And that means everything in the Bill of Rights -- freedom of speech, establishment, free exercise of religion, rights of criminal defendants -- is left to the states. That would mean Trinity Lutheran was wrong and Professor Ledewitz is right because "religion is left to the states." If a state wants a Blaine Amendment or to establish the Roman Catholic Church, or the Unitarian Universalists for that matter, they could because religion is left to the states.

Or even if the Privileges or Immunities Clause was meant to include both rights contained in the Bill of Rights as well as rights against non-discrimination (i.e., rights to equal treatment) on the basis of race, religion (and other issues) it's still Congress' responsibility to pass legislation to protect those and for courts -- including the Supreme Court -- to attempt to do this is judicial usurpation of Congress' role.

Don't forget, even if religion is otherwise "left to the states," all federal law trumps all state law. Federal statutes trump state constitutions. So if Congress wants to guarantee the free exercise of religion against state and local governments, that would trump any state law that would attempt to do otherwise.

This is a much different constitutional world than the one in which we currently live. And it's one that most notable originalists don't seem interested in publicly defending. But it's arguably the most correct one according to the method of original expected application of the texts.

Wednesday, July 12, 2017

Barnett v. Ledewitz on Religion & the Original Constitution

This is the original offending article by Bruce Ledewitz. This is Randy Barnett's response. And this is Ledwitz's rejoinder.

From the first link:
But, from the point of view of originalism, the decision [Trinity Lutheran] was ridiculous. If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches. And, even if a decision by Missouri to pay the church might somehow be thought not to violate the Establishment Clause, it could not possibly be argued that the original Free Exercise Clause required a payment from Missouri. You could have asked any member of the founding generation whether the Free Exercise Clause ever required the payment of public money to a church and the answer would have been a unanimous no.
My observation: So called "liberalism" has "liberty" and "equality" as ideological book ends. The First Amendment to the US Constitution is a "liberal" text. It's clear the Free Exercise Clause validates a "liberty" right. The Establishment Clause often (but not always) validates an "equality" right. I agree with Ledwitz that this doesn't seem to be a free exercise of religion/liberty issue.

However, Ledwitz's understanding of the Establishment Clause is questionable. Further, Trinity Lutheran did involve an equality or equal treatment issue. Whichever text ends up doing the work, arguably the outcome was correct on originalist grounds. Don't forget the 14th Amendment is part of the Constitution. So we might not necessarily be dealing with late-18th Century originalism,  but mid-19th Century, which incorporates back late-18th Century originalism through a mid-19th Century liberal lens (basically Akhil Amar's  thesis; though I don't think he's alone here). 

This is from Barnett's response:
I am not an expert on the Religion Clauses, so I am not as confident about their original meaning as Professor Ledewitz. But every originalist–indeed every living constitutionist–understands that neither the Free Exercise Clause nor the Establishment Clause originally applied to the states at all. Instead, it applied to Congress. What exactly an “establishment of religion” was in 1791 is a matter of good faith academic dispute. But some thoughtful originalists have maintained that, whatever constituted an “establishment of religion,” the First Amendment’s wording “make no law with respect to” forbade Congress both from establishing a national religion (at minimum) and also from disestablishing a state religion. On this account, the Establishment Clause operated–perhaps exclusively–as a federalism provision, expressly acknowledging that Congress had “no power” in this area, with all powers pertaining to religion reserved to the states. 
In addition, some originalists maintain that, because the original meaning of the Establishment Clause was a federalism provision barring Congress from disestablishing state religions, it did not enunciate an individual right that could be considered a Privileges or Immunity of citizens of U.S. citizens. Others, like Kurt Lash, disagree on the ground that, by 1868, the meaning of the Establishment Clause had evolved so its public meaning at the time of the 14th Amendment did include an individual privilege or immunity. But if Lash and others are wrong about this, then the original meaning of the 14th Amendment protected only free exercise rights from state infringement; it did not bar states from making laws that could constitute an establishment of religion.  ...
 And from Ledwitz's rejoinder:
4. All of Randy’s discussion of the Fourteenth Amendment and related matters is beside the point. The Court did not mention those matters. I wrote that there are no originalists on the Court. A majority of the Justices wrote that the Free Exercise Clause required the payment of public money to a church. That is unjustifiable by any stretch of originalism. They wrote that way because they were assuming incorporation of the Free Exercise Clause against the States as it would be interpreted against the federal government. So they dealt with Free Exercise only and did so in an unsupportable way from an originalist perspective. Randy writes that they could have written a different opinion. But then they might be originalists. But they did not, so they are not. 
I should also add here that the bigotry of the Blaine Amendments adopted in State Constitutions after 1875, which Randy mentions, should be irrelevant to an originalist, though Justice Thomas has also mentioned them in a similar context. In originalism, original public meaning does not change. For the living constitution, on the other hand, the experience of the Blaine Amendments is part of political learning that demonstrates that our original understanding of Free Exercise was too narrow. Randy's reference to the Blaine Amendments just shows that it is impossible to be an originalist. We learn over time what the Constitution means. It cannot be, should not be and isn't fixed. (That was also true of Justice Scalia's majority opinion in Heller, in which Justice Scalia learned from 19th century state judicial decisions that the second amendment should not be interpreted to protect concealed carry--why are 19th century opinions relevant to the original public meaning of the second amendment?)  
The discussion doesn't end there. We will do a subsequent post to address some further issues.

