Sunday, May 13, 2007

I'll see your three and raise you however many you want

My Backstory colleague Jim Rowen is poking fun at three recent actions by GOP politicians. He was nice enough to send me an e-mail saying that they were "all mine..."

He's laughing at JB Van Hollen (for not apparently not realizing that Hezbollah has trademarked the Name of God), Jim Sennsenbrenner for not allowing a congressional hearing to turn into a sit-in, and Tommy Thompson for his remarks about employers firing gay people.

As for JB, his point was that the GOP is less reluctant (than most, but not all Dems) to allow faith an God-talk into their politics and is, in that sense, a party of God. It's not a phrase that I would use because it threatens to elide important distinctions, but I get his point. This curious idea that people's religious worldviews can and should be kept out of politics has been pretty much demolished by legal academics, philosophers and theologians. It is sort of like Newtonian physics - sort of 1912. As for his terminology, I wouldn't think Hezbollah gets to monopolize God.

As for Sensenbrenner, I appreciate that he lacks a certain late night Comedy Channel Colbertian "cooliness" and it is always tough to have to play the grown-up, but why should he allow a congressional hearing to turn into a political stunt. The opposition wanted to talk about something that was not germane in a way that violated the rules.

The there's Tommy. Somebody needs to tell him to stop. I believe he probably did misspeak during the debate. Wisconsin law has prohibited employment discrimination on the basis of sexual orientation since before he became Governor and I can't recall that he made much, if any, effort to repeal that.

But, then on Maher, he made it all worse by saying that non-discrimination is the federal rule. No it's not. Federal law does not prohibit discrimination on the basis of sexual orientation. It is the rule in the state he served as Governor for what seemed to be most of the twentieth century and it is the rule that his government enforced. But somehow he failed to make that point.

He just can't do this. At least not without a new hearing aid.

But, Jim, how about a trio of Al Gore saying that the earth has a fever (whatever the legitimate range of debate on global warming, he is a certified nut), Hilary saying that Obama shouldn't take money from people who don't like her, Obama for suggesting that an historical massacre is like outsourcing or whatever happens to be the last thing that Joe Biden said.

----- Original Message -----


illusory tenant said...

I wouldn't think Hezbollah gets to monopolize God.

Neither does the GOP, which is what makes Van Hollen's remark so risible and, I would imagine, offensive to non-GOP believers.

Apparently, however, Van Hollen said "a Party of God," as opposed to "the Party of God," which leaves the God franchise available to Hezbollah, Democrats, etc.

So it's a wash.

Rick Esenberg said...

As I said, it would not be the way that I would phrase it and I admit that I may have been a bit to JB in recasting his meaning. I am strongly in favor of allowing people to explain how their faith affects their politics. I don't think - to use the one I'm familar with - that Christianity tells one to be a Republican or a Democrat. It raises difficult questions for Republicans (e.g., poverty) and Democrats (e.g., abortion) but it doesn't tell us who is more right. So in that sense "a party of God" is defensible.

But the fact remanins that the Democrats are far more likeley to see politics and relgion as things that don't mix (other than through the invocation of a meaningless civil religion) and to call for a secular public discourse. Lately, there are a number of Democrats (e.g., Jim Wallis) that are critical of that and they have a point.

Of course there are dangers in all that and it has to be done intelligently but I don't think that it is inherently more divisive and offensive than the secular insults these guys throw at one another.

illusory tenant said...

But the fact remains that the Democrats are far more likely to see politics and religion as things that don't mix ...

Good for the Democrats. They certainly often don't mix well. And I believe that was a view shared by many of the Framers of the Constitution. So I suspect those Democrats that take a dim view of pandering to sectarian factions do so mindful of both the letter and the spirit of the Constitution, which can't be a bad thing.

At any rate, Mr. Van Hollen's observation is positively innocuous in light of the following remarkable claim contained in the Texas GOP platform:

Christian Nation – America is a Christian nation, founded on Judeo-Christian principles.

Hopefully the Wisconsin GOP contingent will never come to ratify anything resembling the Texan notion, at least until it discovers U.S. constitutional principles in the Bible (aside from the endorsement and toleration of slavery, of course).

