Monday, September 03, 2007

The limits of Constitutional history

It turns out that I spent the beginning and the end of last week in the hospital, first for a moderately invasive medical procedure and then for a difficult to diagnose (but ultimately easy to resolve) complication. I am now better than ever. (Ed. That's not saying much!)

While I was gone, an interesting debate broke out in the comments section of a post on Larry Craig. The issue was whether the US was founded as a Christian nation and much of the discussion focused on the religious views of the founders.

There is a tradition of noting that some of the founders were Deists or Unitarians and implying an intention to create a thoroughly secular public order.

My sense is that the better scholarship (and perhaps the emerging - or at least the latest - consensus) supports a somewhat different view. It is hard to argue that the founders imagined the type of naked public square called for by groups like Americans United and the ACLU or the robust wall of separation that the Supreme Court has sometimes sought to maintain.

It is a bit anachronistic to extrapolate from views held in the context of a society in which religious differences were almost entirely between differing Christian sects. Unitarians then were not quite what we know to be Unitarians today - generally folks who like church but aren't all that enamored with the God thing.

In any event, the question before us is not so much the religious views of the founders but the regime they created. The state of Thomas Jefferson's soul may be interesting but, ultimately, it's just not that relevant. (Jefferson, incidentally, was not even at the Constitutional Convention.) Whatever he - or any of the others - "truly believed", it is hard to make an historical argument for, as one prominent law professor puts it, public life as a "religion-free zone."

On the other hand, I am uncertain what it is supposed to mean to say that the United States is a Christian or Judeo-Christian nation. It is certainly descriptive to say that it has been, for it's entire history, a nation largely made up of Christians and Jews. One can also make an argument that its constitutional principles and national character have a Judeo-Christian pedigree.

But what does that mean? A person can endorse those principles without being a Christian or Jew, even if you think she is living on borrowed intellectual capital. It seems axiomatic that, even if you believe (as I do) that there is more room for religious expression in public forums than some of our jurisprudence would permit, there is a clear constitutional proscription against establishing a national religion and a rather unqualified guarantee of religious freedom.

I am with the late Chief Justice Rehnquist that trying to describe this as a "wall" is a useless metaphor based on bad history. I agree with Justice Reed that there is a certain folly in basing a rule of law on a figure of speech. But I also can't see much help in calling the U.S. a Christian nation. That is, in many ways, an accurate description, but it's not a rule of decision or a legal status.

42 comments:

Joe Cisewski said...

I did research on this subject for a class on American political thought a while back.

Two telling facts that have been stuck in my mind since I first wrote that paper: (1) one of congress' first acts was to commission an official printing of the Christian bible, and (2) religious services have preceded congressional sessions since the founding period.

These two acts seem to support a very different understanding of the Establishment Clause than many want to accept.

illusory tenant said...

one of congress' first acts was to commission an official printing of the Christian bible

This is false.

Joe Cisewski said...

I'll check on this and post back.

JesusIsJustAlrightWithMe said...

joe,
I really really hope that you got an F on that paper if you came away from your research thinking that congress "commissioned" and "official printing" of the bible. Because that is, as IT stated, totally false.

I assume you are referring to the whole Aitken bible thing, right? Let's examine how that all went down. Robert Aitken was a printer from Philly. He asked congress to check out a version of the bible that he printed in order to verify that it was accurate. He wanted his bible's accuracy to be "approved by congress." Here is what his request says:

"that in every well regulated government in Christendom the Sacred Books of the Old and New Testament, commonly called the Holy Bible, are printed and published under the Authority of the Sovereign Powers in order to prevent the fatal confusion that should arise, and the alarming injuries the Christian Faith might suffer from spurious and erroneous Editions of Divine Revelation.

...

"Under this persuasion your Memorialist begs leave to inform your Honours that he hath begun and made considerable progress in a neat Edition of the Holy Scriptures for the use of schools. [And] being cautious of suffering his copy of the Bible to be set forth without the Sanction of Congress Humbly prays that your Honors would take this important Matter into serious consideration & would be [illegible] to a [illegible] one Member or Members of your Honorable [illegible] to inspect his work to that the same may be published under the authority of Congress. And memorialist prays that he may be Commissioned or otherwise appointed & authorized to print and vend Editions of the Sacred Scriptures, in such manner and form as may best suit the wants and demands of the good people of these States, provided the same being in all things perfectly consonant to the Scriptures as heretofore Established and received amongst us."

