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?

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.

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.”

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."

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:

• Warren Throckmorton and Michael Coulter, Getting Jefferson Right: Fact Checking Claims about our Third President 
• Daniel Dreisbach, Reading the Bible with the Founding Fathers [see his guest post here at the EH blog, and the TGC review by Gregg Frazer]
• John Fea, Was America Founded as a Christian Nation? A Historian Introduction
• Gregg L. Frazer, The Religious Beliefs of America’s Founders: Reason, Revelation, and Revolution [see Thomas Kidd’s review at Books & Culture]
• Thomas Kidd, God of Liberty: A History of the American Revolution

For religious biographies of the Founding Fathers, you could start with:

• Thomas Kidd, Patrick Henry: First Among Patriots
• Thomas Kidd, Benjamin Franklin: The Religious Life of a Founding Father

For introductory guides on how to do responsible history—that is, how not to do history like David Barton—you could start with

• John Fea, Why Study History?
• Carl Trueman, Histories and Fallacies
• Nathan Finn, History: A Student’s Guide
• Jay Green, Christian Historiography [see my review at Books & Culture]

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.

....

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

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) http://oll.libertyfund.org/titles/locke-the-works-vol-6-the-reasonableness-of-christianity

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."  

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:

....

Louis Sirico: "Benjamin Franklin, Prayer, and the Constitutional Convention: History as Narrative"

Apparently an entire law review/legal writing article was written on the Ben Franklin, prayer myth. See here. A taste:

This is an article about history and false history and how both shape our laws and our cultural traditions. The article illustrates its point by focusing on a single event at the Constitutional Convention of 1787: a failed proposal by Benjamin Franklin that the Convention hire a chaplain and begin each day with a prayer.

The story of Franklin’s proposal lives on in popular and political history. ...

“The Convention, except three or four persons, thought Prayers unnecessary.”

I put that quotation from Ben Franklin in the title. Franklin's words explaining what happened after he made a call to prayer at the Constitutional Convention.

See Warren Throckmorton for the latest Christian Nationalist misstep on it.

George Sarris on Universalism

I've done much study on both theological unitarianism and universalism as it relates to the era of the American Founding. Notable divines, both unitarian and trinitarian, influenced notable American Founders, again both unitarian and trinitarian. As the trinitarian Benjamin Rush put it:

At Dr. Finley’s school, I was more fully instructed in those principles by means of the Westminster catechism. I retained them without any affection for them until about the year 1780. I then read for the first time Fletcher’s controversy with the Calvinists, in favor of the universality of the atonement. This prepared my mind to admit the doctrine of universal salvation, which was then preached in our city by the Rev. Mr. Winchester. It embraced and reconciled my ancient Calvinistical and my newly adopted Arminian principles. From that time I have never doubted upon the subject of the salvation of all men. My conviction of the truth of this doctrine was derived from reading the works of Stonehouse, Seigvolk, White, Chauncey and Winchester, and afterwards from an attentive perusal of the Scriptures. I always admitted with each of those authors future punishment, and of long duration.

Rush listed most of the "big names" who influenced the universalism of the American Founding, but left one big one out: John Murray.

Today, George Sarris operates in that tradition. He has a book out on the matter entitled "Heaven's Doors: Wider Than You Ever Believed!" Theologians come to the universalist conclusion by using a combination of reason and revelation. What's distinguished about the more traditional universalism is the extent to which it takes the Bible seriously and seeks to justify its claims with biblical texts. We see this in Rush's above quotation.

Likewise, Sarris both believes in the inerrancy of scripture (in its original languages) and is a convinced universalist. And he can answer every single claim that is brought against him.

Something else that distinguishes the classical universalists is their belief in the seriousness of future punishment. The idea is there is a future state of rewards and punishments. And for the unsaved, they may be punished for ages before they are restored.

See the clip of the interview below with Eric Metaxas, who seems to have a great deal of respect for Sarris and his position. Listen till the end, whereas Sarris is a convinced universalist, Metaxas is hopeful that it is true. He even says he thinks all Christians hope this is true. I suspect most of them do. The decent ones. The ones who don't -- Pastors Sam Anderson, Fred Phelps -- make the religion seem like something not worth believing in. (In my opinion.)