I don't think that it is inherently more divisive and offensive than the secular insults these guys throw at one another.

I don't know about that. Since religion is so tied up with notions of morality, setting one's self up as a better or truer Christian than the next guy, for example, is necessarily an indictment of the quality of the opponent's morals. As Mitt Romney put it,

"I'm convinced that the nation does need to have people of different faiths, but we need to have a person of faith lead the country."

Speaking as a non-believer, I find those sorts of remarks considerably more divisive and offensive than any "secular insult," as you put it, not to mention an offense to the No Religious Test Clause of the Constitution.

Rick Esenberg said...

Iiiusory - to say that the founders thought religion and politics "didn't mix" is both anachronistic and buys into a bit of revisionist history. They certainly believed in religious liberty and the folly of establishment (at least on federal level) but, except for (maybe) Jefferson, there isn't all that much evidence that they thought they were creating the wall of separation or thoroughgoing secularism that has been reflected in much (although not all) or our more contemporary establishment clause jurisprudence.

I don't think you can argue that the debates that we phrase in secular terms are not seen by the participants as attacks on opponents' morality. I don't think you can argue that telling people that their most deeply held convictions - that which informs who they are and how they see the world - are ruled out of public discourse is not, in and of itself, divisive.

I think that there is a some truth to the Texas statement as a cultural and historical matter. It is, of course, wrong to the extent that it suggests that the US is legally a Christian nation and there is something about it that is not quite ... Christian. I think it borders on heresy to the extent that it suggests that the US is uniquely favored by God. Just as, in Christ, there is no gentile and jew, no male and female, there is also no American and French. I appreciate that it doesn't quite say that, but its not what I'd want to write.

Anonymous said...

JB is just a dufus who is in the process of showing us how the Peter Principle works.

And, Rick there is a difference between erudite and pedantic.

James Rowen said...

Hey, Rick; I knew you'd come back with three Dems, but I'll take Gore, and Sens. Clinton and Obama any day of the week in trade.

One of them will be the next president.

Anonymous said...

illusory tenant - Slavery is absent from the constitution and was inherited by England. Lincoln used this in his great debate to convince people that slavery had to be abolished.

The founders of this nation were most certainly Christain, even Jefferson if you've read the declaration of independance.

Rick Esenberg said...


They may well be and I shudder for the future of my country.

Actually, we'd survive Obama or Clinton, but even you have to admit that Gore has left the building. I know you love the trees and all, but Gore's version of global warming is pretty much on the level of 9-11 conspiracists.

illusory tenant said...

[T]o say that the founders thought religion and politics "didn't mix" is both anachronistic and buys into a bit of revisionist history.

Except that isn't what I said. And what I did say doesn't require any revising of history. One need only survey the purported exploits of the recently deceased Mullah Dadullah for support of the observation that religion and politics often don't mix well.

As for the Framers, the No Religious Test Clause is pretty good evidence of their view of the role religion is to play in determining suitability for public office. That is, none. In light of it, Romney's remark reproduced above is frankly appalling, for a variety of reasons, not least of which is his ignorance of the document in which it appears.

The First Amendment is an entirely separate issue, since it restricts government actors after they've gained office. The No Religious Test Clause is both a description of the restricted content of the oaths or affirmations of office and a general admonition: no religious test, ever, for any office.

Speaking of historical revisionism, one of the authors of the Texas GOP platform, David Barton, is an historical revisionist of the lowest order. The source for his "Christian Nation" claim is a bizarre, rambling series of dicta from Church of the Holy Trinity v. United States, 143 U.S. 457 (1892), authored by the all-but-forgotten Justice David Brewer. The dicta themselves are a comically selective exercise in "history" that make William Rehnquist look like Edward Gibbon, and Barton himself look like Hegel.

While Holy Trinity has been cited by the Court dozens of times, mostly for its statements of statutory construction, it's popped up a couple of times in the Establishment Clause cases, where even Justice Scalia called it an "aberration" (Brennan termed it an 'arrogant declaration').

Having studied the issues in considerable depth, I think it's safe to say that charges of historical revisionism are best reserved for the accommodationists, and not the separationists.

illusory tenant said...

The founders of this nation were most certainly Christian ...

