Sunday, September 30, 2012

Ye Will Say I Am No Christian

Bruce Braden is the editor of “Ye Will Say I Am No Christian: The Thomas Jefferson/John Adams Correspondence on Religion, Morals, and Values." He posted a video where he reads Adams' letter to Jefferson where Adams claims he wouldn't believe in the Trinity if God Himself told him it were true.

Thursday, September 27, 2012

Rodda on Barton and Jefferson-Scottish Common Sense

David Barton, in "The Jefferson Lies," claimed Thomas Jefferson was imbibed in Scottish Common Sense philosophy (also known as Scottish Common Sense Enlightenment).  Chris Rodda disagrees.  Interestingly, Garry Wills argued something similar (though Wills said David Hume influenced Jefferson and I doubt Barton would admit the "bad" Hume could influence the "good" Jefferson even if it were true).   The recently departed Ronald Hamowy, who was the preeminent expert on the Scottish Enlightenment, disagreed with Wills in this devastating attack.

At least two very important founders, by the way, were unquestionably strongly influenced by SCSE: John Witherspoon and James Wilson.

Saturday, September 22, 2012

Akhil Amar and Justice Thomas

I admit I haven't yet watched this video; but I can't wait to savor it.

Also see these two posts (one and two) by Ilya Somin on whether blacks were part of "We The People."  It's often said that, if you looked at what America's Founders did, "rights" belonged to white propertied Protestant males.  Not exactly (it's complicated).  Viewed through the lens of "states' rights," the states did different things.  Blacks, women, non-Protestants had "rights" in some states, not others.

Justice Thomas' point is interesting.  The Constitution unmoored from the Declaration gives us a pro-slavery Founding.  Read together, we get an anti-slavery Founding.

Thursday, September 20, 2012

Get Well Warren Throckmorton

He had a heart attack.  He's been doing such outstanding work over the past year on the American Founding and religion.

Sunday, September 16, 2012

Akhil Amar on Constitutional Gender Equality

Writing in the Philadelphia Inquirer, he find it in the 14th Amendment.  A taste:
Two hundred and twenty-five years ago this week - right here in Philadelphia, "where it all began" - America's Founding Fathers went public with a proposed Constitution promising more democracy than the world had ever seen. Even so, in September 1787, "We the People" basically meant "We the Men." This year, the fate of this manly constitutional project rests more than ever in the hands of women. 
More women than men will cast votes in November. Just for fun, imagine that women were to vote as a unified bloc. Virtually every election in America at every level of government - both candidate elections and issue elections - would be decided by the female vote. More plausibly, note that in any election in which men are closely divided, the candidate or issue position decisively favored by women will prevail. 
For this remarkable turn of events, we must credit not just the Founding Fathers but also their amending daughters, granddaughters, and so on, who have rewritten the Constitution in both word and deed. 
The gender-bending of the Philadelphia Constitution began in earnest after the Civil War with the 14th Amendment, which promises "equal protection" to all - not merely racial equal protection but more generally. The amendment also proudly affirms that all homegrown Americans are "born" with equal civil rights. Just as a child born black or brown enjoys the same civil rights as a child born white, so, too, those born female are equal in civil rights to those born male.

What does the term "equal protection" mean?  I've seen some impressive originalist scholarship that argues both the due process and equal protection clauses were meant to be entirely procedural, not substantive.  That is, properly understood, there is not even a substantive right to be free from government racial discrimination under "equal protection" principles.  Rather, it's a command to the executive branch of government that no individual or group of individuals be excluded from whatever general laws are on the books.  And as written, these clauses do speak of "persons" and "citizens" and don't even mention race.   To use a reduction ad absurdum, even the worst individuals you could imagine -- rapists and pedophiles -- are entitled to procedural equal protection.  We could imagine someone accused of these horrific crimes being singled out by a mob and the police standing by and letting the mob have their way with them.  That would be a denial of equal protection and due process rights to rapists and pedophiles.

(And yes, something like that was done to blacks in Jim Crow, although in a much more sophisticated way; they got access to police calls and their days in court, where the arresting officers and judges on the bench were sympathetic to or sometimes the same hooded Klansmen who violated them; hence no real access to an impartial police force or day in court.)

Yet, there clearly was some substantive right to equality the 14th Amendment intended for racial groups.  And arguably all substantive rights -- including equality rights -- were meant to derive from the privileges or immunities clause.

That's one narrative I think entirely defensible.  I also think originalist scholars can convincingly argue for substantive rights to liberty and equality through the due process and equal protection clauses, respectively (see for instance Timothy Sandefur's work on substantive due process).

Yet, if you gut the privileges or immunities clause (ala Slaughterhouses) those substantive liberty and equality rights will pop up elsewhere as in a game of whack a mole.  And the mole will pop its head from those parts of the text most similar to the rights being asserted.  Hence a substantive right to "liberty" where the term "liberty" appears in the due process clause and a substantive right to "equality" where the term "equal" appears in the "equal protection" clause.

What I am getting at:  The text of the Constitution can do a lot of things and I consider myself a textualist, meaning, viable constitutional law must read the text for what it is in a logically coherent way.  But the text isn't enough; we need more.  We need some kind of theory to undergird and supplement it.  Hence, Akhil Amar's work on an "Unwritten Constitution."

Myron Magnet on William Livingston

Here.  William Livingston is one of those 2nd tier Founders about whom we should be more aware.

Thursday, September 13, 2012

Akhil Amar Guest Blogging At Volokh

Law law professor Akhil Amar is guest blogging at The Volokh Conspiracy.  And he's taking on the Conspirators.  He is arguably America's preeminent professor of constitutional law; therefore, his stuff is worth a careful read.

Monday, September 10, 2012

The Democrats' Platform

Guest post by Michael Meyerson for American Creation here.

Ronald Hamowy, RIP

Ron edited Cato's Encyclopedia of Libertarianism for which I was honored to write the entry on George Washington. He wonderfully edited my piece making it read much better than as originally written. Ron was an expert on, among other things, the Scottish Enlightenment. You can read more about him here.

Thursday, September 06, 2012

Another Evangelical Calls Out David Barton

Warren Throckmorton tells us about it here.  A taste from the original piece:
I am afraid I must put this shortly. It is well nigh impossible to cram four years of reading and discussion into a paragraph. I had been deluded by historical exaggerations about a “Christian nation” and a “Biblically-based” Founding. The truth was much messier: in colonial America, the Enlightenment skepticism met with Dissenter Protestantism (plus magisterial Anglicanism and even some Catholicism thrown in). Various liberalisms embodied in the moderate Whig and radical Jacobin strutted about the world revolutionary stage. From a larger, longer perspective: what is a “Christian nation” anyway and how does it apply to America? Wasn’t the Holy Roman Empire a Christian nation which was blessed by the undivided church and in constant communion with the Pope? What about Constantinople and the Byzantine Empire or Canterbury and England, in which the monarch heads the church? The “Christian principle of religious freedom” can be more accurately described as the “Baptist principle of religious freedom.” It was a more recent development that found wide acceptance in a pluralistic confederation of states. Thinkers like Richard John Neuhaus thought America could be Christian, but only in a certain sense. This is left open for debate.

Tuesday, September 04, 2012

David Barton’s U.S. Capitol Tour: Did Congress Print the First Bible in English for the Use of Schools?

By Warren Throckmorton here.

Endowed By Our Creator

By Michael I. Meyerson.  I have the book.  From what I've read of it, it's good.  You may read more about it here.