William Livingston Loved His Wine

At least he loved collecting it. See here. A taste:
A one-of-a-kind wine collection featuring bottles that are nearly as old as the country itself has been uncovered behind a boarded-up wall in a New Jersey museum that was previously the home of the state's first governor.  

The stash of spirits was found hidden in plain sight at the Liberty Hall Museum, which was formerly the home of Governor William Livingston, who served in office from 1776 to 1790.

'It was an oh my God moment,' Bill Schroh, director of museum operations at Liberty Hall Museum at Kean University, told WCBS of the shocking discovery. 

During a six-month renovation of the wine cellar at the historic building, the team found three cases of Madeira wine believed to be from 1796. 

They also found an additional 42 demijohns covered in wicker that date back to the 1820s.

Friday, July 07, 2017

Mark David Hall: "A Calvinist Deist Polytheist Skeptic?"

Mark David Hall reviews Thomas Kidd's book on Ben Franklin's religion here. A taste:
Franklin may well have adopted radical religious ideas as a youth. But by the early 1730s he seems to have moved toward a “reasonable” version of Christianity that emphasized the necessity of living virtuously and that did not insist on doctrinal specifics. He delineated his core religious convictions in his autobiography:
That there is one God who created the universe, and who governs it by his Providence.
That He ought to be worshiped and served.
That the best service to God is doing good to men.
That the soul of man is immortal, and
That in a future life, if not in the present one, vice will be punished and virtue rewarded.
From a traditional Christian perspective, the problem with this list is not so much the tenets themselves (although some would quibble with the third point) but what is left out. At best, Franklin was uninterested in pondering doctrines such as the trinity, incarnation, or atonement. For example, in a 1790 letter to Yale president Ezra Stiles, Franklin admitted to having “some doubts as to [Christ’s] divinity: though it is a question I do not dogmatize upon, having never studied it.” He concluded that it is “needless to busy myself with it now, when I expect soon an opportunity of knowing the Truth with less trouble.”

Thursday, July 06, 2017

Kidd: "How Benjamin Franklin, a deist, became the founding father of a unique kind of American faith"

Check it out here. A taste:
Franklin adhered to a religion that we might call doctrineless, moralized Christianity. This kind of faith suggests that what we believe about God is not as important as living a life of love and significance. Franklin grew up in a devout Puritan family in colonial Boston, but by his teen years the bookish boy began to doubt key aspects of his parents’ Calvinist faith. Abandoning Christianity altogether, however, was not a realistic option for someone as immersed as Franklin in the Bible’s precepts and the habits of faith.

Although Franklin did at times toy with some radical anti-Christian beliefs, he settled on the conviction that Christianity was useful because of the way it fostered virtue. Franklin wearied of how colonial Americans incessantly fought about theological minutiae. But he still believed that Christianity represented a preeminent resource for benevolence and charity, qualities he considered essential to any worthwhile religion.

Franklin, John Adams and Thomas Jefferson all doubted some fundamental tenets of the Protestant faith. These could include salvation by God’s grace alone, the divinity of Jesus, or God’s Trinitarian nature. But leading patriots agreed that the new American republic depended upon having a virtuous citizenry. Although some elites might employ education to develop moral fortitude, the founders believed that average Americans needed religion for the inspiration to do good.