That's barely relevant. That they ratified the Constitution says more about their political attitudes than does their personal religious beliefs.

... even Jefferson if you've read the Declaration of Independence.

And that's just silly. Jefferson was about as much of a Christian as I am. And there aren't any so-called "Judeo-Christian principles" in either the DoI or the Constitution - at least not any exclusively Judeo-Christian principles.

Rick Esenberg said...


This is an area of some interest to me. I recently published an article on it and have another in the works.

I have heard Barton's presentation and there is more to it than that. I think he greatly oversells his point and, to be honest, his taste in western "flag-themed" wear is culturally offputting to Anglican midwesterners who were educated at elitist eastern institutions. (That would be moi). He can refute the "wall of separation" hypothesis. (If you don't like his refutation, read Noah Feldman, formerly of NYU Law and now at Harvard, He - and others - have written substantial criticism of Justice Black's own revisionism in Everson.). But then he tries to go beyond that and claims more than the record will support. So we may not be too far apart there.

You can cite a Mullah Dadulla and I can respond with a Martin Luther King. You give me an Inquisition, I see you Hitler and Stalin.

My point - with which you may or may not agree - is that there is little historical or textual support - for the proposition that the constitution requires a secular public square or even that it mandates endorsement neutrality between religion and nonreligion. The latter, as I argued recently in the Roger Williams Law Review (but others have done it better and earlier) is impossible. What the establishment clause prohibits is establishment and being exposed to religious sentiments that you do not share - even when that sentiment is expressed in some forum or activity associated with the state - does not amount to that

That has some implication for how we react to Romney's statement. Personally, I wouldn't say it. Technically, as I am sure that you recognize, it doesn't violate the religious test clause because it does not have the force of law. The people are perfectly free to want their leaders to be people of faith and to vote accordingly.

For that reason - and because I do not believe that there is any constitutional mandate or even encouragement - of public secularism or "a wall of separation," I don't find it to be shocking or an offense against good order. If he ever proposed turning it into a legal requirement, it would be.

As for Holy Trinity, I won't carry Justice Brewer's water, but it does remind me a bit of Justice Douglas' statement that "[w]e are a religious people whose institutions presuppose a Supreme Being" in Zorach.

Maybe Douglas didn't really beliee that. He certainly thought it could be reconciled with a largely separationist view of the Establishment Clause. But, as a historical observation, was it wrong?

This is probably worth a whole new thread.

Rick Esenberg said...

And not to let the point drop, I have theological concerns with the concept of a "Christian nation." It's one thing to believe that Christians ought to allow their faith to influence their politics and be willing to employ Christian arguments that will, of course, touch commonly held assumptions in a nation in which most voters are Christian.

But too much confidence that one is privy to the mind of the God or that one's nation is divinely favored seems hard to reconcile with Christianity's foundational texts. So even if I sympathize with the motivation for what the Texas GOP did and can see a sense in which it is true, I think that it contains the seeds of theological danger.

illusory tenant said...

[David Barton's] taste in western "flag-themed" wear is culturally offputting to Anglican midwesterners who were educated at elitist eastern institutions.


This is probably worth a whole new thread.

Go for it.

James Rowen said...

Gore has done great work raising awareness about climate change.

Some of his data and conclusions may be proven wrong. Most I predict will be proven correct, but he's a success already in that climate change in front and center on most political agendas and Gore gets much of that credit.

Rick Esenberg said...


None of the so-called "consensus" scientists who we are supposed to listen to and shut up think that anything like Gore's doomsday scenarioes will occur.

Aren't you saying that he deserves credit for increasing "awareness" by promoting hysteria? That doesn't sound like the Jim that I know.

Perhaps we are back to the lost ethic of the socialists: Just as there were no enemies on the left, there are no enemies in the prediction of environmental chaos. It doesn't need to be true, just "truthy."

It seems like you believe that the "consensus" is wrong. Fair enough, but if that's so, then we get to have a debate again. The science is not "in" and the debate is not over (because, if it is, Gore is as big of a nut job as he claims the "deniers" are.)

Given the largely unacknowledged impossibility of having the slightest idea of where the climate is going, I can live with that.

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