Friday, June 18, 2021

What Oath (if any) did Jacob Henry take in 1809?

Check out this new article by Seth Tillman entitled, "What Oath (if any) did Jacob Henry take in 1809?: The Problem of Conceptual Confusion between State Religious Tests and Religious Test Oaths."

This is from the abstract:

The story of Jacob Henry is one which has been told and retold. It has been long celebrated, as a triumph of light over darkness, and of the progress of then-emerging American religious tolerance over older traditions of parochialism and intolerance. Our story starts with Article 32 of the 1776 North Carolina Constitution. That provision imposed a religious test:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

Article 32’s religious test extended to four categories of persons. It extended to atheists—those “who . . . deny the being of God.” It extended to non-Protestants—those “who . . . deny . . . the truth of the Protestant religion.” It extended to non-Christians—those “who . . . deny . . . the divine authority either of the Old or New Testaments.” Lastly, it extended to an amorphous category of persons—those “who . . . hold religious principles incompatible with the freedom and safety of the State.” A person falling into any of these four categories was not “capable of holding any office or place of trust or profit in the civil department within this State.” The meaning and scope of Article 32’s language has been a matter of continuing debate.

In 1809, Jacob Henry was elected to a second, consecutive annual term in the House of Commons, ie, North Carolina’s lower legislative house, as one of two members for Carteret County. According to the standard narrative, Henry was Jewish. Legislative elections were held during August 1809. The returning officers reported those persons who had been duly elected, that is, the members-elect. On November 20, 1809, the House of Commons convened in Raleigh, North Carolina, and the members-elect qualified by taking their oaths. On December 5, 1809, Hugh C. Mills, one of two members for Rockingham County, put forward a motion to declare Henry’s seat vacant based (at least in part) on Article 32 of the 1776 North Carolina Constitution. The next day, on December 6, 1809, Henry gave an impassioned speech in his own defense before the full House. Many ascribe the authorship of Henry’s speech, in whole or in part, to Judge Taylor, a Republican. Henry’s speech made no express reference to his being Jewish, and his speech did not use the words “Jewish,” “Judaism,” or “Jews.” Afterwards, Mills attempted to introduce evidence to support his allegations. But his efforts to do so were immediately thwarted by William Gaston, the single member for the town of New Bern.

Gaston argued that introducing evidence was premature at this stage. In other words, Gaston argued that Mills’s charges were insufficient as a matter of law, and so the introduction of evidence was not necessary. Gaston further argued that if the House determined that an investigation of the facts were necessary, then proceedings should be directed to a select committee or the committee of the whole. Additionally, Gaston made the argument that Article 32 reached only “offices,” not members of the legislature—and so it had no application to Jacob Henry. Gaston’s lengthy speech was followed by extensive debate among more than a few members of the Commons. Subsequently, the matter was redirected to the House’s Committee of the Whole, which heard testimony from witnesses. The committee recommended that the House reject the motion, and the House voted in favor of the committee’s recommendation. Henry kept his seat. Some reports indicate that the Commons voted unanimously to reject Mills’s motion.

The Jacob Henry literature has been primarily concerned with two questions. First, why did the members of the North Carolina House of Commons on December 6, 1809 vote against Mills’s motion to vacate Henry’s seat? That is, what motivated the members—in the sense of politics, partisanship, and personalities—to vote as they did? Likewise, what constitutional or other legal or policy rationales (if any) did the members put forward to explain their votes? A surprising number of very different views have been put forward. Second, what did Henry’s victory against purported religious intolerance mean to his contemporaries and later generations?

This Article addresses a different set of (albeit related) questions. The focus of this Article is not on what happened on December 5 and 6, 1809 and why the members of the North Carolina House of Commons voted as they did. Instead, the focus of this Article is on what happened on November 20, 1809—in other words, what legislative oath (if any) did Jacob Henry actually take? Second, how have later historians and legal commentators described and distorted our understanding of the events of November 20, 1809? And, third, why did the December 6, 1809 debate on the motion veer so far from any substantial discussion of the actual underlying events of November 20, 1809? Admittedly, this third question cannot be answered with clarity.