Tuesday, July 04, 2017

Meditations on a High Holy Day: The Fourth of July

By Walter A. McDougall, July 4, 2004, here: A taste:

II. Faith of Our Fathers

Civil religion broadly defined is a universal phenomenon. The ancient Greeks and Romans worshiped the gods and goddesses whom they believed to be patrons of their local city-states and regional empires. To chant “Great is Diana of the Ephesians” or to burn incense to Caesar was to pay political as well spiritual obeisance. The cults of the god-kings and god-emperors of Egypt, China, Korea, and Japan were civil as well as religious. Even monotheistic Judaism displayed features of a civic cult in the eras of its monarchy and two temples. In late medieval and early modern Europe, the divine right of kings conflated civil and religious loyalties, while the city-states of the Italian Renaissance, emulating as the ancients, inspired their own patronage cults albeit this time to saints (e.g., St. Mark in Venice). But the modern concept of civil religion was born of the Protestant Reformation’s notion of civic polity as a holy covenant or social contract made by the people themselves. James Harrington, theoretician of Cromwell’s Puritan Commonwealth in mid-17th century England, and Jean- Jacques Rousseau, philosopher from the Geneva Republic in the mid-18th century, asked, what might hold a government of the people together in the absence of royal or ecclesiastical hierarchy? Their answer was civil religion, a faith and commitment all the more powerful for being voluntary (not imposed), devoted to the unity and prosperity of the commonwealth (not a king or oneself), and inspired by devotion to God or Nature (rather than corrupt human authorities). Patriotic American choirs gave voice to such religiosity when they sang in 1778, “To the King they shall sing Hallelujah, and all the continent shall sing: down with this earthly King; no king but God.”

I was not aware of our American civil religion (ACR) until I began researching my new book, Freedom Just Around the Corner. Evidence of the ACR piled up until I was obliged to make it a major theme in the story of American independence and early national growth. Then, while preparing my seminar, I learned how few Americans in the 19th and 20th centuries were fully conscious of the religion they shared. Walt Whitman, the ACR’s poet laureate, certainly was, as was Whitman’s hero Abraham Lincoln, the ACR’s martyr and messiah. Later, when the United States got into the business of exporting its faith in the Spanish-American and First World Wars, a handful of scholars wrote books on “the American religion” and “the religion of the flag.” But otherwise American statesmen, artists, teachers, and preachers disseminated the creation myth, martyrology, moral code, theology, liturgy, and eschatology of American republicanism without explicitly acknowledging its status as a transcendental creed.

Indeed, not until 1967 did Berkeley sociologist Robert N. Bellah describe, in a celebrated article, what he christened “the American Civil Religion.” Curiously, what inspired him to think about the matter was the 1961 inauguration of the nation’s first Roman Catholic president, John F. Kennedy. Prior to that, intellectual scoffers could dismiss the “God talk” permeating American public life as evangelical cant aimed at Bible Belt voters. Bellah observed a young, hip, liberal, rich, Harvard-trained Catholic politician intoning “the belief that the rights of man come not from the generosity of the state but from the hand of God” and “asking His blessing and His help” in the knowledge “that here on earth God’s work must truly be our own.” Fascinated by the nonsectarian (or polysectarian) cast of this rhetoric, Bellah recalled President Eisenhower’s observation, “Our government makes no sense unless it is founded in a deeply felt religious faith—and I don’t care what it is!” Clearly there was more to this than feel-good piety or pandering to the “religious right” (or, in past eras, left). So Bellah turned to history and found he could trace the ACR back to the Founding Fathers. They had indeed preached a civil faith meant not to replace Bible-based denominations, but rather to stand above them in benign toleration so a disparate people might unite and fulfill the glorious destiny God planned for them.

But who is this God of the Founders, the God of the ACR, if not Jehovah or the Holy Trinity? He is the God with no name, but a hundred names. Franklin called him Father of Lights and Supreme Architect; Washington the Almighty Being, Invisible Hand, and Parent of the Human Race; John Adams the Patron of Order, Fountain of Justice, and Protector; Jefferson the Infinite Power; Madison the Being who Regulates the Destiny of Nations; Monroe merely Providence and the Almighty; John Quincy Adams the Ark of our Salvation and Heaven; Andrew Jackson that Power and Almighty Being Who mercifully protected our national infancy; and so on down to Lincoln who reached the tragic understanding that Northerners and Southerners prayed—as Christians—to the same God in the Civil War, but as Americans must hear “the mystic chords of memory,” indulge “the better angels of our nature,” admit “the judgments of the Lord are true and righteous altogether,” and strive to bind up the nation’s wounds “with malice toward none, with charity for all, with firmness in the right as God gives us to see the right.”