So Aitken saw the United States as functioning somewhat in the same manner of England, which had an officially established church, and in which publishing the authorized version of the bible was something Crown cared about. Aitken wanted to be the guy to do this here. He wanted those big school contracts. Here is how congress responded:

"Whereupon, Resolved, That the United States in Congress assembled, highly approve the pious and laudable undertaking of Mr. Aitken, as subservient to the interest of religion as well as an instance of the progress of arts in this country, and being satisfied of the care and accuracy in the execution of the work, they recommend this edition of the Bible to the inhabitants of the United States, and hereby authorise him to publish this recommendation in the manner he shall think proper."

Congress did not recommend that Aitken's bible be used in schools. It did not commission Aitken to print and vend editions of the Holy Scriptures. It did not have the work published under its authority. All Congress did was have the chaplains check the book for accuracy and allow Aitken to publish a statement that Congress found it to be carefully and accurately done. That's it. They did not authorize its use in schools and did not even buy copies for distribution to the troops, as Aitken had hoped. The edition lost money, and its poor sales are the reason it is so rare today.

But I'm sure that was all in your paper, right?

Rick Esenberg said...

Well, they did a little more than vet its technical accuracy. They recommended it. While I agree that it is not quite right to say that they commissioned it or that it became an "official" bible, the episode is one of a number that suggest that the founders did not believe in what would pass for strict separationism today. Heck, I am far from being a separationist in contemporary terms and even I don't think Congress ought to be giving seals of approval to religious texts.

Joe Cisewski said...

I'll stand partially corrected. I found the following recommendation, adopted by the Continental Congress in 1782:

"Whereupon, Resolved, That the United States in Congress assembled, highly approve the pious and laudable undertaking of Mr. Aitken, as subservient to the interest of religion as well as an instance of the progress of arts in this country, and being satisfied from the above report, of his care and accuracy in the execution of the work, they recommend this edition of the Bible to the inhabitants of the United States, and hereby authorise him to publish this recommendation in the manner he shall think proper."

A close reading of this resolution reveals that Congress may have been recommending this particular bible translation on account of its accuracy. Further, I think a valid counterargument is that this congressional sanction does not affect the meaning of the Establishment Clause, because it predates the adoption of the Constitution.

That stated, doesn't this at least inform the meaning of the clause? And, as an ancillary matter, weren't there "established" religions in various states?

The Establishment Clause aside, I think it is dangerous to discount important facts when pursuing legal or political objectives (at least outside of the courtroom). And, frankly, I think it is less than honest to ignore the religious environment of the founding period.

Policy makers should scrutinize propositions and yield to the force of factual and persuasive argument rather than the manipulations of individuals with an agenda.

I think this is a politically neutral sentiment.

Joe Cisewski said...

Hey Jesus,

I never got less than a B- and that was in game theory.

Sorry.

Besides, isn't undergraduate education about running your mouth without basis? I know that's the case in a lot of sociology classes.

Joe Cisewski said...

The first post should've posted before everyone's follow-up comments.

Just so everyone knows I wasn't ignoring other posts.

Not sure why that happened.

illusory tenant said...

I think it is dangerous to discount important facts ... the manipulations of individuals with an agenda.

These portions of the commentary are more than a little ironic, considering the original bullet point (1) is a favorite of the David Barton crowd.

Joe Cisewski said...

Hey, I stood corrected on bullet point one...my memory is fallible.

And, I think Rick will vouch for my less than conservative sympathies.

James Rowen said...

The heck with the issue: take care of your health first.

JesusIsJustAlrightWithMe said...

"Well, they did a little more than vet its technical accuracy. They recommended it. While I agree that it is not quite right to say that they commissioned it or that it became an "official" bible, the episode is one of a number that suggest that the founders did not believe in what would pass for strict separationism today. Heck, I am far from being a separationist in contemporary terms and even I don't think Congress ought to be giving seals of approval to religious texts."

I think many of the founders clearly would support current ideas of separation of C&S. Another interesting thing we should note is this:

"Whereupon, Resolved, That the United States in Congress assembled, highly approve the pious and laudable undertaking of Mr. Aitken, as subservient to the interest of religion as well as an instance of the progress of arts in this country..."

Emphasis added. In other words, congress saw promoting the bible as promoting the arts. The bible is literature. Promoting the bible as literature is totally acceptable to most pro-SoC&S advocates today.

Joe Cisewski said...

I am not sure that argument will rebut the many religious enactments of the period.

Isn't it possible to be firmly in favor of separation of church and state, while recognizing that the founders had a different understanding of the concept?

JesusIsJustAlrightWithMe said...

It's possible, but after examining the evidence, that's not the conclusion I've come too. If the founder had such a different view of the separation of church and state, why does the Christian right need to falsely attribute quotes to them?

Jay Bullock said...

If Joe et al. are willing to give credence to a statement by Congress than a Bible maker has advanced the state of the arts in our young nation, then I would hope they would honor treaties:

[T]he Government of the United States of America is not, in any sense, founded on the Christian religion.

Right? Right?

illusory tenant said...

Leonard Levy, a strong proponent of church-state separation, wrote an entire book arguing that the Fifth Amendment's prohibition against compulsory self-incrimination is fairly traceable to Matthew 5:33-37.

Likewise, arguably the most reverent depiction of Christ in cinema, The Gospel According to St. Matthew, was directed by Pier Paolo Pasolini, who was an atheist, a communist, and a homosexual.

So it's not clear why David Barton and his acolytes feel the need to dissemble and lie about America's "Christian heritage."

Something to do with bearing false witness and hypocrisy, perhaps.

Joe Cisewski said...

Jay,

I think this illustrates a problem with originalism generally, which is that there is often more than one original intent (or understanding of the text) among the adopters of particular language.

But, it really does not refute the whole point of this comment string, which is that many, not all, of the founders probably "did not believe in what would pass for strict separationism."

Rick Esenberg said...

Jay
I can attest that, politically speaking, Mr. Cisewski is probably more comfortable with your team than mine. He worked for a pol who I might call a moonbat were I the type of guy who did that kind of thing.

He did not say that the US was a Christian nation, only that it is hard to base the type of separation that the Supreme Court has sometimes required and that left elites tend to support in the historical record. Whether you think that's important or not is another matter.

IT's point is a good one. As for Barton, I have blogged in the past that I did hear him speak once and my elitist Eastern-educated self couldn't get past the fact that the guy was wearing an American flag shirt. I think that much of what he does is a corrective to the "Founders as atheists" school, Some of what I heard was exaggerated and not right. Some was history that you won't hear in some places.

JesusIsJustAlrightWithMe said...

"I think that much of what he does is a corrective to the "Founders as atheists" school..."

Are you serious? I'm really into church/state stuff, the Constitution, its history and that sort of thing. I read everything I can about it. I'm also a staunch atheist. And I have never ever ever heard anyone ever suggest that the founders were atheists (accept maybe Thomas Paine). There is no need to respond to the "founders as atheists" school because no such school exists. Your suggestion that such a school needs to be responded to is a straw man. If it does exist, it is a fringe group that most of us pro-SofC&S people do not embrace.

Joe Cisewski said...

Nothing like religion to stimulate debate.

Anonymous said...

Writing matters, definitions matter, just as history matters.

There were agnostics among the Founders, including some who wrote with great awe and fondness of the Great Creator. (I just reread two bios of Jefferson.)

Not that even they always wrote quite what they mean -- plus, much of what they wrote had to get through committee, the bane of concise communication.

On that note, I'm glad our host is better -- but it was more than unsettling that he wrote at the start of health problems and then closed by writing that he is "with" a deceased jurist.

That made me gulp more morning coffee.

Anonymous said...

FDR and Churchill both believed the battle against Germany was to save Christian civilization.

Now we have the same types trying to eliminate it then, trying to elimintate it now. Churchill address the house of Commons on June 18, 1940 "...But if we fail, then the whole world, including the United States, including all that we have known and cared for, will sink into the abyass of a Dark age made more sinister, and perhaps more protracted, by the lights of perverted science."

Yes it matters that we know who we are and what made us great. The misinformation given by the antichristian crowd is amazing.

illusory tenant said...

Nazis, eh? I thought D. James Kennedy died today.

Maybe he died at 2:30 P.M.

Anonymous said...

Our founders were most concerned with not giving power to one Christian denomination over another. They created a goverment that would settle on law and policy that all denominations of the country would agree on.

Our founders had no intention of making this an aethiest/secular state as they had no intention of creating a State Church that had power over others. The laws and policies are an agreement of principals of the Christian denominations of the colonies.

There were no other groups that could have influenced the founding of this nation.

JesusIsJustAlrightWithMe said...

Anon 2:29,

"FDR and Churchill both believed the battle against Germany was to save Christian civilization."

To a point perhaps. And Hitler believed his battle against the Jews was to save Christian civilization too. To a point at least. It's not exactly news that most people in Europe and America in 1938 were Christian.

