Saturday, June 15, 2019

Smithsonian: "Why No One Can Agree on What George Washington Thought About the Relationship Between Church and State"

By a professor at Stanford. A taste:
Historians were not deaf to Washington’s religious references. While the clergy and the scientists saw them as evidence of Washington’s devotion, the historians stressed the president’s precision in crafting a vocabulary that would unite the dizzying array of Protestant denominations in post-revolutionary America without alienating the small but important groups of Catholics, Jews, and freethinkers dotting the American landscape. It was precisely because he understood that Americans did not believe the same thing that Washington was scrupulous in choosing words that would be acceptable to a wide spectrum of religious groups.

In his own time, Washington’s reluctance to show his doctrinal cards dismayed his Christian co-religionists. Members of the first Presbytery of the Eastward (comprised of Presbyterian churches in Massachusetts and New Hampshire) complained to the president that the Constitution failed to mention the cardinal tenets of Christian faith: “We should not have been alone in rejoicing to have seen some explicit acknowledgement of the only true God and Jesus Christ,” they wrote. Washington dodged the criticism by assuring the Presbyterians that the “path of true piety is so plain as to require but little political direction.”  
Similarly, a week before his 1789 proclamation, Washington responded to a letter from Reverend Samuel Langdon, the president of Harvard College from 1774-1780. Langdon had implored Washington to “let all men know that you are not ashamed to be a disciple of the Lord Jesus Christ.” Once again, instead of affirming Christian tenets, Washington wrote back offering thanks to the generic “Author of the Universe.”

Friday, June 14, 2019

Christianity & Religious Liberty

This new book Robert Louis Wilken, Liberty in the Things of God, looks to be a must read. I disagree with the subtitle of the American Conservative review article that doesn't credit "The Enlightenment." Yes, there were sources of religious liberty that preceded the Enlightenment. But it was during the Enlightenment when such became normative. A taste from the article:
This tension reached a climax during the Reformation and post-Reformation era. Wilken includes chapters on Lutheran Germany, Calvinist and Zwinglian Switzerland, and on Catholic-Protestant battles in France, the Netherlands, and England. Readers may be surprised to learn how often it was not just Protestants but also Catholics who turned to liberty in defense of their religious beliefs. Nuns in Germany, clergyman in Switzerland, Benedictine abbots in France, and papist lawyers in England all appealed to their consciences in the face of Protestant persecution. Indeed, while Reformation history is full of Catholic oppression of Protestants, it is equally full of Protestants oppressing, persecuting, and even forbidding Catholic worship. 
It is ultimately the Englishmen—Roger Williams, John Owen, William Penn, and John Locke—to whom America and the West are indebted for their conception of religious freedom. Williams argued that liberty of conscience applied to all men equally, including dissenting Christians, Jews, Muslims, and even the hated Catholics. He also “severed the link between the two tables of the law,” meaning that he rejected any role for the state in the affairs of the church and vice versa. Owen, in turn, interpreted Tertullian’s earlier cited argument to mean that “liberty of conscience is a natural right” rather than one created and protected by the state. Penn, meanwhile, argued that this liberty of conscience necessarily extended to public worship. Locke, finally, incorporated some of these elements, but went even further by arguing that religious communities are fundamentally voluntary societies composed of individuals possessing “free and spontaneous” rights.
For instance the Calvinist covenanters like Samuel Rutherford and John Knox who were "good" on resistance to tyrants in the face of Romans 13 were still defending Calvin having Servetus put to death for denying the Trinity. By the time of the American Founding, John Witherspoon and his Presbyterians had accepted liberty of conscience as an unalienable right.

Sunday, June 02, 2019

Free Chapter on Gregg Frazer's First Book

Gregg Frazer's "thesis" on the political theology of the American founding, in my opinion, took the level of scholarly analysis to a "higher level." His book has its strengths and weaknesses. But it's certainly a must read for anyone who wants to seriously study the issue.

I just noticed that University of Kansas Press now features a free chapter of the book in PDF form. Check it out.

Saturday, June 01, 2019

Law & Liberty Site: "John Locke and Political Hebraism"

By one DAVID CONWAY. Check it out here. A taste:
The Paradox of Locke’s Sources  
Of course, Hebrew Scripture forms but a part of Christian Scripture, so that Locke would not but have taken the Old Testament to be every bit as divinely revealed as the New Testament. However, it is still puzzling just why he should have drawn so much more heavily on Old Testament sources than he did on New Testament ones, especially in respect of illustrating quite universally applicable theses about the law of nature. ...
But there seems an answer to the puzzle:
At the time of the so-called “Glorious Revolution” of 1688 in which James ll was deposed in favor of Mary, his Protestant daughter, and her Protestant Dutch husband William (who also happened to be the son of the deposed king’s deceased elder sister), the chief theoretical apostle of the divine right of kings had been the royalist Sir Robert Filmer (1588-1653). Filmer had defended the doctrine in his essay Patriarcha, which was published posthumously in 1679 at the time of the Exclusion Crisis, in which a vain parliamentary attempt was made to prevent James’s succeeding his elder brother, Charles. 
In 1688, Locke and his fellow Whigs who sought to sideline James, were particularly exercised to do so by the birth, earlier that year, of James’s son, which would have ensured a Catholic succession. Since Filmer had justified the doctrine of divine right by appealing to Old Testament stories about God’s granting Adam dominion over other creatures, Locke had no alternative but to take on Filmer at the hermeneutical task of Biblical exegesis. ...
Locke discussed the Old Testament so much by necessity to answer Filmer's claims which centered on the Old Testament. 