Lincoln never could bring himself to embrace Christian faith, but was himself the Christ of the ACR. Jackson posed for electoral purposes as a Presbyterian, but was in fact a fervent Freemason who believed in a God above all theologies, the very God whose All-Seeing Eye looks down benignly on the Unfinished Pyramid of the Great Seal of the United States and our one-dollar bill. Jefferson was an Enlightened philosopher who clung romantically to a faith in reason alone. Yet they, no less than devout Protestant presidents, swore fealty to the Providence that seemed to watch over the American people.

4th of July Music

Steppenwolf's Monster.

Saturday, June 24, 2017

Public Discourse: "The Closing of the American Mind Thirty Years Later: A Symposium"

From the Public Discourse here. A taste:
Peter Lawler, one of America’s most insightful critics of popular culture, will treat Part One: Students, which includes some of Bloom’s most controversial arguments on subjects like rock music, the sexual revolution, feminism, and divorce. Michael Platt, author of an influential review of Closing and important essays on both Shakespeare and Nietzsche, will discuss Part Two: Nihilism, American Style. Paul Rahe will analyze Part Three: The University. Rahe, a distinguished intellectual historian, was a student of Bloom’s at Cornell University during the campus protests that Bloom narrates in this section. Those same protests caused Bloom to leave Cornell for the University of Toronto and Rahe to transfer to Yale University. Finally, Jon Fennell, accomplished philosopher of education, the driving force behind the establishment of the Classical Education program at Hillsdale College, and author of another early essay on Bloom and education, will write a summary and critique of the symposium.
This was the last piece Peter Lawler wrote before he died.  Allan Bloom, contra Lawler, did not think that America had an accidentally Thomistic Founding. Rather after Leo Strauss, Bloom thought America's Founding was Lockean (modern). And there was an accidental or esoteric influence that undergirded Locke; but it was a different Thomas. Hobbes not Aquinas. 

In the above linked piece, Nathan Schlueter observes the contentiousness of Bloom's many theses. Another taste:
Like a great book, The Closing of the American Mind sparks intense disagreements. Is Bloom’s description of the principles of the American Founding accurate? Does he caricature the flat souls of his students? Do philosophical ideas really have the power he attributes to them? Is his genealogy of ideas accurate? How does he understand the relationship between philosophy and morality? What does nature teach about the moral life? Can the restoration of a Great Books education in the university really be the remedy for the crisis of the West?

Friday, June 23, 2017

More From Kidd on His Book on Franklin's Creed

This one has a video embedded. See here. A taste:
Thomas Kidd, distinguished professor of history and associate director of the Institute for Studies of Religion at Baylor University, has published a major new biography, Benjamin Franklin: The Religious Life of a Founding Father (Yale University Press, 2017).
I sat down with my co-blogger for TGC’s Evangelical History blog and picked his brain on Franklin, his evangelical sister, the type of Christian Deist he was, and whether there was a deathbed conversion. Below the video you’ll find a timestamp map to our half-hour conversation.

Saturday, June 10, 2017

George Washington & Thomas Jefferson Jointly Author Statement ...

Claiming that they don't just worship the same God as Muslims but that both "Adore" the same God. 

I was going to say they both claimed that Christians and Muslims worship and adore the same God, but that might be taken to mean that both Washington and Jefferson were "Christians," which we know, after examining the evidence and arguments for over the decade, is quite contentious.

So our American Creation co-blogger Pastor Tubbs claims the notion that Christians and Muslims don't worship the same God is "basic Christian doctrine." As I told him in the comments, I respect his position and think it's an entirely defensible argument for a traditional Christian believer to make. However, I do question just how "basic" this position is to "Christian doctrine."

There are plenty of traditionally minded small o orthodox Christians who believe Jews, Christians and Muslims worship the same God, just as there are plenty who support Pastor Tubbs' position.

America's key Founders -- the first four Presidents, Ben Franklin and a few others -- however, were firmly in the camp of believing Jews, Christians and Muslims did in fact worship the same God. Others too, unconverted Native Americans, pagan Greco-Romans and Hindus worshipped the same God as Christians.