You should note that it's mostly the pro-Christian government crowd that is attributing fake quotes to our founders. BOCTAOE. Also, it's not like we atheists are claiming that the founders were atheists. We look at the info and come to conclusions. We don't come to conclusions and then twist the information to fit those conclusions. BOCTAOE.

Anon 6:45,

"There were no other groups that could have influenced the founding of this nation."

Except for deists and Unitarians. Look, nobody is saying that Christianity wasn't the dominant religion in America during the founding. It was. But you have to realize that many of our founders (and framers of the Constitution) were really really smart guys. They were far more enlightened then the general population. [Please don't read that as an insult. I’m using the term “enlightened” as in “the age of enlightenment” i.e. they advocated reason as the primary basis for authority, not God or Thor.] They were faced with the task of making a reasonable document acceptable to Christians. But I think they did a pretty good job of it.

Rick Esenberg said...

J-

Hitler said that you can't be a good German and a good Christian. He was willing to try to use the church to his ends (and too many church people went along with him) but he was not a Chritian and was not trying to save anything like a Christian civilization. People of faith have their monsters to answer for but Hitler, Stalin and Mao belong to someone else.

JesusIsJustAlrightWithMe said...

Okay, this is another debate that we don't need to get into here. But there is certainly evidence on both sides of the debate. Hitler spoke approvingly of Martin Luther many many times. He spoke of his Christian upbringing in Mein Kampf. He certainly implied that in contributed to his antisemitism. Hitler was either a Christian, or was pretending to be a Christian to further his goals. Does it really matter which it was? We are what we pretend to be, no?

"People of faith have their monsters to answer for but Hitler, Stalin and Mao belong to someone else."

To say that Stalin and Mao were not people of Faith strikes me as crazy. They clearly didn't have faith in any sort of god, but they were still totally dogmatic. They had faith in communism instead of God. Tremendous faith. Neither communism or religion are dangerous in and of themselves. They are only dangerous when people become dogmatic about them.

Anonymous said...

Jesus, you really are a character.

Above you are saying that Hitler was a Christian because he seduced Christians or tried to act like one. You leave out that he eliminated many Christians as he did the Jews.

Moreover, in another post you tried to deny that Jefferson was a Christian even when Jefferson himself claimed he was a Christian to his own defense.

What will you argue next?

JesusIsJustAlrightWithMe said...

Does "eliminating other Christians" disqualify one from being a Christian? That's a pretty conveniant definition considering how many Christians have killed other Christians (see e.g. Northern Ireland). I admit that Hitler's religious beliefs are somewhat unclear, but he definately had strong ties to the Church. He loved Martin Luther and he was also affiliated with the Catholic Church. He had veto power over Bishops in Germany for Thor's sake.

And you obviously didn't read anything I wrote about Jefferson. The quote that that idiot posted that claimed Jefferson said he was a Christian actually included a second half to the sentence in which Jefferson himself explicitly stated that he didn't think Jesus was anything more than a man. He was basically saying that he was a Christian, but he defined "Christian" waaaayyyyyy differently than you do. To him, it pretty much meant that he thought Jesus was a cool dude who made some good points, but he wasn't divine and never claimed to be. This is really simple and well-documented stuff.

Anonymous said...

Jesus -

Just so were straight on these things, Hitler never claimed to be a Christian and his actions showed it, whereas, Jefferson claimed he was a Christian and his actions showed it.

Moreover, President after President have claimed that this is a Christian nation while most of the world have seen it that way.

Omissions and changing history don't make it non-Christian.

JesusIsJustAlrightWithMe said...

Anon,
Just so we're straight on things, ain't none of that shit you just said is supported by the evidence. Hitler's faith is questionable. The evidence we have indicates without any shadow of a doubt that Jefferson did not think Jesus was the son of god. Isn't that a criteria for being a Christian under your definition? You're the one that is ommitting things from the record. Also, not every president has said this is a Christian nation, only the stupid ones. John Adams, for example, signed the Treaty of Tripoli, which said this:

"As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries."

This language was read aloud on the senate floor and a copy of the treaty was provided to every senator. They approved it unanimously. Are you just ommitting John Adams in your stupid little statement about our Presidents claiming this is a Christian nation.

Look Anon, I realize that you've been totally brainwashed by your cult, but this is the evidence. You have been lied to. Sorry.

Anonymous said...

Jesus -

Adams was dealing with a hostile religion that thought the US had a State Church of Christianity. He made it clear that we did not. They hoped this would stop the aggressive acts of the Muslims towards the US, it did not. That does not mean that we are not a Christian nation or that it pacified the Muslims.

Our founders were not completely ignorant of Islam but partialy ignorant thinking that Muslims only wanted to kill Christians. They learned later that they want to kill anyone that isn't Muslim and that they even want to kill some Muslims. Jefferson himself purchased a Qur'an so that he could figure out what the US was dealing with and to get answers to Muslim untypical actions. Sadly, the Quran was used to swear in a Muslim last year in Congress. Jefferson learned much about Islam and wrote that it is completely the opposite of Christianity and that view stayed for many years, perhaps to this day by those who are informed.

Jefferson claimed he was Christian and you want to define Christian differantly than he did. He not only claimed it but he lived and promoted the teachings of Christ, even created his own Bible and dedicated his University to Christ. There are many Christians today that don't even know what the teachings of Christ were. I doubt if you do even though you seem so set against them.

I know you placed your faith in secular humanism that you are trying to justify. But your religion is falling apart at the seams and its just a matter of time that it will be completely exposed for the falsehood it is.

As I said, changing history and omissions has worked for your crowd longer than many thought it would but the gaps are being filled in. Your religion is an empty shell.

JesusIsJustAlrightWithMe said...

Um, like, maybe that's just your opinion man. Take of the blinders. I've explained it over and over again, and you're just not getting it. How is Islam the opposite of Christianity? They believe in the same god. They're, like, just one profit different or something. And I don't have a religion dude. I think all religions are totally gay.

Joe Cisewski said...

Just "one profit" different, huh?

Which religion is more profitable? In case I want to invest.

Anonymous said...

Jesus -

Look up Humanist Manifesto one and two and I think you'll find that you are part of a religion, perhaps unwittingly. It's our state religion taught in our state schools that has crept into about everything.

Christianity and Islam do not believe in the same God, not even close. There are to many difference to list here so I'll try to make the first premise simple.

Christianity is completely voluntary. You decide if you want to believe in Christ and can quit at any time.

Islam is completely involuntary. You either believe or become a slave or die. If you try to quit, you die.

You have no freedoms in Islam, your entire life is controlled as to what you do everyday. Whereas, you have nearly complete freedom with Christianity to decide what you want to do.

The Christian Apostles taught that the only religious aspects are to visit the fatherless and widows. So other than this, I to am opposed to religions as you are and as Jefferson was.

Many people hate Christ but don't have a clue why. Apparantly, you don't either.

JesusIsJustAlrightWithMe said...

I don't hate Christ. I don't even think he's real. I hate the concept of God and Christ and religion. I hate arrogant pricks that pretend they know things that they can't possible know. I hate morons that twist history and definitions, and try to paint others with labels that clearly only apply to themselves. That clear things up for you buddy?

Anonymous said...

Jesus -

It sounds like you only like people that agree with you and that you always think you're right.

Joe Cisewski said...

Anon,

I think your comments on Islam above are overgeneralizations and confuse the political systems of particular majority-Muslim countries with the religion itself.

Admittedly, many of the governments explicitly hope to eliminate any distinction between the two, but there is a difference for many practicing Muslims.

Anonymous said...

Joe -

The generalization was the result of Jesus comments that led me to believe that he has little to no knowledge of the major religions. Although, I stand by what I said.

I'm not sure what Muslim countries you consider moderate or that separate religion from politics. Islam does not see or teach a difference. Moreover, I do not know of a Muslim counrty that doesn't treat non-Muslims as second class citizens. They do not believe in equality and they also teach that woman are born with half a brain.

The Islam world is not in an uproar about terrorism. I think partly because of fear but also because they believe that the day is coming when they will destroy all non-Muslims and will rule the world.

America was discovered because of Islam that gave Christians distance from the continued attacks from Islam. Even the early 20th century the Turks slaughter millions of Greek Christians. We now live in a different age that makes it possible for them to come here. We need to become more informed to understand our threat. I think our goverment does and is trying to keep it out.

illusory tenant said...

they also teach that woman are born with half a brain.

Say what?

JesusIsJustAlrightWithMe said...

"The generalization was the result of Jesus comments that led me to believe that he has little to no knowledge of the major religions."

I know a lot more than the average Christian or Muslim knows about Christianity or Islam (although not in a rote sense). I just think that the differences you see are minor aspects compared to the big picture. They are both methods of explaining the unexplainable and controlling people. Anything else is just decoration. Or put another way, I'm less concerned about what the religions teach, than I am about why they teach what they do. Both Christianity and Islam base their teachings on hearsay statements about a magical being in the sky. To me, they're not opposites for that reason.

Anonymous said...

Jesus - I don't think so but if you know so much answer IT question.