Gienapp Strikes Back

At Randy Barnett that is. From Jonathan Gienapp here. A taste:

For even if he thinks I get originalism right, Professor Barnett otherwise finds most of my essay’s claims mistaken, particularly those centered on the relationship between originalist method and historical interpretation. In my initial post, I primarily sought to acquaint historians with the current state of originalism and to explain why they ought to care about these debates. Accordingly, my discussion of historical method was relatively brief, in part, because I hoped historians would already grasp a good bit of what I was suggesting, but also since I had already plotted out much of the methodological relationship between historical practice and Originalism 2.0 in a prior published article in the Fordham Law Review, one to which I directed interested readers in the footnotes.[2] In order to answer Professor Barnett’s critiques, however, I will need to change course—from explaining to historians what originalists do, to explaining to originalists what historians do. For it is plain that this is the primary area of confusion: much of what Professor Barnett thinks I was getting at in describing what historians do was not in fact what I was getting at. (Accordingly, much of what follows draws upon my aforementioned Fordham article and readers interested in a more detailed sketch of some of the arguments presented here are encouraged to consult it.)

To move forward, then, it is helpful to return to the core claim of my initial essay: that historians’ methods are needed every bit as much to discover the original public meaning of the Constitution (the target of Originalism 2.0) as to discover any other kind of original constitutional meaning (the various targets of Originalism 1.0). I have no doubt that certain kinds of original meaning are unknowable. I grasp that many parts of the Constitution are open textured and thus not easily subject to historical analysis. And I appreciate that Originalism 2.0’s favored figure—the so-called average Founding-era reader—is a highly problematic construct, one that Jack Rakove has skillfully critiqued in “Joe the Ploughman Reads the Constitution.”[3] ...

Was Justice Scalia an Originalist?

I think Scalia would consider himself one. But as I understand his theory, "originalism" was more of a third rung in his list of priorities. The higher two rungs were "textualism" and "democratic theory."

And certain things about the way in which courts operated during the time of the American Founding were arguably inconsistent with such. There is huge debate among originalists on the doctrine of natural rights, unenumerated rights, the Declaration of Independence receiving status as "law" for the purpose of constitutional interpretation. Scalia was with the legal positivists in this respect.

One thing American courts did from the time of the American Founding -- even though the dicta in Erie v. Tompkins almost shattered the metaphysical justification for such -- is look to the "brooding omnipresence in the sky" as they decided cases and controversies. State courts deciding common law matters did this more explicitly according to the theory than the Supreme Court has done.

But arguably all courts did this.

Yes the Supreme Court has arguably always exercised a sort of "common law" power of establishing rules of law as they decide cases and controversies and then following those rules under the doctrine of stare decisis. See this article by a notable law professor for more detail. Whether they call it "living constitutionalism" or looking to the "brooding omnipresence in the sky" and then "discovering" the answer, the results are the same.

I think Scalia's response was, for the Supreme Court to do such is illegitimate in the age of "democratic theory." But again, it's not some new practice. Though post-Erie, the legal positivists who think it proper for judges to continue to do this needed new grounds to justify the practice. Hence "living constitution" as opposed to "brooding omnipresence."

But where would Justice Scalia's theory take us?

I think Scalia has gotten a bad rap by his left of center critics when they argue he was a results oriented justice who believed in imposing his personal preferences on the court. Certain biting and sarcastic statements taken out of context from his dicta support such charges. Also Scalia didn't always perfectly live up to his principles. In Boy Scouts v. Dale he supported the "penumbral" reasoning of the case to avoid a "bad" result.

But on abortion, an issue dear to the hearts of doctrinaire socially conservative Roman Catholics (what Scalia was personally) he made it clear if the states want to permit abortion on demand, they could do such. It's state legislatures who should be deciding this. On the issue of a woman's right to have an abortion as a "constitutional right," analogize it to freedom of speech.  Such is explicitly in the text of the Constitution. The right to abortion is not. If it were, presumably Scalia would hold there is a "constitutional right" to have an abortion, as there is with freedom of speech.

One reason why Scalia may not have been perfectly consistent in the way in which he applied his theory is that in the absence of nine Justice Scalia clones on the Court, you have to get other justices to join your opinion (and vice versa). Always demanding ideological purity from one's peers would mean always writing dissenting, concurring or plurality opinions (at least on those hot button politicized cases that grab our attention).

But the ironic results of Scalia's judicial utopia would have American courts look more European. It's ironic because Scalia has taken a position against the citing of non-American law, except of course the British common law. But such would render American courts to look more like the non-British common law European nations. In these "code law," that is non-common law nations (France, Spain, Germany, Italy, etc.) it's clear courts play a subservient role to the legislatures. There is no stare decisis in such systems. They have a democratically enacted text and if the texts aren't clear enough such that courts have to "fill in a gap," such has no precedential value as a "rule of law."

There is a position further seemingly more extreme than Scalia's held by law professor Lino Graglia that argues Marbury v. Madison was the first "activist" court decision. Therefore, the power of judicial review should be taken away from American courts. I'm not sure where Scalia exactly stood on this. A law professor of mine told me (hearsay) that at some regalia, Scalia told the group he would likewise overrule Marbury. On the other hand, he may have been convinced by the scholarship of Philip Hamburger that demonstrates Marbury's originalist bona fides.

But just how "conservative" is Graglia's position? It's the identical position of left of center law professor Jeremy Waldron, who supports hate speech laws. (Canada, Australia and most of Europe have them.) And as noted, it would render America's judicial system into something that looks closer to the current European "civil law" nations.

Jonathan Gienapp on History and Originalism

Check it out here. A taste:

1. Originalism 1.0: Doing History

Originalists’ retreat from history was not pre-ordained. Indeed, initially, to do originalism was to know history—at least in theory. Originalism first emerged in the 1970s and 1980s as a conservative response to the perceived activism and abuses of the progressive Warren and Burger Supreme Courts. Those on the political right complained that, under the auspices of a “living Constitution,” judges were substituting their own progressive preferences in place of what the Constitution actually licensed. In so doing, judges, rather than dutifully following the Constitution, were authoring it anew, an activity that subverted the foundational relationship of constitutionalism—that those in power are subject to the Constitution and not the other way around. If justices were to be constrained from legislating from the bench, then they had to be stripped of their interpretive license. And the only way to do that, the thinking went, was to undermine the living Constitution. The document’s meaning could not evolve with the times; barring formal amendments emanating from the sovereign people, its meaning had to remain fixed and constant over time. Combined, these theoretical presuppositions thus mandated that the Constitution’s operative meaning had to be its original meaning. And those who endorsed this constitutional vision began calling themselves originalists.[3]

Privileging original meaning was, thus, at its inception, driven by presentist aims. The theory’s main agenda was to recalibrate how judges, lawyers, and citizens related to the Constitution in the present. But no matter the primary goals, the theory necessarily required a methodological corollary; it was one thing to defend the notion that original meaning ought to constrain contemporary judicial behavior, it was quite another to explain how a committed interpreter might locate such meaning in the first place. Only in identifying original meaning credibly could originalists advance the second and altogether more important aspect of their agenda, one that directly implicated historical practice. For, on its face, recovering something like original constitutional meaning would seemingly require doing history.

Blog Commentary From a Regular Reader of American Creation

Indeed, a long time reader. It's a bit off the wall. Check it out here. A taste:

In light of the systematized Christian system described by Calvin, the founding fathers had an excellent blueprint to establish a nation. The founders clearly made some mistakes in forming this country; one being the way they setup freedom of conscience. ... Unchecked belief in idolatry like the founders allowed in this country was suicide and today is the proof of their error. 

One of the main founders was James Madison. His understanding of religion and the state was different and he rejected Reformation principles on the subject. Madison's Notes preparing his Memorial and Remonstrance is filled with incoherency. 

[...]

An unbeliever could make the case Madison was no Christian at all with perfidious statements like these. Another founding father, John Adams was a definite Unitarian, who denied parts of the bible, and was ignorant about the canon of scripture. Today, Adams would be a liberal bigot, which is most of the [D]emocratic party. However, for Madison to even bring these ideas up is troubling. At least Bishop Meade believed he was a real Christian. I'm not entirely convinced to take his word for it.

Note: Links to Madison's Notes on the Memorial and Remonstrance added by me. 

Geoff Stone, Sexing the Constitution at Volokh

Geoff Stone has in a five part series blogged about his new book at the Volokh Conspiracy. This is the introduction by Eugene Volokh followed by parts One, Two, Three, Four and Five. Below is an excerpt from Eugene's introduction that reproduces the publisher's summary:

University of Chicago Professor Geoffrey Stone — one of the nation’s leading liberal constitutional scholars — is guest-blogging this week about his new book, “Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.” Here’s an excerpt from the publisher’s summary:

Beginning his volume in the ancient and medieval worlds, Geoffrey R. Stone demonstrates how the Founding Fathers, deeply influenced by their philosophical forebears, saw traditional Christianity as an impediment to the pursuit of happiness and to the quest for human progress. Acutely aware of the need to separate politics from the divisive forces of religion, the Founding Fathers crafted a constitution that expressed the fundamental values of the Enlightenment.

Although the Second Great Awakening later came to define America through the lens of evangelical Christianity, nineteenth-century Americans continued to view sex as a matter of private concern, so much so that sexual expression and information about contraception circulated freely, abortions before “quickening” remained legal, and prosecutions for sodomy were almost nonexistent.

The late nineteenth and early twentieth centuries reversed such tolerance, however, as charismatic spiritual leaders and barnstorming politicians rejected the values of our nation’s founders. Spurred on by Anthony Comstock, America’s most feared enforcer of morality, new laws were enacted banning pornography, contraception, and abortion, with Comstock proposing that the word “unclean” be branded on the foreheads of homosexuals. Women increasingly lost control of their bodies, and birth control advocates, like Margaret Sanger, were imprisoned for advocating their beliefs. In this new world, abortions were for the first time relegated to dank and dangerous back rooms.

There are a lot of interesting things to learn from Professor Stone. Though, he does engage in a great deal of "law office" history. He's a lawyer after all. 

Andrew Shankman: "What Would the Founding Fathers Make of Originalism? Not much."

Check it out here. A taste:

Andrew Shankman is Associate Professor of History at Rutgers University-Camden. His book Original Intents: Hamilton, Jefferson, Madison, and the American Founding is being published by Oxford University Press in March 2017. [...]

Hamilton had a top-down and elitist conception of an open-ended and living Constitution. Statesmen and lawmakers would draw connections between desired policies and enumerated powers. Once a connection was plausibly established, they could take an action not expressly permitted by the Constitution if the Constitution did not expressly forbid it. Initially, Madison seemed to be arguing for a fixed and rarely changing Constitution. But in 1791 and 1792, as he continued to challenge Hamilton’s policies, his constitutional thinking evolved. He developed a bottom-up and democratic conception of an open-ended and living Constitution.

Kidd's Book on Ben Franklin's Religion

Professor Thomas Kidd has a new book out on Ben Franklin's religion. Read about it here. A taste:

Kidd (History and Religious Studies/Baylor Univ.; American Colonial History: Clashing Cultures and Faiths, 2016, etc.) admirably plies the writings of Franklin to discover the Founding Father’s evolving views on the divine throughout the course of his long life. Such a book matters because of Franklin’s ties to the Enlightenment, his effect on nearly all literate Americans of the mid- to late-18th century, and his life’s undeniable imprint on American politics and society. As the author argues, “Franklin…was a pioneer of…doctrineless, moralized Christianity,” This form of the faith was divorced from orthodoxy, steeped in reason, and geared toward the good conduct of moral citizens.

Yes, I think this gets it about right and is more accurate than saying "Franklin was a Deist."