This has been used as an argument AGAINST the "Christian America" thesis.

The theory of "natural religion" which America's key Founders endorsed held that men of all religions worshipped the same God whose existence could be detected from reason alone. And they strained to find monotheistic God worship in the what we might term polytheistic religions. Traditional Hinduism, Zeus worship was still "worshipping the same one true God" as Christians worship, but with those others, getting the details a bit wrong.

How is that possible? For one, the lines between and among monotheism, polytheism and henotheism aren't so easy to draw. The Bible doesn't speak of "One God" who is clearly distinct from everything else, but rather of a divine family with (arguably) One Chief. A Sky Father. Or Yoo Pater (Jupiter).

If there are, as the orthodox Trinitarians understand, a divine Three who are equally in charge, such has vexed much of the non-orthodox (and those trying to be orthodox) Christian world since the beginning. Worshipping a divine Three, to the Jew, Muslim and unitarian Christian raises the specter of polytheism.

After doing much meticulous research, I do not believe George Washington was an orthodox Trinitarian Christian. I do believe he was a theist who believed in an active personal God. And GW greatly supported the institution of "religion" generally (and "Christianity" as a particular of that genus).

Still, I understand, the smoking guns proving that Washington was in the personal religious belief camp of Franklin, Jefferson, and J. Adams aren't there. Washington didn't bitterly reject orthodox Trinitarian doctrine like Jefferson and Adams did or give us as much extant heterodoxy as Franklin.

In all of the over 20,000 pages of Washington's recognized public and private utterances, Jesus Christ is spoken of only one time by name and one other time by example, both in public addresses written by other people (aids and subordinates) but given under Washington's imprimatur (meaning he edited and otherwise approved of the addresses with his signature).

In one of them, GW mentions the "divine author of our blessed religion," which obviously refers to Jesus. That's the closest to a smoking gun that GW was an orthodox Trinitarian Christian. I would argue that such is consistent with Arianism, Socinianism, Mormonism, and many other things that are not orthodox Trinitarian Christianity. 

But still, I would concede that statement strongly resonates with orthodox Christianity.

So if we concede that a public address written by someone who is not George Washington, but rather for him, and that was, after GW's tweaking given under the imprimatur of his signature accounts for at the very least a "joint authoring," let us look at one GW did with Thomas Jefferson.

The letter was written on March 31, 1791. It was addressed to Yazid ibn-Muhammed, the new Emperor of Morocco, whose father had just passed and Washington sent his condolences as he introduced Thomas Barclay as the new American consul.

Here is how Washington closed the letter:
“May that God, whom we both adore, bless your Imperial Majesty with long life, Health and Success, and have you always, great and magnanimous Friend, under his holy keeping.”

Monday, May 29, 2017

Kidd on Franklin, Whitefield and Education

From Thomas Kidd here. From what I gather, George Whitefield thought that he and Ben Franklin practiced different religions. A taste:
As I show in my new religious biography of Franklin, Whitefield routinely pressed Franklin about his need to receive Christ as Lord and Savior. "He used indeed sometimes to pray for my conversion," Franklin recalled, "but never had the satisfaction of believing that his prayers were heard."
Franklin and Whitefield’s clashing ideas about faith also became an issue in the founding of the Academy of Philadelphia, a predecessor of the University of Pennsylvania. ...
Drawing on John Locke's Some Thoughts Concerning Education (1693), Franklin's Proposals Relating to the Education of Youth in Pennsylvania (1749) laid out plans for the academy, with educational goals of virtue and practical service. Theology and ancient languages (Greek, Hebrew, and Latin) were de-emphasized. English grammar was a primary emphasis, because it was more useful than "foreign and dead languages," Locke had written.
... Reading about moral exemplars in the past would remind students of the "advantages of temperance, order, frugality, industry, perseverance" and other virtues. It would also reveal the "necessity of a public religion," he argued. Franklin even noted that pupils would learn of the "excellency of the Christian Religion above all others ancient or modern." But on that subject, Franklin was terse.
For explanation of Christianity's value, he footnoted Scottish moral philosopher and Anglican minister George Turnbull's Observations upon Liberal Education (1742). Franklin restated Turnbull's view regarding the "excellence of true Christianity above all other religions." Turnbull had contended that Christianity was the best known source of virtue: "That the persuasion of a divine providence, and a future state of rewards and punishments, is one of the strongest incitements to virtue, and one of the most forcible restraints from vice, can hardly be doubted.," he wrote. Turnbull's view of Christianity's practical benefits tracked closely with Franklin's own convictions.
What, then, was the aim of the academy? What was the proper goal of education? For Franklin, it was to impress upon the students the desire "to serve mankind, one's country, friends, and family." Franklin knew that some potential supporters would balk at such a human-centered vision. Thus, in an extended footnote, he insisted that the aim of service to mankind was another way of saying the "glory and service of God." Here Franklin was re-stating his notion of true religion: "Doing good to men is the only service of God in our power; and to imitate his beneficence is to glorify him."