Andrew Seidel Publishes Book on "Christian Nation" Controversy

A hard hit from the secular left. Read about it here. A taste from an interview:
The second part of your book is "The United States versus the Bible." One chapter is titled "Biblical Obedience or American Freedom." Could you talk about this opposition in attitudes and philosophy?  
Sure. This also plays a lot into the Declaration of Independence itself, which was this document which was rebelling against this king, who was the defender of the faith. Even though the divine right of kings was gone by that time, he certainly believed himself to be instilled in that position by God.

The Bible demands obedience. The Bible is very, very clear on this point, many times over. The Judeo-Christian God demands obedience. And not just to himself, but also to the rulers that are on earth. Romans 13 is all about obedience to the earthly rulers. So here you have a country that was built on rebellion, versus a book that is all about obedience, and the two are in fundamental conflict. That's an important point that I try to make throughout the whole book. If you really pay attention to Judeo-Christian principles, and what those principles are — throughout the Bible, throughout the Ten Commandments — and look at the principles America holds dear and was founded on, the two are really diametrically opposed to each other. They’re in fundamental conflict. It does make it fair to say that these principles are un-American.

Tuesday, May 28, 2019

Tillman Cites Ezra Stiles on Deism

Over at The New Reform Club, Seth Barrett Tillman quotes from a decade or so old article where he scrutinized the claims of prominent law professor Geoff Stone. One thing that interests me about it is a quotation from Ezra Stiles, a notable "orthodox" Protestant figure from America's founding era, President of Yale, who took on the "deism" of his day.

Then, books on deism existed in the libraries of prominent colleges like Yale and Harvard. The ideas were spreading and the then "orthodox" leaders of those prominent educational institutions had to react to a such system that conflicted with "orthodoxy."

How did the "religiously correct" orthodox Protestants deal with the problem of their libraries having books on deism which influenced students in undesirable ways? That's the controversy. Below is what Stiles said:
It is true with this Liberty [of accepting deistical books into religiously-affiliated university libraries] Error may be introduced; but turn the Tables [and see that] the propagation of Truth may be extinguished [if you do otherwise]. Deism has got such Head in this Age of Licentious Liberty, that it would be in vain to try to stop it by hiding the Deistical Writings: and the only Way left to conquer & demolish it, is to come forth into the open Field & Dispute this matter on even Footing—the Evidences of Revelation in my opinion are nearly as demonstrative as Newton’s Principia, & these are the Weapons to be used . . . . Truth & this alone being our Aim in fact, open, frank & generous we shall avoid the very appearance of Evil.
Stiles was a good classically liberal Whig. He might have handled the circumstances with more liberality than say, Timothy Dwight, the President of Yale who succeeded Stiles. Stiles was, if I'm not mistaken, more sympathetic to Jefferson's and Madison's Democratic-Republican party than the Federalists. In fact, Stiles was a Francophile who supported some of the excesses of the French Revolutionaries.

Stiles was actually one of the "orthodox" figures that heterodox men like Ben Franklin felt somewhat comfortable sharing their religious heterodoxy with. The same can't be said of Timothy Dwight who was less liberal than Stiles.

Tuesday, May 21, 2019

Thoughtful Responses to a Piece I Wrote

So over at the Law and Liberty site, friend Mark David Hall has a piece that reviews Steven K. Green's new book, "The Third Disestablishment." Prof. Green is more of a "strict separationist" than Hall, and the two have previously debated on multiple occasions.

I entered the comments and ended up posting a link to a piece of mine published in 2012 entitled "Liberty For All" and received two thoughtful, lengthy responses. The first is from EK who writes:
That was a nice piece of writing. I don’t agree with much of it because I think your understandings of who the Puritans were and what the Bay Colony was all about are inaccurate but it was a nice piece of writing. I’m reminded of a pathologist examining a tissue sample looking for and so finding and describing signs of disease but silent on signs of health because. . . well . . . pathologists are paid to look for disease.   
A few years ago I began looking for the sources of the republicanism and self-government that is said to be fundamental to the American experience. I think I can safely say that reading American history should begin in 1534 with the dissolution of the monasteries and the Act of Supremacy and that our history should be read forward from that point and not backwards from the present.  
American history actually began in 1620 when Coke, after having been humiliated by James I, entered Parliament, aligned himself with the Puritan faction and began attacking Stuart notions of the divine right of kings and broad assertions of the royal prerogative. This culminated in the Petition of Right Parliament of 1628-9. The Massachusetts Bay Charter was also issued in 1628-9 and the Petition of Right is last constitutional document we share with the British.  
What the Winthrop migration did was to establish a republic where ultimate sovereignty was placed in God, not the king, and where the voters were sovereign. In 1630, the franchise to vote was limited to members of congregations but, in the case were almost all of the settlers soon became members of a congregation, this was not restrictive but rather the broadest possible extension of the franchise since it was not based on property or civil status. Six years later, Thomas Hooker and John Haynes took the more conventional approach and limited the franchise in the Connecticut Colony to 40 shilling free holders. Rhode Island, New Hampshire and Vermont followed Connecticut. Nevertheless, throughout American history this difference in the franchise does not seem to have made much difference at all in New England history.  
Special circumstances allowed the colonization to succeeded. The settlers were a stratified sample of English middle-class religious enthusiasts who shared a common culture and common vision for the future. They arrived in a land that had been depopulated in the 1610s and where the surviving Massasoits were in imminent danger of annihilation from unaffected tribes to the north, south and west. The surviving Algonquins from the Massachusetts Bay to the Connecticut River viewed cooperation with the Winthrop party as the best way to prevent further depredations and incursions from the Abenakis to the north, the Mokawks to the west and the Naragansitts, Pequods and Wampanoags to the south. The Puritans’ attitude towards the Massasoits and their affiliated clans in south-central New England was paternalistic and, to an extent, condescending but it was never intentionally cruel or exploitative. It appears that ultimately the Puritans’ Indian allies were not extirpated but rather assimilated.  
Read this way, the Puritans are not dour religious ideologues and bigots dressed in sad colors who spend all their time quoting scripture, hanging witches and Quakers and branding nice young girls with scarlet “A’s”. They become radical constitutional democratic-republicans who overthrew kings, established popular sovereignty, representative government and set men free. To an unhealthy extent the good the Puritans did was buried with them but that which was not so good has lived on and become a cartoon of evil.
And Standing Fast replied:
Jonathan Rowe: I read your article. I thought you started out really well. But, kind of got bogged down later on. I would like to address several points you made that I disagree with:

The concept of unalienable rights does not come from the Enlightenment, but derives from traditional teachings on the Ten Commandments and Cicero’s writings. Although they come from two different traditions, the principles are not incompatible. The teaching on the Ten Commandments says they were given by the Power that created the Universe whose authority supersedes any and all earthly powers. And from these commandments it is possible to infer precisely what these rights are and that they are given by God. As God is the Author of Life, Liberty and the Laws which govern the Universe, including mankind, we can say that they are unalienable. Cicero refers to a Divine power whose authority is also supreme and whose word is Law. He wrote that in order to be just, man’s laws must be consistent with God’s law.

These ideas came together in the Early Christian Church. To understand this tradition, it is necessary to study the ancient documents of the pagan world, the Torah, the Sermon on the Mount, Greek and Roman law, The Holy Bible, The Code of English Common Law, Magna Carta, the Protestant Reformation and Resistance Movement, the Mayflower Compact, the English Civil War, the Thirty-Nine Articles, the English Bill of Rights, the confessions of the various denominations & sects of Protestants, and America’s founding documents. After which you can begin reading the writings of the individuals who played a part in the establishment of this tradition, and be able to place them in the context of what they knew. That way, the development of these ideas is much easier to track. Who knew what and when did they know it?

Roger Williams’ religion places him outside of the Puritan fold, although for awhile he was a member of this sect. He started out as a communicating member of the Church Of England, was later ordained in the Anglican Church (Protestant in that the Pope was not the head of the church, but theology was Roman Catholic), then joined the Puritans (Low-Church Anglicans because they followed Protestant Reformed tradition and refused to use the Book of Common Prayer but believed the monarch should be the head of the church), then he joined the Separatists (exiled Puritans who did not believe the monarch should be the head of the church), then joined the Baptists (exiles and independents who came out of the Reformed and other Protestant traditions but did not believe civil government should have any power over matters of Conscience), left the Baptists because he disagreed with them on important points of theology, doctrine and church practice. More than any other individual on either side of the water, he championed Liberty of Conscience and Separation of Church & State. His influence has been under-rated by historians because they read what his enemies wrote without understanding what the arguments were about.

John Locke was influenced by Williams, Milton, Penn, Coke and others. And he, in turn, influenced Trenchard & Gordon. Benjamin Franklin, George Washington, John Adams, John Witherspoon, Thomas Paine, and the rest of the 18th Century American Political Philosophers. But, they were also influenced by people who neither knew Locke nor agreed with him.
My brief response, not meant to be comprehensive, but rather open the discussion that can proceed in the comments, follows: My main disagreement with EK is that while I try to contrast Roger Williams with the Puritans of Massachusetts who banished him as representing different visions -- Williams as an innovative hero on matters of religious liberty, with the Puritans as villains here -- EK seeks to collapse the distinction and make Williams sound not as good as he has been made out to be, and the Puritans, not as bad.

I agree more with Standing Fast on Roger Williams' innovative role as a religious liberty hero, but disagree on other things. First, while Cicero was a purported influence on the Declaration of Independence (by Thomas Jefferson himself) I'd like to see more evidence that Cicero's notion of "nature" included something like the unalienable rights of conscience (religious liberty) that Jefferson and others championed.

And the notion that the Ten Commandments are the source of "unalienable rights" is not just disputed, but arguably the opposite of what's accurate.  I spill much ink in my article explaining the tension between the First Commandment and the notion of unalienable rights of conscience that give men a right to worship no God or twenty gods, axiomatic to the unalienable rights of conscience.

This has to be answered with more than a mere assertion that the Ten Commandments are the source of "unalienable rights."

Saturday, May 11, 2019

Jefferson's Libertarian Maxim

In his only published book, "Notes on the State of Virginia" (1784), Thomas Jefferson noted:
"The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg."
In my opinion, this is a great maxim to live by. Jefferson originally said this in the context of religious liberty; but libertarians like myself tend to generalize it to apply to everything.

What is interesting is that some of Jefferson's religiously orthodox enemies thought this a very dangerous sentiment. On a number of different grounds, spiritual and temporal.

On temporal grounds, one of the critics reasoned if people thought there was no God, they wouldn't just break your leg, but your neck.

I think that's quite melodramatic and mistaken. But even Jefferson thought that belief in a Providence who administers rewards and punishments was not just true but useful for civilizing man.

Saturday, April 20, 2019

"The Search For Christian America," Misuses of History

I was rereading this classic by Drs. Noll, Hatch and Marsden. And this passage from pages 150-51 struck me as especially relevant.

The book is remarkable in how it got three extremely important authorities together to write such. It wasn't just Mark Noll, who is a legend in his own right, but also Nathan O. Hatch and George Marsden.

Dr. Hatch is, if I'm not mistaken, the high paid college President in America, currently.

The book is strongly recommended.

Thursday, April 18, 2019

Ben Franklin & the Virginia View

On social media Prof. Francis J. Beckwith quotes Engel v. Vitale (1962), and the following by Justice Hugo Black's majority opinion:
But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.
Some might balk at this as not representing the American Founding; but as I noted in the comments, I think it does, with a slightly exaggerated tone, represent the so called "Virginia view" on establishments articulated by Madison, Jefferson and some others.

The problem would be there were other competing views that were accepting of mild establishments compatible with religious liberty. This has been termed the "Massachusetts view" and has support from John Adams, Patrick Henry, and arguably George Washington.

I think Franklin's views are closer to the VA view, or what is quoted above by Justice Black.

Can anyone see anything in principle different in Franklin's and Black's positions? I don't.
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. If Christian Preachers had continued to teach as Christ and his Apostles did, without Salaries, and as the Quakers now do, I imagine Tests would never have existed; for I think they were invented, not so much to secure Religion itself, as the Emoluments of it. When a Religion is good, I conceive that it will support itself; and, when it cannot support itself, and God does not take care to support, so that its Professors are oblig'd to call for the help of the Civil Power, it is a sign, I apprehend, of its being a bad one. But I shall be out of my Depth, if I wade any deeper in Theology.
-- letter to Richard Price, 9 Oct. 1780

Friday, April 05, 2019

Mark David Hall at Cairn University

On Monday I saw friend of American Creation, Mark David Hall speak at Cairn University (geographically, in my backyard practically). He spoke on his forthcoming new book -- which I can't wait for -- that joins among others John Fea and Gregg Frazer on the "Christian America" question. 

Dr. Hall's book will stress the Christian component of the American founding as profoundly influential, while conceding the influence of the other components. Personally, I agree with the thrust of what I heard from Hall in that Christianity did strongly influence the American founding. He perhaps would stress it more than I would.

The question I asked was on the Treaty of Tripoli and here we might differ. Hall noted that indeed his book will discuss this Treaty, ratified during the founding era, that in Article 11 says, "As the government of the United States of America is not in any sense founded on the Christian Religion...." Hall tried to explain this away as something diplomatic. And I would agree the context of the treaty was diplomacy with hostile Muslims. However, I also think it's an accurate statement. The new federal GOVERNMENT was "not in any sense founded on the Christian Religion."

I don't think such contradicts the notion that Christian principles nonetheless were profoundly influential in a variety of ways in the American founding. It's a Christian principle after all to draw a distinction between the secular and the sacred, between Caesar and God.

Thursday, March 28, 2019

Two More Interpretations of the P or I Clause @ Law & Liberty

We have seen, at the Law & Liberty site, Kurt Lash argue that the Privileges or Immunities Clause of the 14th Amendment incorporates the first eight amendments of the federal Constitutions to apply against state and local governments.

At that site, Devin Watkins just argued that the P or I Clause protects in addition to the enumerated rights Lash notes, unenumerated natural rights. This position is similar to Randy Barnett's and Timothy Sandefur's and also happens to be one with which I sympathize.

Finally, David Upham argues that the P or I Clause protects neither the enumerated federal bill of rights, nor unenumerated natural rights, but rather something else. Something more limited. Upham explains more his idea we have seen before that P or Is have to trace back to 1776, not 1787-1791. As he writes:
Hence, as Senator Howard indicated by quoting Justice Washington, the privileges of U.S. Citizenship are as old as the Republic; to find them, we should look back to Year 1 of the United States—or 1776. 
Why then, did Senator Howard look to rights listed in constitutional amendments adopted in 1791—the sixteenth year of the “Independence of the United States”? Probably for the same reason he looked to the “privileges and immunities of citizens” of Article IV, as expounded by Justice Washington in 1823. As Howard noted, such constitutional law merely “secured,” “guarantied” or “recognized” pre-existing rights. Such law did not create these rights, but provided very strong evidence thereof. And to identify the fundamental rights of citizenship, severally recognized by the American states from 1776, perhaps the best place to look would be the fundamental rights that the same American states jointly enumerated in the Constitution just a few years later.
Let me note that while I love the spirit behind the 14th Amendment -- of liberty and equality, classical liberalism's twin pillars -- the actual text and historical record surrounding it is, quite frankly, confusing and messy. Plenty of things to cherry pick and hang one's hat on. Give an inch, and take a mile. In for a penny, in for a pound.

Friday, March 22, 2019

Kurt Lash @ Law & Liberty on the P or I Clause

Kurt Lash has a new post on the Law & Liberty site about the Privileges or Immunities Clause and unenumerated rights. Note Lash disagrees with among others Randy Barnett that the P or I Clause validates unenumerated rights. I'm pretty sure I agree with Barnett here, but I'd have to refresh my recollection on the research.

Where Lash does fantastic work -- illustrated here -- is on the ENUMERATED rights that the P or I Clause was meant to incorporate to apply against state and local governments. Including but not limited to the first eight amendments of the federal bill of rights.

Lash reports:
The man who drafted the Privileges or Immunities Clause, John Bingham, could not have been clearer about his desire to enforce the Bill of Rights against the States. On February 28, 1866, when John Bingham submitted his first draft of the Privileges or Immunities Clause, he declared, “[t]he proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution to-day. It “hath that extent—no more.”[2] On March 9th, Bingham again declared that “the enforcement of the bill of rights [against the states] is the want of the Republic.”[3] On May 10, following the submission of Bingham’s final draft, once again Bingham declared “There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply.”[4] The Privileges or Immunities Clause would finally allow congress to enforce provisions like the eighth amendment’s protection against cruel and unusual punishments. Once again, Bingham assured his colleagues, “That is the extent that it hath, no more.”[5]  Finally, in 1871, Bingham explained: 
"Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.  . . . They secured  . . . all the rights dear to the American citizen. And yet it was decided, and rightfully, that these amendments, defining and protecting the rights of men and citizens, were only limitations on the power of Congress, not on the power of the States. . . . 
Mr. Speaker, this House may safely follow the example of the makers of the Constitution and the builders of the Republic, by passing laws for enforcing all the privileges and immunities of citizens of the United States, as guarantied by the amended Constitution and expressly enumerated in the Constitution.”[6]

Friday, March 15, 2019

Kurt Lash's Article on the Incorporation of the Establishment Clause: Its Important Answer

I don't think the Establishment Clause is going to be unincorporated anytime soon. However, I think it's important to answer good arguments. There is a good argument to be made that the Establishment Clause never should have been incorporated. There is also an argument to be made that NONE of the Bill of Rights should have been incorporated, which means that states would be free OR NOT to infringe on all of the Bill of Rights. There is also a good argument that the Privileges or Immunities Clause of the 14h Amendment in fact was intended to incorporate the Bill of Rights to apply against state and local governments. Then there is a refined argument that Justice Thomas is sympathetic to that yes, the P or I Clause was meant to incorporate the Bill of Rights, but not the Establishment Clause.

And that's because "Privileges or Immunities" relate to individuals rights. And whereas the Free Exercise and Free Speech Clauses of the First Amendment do relate to individual rights, the Establishment Clause does not. Rather it was understood, when constructed by America's founders to be a federalism provision. Incorporating the Establishment Clause would be akin to incorporating the 10th Amendment.

That's a good argument.

But here is a more specific answer to that claim that I didn't mention in my last post on this matter. You actually have to get to the end of Prof. Kurt Lash's 71 page article for him to make it. It is this: Whereas America's founders understood the exact words of the Establishment Clause to have a particular meaning, the framers and ratifiers of the 14th Amendment gave those same exact words a different meaning, one that reflected "anti-establishment values."

It should be noted that when John Bingham, a chief architect of the 14th Amendment, said on the floor of Congress "that the privileges and immunities secured by the Amendment were 'chiefly defined' in the first eight amendments, and then fully quoted all of these amendments," he included the Establishment Clause. He just read the first eight amendments verbatim.

We need to stress a point of interpretive contention: The argument is what is incorporated is NOT what America's original founders thought, rather it is what the framers and ratifiers of the 14th thought.

You are going to have to read Lash's entire article for his evidence, but I will provide one smoking gun in favor of this contention. It's on page 50/1133 of Lash's article. The 1857 Iowa Constitution and it reads: "The general assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

Try doing this with the 10th Amendment and see it totally doesn't work.

I know there is more to the argument. That provision of the Iowa Constitution doesn't demand the Establishment Clause in fact be incorporated against state and local governments. But I think it does demonstrate that it certainly is possible to view the clause as something other than a federalism clause.

Saturday, March 09, 2019

Poor John Dickinson: Who gets to be a "Founder"?

According to Bill Kristol and James Ceaser not John Dickinson. At least Dickinson doesn't get to be a first tier "key Founder." The reason why is because his major effort was the Articles of Confederation, which failed. If your most notable endeavors from the historical period didn't succeed, you don't get to be a "Founder" (at least not a notable one).

Tuesday, February 19, 2019

Lash Article on Incorporating the Establishment Clause, Blasphemy & Religion Left to the States

For those who wish to see an originalist case for incorporating the Establishment Clause to apply to state and local governments, see Professor Kurt Lash's classic article here. You can also read a blog post that summarizes Lash's research here. It concludes:
If one takes an originalist approach to Fourteenth Amendment incorporation, the principle of non-establishment as a privilege or immunity of citizens of the United States emerged at the time of Reconstruction and was entrenched through the adoption of the Fourteenth Amendment.
Though the entire article and post are worth reading, I'm going to focus on the very interesting discussion of blasphemy laws in Lash's longer article. But first a quotation from Walter Berns' "Making Patriots" that I've oft-cited:
Liberty of conscience was widely accepted at the time of the Founding, but this did not prevent some jurists and legislatures from insisting, at least for a while (and given our principles it could be only for a while), that Christianity was part of the law, meaning the common law. So it had been in England, and so, it was assumed by some (but not Jefferson), it would continue to be in America. But there was no disagreement about the place of the common law. Indeed one of the first things done by the states after independence was to declare (here in the words of the New Jersey constitution of 1776) that “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution].”  
But if the “rights and privileges” contained in the various state charters or constitutions included the right of liberty of conscience, and if, in turn, this right required, in Madison’s words, “a perfect separation between ecclesiastical and civil matters,” what did it mean to say that Christianity was part of the common law? Very little, as it turned out; and it turned out as it had to turn out. Consider, for example, the case of blasphemy in America…. pp. 32-33.
Lash's article treats us to an analysis of the four classic known blasphemy prosecutions in post-founding America. (Starting on page 18/1101). A few points: Blasphemy was a "common law" crime and the prosecutions took place at the state level.  The four different prosecutions involve different states, different judges and different times. As Berns notes above, the common law exists at a level where a state statute can trump it. Though, judges back then looked up to the brooding omnipresence in the sky to "find" common law principles.

The first two prosecutions have dicta that could support "Christian nationalist" claims. They act as though it's presumed Christianity will be the religion of the state and the only religion about which the law would be concerned. It's with the second two cases where the judges start to turn blasphemy into an offense akin to a secular breach of the peace.

And in fact, Delaware v. Chandler, decided in 1837, has dicta that blatantly contradicts the Christian nation thesis. The case notes:
If in Delaware the people should adopt the Jewish or Mahometan religion, as they have an unquestionable right to do if they prefer it, this court is bound to notice it as their religion, and to respect it accordingly.
It will be seen then that in our judgment by the constitution and laws of Delaware, the christian religion is a part of those laws, so far that blasphemy against it is punishable, while the people prefer it as their religion, and no longer. The moment they change it and adopt any other, as they may do, the new religion becomes in the same sense, a part of the law, for their courts are bound to yield it faith and credit, and respect it as their religion. Thus, while we punish the offence against society alone, we leave christianity to fight her own battles,...

Sunday, February 17, 2019

DAVID UPHAM on Everson/The Religion Clause

Professor David Upham makes the case for overturning Everson at the Law & Liberty site here. In this piece he is more clear on how he feels about the Establishment Clause applying against the states than the Free Exercise Clause. Yes, before the 14th Amendment the entire Bill of Rights including the Free Speech and Free Exercise Clauses applied to the federal government only.

But he writes:
To my knowledge, the sole exception to the Permoli legal consensus, from 1875 to 1925, can be found in dicta made only by Justice John Harlan and only in his last decade on the Supreme Court (1900-1911).  So, for instance, in Maxwell v. Dow, Harlan objected to the majority’s anti-incorporation conclusion with an argument ad absurdum, that the logical result would be that Utah could establish the Mormon Church.[2]
So I noted in the comments:

There is one point of view that says religion is left to the states and the 14th Amendment didn’t incorporate any of the bill of rights. If this is true states would be permitted to infringe on the free exercise rights. What conservative jurists presently support this position? State Blaine Amendments, even though they discriminate against religion would be perfectly constitutional. 
There is another point of view that says individual rights are what was intended to be incorporated. Free exercise clearly relates to an individual right. Establishment would only incorporate to the extent you can demonstrate it relates to such. Clarence Thomas has endorsed this point of view. But he doesn’t see what beyond the FEC incorporates. Akhil Amar suggests there are some “equality” rights that the FEC (which is more of a “liberty” right) doesn’t capture.
To which Upham replied:
... Nonestablishment is not a privilege or immunity of citizenship under the 14th Amendment. No one said it was, and for good reason–it did not fit the definition of the terms, as understood by that generation. Conversely, many mentioned other rights in the bill of rights–and for good reason–they did fit the general definition. 
State Blaine amendments, as I understand them, are not inconsistent with the original understanding. They are, I think, unjust and imprudent, but not unconstitutional–in part because their very existence, passed often by the same folks who adopted the 14th Amendment, is strong evidence that they were not inconsistent with the 14th Amendment. Did anyone–in any of the states–protest such measures as contrary to the 14th Amendment? 
To which I then replied:

Kurt Lash has suggested that the last state establishment ended in 1833 — well before the 14th Amendment — one could argue the right to be free from a religious establishment is included in the P or I Clause. 
And again, Prof. Amar has suggested, rightly in my opinion, it’s liberty and equality interests that drive the First Amendment and the entire BOR generally. 
If Utah did have the Mormon Church as a state establishment or Maryland the Roman Catholic Church, is that consistent with a state treating its citizens as equals without regard to religious creed[?] 
These kinds of questions as opposed to original expectation of the constitution’s applied text are what drives the new originalism.
And finally Upham:

Lash rightly and easily points out that nonestablishment can be an individual right and not exclusively a federalism provision. But it cannot satisfy the full test of being fundamental to the United States–whether that test is Corfield’s or the similar tests announced in various formal interpretations of the proposed Amendment–that it be foundational to the American Republic since 1776. 
Those tests, and that failure, I think adequately explain why no one seemed capable of saying that the Fourteenth Amendment incorporated the Religion Clauses, even when the silence was deafening. that is to say–the original meaning explains fairly clearly the originally expected NON-application. 
As for equality before the law: the establishment of republicanism, as presupposed by our entire Constitution, does not make monarchists second-class citizens of our Republic. So too the establishment of Mormonism or Roman Catholicism–which would be highly unlikely, imprudent and even un-American, in my opinion, would not, absent a suppression of liberty or an imposition of special taxes or burdens–reduce non-Mormons or non-Catholics to second-class citizenship in Utah and New Mexico, respectively. 
I gave him the last word in the comments over there, but  let me take a final word here. One of the difficulties in constitutional interpretation is that the text of the Constitution doesn't specify a formula or a "test" for interpreting it.

I'm certainly skeptical of Upham's application of his aforementioned "tests." What does "foundational to the American Republic since 1776" mean? That we freeze everything in 1776? What about 1789 or 91 or 1868? Is Upham arguing that what the 14th Amendment incorporates has to relate back to 1776?

This isn't what Akhil Amar argues. Rather he argues it's an 1868 understanding or lens of the Bill of Rights that were ratified in 1791 (not 1776). But 1868, not the late 18th Century is the more centrally determinative time. And if that's the case, given the state establishments were gone by 1868 one could argue, after Lash, that it's foundational to the American Republic since 1868 that American citizens have a right not to live under a state established church.

I'm also skeptical that the state level establishment of Mormonism, Roman Catholicism or a fundamentalist sect of the Baptist religion can be done without making other members into second class citizens on account of their religion.

Tuesday, January 29, 2019

NY Mag: "AOC Thinks Concentrated Wealth Is Incompatible With Democracy. So Did Our Founders."

You can read the link here. It relies mainly on Thomas Jefferson and James Harrington to represent "our Founders." Historian Kevin Gutzman, writing on Facebook noted:
George Washington was the wealthiest president of the United States. A recent study of the question estimated his wealth at approximately $5B. Article II of the Constitution was written with him in mind, and in both 1789 and 1792, he won unanimous Electoral College victories.

On the other hand, James Madison wrote extensively of "agrarian laws" (that is, government redistribution of wealth), which he considered both harmful and immoral.

Thomas Jefferson's criticism of the French nobility was of a legally privileged class. There is no such class in today's United States.

In short, this story is bunk.

(Rep. Ocasio is a walking advertisement for Jefferson's insistence that prior to citizenship, Americans should be taught the history of republican regimes--so that they could avoid repeating the mistakes that had led prior ones to fail.)
I agree that the author's thesis ultimately fails; it was too broadly stated. However, I wouldn't write it off entirely as "bunk." That's because, as I noted in the comments, some notable "republican" thought both on the Continent, but more importantly in Great Britain was in favor of such sentiment and I think such policies were implemented in various cases. 

James Harrington who was referenced in the original piece really did believe in Agrarian redistribution and he really was influential on America's founders. And Jefferson DID flirt with such sentiment as Harrington's. It probably was his friend Madison who convinced him that these ideas were unwise. Madison's vision prevailed at the time of the American founding.

But Harrington's vision perhaps prevailed in the modern era of
Western Civilization. That is, when we focus, not just on America, but Western Europe and the other industrialized nations.  The "modern world" as Eric Nelson puts it. That's one of his core theses and he pins such present day redistributionist policies on the Hebrew Bible.

Another commenter at Dr. Gutzman's site noted:
Agrarian Laws and similar legislation have created little but trouble since Roman times, but every government since has, in one way or another, engaged in such legislation. It's simply too easy and appealing to engage in what amounts to massive payoffs to influential factions.


Sunday, January 27, 2019

Ben Franklin Didn't Think Ben Hur Needed Jesus

This post features another one of those letters that contain multiple points about one of America's founders' religious beliefs. Ben Franklin's exact faith can be hard to pin down. He was not, I have concluded, a "sola fide" Protestant. Or a strict deist. But he also didn't think, like J. Adams and Jefferson did, that "works" were all that counted. Or perhaps in a sense he did.

You see Franklin didn't think that HIS good works merited Heaven, but he thought God would let him in anyway. What that means is that Franklin, like orthodox Catholics and Protestants (and others) thought ultimately God's unmerited grace would get him in. But Franklin also intimated that there were some better than him who perhaps could work their way into Heaven? That's part of what I get out of the quotation featured below.

How does Jesus and "faith" figure in? To Franklin faith was a means to the end of virtue. Good works were an essential component of Franklin's belief in "justification" (if you want to call it that). I don't think Franklin thought Jesus to be an Incarnate God, 2nd Person in the Trinity; in fact he admitted that he "doubted" such a thing. But he did think Jesus the greatest moral teacher of all time. So it stands to reason that if the purpose of faith is morality and Jesus is the greatest moral teacher, various forms Christianity would be valued for that reason.

I don't believe Franklin thought God's "grace" needed to be "channeled" through Christ's atonement. Rather the unmerited grace that got Franklin into Heaven was some kind of mysterious gift of God. Franklin differed with the "orthodox" there.

In a letter he wrote in 1753 (and later sent a copy to Ezra Stiles in 1790) where Franklin conceded that he didn't think his good works merited him Heaven, he also described what he saw as Jesus' role, quoting Jesus Himself.
He profess’d that he came not to call the Righteous but Sinners to Repentance; which imply’d his modest Opinion that there were some in his Time so good that they need not hear even him for Improvement;...
This sentiment comports 100% with Jesus as greatest moral teacher, and 0% with orthodox theology. He blatantly said there were some in Jesus' time, so righteous that they didn't need Him.

Think of Ben Hur, who in the story met Jesus at the end and converted. Franklin probably wouldn't have had a problem with this righteous man meeting and following the greatest moral teacher. He probably thought they had a lot in common. However, Franklin would not have thought Ben Hur necessarily needed Jesus.

From John Adams to John Quincy Adams, 28 March 1816

Over the years, we've quoted from various letters of America's founders to prove a point about which they believed. Some letters though contain much information useful to demonstrate many different points in which they believed. This letter is one of them. We've quoted many different times from it. But I don't believe I ever quoted what I quote below(?).
We do not expect to be “Saved” or damned for Unitarianism, or any other Philosophical or metaphiscal or Theological opinions; but by Sincerity Candour Charity Benevolence and Beneficence: or their Contraries.
Adams is talking to his namesake son and future President about differences in their theologies. The elder Adams is a Unitarian. The younger is a Calvinist.

Thursday, January 17, 2019

Kidd on GW's Faith

From this post in 2017, Thomas Kidd examines "Ron Chernow’s extraordinary 2010 biography of Washington" and makes some observations about George Washington's faith. A taste:
For his own part, Washington’s Anglican faith was moderate and utterly reserved. That is how we should account for Washington’s irregular church attendance and his failure to take communion, Chernow explains. He never liked to make a public show of his own faith. This is also the reason why Chernow doubts that Washington was ever seen praying as depicted in the popular painting “George Washington in Prayer at Valley Forge.”
“The reason to doubt the story’s veracity is not Washington’s lack of faith,” Chernow writes, “but the typically private nature of his devotions.” Chernow’s portrayal of Washington’s near-secretive faith seems quite plausible, although it would still not account for Washington’s strange decision hardly ever to utter or write the name of Jesus Christ in his thousands of surviving letters and public statements.
Yes this is true. In the perhaps 20,000 pages of words that George Washington left us, the name "Jesus Christ" is mentioned only once by name and one other time by example. Both in public addresses written by aides, but given under Washington's hand. In none of Washington's private letters is the name or example of Jesus Christ invoked. Though more generic God words are replete throughout Washington's recorded public and private words.

Sunday, January 06, 2019

What Was Unique About the American Founding and Religion

The American founding had a number of novel things to it. Though it wasn't entirely novel. For instance, the American Revolution wasn't quite as novel as say, the French Revolution which it inspired. On religion (correct me if I am mistaken), every single modern Western European nation state at the time was in some way formally connected to an official Christian sect.

At the state level, America post founding still retained some "state established" churches, which were on their way out.

But at the federal level, there was nothing. George Washington, America's first President, was like many founders, formally/nominally affiliated with the Anglican then Episcopalian Church. "The Church of England" against which America had then separated.

When Washington spoke to the different religious "factions," he had a method of seeming to be all things to all people. For instance, recent events remind of us of Islam's place in the mind of America's founders. With the assistance of his Secretary of State, Thomas Jefferson, Washington delivered remarks to Morocco where he claimed to "adore" (his word) the same God as the Muslim leader.

Now, one could write this off as something "diplomatic." Perhaps it was. It's certainly the kind of sentiment today that leaders in pluralistic societies use. But back then, before America, every single head of state was connected to an official church. And it was expected that in their public utterances, they would endorse that particular brand of faith. Not generic, bridge building, monotheism.

That's something that arguably Washington and the other early American Presidents invented. And perhaps they were so effective at it because such a sentiment mirrored their privately held religious convictions which focused more on commonly held doctrines of monotheism and virtue, while if not downplaying, outright removing other more divisive sectarian "doctrine."

Friday, January 04, 2019

Jefferson's Koran

So Rep.-elect Rashida Tlaib (D-Mich.) will be sworn in using Thomas Jefferson's copy of the Koran. There is a myth going around that Jefferson owned a copy of that book because he wanted to better understand the enemy.

The problem with this claim is that it is not true. I've studied the Founding record meticulously and found NO evidence that Jefferson was interested in the Koran because he saw Islam as an ENEMY faith or to better understand a threat.

That's not to say that certain Islamic forces didn't cause threats and other problems for Jefferson and other Founders. The best someone like Robert Spencer could argue is that the Founding Fathers were naive for NOT concluding Islam qua Islam was a threat.

Read the Treaty of Tripoli where the Founders conceded the American government was not in any sense founded on the Christian religion and as such they sought peaceful relations with Muslims.

Jefferson, J. Adams, Franklin and Washington all thought Jews, Christians and Muslims worshipped the same God. The Founding Fathers arguably saw Roman Catholicism as more of a threat than Islam. And they were far more concerned with the persecution and bloodshed that in-fights among Christian sects had been causing than from Islam.