Saturday, June 05, 2021

Reopening Muslim Minds: A Return to Reason, Freedom, and Tolerance

This isn't entirely related to the American Founding and religion; though readers will relate to the language and terminology used here. From the article:

Mustafa Akyol, in his excellent new book Reopening Muslim Minds: A Return to Reason, Freedom, and Tolerance (St. Martin’s Press, 2021), speaks into this context. Having the privilege of meeting Akyol two years ago at a lecture he gave here in New England, I immediately felt a kinship with him by way of his work toward greater integration of faith and reason among Muslims, paralleling my own among Christians. We also connected over our mutual desire for better Muslim-Christian relations. In his newest book, Akyol states his intention to work toward an Islamic enlightenment that draws on Muslim tradition rather than Western values. For instance, while the initial centuries of Islam were intellectually diverse and vibrant, this was eventually replaced with a focus on jurisprudence or a legal culture, on dos and don’ts. (p. 12) Meanwhile, theistic rationalism, seeking harmony between faith and reason was surpassed by fideism, where faith does not need rational justification. (p. 25) Akyol summarizes, “The puzzle is this: When God tells us to ‘do this,’ or ‘don’t do this,’ does He educate us about objective values in the world that we could also understand on our own? Or, does He merely give us bare commandments whose very value comes from nothing but God’s own authority?” (p. 30) While the Mutazilites took the view that faith was largely compatible with free will and believed all humans have a natural ethical compass, the Asharites argued in favor of a more pre-deterministic view of the world, with which they eventually won the debate. Akyol offers helpful suggestions for Muslims to recover the integrated view of faith and reason.

Monday, May 31, 2021

Tench Coxe on Article VI, Clause 3 of the US Constitution

 Check it out here.

No religious test is ever to be required of any officer or servant of the United States. The people may employ any wise or good citizen in the execution of the various duties of the government. In Italy, Spain, and Portugal, no protestant can hold a public trust. In England every Presbyterian, and other person not of their established church, is incapable of holding an office. No such impious deprivation of the rights of men can take place under the new foederal constitution. The convention has the honour of proposing the first public act, by which any nation has ever divested itself of a power, every exercise of which is a trespass on the Majesty of Heaven. 
No qualification in monied or landed property is required by the proposed plan; nor does it admit any preference from the preposterous distinctions of birth and rank. The office of the President, a Senator, and a Representative, and every other place of power or profit, are therefore open to the whole body of the people. Any wise, informed and upright man, be his property what it may, can exercise the trusts and powers of the state, provided he possesses the moral, religious and political virtues which are necessary to secure the confidence of his fellow citizens.

Sunday, April 11, 2021

States of Nature and the American Founding

See this article entitled "Natural Rights, Natural Law, and American Constitutions" by law professor Philip Hamburger for a comprehensive review on the subject. Hamburger is an ace with the primary sources. Though, when dealing with scholars like him who have their facts straight, it's with the "putting them together and analyzing them" part where the disagreements are apt to occur.

And indeed, while there are plenty of contentious assertions, arguments and analyses in Hamburger's article, it also serves as a valuable resource of primary sources. One of the things I find fascinating about the "state of nature"/social contract and rights teachings is that the pulpit -- "election sermons" -- was a chief vector for transmitting these teachings.

It's ironic because the "state of nature"/social contract and rights is not a traditional biblical or Christian concept. But the patriotic preachers embraced it.

As Hamburger notes on page 12/917 of his article:
Election sermons contained a wealth of rather conventional political theory. One Connecticut minister began an election sermon on divine government by explaining that civil government had been "so often, and so well treated of upon such Occasions as this; that it is needless to add any thing ...on this Subject." From another point of view, the polemical Dean of Gloucester worried about the influence of American ministers and complained of "their preferring and inculcating principles of Mr. Lock instead of the Gospel, relative to the original titles of civil governors."

Before I get deeper in Hamburger's research let me note a few things his article doesn't. First the concept of "the state of nature"/social contract and rights ties together three big philosophers of "modernity": Hobbes, Locke, and Rousseau. America followed Locke, not the other two.

However, the three philosophers are connected by a shared common philosophical ground (what Leo Strauss termed the "low but solid ground" of modernity). For our purpose, Hobbes initiated the concept, however even he wasn't the first to do so. Rather, we can trace it back to William of Ockham. 

(One critique of that "common ground" -- and this includes Ockham who predated the other three -- is the concept of the "state of nature" seems philosophically nominalist; but that's a discussion for another day.)

But again, America followed Locke's understanding of the concept. On pages 12-13/918-19, Hamburger summarizes America's understanding of Locke's teachings:  

... On the assumption that the state of nature was a condition in which all humans were equally free from subjugation to one another-in which individuals had no common superior, Americans understood natural liberty to be the freedom of individuals in the state of nature. That is, they understood natural liberty to be the freedom an individual could enjoy as a human in the absence of government. A natural right was simply a portion of this undifferentiated natural liberty. Accordingly, Americans often broadly categorized natural rights as consisting of life, liberty and property, or life, liberty and the pursuit of happiness. Americans could, however, be more specific. They repeatedly said that the free exercise of religion or freedom of conscience was a natural right. They also talked of the freedom of speech and press as a natural right. ...

See also JOHN LOCKE, TWO TREATISES OF GOVERNMENT 322 (Peter Laslett ed., 2d ed. 1967) (bk. UI, ch. VI, § 54) as cited in Hamburger's article on pages 13/918. 

The bottom line is that a government was formed via social contract where because of "inconveniences" in the "state of nature," society banded together.

What I find of interest in Hamburger's article is that it shows where Americans disagreed on exactly how to apply Locke's concept. I find it of interest, and perhaps this relates to why Americans disagreed here, because I don't fully yet understand it: American Lockeans disagreed on what portion of natural liberty, if any, was surrendered when individuals came out of the state of nature and formed a social contract?

As Prof. Hamburger writes on pages 41-42/946-47 of his article:

... Jefferson similarly denied the commonplace that individuals in the state of nature sacrificed some of their natural liberty to government to preserve the rest: "No man has a natural right to commit aggression on the equal rights of another .... When the laws have declared and enforced all this, they have fulfilled their functions; and the idea is quite unfounded, that on entering into society we give up any natural right." Letter from Thomas Jefferson to F.W. Gilmer (June 7, 1816), 11 THE WORKS OF THOMAS JEFFERSON, at 534 (Paul L. Ford ed., 1888) ....

The truism that men sacrificed some of their liberty to government rested upon the assumption, frequently made explicit, that the liberty given up was the physical freedom or power to do as one pleased without subjugation to others. [Nathaniel] Chipman and Jefferson, however, incongruously discussed the formation of government in terms of the other, less expansive type of natural freedom-the noninjurious or moral liberty defined by natural law. Having done this, they had no difficulty denying that any natural right was sacrificed. They thereby attempted to confute a traditional maxim of political theory by misstating one of its well-known presuppositions. Of course, it was Jefferson who took this refutation and gave it an unusually dramatic and extreme formulation. 

And then on page 53/958 Prof. Hamburger writes: 

Most dramatically, the account of natural liberty presented here can help us understand what might otherwise appear to be contradictions or paradoxes in constitutional law. For example, Jefferson said both that natural rights were sacrificed to civil society and that no natural rights were sacrificed to civil society.135 Theophilus Parsons similarly seemed to contradict himself. ...

Insofar as I understand his argument, Hamburger argues that the consensus of Americans believed, coming out of the state of nature where they possessed natural liberty, they surrendered their natural rights for civil rights, as per the social contract. This is also what East Coast Straussians like Walter Berns (cited elsewhere in Hamburger's article) have argued. Others like Thomas Jefferson and some other less "key" (well known) Founders (like Chipman and Parsons) believed people surrendered none of their natural rights when forming civil society. 

But they were the outliers. (By the way, I'm not convinced Hamburger's analysis is correct, here.)

Saturday, March 20, 2021

Hebrew Republic and Distributivism

The other day on my social media, a traditional orthodox Christian friend, sympathetic towards laissez faire economic policy questioned whether there was in fact a "biblical" case for "redistributionist" oriented economic policy. I think in short there is "biblical case" for all sorts of things under sun, but what I responded with below relates to the same history that interests this blog. My comment:

Well, a nuanced argument [that the Bible, properly interpreted teaches economic redistribution] does exist; though admittedly as a libertarian, I don't find it convincing. And I question whether it's good theology.

But people who think that collectivist thought jumped right from Plato to Rousseau to Marx are ignorant of the biblical sources and arguments for redistribution. I don't think this argument prevailed in America (Madison's vision that rejected the argument did).

But it was noteworthy and could be "cherry picked" if one wanted a biblical and originalist case for it. It's one of the narratives of Eric Nelson's book [The Hebrew Republic]. The "republicans" v. the "liberals." Madison's vision was "liberal." The "republican" position was that of biblical redistributionism. It's the same folks who argued the Ancient Israelites had a "republic" also imputed the concept of "Agrarian laws" to the OT Jubilee and argued it was applicable to the then era (17th century onwards). 

Sunday, February 28, 2021

William Livingston's Political Philosophy

This article by Myron Magnet details the political philosophy of American founder William Livingston. I may have reproduced it before (from 2012); but I read it again and the following passage stuck out at me.

At its heart, the college debate was political, and it led Livingston to set forth his deepest political beliefs, the first public exposition of Lockean social-contract theory in the colonies, complete with Locke’s insistence on the right to resist and depose a monarch. Journalistic and unsystematic, his half-dozen essays on the subject add up to a coherent argument that provided the Revolution’s key justification. Untangled, it runs like this.

Before there was any government, nature made men free and equal and endowed them with rights. Yet people voluntarily “consented to resign that Freedom and Equality” and put themselves under “the Government and Controul of” a ruler, as “a Remedy for the Inconveniences that sprang from a State of Nature, in which . . . the Weak were a perpetual Prey to the Powerful.” To “preserve to every Individual, the undisturbed Enjoyment of his Acquisitions, and the Security of his Person,” men “entered into Society” and appointed magistrates or kings “to decide Controversies,” investing them “with the total Power of all the Constituents, subject to the Rules and Regulations agreed upon by the original Compact, for the Good of the Community.”

This was a choice of the lesser of two evils, for “Government, at best, is a Burden, tho’ a necessary one. Had Man been wise from his Creation, he . . . might have enjoyed the gifts of a liberal Nature, unmolested, unrestrained. It is the Depravity of Mankind that has necessarily introduced Government; and so great is this Depravity, that without it, we could scarcely subsist,” wrote Livingston, more strongly influenced by Thomas Hobbes’s vision of the State of Nature as a war of all against all than even Locke was. To guard against man’s inborn tendency to invade the “Person or Fortune” of his neighbor, he wrote, echoing Hobbes’s understanding of psychology, we “have ceded a Part of our original Freedom, to secure to us the rest.”


Some scholarly folks have noted that the philosophers' "state of nature"/social contract and rights theory is kind of ridiculous. 

Perhaps it was, but it was also fundamental to the American Revolution (more the Revolution than writing and ratifying of the US Constitution). 

I admit that this theory has nothing to do with the Bible or classical political philosophy. However, the interesting part of the story is many ministers bought into this theory, incorporated it into the pulpit in order to convince populations of American "Christians" to go along with it.

Sunday, February 07, 2021

AU: "The Faith of Our (Founding) Father: George Washington Wasn't As Pious As Christian Nationalists Would Have You Believe"

From Rob Boston. Check it out here. A taste:

While in private life, Washington attended church services about once a month. As president, he attended more often, and while he undoubtedly believed in faith as an important component of public virtue, nothing in his personal behavior indicates a high degree of attachment to conservative Christian dogma. He had a habit of leaving services before communion, a practice that angered some pastors.

Nor was Washington one to spend Sundays in quiet prayer and contemplation. Accounts of enslaved people from Mount Vernon plantation speak of frivolity on Sunday, with drinking and card playing being the norm.

Claude Blanchard, a French military officer who dined with Washington, later wrote in his journal that he was surprised there was no formal grace. Blanchard noted, “We remained a very long time at the table. They drank 12 or 15 healths with Madeira wine. In the course of the meal beer was served and grum, rum mixed with water.”

When Washington died in December 1799, he broke with custom of the day and did not call for a minister to be present at his bedside. Historian Joseph Ellis observed, “He died as a Roman Stoic rather than a Christian saint.”

Tuesday, January 19, 2021

Andrew Seidel: "Leave God Out of the Presidential Oath"

This is from Andrew Seidel of the Freedom From Religion Foundation. A taste:

The spoken words have been as deliberate as the written words. We know that Washington didn’t add the words to the oath. Edward Lengel, former editor-in-chief of the Papers of George Washington project, concluded, “any attempt to prove that Washington added the words ‘so help me God’ requires mental gymnastics of the sort that would do credit to the finest artist of the flying trapeze.”

Like so much U.S. mythology, including Rip Van Winkle, Ichabod Crane, and the Headless Horseman, we owe this Washingtonian myth to Washington Irving.

American Creation's Ray Soller has done a great deal of very important detective work over the years on this issue.

Sunday, January 03, 2021

John Milton and Isaac Newton: From Arianism to Socinianism

I need to put this book on my "to read" list. 

"In a book in progress, I will argue that Milton is an early adopter of a set of positions characteristic of the Newton circle of the late seventeenth century. Shared Arian belief in a preexistent Son precluded full agreement with Socinians, who believed that the Son did not predate the birth of Jesus. Nevertheless, Milton and Newton shared Socinian and quasi-Socinian positions, for example, an emphasis on reason and an attack on metaphysics in biblical interpretation, an insistence on toleration, opposition to infant baptism, and a focus on the exemplary character of the Christ’s passion as opposed to stressing the crucifixion as atonement. Complicating reliance on categories and labels, the boundaries between Arians and Socinians in the seventeenth century were sufficiently fluid that one of Newton’s circle, Hopton Haynes, described Newton as Socinian, while another, William Whiston, labeled him as Arian. Frank Manuel, a leading scholar of Newton and religion, describes Newton as some Milton scholars have described Milton, as Arian in theology and Socinian in religion."

This was often the kind of "Christianity" that elite philosophical types in the American founding lauded. Or at least they lauded Milton and Newton (and Locke, Clarke and others).