Sunday, May 21, 2017

Islam & the American Founding

John Fea points to a symposium on Denise Spellberg’s Thomas Jefferson’s Qur’an: Islam and the Founders taking place at the Immanent Frame.

A number of years ago, a co-author and I tackled this issue which you can view here.

America's Founders often used the term "religion" and when they did it's a mistake to conclude they meant "Christianity" to the exclusion of other religions like Islam. So if "religion" is granted rights and has restrictions placed on it, such applies to "religion" in general. Islam as a religion therefore gets equally protected under such principles as any form of Christianity.

Below is a quote from one of the authors at the Immanent Frame:
Today we often refer to “Judeo-Christian civilization” but, as Spellberg points out, this term excludes Muslims from that shared history. Spellberg’s book reminds us of the strong tradition of tolerance in the United States, but also of how it is easy to fall short of that goal. . . .
This is true. However, the actual history including both laws and social institutions is a bit more complicated. Yes, there was a remarkable degree of theoretical liberality and ecumenicism that saw Islam being given equal rights under the auspices of protecting "religion." Judaism and all of the various forms of Christianity, orthodox, unorthodox, whatever we might debate qualifies as "real Christianity" were with Islam, "religions."

There were also at the state level different ways of dealing with religion that varied by state. Roman Catholics, for instance, might have their full religious rights in one state, but not another.

If there was some kind of institutional zeitgeist, it was a preference for social Protestant Christianity as the "in" group. All others -- Roman Catholics, Jews, Muslims -- in the "out" group.

For instance, militant unitarians John Adams and Thomas Jefferson as formally and nominally connected to respectively the Congregational (Adams) and Anglican-Episcopal (Jefferson) Churches received cover under the auspices of Protestant Christianity's privileged social standing, along with those who actually devoutly believed in the orthodox creeds and doctrines to which those churches were grounded.

TGC: "Christian History: How David Barton Is Doing It Wrong"

Check it out here. A taste:
To reiterate: our answers will only be as good as our questions, so it’s important that we come to this study with an open mind, seeking to ask the best questions so that we can arrive at answers that correspond with reality.

Here is some further recommended reading for those who are interested:
For religious biographies of the Founding Fathers, you could start with:
For introductory guides on how to do responsible history—that is, how not to do history like David Barton—you could start with
Finally, here is a sit-down conversation with historians Mark Noll and George Marsden—co-authors with Nathan Hatch of The Search for Christian America (1983; revised in 1989). After the video, I’ve added rough time-stamps for their dialogue.


Friday, May 05, 2017

Benjamin Franklin: The Religious Life of a Founding Father

Details on Thomas Kidd's new book here. It looks to be a "standard bearer" on Franklin's faith. A taste:
My new biography of Benjamin Franklin is now ‘in stock’ at Amazon and other retailers! As I was writing my 2014 biography of George Whitefield, and I dug deeper into Whitefield’s relationship with Franklin, I became convinced that there was more to the story of Franklin’s religious life than his simple description of himself as a ‘deist.’

It turns out that Franklin published more on religious topics than any other layperson in eighteenth-century America. He knew the Bible intimately, because of his immersion in the Puritan milieu of his parents. And though he clearly doubted essential doctrines of Christianity, such as Christ’s divinity, he maintained vital relationships with evangelical friends and relatives including Whitefield and his sister Jane Mecom, his closest sibling.


Some endorsements and reviews of the book:

“A convincing portrait of Franklin’s religion as ambiguous, elusive, enigmatic, and whimsical.  He appears in the pages of this welcome book as a forerunner of many later Americans who believe in God, trust in providence, but cannot embrace any particular Christian creed.”—Mark A. Noll, author of In the Beginning Was the Word


“This illuminating and absorbing biography of Benjamin Franklin is the work of a perceptive historian and master storyteller. Thomas Kidd argues compellingly that Franklin’s religious experiences, from his Calvinist upbringing to adult relationships with Christians, are essential to understanding this man of science and reason.”Daniel L. Dreisbach, author of Reading the Bible with the Founding Fathers

Tuesday, May 02, 2017

Peter Thiel on Straussian Jesus

Why I find Thiel fascinating. I don't know if "mislead" is the right word; Jesus did "hide the ball" which is how law students refer to the professor's "Socratic" method. Now I need to track down the John Locke quote Thiel refers to.

Update: Reader Daniel found the quotation:
"This concealment of himself will seem strange, in one who was come to bring light into the world, and was to suffer death for the testimony of the truth. This reservedness will be thought to look, as if he had a mind to conceal himself, and not to be known to the world for the Messiah, nor to be believed on as such. But we shall be of another mind, and conclude this proceeding of his according to divine wisdom, and suited to a fuller manifestation and evidence of his being the Messiah; when we consider that he was to fill out the time foretold of his ministry; and after a life illustrious in miracles and good works, attended with humility, meekness, patience, and sufferings, and every way conformable to the prophecies of him; should be led as a sheep to the slaughter, and with all quiet and submission be brought to the cross, though there were no guilt, nor fault found in him. This could not have been, if, as soon as he appeared in public, and began to preach, he had presently professed himself to have been the Messiah; the king that owned that kingdom, he published to be at hand. For the sanhedrim would then have laid hold on it, to have got him into their power, and thereby have taken away his life; at least they would have disturbed his ministry, and hindered the work he was about." The Reasonableness of Christianity (1695)

Saturday, April 29, 2017

Resist, Revolt, Reason & Authority in the American Founding

I confess a fault in my friendship duties towards Mark David Hall. He wrote a book about Roger Sherman that goes into meticulous detail about reformation sources that influenced the American Founding. He even thanked me in that book (we featured some of the research at American Creation) but I haven't yet read the book.

But I will, one day. I promise.

I am familiar with the argument about Calvinist reformation sources as the inspiration behind the American resistance during the Founding era, in the face of Romans 13. (This article by David Kopel makes similar points.)

Among others, Daniel Dreisbach and Jeffry Morrison, who have collaborated with Dr. Hall are on the same page regarding the influence of Calvinist thought on America's Founding resistance movement.

Arguments contained in America's Declaration of Independence do seem to strongly parallel those of the reformation resisters, but there is more to the story.

This is the controversy: A plain textual reading of Romans 13 (a fundamentalist reading, if you will) seems to categorically forbid revolt. Yet, other parts of the Bible -- Acts 5:29 -- teach disobedience to man (Earthly government) when necessary to obey God. Other parts of scripture -- I Peter 2 (“honor the king”) -- also play in.

What follows is the doctrine among others orthodox biblicists Drs. Gregg Frazer and Mark Noll have taken from such: Submission to government is absolute; revolt is categorically forbidden; obedience to government is a general rule conditioned on the (obvious) fact that if to obey government means to disobey God, obey God and not man. Yet, submit to the civil legitimacy of the tyranny whose civil law demands disobedience to God. Work within the confines of such system for individual justice and systematic change. But ultimately submit, even if it means being a martyr.

John Calvin in his Institutes of the Christian Religion teaches basically this with one important caveat: To the extent that the positive governing law permits lower magistrates to resist and suppress the lawless tyranny of higher powers, believers who constitute such lower magistrates can and should take advantage of this option.

The examples that Calvin gives are analogous to Congress by virtue of the constitutional process, impeaching and removing a President.

As dissidents, a great many of Calvin's followers had bad experiences with "higher powers" that persecuted them. Hence, they had incentive to, and did in fact flesh out and play up Calvin's teachings on interposition, on resistance through law. Hence Samuel Rutherford's "Lex Rex" (the King is not Law, rather "Law is King.")

And, as noted, a great deal of what America's Founders, in their conflict with Great Britain, said and did resonates with such. According to the doctrine, the extant positive law must be appealed to as the source of remedies. America's Founders did a great deal of remonstrating with the British authorities appealing to their rights as Englishmen. A great deal of the Declaration of Independence details how Great Britain failed to live up to its own standards of guarantee contained in existing British law.

But Great Britain -- King and Parliament ("Parliament" shorthand for the then existing power sharing arrangement) -- disagreed with the colonists' understanding of British law. So when there is disagreement, how is it resolved? Under extant British positive law, Parliament had the final say.

Of Parliament's power, Blackstone famously noted:
It can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call it's power, by a figure rather too bold, the omnipotence of parliament. True it is, that what they do, no authority upon earth can undo.
As Gary North acutely observed: "Blackstone was wrong: beginning eleven years later, the American colonies undid a lot of what Parliament had done."

It's above my pay grade to say whether the American Revolution violated Romans 13. That biblical text was discussed quite a bit in Founding era sermons because it obviously had the potential among a nation whose demographic religion was "Christianity" to stand in the way of the revolutionary cause.

What I don't see however, from the Founding era sermons is a strong explicit reliance on Samuel Rutherford, et al. I'm sure the influence was there. But John Locke and his ideas were more often cited in the revolutionary pulpit. And Locke is not Rutherford; no evidence we have seen connects Rutherford to Locke and Locke made arguments that were more revolutionary in tone. Locke was also less concerned with answering the Romans 13 challenge and more interested in asserting a right to revolt found in nature discoverable by reason.

Later sermons would then apply Lockean principles to the Romans 13 challenge in more detail. Jefferson and company did not invent the theological arguments contained in the Declaration of Independence. The ideas had been brewing in the pulpit the years prior to the revolution and this 1776 sermon by the unitarian Samuel West best encapsulates theology of the Declaration of Independence and the American Cause. Romans 13 is explicitly dealt with there. Locke is cited; Rutherford and the Calvinist resisters are not. The basis for the right to revolt is found in essences in nature, discoverable by reason.

With that discovery in mind, then go and interpret and understand Romans 13 accordingly. This is how West deals with it:
The doctrine of nonresistance and unlimited passive obedience to the worst of tyrants could never have found credit among mankind had the voice of reason been hearkened to for a guide, because such a doctrine would immediately have been discerned to be contrary to natural law.
 On the explicit text of Romans 13, West asserts:
I know it is said that the magistrates were, at the time when the apostle wrote, heathens, and that Nero, that monster of tyranny, was then Emperor of Rome; that therefore the apostle, by enjoining submission to the powers that then were, does require unlimited obedience to be yielded to the worst of tyrants. Now, not to insist upon what has been often observed, viz., that this epistle was written most probably about the beginning of Nero's reign, at which time he was a very humane and merciful prince, did everything that was generous and benevolent to the public, and showed every act of mercy and tenderness to particulars, and therefore might at that time justly deserve the character of the minister of God for good to the people,-- I say, waiving this, we will suppose that this epistle was written after that Nero was become a monster of tyranny and wickedness; it will by no means follow from thence that the apostle meant to enjoin unlimited subjection to such an authority, or that he intended to affirm that such a cruel, despotic authority was the ordinance of God. The plain, obvious sense of his words, as we have already seen, forbids such a construction to be put upon them, for they plainly imply a strong abhorrence and disapprobation of such a character, and clearly prove that Nero, so far forth as he was a tyrant, could not be the minister of God, nor have a right to claim submission from the people; so that this ought, perhaps, rather to be viewed as a severe satire upon Nero, than as enjoining any submission to him.
Either Nero was "a very humane and merciful prince" when the epistle was written or perhaps the epistle should "be viewed as a severe satire upon Nero, than as enjoining any submission to him."  

Saturday, April 15, 2017

She's BAAACK!!!!

Chris Rodda that is. Doing what she does best. See here. A taste:
The problem with Barton’s so-called Jefferson quote? Well, Jefferson wasn’t talking about immigrants. He wasn’t even talking about ships coming to America from other countries. He was talking about the exact opposite — ships that were sailing from America to Europe!

The quote that Barton butchers so completely to make it say the exact opposite of what Jefferson was actually talking about comes from Jefferson’s 1805 message to Congress (what we today call the State of the Union address).
At the time there was an intense fear of yellow fever in Europe, with recent yellow fever epidemics, particularly devastating in Spain, having killed thousands of people. The obsessive fear of the disease among Europeans, which was causing ships sailing into European ports to be quarantined and their crews and passengers to be subjected to absurd medical tests, was described by Washington Irving in his Notes and journal of travel in Europe, 1804-1805, in which he recounted what he experienced upon his arrival at the Sicilian port of Messina in early 1805: