Thursday, April 16, 2015

Judges Making the Law (With a Little Blasphemy Discussion)

We hear the term "judicial activism" often bandied about. The term has a number of different meanings, one of which is judges "making up the law." Whether such is good, I won't address. Rather, I note I agree with Erwin Chemerinsky and Catherine Fisk that such is nothing new.

The common law was built on judges making the law under the auspices of "discovering" it by looking up at the “brooding omnipresence in the sky” as Justice Oliver Wendell Holmes once derisively put it.

Justice Scalia, however, argues in this article that post-Holmes' debunking of the metaphysics behind the common law and post-Erie Railroad Co. v. Tompkins (where the Supreme Court announced there was no general federal common law), little justifies judges making law:
But democracy has overtaken all that. Modern governments, or modern governments in the West at least, are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people’s representatives. Such a system is quite incompatible with the making (or the “finding”) of law by judges and most especially by unelected judges. Even in state courts, it is a rare case that does not involve interpretation of an enacted text. And federal courts have, since the decision of Erie R.R. v. Tomkins [sic] in 1939, completely abjured common-law powers except in a few limited fields such as admiralty; they do not pretend to have the power either to “find” or to “make” a law unevidenced by enacted text or (in cases coming within their diversity jurisdiction) by the text of state judicial decisions.
Scalia may be right. He's certainly right that state judges making law under the auspices of the uncodified "common law" that traces back in an unbroken line to England before America was founded is rare. Though it was much less rare during the time of the American Founding.

Though, when judges do use their common law powers to "make the law," as opposed to interpret a text, such uncodified state law is lower in hierarchy (as in higher law trumps lower law) than a simple state statute. As Walter Berns put it in his classic "Making Patriots":
But there was no disagreement about the place of the common law. Indeed one of the first things done by the states after independence was to declare (here in the words of the New Jersey constitution of 1776) that “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution].”
That section of Berns' book also discusses the notion that "Christianity" is part of the "common law." Jefferson didn't agree; but some other Founders did. Jefferson essentially blamed the "judicial activists" of his day for that one. But according to the theory of "modern government" to which both Scalia and Berns allude, the common law is a very weak place to rest a "fundamental" principle. It can be trumped by a simple statute or future court decision.

[We debate whether such even exists; but if it does, we can't amend the "laws of Nature and of Nature's God." We can amend the Constitution, but it's very difficult to do. Statutes are much easier to amend. And common law is the weakest of these sources.]

The notion that "Christianity is part of the common law" thus slowly died, mainly in the 19th Century. For instance, in 1837, in one of the few blasphemy cases ever tried in the United States after the Constitution was ratified (I think there were four of them), the Delaware court in The State v. Chandler claimed:
If in Delaware the people should adopt the Jewish or Mahometan religion, as they have an unquestionable right to do if they prefer it, this court is bound to notice it as their religion, and to respect it accordingly. 

It will be seen then that in our judgment by the constitution and laws of Delaware, the christian religion is a part of those laws, so far that blasphemy against it is punishable, while the people prefer it as their religion, and no longer. The moment they change it and adopt any other, as they may do, the new religion becomes in the same sense, a part of the law, for their courts are bound to yield it faith and credit, and respect it as their religion. Thus, while we punish the offence against society alone, we leave christianity to fight her own battles, ...
In essence, it claimed a secular rationale for blasphemy prosecutions.

[In one of the other few blasphemy cases, Ruggles v. People of New York, decided in 1811, Chancellor Kent claimed the leaders of non-Christian religions were "imposters."]

Today, most common law bodies of law still relevant have been codified into statutes. But judges are expected to interpret those statutes and sometimes "fill in gaps." Legislatures, in turn, can rewrite the statutes if they don't like how judges have been interpreting them.

One question I ask: According to Scalia's theory, was there ever a "golden age" in America where judges weren't improperly making the law? Scalia seems to concede that prior to Erie, when judges more often "made law" under the auspices of the "common law," judges engaged in something whose justificatory foundation was as solid as that of "Divine Right of Kings." And of course, we know that the 20th Century is the hallmark of "judicial activism."

The record of the judiciary in the 19th Century wasn't spotless either. That period gave us, among other things, Dred Scott, Plessy v. Ferguson, the Slaughterhouse cases and the Holy Trinity case.

But I don't think the few rotten apples spoil the bunch. Most of the present Supreme Court cases are non-politicized; they are boring and uneventful. The newsworthy cases that are politicized with presently Justice Kennedy breaking the tie are the exception. But the exceptions are significant.

My assessment of the judiciary is that it is not unlike the two other branches of government: Don't look for perfection because you won't find it.

Sunday, April 12, 2015

Mike Lee's "Our Lost Constitution"

Via The Originalism Blog [itself highly bookmarkable], which is affiliated with the University of San Diego School of Law's Center for the Study of Constitutional Originalism:

Recently published—Senator Mike LeeOur Lost Constitution: The Willful Subversion of America's Founding Document (Sentinel 2015)
Here is the book description from Amazon: 
The still-unfolding story of America’s Constitution is a history of heroes and villains—the flawed visionaries who inspired and crafted liberty’s safeguards, and the shortsighted opportunists who defied them. Those stories are known by few today.
In Our Lost Constitution, Senator Mike Lee tells the dramatic, little-known stories behind six of the Constitution’s most indispensible provisions. He shows their rise. He shows their fall. And he makes vividly clear how nearly every abuse of federal power today is rooted in neglect of this Lost Constitution. For example:

   • The Origination Clause says that all bills to raise taxes must originate in the House of Representatives, but contempt for the clause ensured the passage of Obamacare.
   • The Fourth Amendment protects us against unreasonable searches and seizures, but the NSA now collects our private data without a warrant.
   • The Legislative Powers Clause means that only Congress can pass laws, but unelected agencies now produce ninety-nine out of every one hundred pages of legal rules imposed on the American people.
Lee’s cast of characters includes a former Ku Klux Klansman, who hijacked the Establishment Clause to strangle Catholic schools; the Chief Justice of the Supreme Court, who called the Second Amendment a fraud; and the revered president who began his first of four terms by threat[en]ing to shatter the balance of power between Congress and the president, and who began his second term by vowing to do the same to the Supreme Court.

Fortunately, the Constitution has always had its defenders. Senator Lee tells the story of how Andrew Jackson, noted for his courage in duels and politics, stood firm against the unconstitutional expansion of federal powers. He brings to life Ben Franklin’s genius for compromise at a deeply divided constitutional convention. And he tells how in 2008, a couple of unlikely challengers persuaded the Supreme Court to rediscover the Second Amendment’s right to keep and bear arms.

Sections of the Constitution may have been forgotten, but it’s not too late to bring them back—if only we remember why we once demanded them and how we later lost them. Drawing on his experience working in all three branches of government, Senator Lee makes a bold case for resurrecting the Lost Constitution to restore and defend our fundamental liberties.
From Randy Barnett:
Senator Mike Lee knows how to tell a story. Combining historical fact and his own legal expertise with imagined dialogues and settings, Lee brings the sometimes dry and archaic debates of the constitutional convention in Philadelphia and other episodes to life, and with them the Constitution itself. This is truly an inspired, fascinating, and important book.
And from Michael McConnell: 
Mike Lee won election to the Senate by traveling around his state giving talks about the Constitution. Now he has written a most unusual book, which interweaves lively histories of what he calls the lost clauses of the Constitution with biting critiques of such modern issues as delegation of legislative power to agencies, NSA data collection, church and state, and Obamacare. Readers may not agree with all his conclusions, but they will encounter serious history and a conscientious attempt to grapple with modern issues in light of an enduring Constitution.

Roundtable on the Privileges or Immunities Clause of the Fourteenth Amendment

The audio below is fairly crappy (alas). But these are the "go to" guys -- Kurt Lash (Illinois), Philip Hamburger (Columbia), and Michael McConnell (Stanford) -- for the debate:

Friday, April 10, 2015

Barnett v. Lash on whether the EC Incorporates on Originalist Grounds

From Randy Barnett here. A taste:
So you can imagine that I became a strong supporter of the separation of church and state. I still am, but with two important and relatively recently acquired caveats. The first is that, since I became an originalist in the late 1990s, I have paid closer attention to the text of the Establishment Clause of the First Amendment. Although I have not written on the subject, nor studied it with the seriousness required to make me a true expert, I have come to believe that a constitutional bar on established churches is not a bar on all religious expression in the public sphere. For example, federal offices may close on Christmas, and prayers may be said in Congress before a session begins.
Perhaps more importantly, unlike the protections of the rights of freedom of speech, press, assembly and the free exercise of religion, I no longer think that the Establishment Clause of the First Amendment concerned an individual right or liberty. Instead, as Justice Thomas has insisted, “Congress shall make no law respecting an establishment of religion” meant that Congress could neither establish a national religion nor “disestablish” a state religion.

In this way, the succinctly-worded First Amendment is both antiestablishmentarian at the federal level and antidisestablishmentarian at the state level. And if it did not protect an individual right, the Establishment Clause did not refer to a right that was also among the “privileges or immunities of citizens of the United States,” which was secured against violation by state legislatures by the 14th Amendment. It was not, for example, among  “the personal rights guarantied and secured by the first eight amendments of the Constitution” listed by Senator Jacob Howard in his speech to Congress explaining what the Privileges or Immunities Clause protects.
But also see Kurt Lash's classic 1995 Law Review article to the contrary.  A taste from the abstract (I can't cut and paste from the PDF of the paper):
These conflicting approaches are linked by a common assumption: The historical period surrounding the adoption of the original Establishment Clause is directly relevant to determining the intent behind the incorporated Establishment Clause. Such an assumption, however, places the Founding cart before the Incorporation horse. Incorporation doctrine assumes that, at some point, the people changed their collective mind about the role of federalism in the protection of individual liberties; what was once left to state discretion is now restricted by the Fourteenth Amendment. But if the people changed their mind about the role of federalism in the promotion of individual liberty, perhaps they also changed their mind about the role of the Establishment Clause. In fact, we are not the first generation since Madison wrote his Memorial and Remonstrance to question the melding of the scepter and the cross. Obscured in the search for the Founders' intent are the subsequent struggles over the meaning and value of the Establishment Clause. In the years following the adoption of the Bill of Rights, state after state grappled with the issue of civil power over the subject of religion. Slowly, through a long series of cases and controversies, the idea evolved that citizens ought to be free from government-imposed religious establishments.
Kurt Lash and Akhil Amar stress a particular dynamic forgotten in the search for "original meaning." If it's true that the Bill of Rights should be incorporated via the 14th Amendment -- and there is some good evidence for it (see the above link to Sen. Howard's speech) -- the "original" period for understanding the text is just after the Civil War, not during the original Founding.

In other words, it's not a late 18th Century understanding of the First Amendment; it's a mid-19th Century understanding that is the original one, at least pertaining to what is incorporated through the 14th Amendment.

The strange result -- and I can't remember how Amar grapples with it -- is that the First Amendment might have a different original understanding when applied directly to the Federal government (the late 18th Cen.) than as applied to states via the 14th (the mid-19th Cen. understanding).

Tuesday, March 31, 2015

Volf's Controversial Comparison

Miroslav Volf is one of the most distinguished and well respected Christian thinkers in the world. I generally like what I've seen from him. I do, however, think his comparison we see below was overly dramatic.
[MV:]I think it is an attempt to assert Islam as a political religion as a unity of religion and government. Now that’s been a way religions have functioned throughout history–from Constantine until recently. America was founded by folks who thought like this.
RNS: America was founded by folks who thought like Islamist extremists?
MV: Like many Islamist extremists, yes. Which is to say, they believed God would bless this new experiment if we integrate our obedience to God’s laws and we ensure that this is indeed a city set on a hill.
[MV:]Think of John Winthrop, his theory of the role of the state and the laws against blasphemies, adulterers, and idolaters.
[MV:] I love America, but its first founders, like Muslim extremists, advocated killing for blasphemy, adultery, idolatry.
I also disagree that the Puritans were the "Founders" of America as opposed to the "Planters."

Sunday, March 29, 2015

How Christianity Invented Human Rights

From Baylor's invaluable Research on Religion podcast series, hosted by Tony Gill of the University of Washington.

What difference does a religious tradition make?  If it is Christianity, Prof. Jim Papandrea of the Garrett-Evangelical Seminary at Northwestern University says it matters a great deal.  Jim returns to our show for the third time (hat trick) and discusses his new book Seven Revolutions: How Christianity Changed the World and Can Change It Again, coauthored with Mike Aquilina.  The general thrust of the book is that Christian theology introduced to the world (at least) seven new ways to envision human society, starting with the individual person and proceeding up through the state.

Jim starts us off by listing the seven great revolutions introduced by Christian thought, including how we look at: the person, the home (and gender roles), work (and the laborer), religion, community, death, and (finally) the state.  He also notes how Christianity promoted a “God of love” that opened the door to an inclusionary religion that shaped all of these critical areas.  

We then look into the fourth revolution — religion — more closely and Jim notes that although based upon a Judaic foundation, Christianity opens the door to proselytizing and including all peoples into one single religion.  This has a major impact on how individuals and neighbors are conceived, and will impact the how early Christians opened the door to new thinking on government.  

We cover the reaction to this new message amongst the Romans of the day, which wasn’t always welcoming.  Persecutions were common, yet Christianity kept growing culminating in its final acceptance under the Edict of Milan (313 CE).  Jim discusses the role that Constantine played in this process and notes that the Edict of Milan, contrary to the notion that it established Christianity as the official church, was really the world’s first document on religious liberty.  

This springboards us into another one of Jim’s seven revolutions regarding the role of the state.  Here we spend some time talking about how Christianity changed the notion of sovereignty by not placing the “person at the top of the governing pyramid” as the ultimate authority, but rather noting that God is a separate authority.  Jim discusses how this translates into the role of citizen sovereignty and how it relates to the foundation of the US government some 230 years ago.  We also take time to cover the revolutions of community (“love thy neighbor”) as well as how Christianity developed the concept of human dignity for all and how this helped change views on labor and family roles, not to mention the topics of euthanasia, abortion, and infanticide (practices common in the Roman Empire).

Our conversation ends with some reflection on Christianity in the “post-Christian" era. 

[Crossposted at]

Tuesday, March 17, 2015

So Maybe It Was the Unitarians After All...

Who first gave us religious liberty. And from Transylvania of all European places. From Wiki:
March 18th (1568): The Act of Religious Freedom and Conscience (Edict of Torda) was issued by (Unitarian) Prince John Sigismund of Transylvania, instituting in his principality the path-breaking idea of religious freedom. The Edict of Torda was revolutionary for its time.
Here is a pretty picture of it.

Rarely is the question asked: Is Our Children Actually Learning "Critical Thinking?"

A fascinating problem as limned by Justin P. McBrayer in a recent NYT op-ed:

Why Our Children Don’t Think There Are Moral Facts

George Washington, depicted here taking the oath of office in 1789, was the first president of the United States. Fact, opinion or both?
What would you say if you found out that our public schools were teaching children that it is not true that it’s wrong to kill people for fun or cheat on tests? Would you be surprised?
I was. As a philosopher, I already knew that many college-aged students don’t believe in moral facts. While there are no national surveys quantifying this phenomenon, philosophy professors with whom I have spoken suggest that the overwhelming majority of college freshmen in their classrooms view moral claims as mere opinions that are not true or are true only relative to a culture.

A misleading distinction between fact and opinion is embedded in the Common Core.
What I didn’t know was where this attitude came from. Given the presence of moral relativism in some academic circles, some people might naturally assume that philosophers themselves are to blame. But they aren’t. There are historical examples of philosophers who endorse a kind of moral relativism, dating back at least to Protagoras who declared that “man is the measure of all things,” and several who deny that there are any moral facts whatsoever. But such creatures are rare. Besides, if students are already showing up to college with this view of morality, it’s very unlikely that it’s the result of what professional philosophers are teaching. So where is the view coming from?
A few weeks ago, I learned that students are exposed to this sort of thinking well before crossing the threshold of higher education. When I went to visit my son’s second grade open house, I found a troubling pair of signs hanging over the bulletin board. They read:
Fact: Something that is true about a subject and can be tested or proven.
Opinion: What someone thinks, feels, or believes.
Hoping that this set of definitions was a one-off mistake, I went home and Googled “fact vs. opinion.” The definitions I found online were substantially the same as the one in my son’s classroom. As it turns out, the Common Core standards used by a majority of K-12 programs in the country require that students be able to “distinguish among fact, opinion, and reasoned judgment in a text.” And the Common Core institute provides a helpful page full of links to definitions, lesson plans and quizzes to ensure that students can tell the difference between facts and opinions.
So what’s wrong with this distinction and how does it undermine the view that there are objective moral facts?
Students are taught that claims are either facts or opinions. They are given quizzes in which they must sort claims into one camp or the other but not both. But if a fact is something that is true and an opinion is something that is believed, then many claims will obviously be both. For example, I asked my son about this distinction after his open house. He confidently explained that facts were things that were true whereas opinions are things that are believed. We then had this conversation:
Me: “I believe that George Washington was the first president. Is that a fact or an opinion?”
Him: “It’s a fact.”
Me: “But I believe it, and you said that what someone believes is an opinion.”
Him: “Yeah, but it’s true.”
Me: “So it’s both a fact and an opinion?”
The blank stare on his face said it all.
As they say, read the whole thing.

[Crossposted at]

Saturday, March 14, 2015

What American is NOT About


Friday, March 13, 2015

What I see as the Political-Theological Contribution of the Enlightenment to the American Founding

There has been a "counter-Enlightenment" push that seeks to downplay its importance to the contributions of the American Founding while looking to credit earlier more traditional sources. With this we see a tendency that prefers one's own with focused importance.

That is, a scholar imbibed in the rich intellectual traditions of Judaism might focus on the Hebraic sources, a Baptist on their contributions, the Calvinists on theirs, and Roman Catholics can find "accidental Thomism" from a Protestant people who were by in large, anti-Roman Catholic.

And there certainly is a strong kernel of truth to each critique. The individual ideas that became en vogue by the Enlightenment religionists tended not to be new. For instance, freed from the constraint of the Magisterium and with each believer a priest entitled to interpret scripture for himself, many notable Protestants became Arians. After all, the Bible never specifically uses the term "the Trinity."

Arianism was the dominant theology of the 18th Century enlightened unitarians. But Arianism is old. Quite old indeed.  Even the more radical forms of unitarianism or "Christian-Deism" that for instance, Thomas Jefferson might endorse were found in the early Church. Jefferson didn't cite Marcion much, but their personal theologies were quite similar.

Speaking of Jefferson below is a quotation of his that typified the "Enlightenment" perspective on Christianity:
Were I to be a founder of a new sect, I would call them Apriarians, and after the example of the bee, advise them to extract honey of every sect.

-- Thomas Jefferson to Thomas B. Parker, May 15, 1819.
Lest you think I cite Jefferson as some kind of "outlier," here's a more mainstream orthodox Trinitarian Christian, albeit a universalist, making a similar point:
It would seem as if one of the designs of Providence in permitting the existence of so many Sects of Christians was that each Sect might be a depository of some great truth of the Gospel, and that it might by that means be better preserved. Thus to the Catholics and Moravians he has committed the Godhead of the Saviour, hence they worship and pray to him; to the Episcopal, Presbyterian, and Baptist Church the decrees of God and partial redemption, or the salvation of the first fruits, which they ignorantly suppose to include all who shall be saved. To the Lutherans and Methodists he has committed the doctrine of universal redemption, to the Quakers the Godhead and influences of the Holy Spirit, to the Unitarians, the humanity of our Saviour... Let the different Sects of Christians not only bear with each other, but love each other for this kind display of God's goodness whereby all the truths of their Religion are so protected that none of them can ever become feeble or be lost.
-- Benjamin Rush, "Commonplace Book," August 14, 1811. Corner, Autobiography of Rush, 339-340.
In short, the "enlightened" Protestant Christian used his own "judgment"-- his "reason" or otherwise -- to decide for himself how to interpret the faith, in what doctrines to believe, which parts of the Bible are inspired, which books, in fact, belong in the canon, and what political principles ought be derived from a "proper" understanding of theology.

So how did this impact the relationship among Enlightenment, Christianity, and the American Founding? Everything we "value" about the political-theology of the American Founding (and some things that we don't) probably can be found in bits and pieces during earlier more "traditional" periods. But it didn't all come together until these enlighteners used their reason "to extract honey of every sect" as Jefferson put it, at the exact moment they did. During that period historians term "the Enlightenment."

For instance, the "Calvinist resisters" (though not Calvin himself) might have something to offer like "rebellion against tyrants is obedience to God." Though, they were woefully deficient on religious liberty. Likewise, the Thomists incorporated a theistic grounding for Aristotelian rationalism but likewise were deficient on religious liberty and other matters.

Roger Williams and the Quakers were considered novel and eccentric when they innovated the "Christian" case for religious liberty. (That's where one had to go for this teaching, not the Calvinist resisters or those Protestants who borrowed from the scholastics.) The enlighteners of the 18th Century, using their reason, took from them this principle and combined it with what they saw the best from the other traditions to deliver the liberalism that founded America.

History Professor Caroline Winterer discusses the American Enlightenment

Wednesday, March 11, 2015

Whose Enlightenment Was It, Anyway?

Historian Thomas S. Kidd takes aim at the handy but ultimately unhelpful catchall term for all human progress c. 1600-1800 CE, the "Enlightenment," as though John Locke dropped in from Mars one day, to save the Western World from sin and error [and Christianity] pining:
I am skeptical about “The Enlightenment.” It is an ideologically loaded term that implies that much of the western intellectual tradition before The Enlightenment was “dark.” Much of that tradition was, of course, Christian. “The Enlightenment” presupposes an arc of history toward secular democratic scientific liberalism.

I encourage students writing research papers to see if they can talk about intellectual trends in the eighteenth century without using the term “Enlightenment.” If your work is directly engaging the status of “The Enlightenment” as a historical category, fine. But if what you’re really talking about is the rise of humanism, egalitarianism, naturalism, or skepticism, then why not just employ those terms and avoid trotting out “The Enlightenment”?
“The Enlightenment” has taken a beating from many sources in recent decades. Some, like me, point to the term’s ideological and anti-religious baggage. Others, like the eminent historian J.G.A. Pocock, have criticized the term for its unwieldiness and suggested that while there may have been many national “enlightenments” (French, Scottish, etc.) there was not a unitary “Enlightenment.”
Some critics have accepted the “Enlightenment” as a unitary category but lament that its adherents defended imperialism, slavery, anti-feminism, and traditional faith too often for the “Enlightenment” to have actually been enlightened.
One of the most provocative recent writers on the Enlightenment, Jonathan Israel, argues that the traditional study of the Enlightenment has put too much emphasis on a handful of thinkers who were admittedly hierarchy- and tradition-minded. Among these thinkers were Newton, Locke, Voltaire, and David Hume. Israel suggests that to appreciate the real value of the Enlightenment, we need to re-focus on “Radical Enlightenment” thinkers such as the Dutch philosopher Spinoza. In this lesser-known set of radical philosophers, Israel contends that we will find sources of the contemporary notion that improving human life requires emancipating men and women from “autocracy, intolerance, and prejudiced thinking, and establishing a predominantly secular morality” as well as promoting “equality (sexual and racial), democracy, [and] individual liberty.”

I’m not sold on the utility of the term. Here’s how I handled the issue in one passage of my Whitefield biography:
Because of his familiarity with polemics for and against Calvinism, Whitefield knew that it was under assault in the eighteenth century as part of intellectual changes historians often call the “Enlightenment.” (I prefer terms like “liberal” or “humanitarian” thought to describe these new developments, rather than the catch-all term “Enlightenment.” The concept of the Enlightenment, as many have noted, over-simplifies Europe’s intellectual trends of the time. Some Enlightenment figures were friendly toward traditional faith, some not.)
Henry May’s classic book The Enlightenment in America remains the best place to start on the movement’s influence among the Founders. May notes that the pragmatic, common-sense Scottish Enlightenment, with its relative friendliness to Christianity, was the most influential strand of Enlightenment thinking in American history.
For better or worse, the term “The Enlightenment” will likely remain a staple of the history of western civilization for the time being. I imagine that most professors who teach western civ or world history will keep including a day or week to discussing it. But hopefully the criticisms of the term and of its adherents have brought much-needed clarity and circumspection to its use.
[Cross-posted at The New Reform Club.]

Tuesday, March 10, 2015

Brayton, Throckmorton, Barton, & the PA Pastors

Get the 411 here. A taste:
Warren Throckmorton, who teaches at Grove City College in Pennsylvania, notes that the Pennsylvania Pastors Network has invited David Barton to speak at a conference in Lancaster. He contacted Sam Rohrer, CEO of the pastors group, to ask why he would invite someone [like David Barton] to speak. ...

Monday, March 9, 2015

Protestant Scholasticism: The Missing Catholic Link to the American Founding

by Scott McDermott
Guest Blogger

Bound extras indenture
The Massachusetts Body of Liberties, 1641.

The Founding Fathers based the American republic on the concepts of natural law, natural rights, popular sovereignty, corporatism, the moral economy, and the right of resistance to tyranny.  All of these concepts derived from Catholic political thought of the Middle Ages.  But how did the Protestant Founders, anti-Catholic to a man, come by these ideas?  

In my book Charles Carroll of Carrollton: Faithful Revolutionary, I suggested that Carroll, the only Catholic signer of the Declaration of Independence, served as a vector of Catholic political concepts during the American founding.  But Carroll, however influential, was only one man.  And the thesis of Carroll's influence falls afoul of the objection that also thwarts the usual scholarly explanation, that Catholic political ideas came to America mediated and distorted through Enlightenment writings.  But if Enlightened thinkers transmitted these ideas, how did they become embedded in colonial political culture long before the Enlightenment reached these shores?  

My recent research suggests a most unlikely conduit for Catholic political teaching in the American colonies:  Puritans educated in the tradition of Protestant scholasticism.  Although Martin Luther famously rejected scholastic learning, important early Reformers like Theodore Beza and Philipp Melanchthon understood that Protestants would need scholastic tools in order to debate effectively against Catholic apologists.  Thus, Protestant universities and academies retained the seven liberal arts and the “three philosophies” -- metaphysics, natural philosophy, and moral philosophy -- as the bedrock of their undergraduate curricula.  While the theology course changed drastically, theology was a graduate program, and most ministers in the English-speaking world took up their posts possessing only a B.A. degree that rested on the traditional Aristotelian learning of the Middle Ages.  Their formation in political thought, taught under the rubric of moral philosophy, derived from two textbooks, Aristotle's Politics and Nicomachean Ethics, and such commentators on those works as Thomas Aquinas and "The Schoolmen," a tradition known as scholasticism.

The chief bastion of Protestant scholasticism in England was Emmanuel College, Cambridge.  Historian Samuel Eliot Morison has shown that thirty-five former students at Emmanuel migrated to New England between 1630 and 1640.  Of the “Emmanuel 35,” eight spent time living in the village of Ipswich, Massachusetts.  This group of men, who formed the nucleus of what I call the “Ipswich Connection,” included some of the colony's most important political leaders and constituted the main opposition to the policies of Governor John Winthrop.  Simon Bradstreet served as the colony's governor; so did his father-in-law Thomas Dudley.  Emmanuel men Richard Saltonstall and Daniel Denison also became part of Massachusetts' elite ruling class.  But the  linchpin of the Ipswich Connection was Nathaniel Ward, a minister, lawyer, and prolific author who took his B.A. in 1600 and his M.A. in 1603 from Emmanuel.
Nathaniel Ward was the principal author of Massachusetts Bay's first law code, the Body of Liberties of 1641, passed over Winthrop's strenuous objections.  Other members of the Ipswich Connection supported the code enthusiastically.  The Body of Liberties reveals at every turn the scholastic political formation of its Ipswich backers, beginning with its title, which derives from the scholastic doctrine of corporatism, the metaphor of society as a body combined with the belief that political communities have a real and autonomous existence.  Indeed, Ward divided his document into sections devoted to different corporate groups in society, namely freemen, women, children, servants, “Forreiners and Strangers,” the churches, and even domestic animals.

Natural law and natural rights appear in the very first Liberty, which protected life, liberty, and property:

No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or his children, no mans goods shall be taken away from him, nor any way indammaged...unlesse it be by vertue or equitie of some expresse law of the Country waranting the same...or in case of the defect of a law in any parteculer case by the word of god.

Numerous other liberties defined due process of law, while Liberties 45 and 46 restricted the use of torture and prohibited “inhumane Barbarous or cruel” punishment.

In keeping with Catholic principles of moral economy, the Liberties banned monopolies, provided for grazing rights on common lands, protected common fishing and fowling rights, and prohibited “any usurie amongst us contrarie to the law of god” (although an 8% penalty was permitted on overdue debts).  The Preamble upheld the principle of popular sovereignty by declaring that “We...ratify them [the Liberties] with our sollemne consent,” while Liberty 98 defined the procedure for ratification by the people.  The Body of Liberties aimed to produce a well-regulated body politic in which arbitrary government (of the sort the Ipswich men believed Winthrop was exercising) would become impossible, not only because the government had to respect the legitimate rights of different orders in society, but because it protected the freemen's privilege of political participation.  The Liberties do not explicitly invoke the right of resistance to tyranny, but the dogged opposition by the Ipswich Connection to Winthrop embodies it.  

For all these reasons, the 1641 Body of Liberties provides a touchstone for those who seek the point when Catholic Scholastic political concepts entered the American body politic. 

Scott McDermott has a Ph.D. in American History from Saint Louis University and is currently an Assistant Professor of History at Tusculum College in Greeneville, Tennessee.

Sunday, March 8, 2015

Jeff Schweitzer: "Founding Fathers: We Are Not a Christian Nation"

Check it out here. A taste:
Let us be perfectly clear: We are not now, nor have we ever been, a Christian nation. Our founding fathers explicitly and clearly excluded any reference to "God" or "the Almighty" or any euphemism for a higher power in the Constitution. Not one time is the word "god" mentioned in our founding document. Not one time.

The facts of our history are easy enough to verify. Anybody who ignorantly insists that our nation is founded on Christian ideals need only look at the four most important documents from our early history -- the Declaration of Independence, the Articles of Confederation, the Federalist Papers and the Constitution -- to disprove that ridiculous religious bias. All four documents unambiguously prove our secular origins.

Saturday, March 7, 2015

Was the American Founding Principled or Merely Self-Serving?

Tom West on the legendary debate between "East Coast" Straussian Harvey Mansfield of Harvard and Harry V. Jaffa of the West Coast Claremont Institute:

Mansfield says, then, that the theory of the American founding is both untrue and harmful. It is untrue because there is no such thing as nonpartisan politics, because human beings are created unequal in important ways. It is harmful because the idea of equality produces ever more radical demands to deny all politically relevant differences among human beings, while it encourages government to intrude ever more aggressively into the private sphere. Jaffa answers that the theory of the founding is true, because human beings really are equal in the sense that no one has the right to rule another without that other’s consent. And the equality idea, Jaffa argues, far from being harmful, is our best ground for the revival and continuation of a decent constitutionalism in the modern world.

Jaffa believes that the theory of the American founding is true because slavery is always evil. No man is born the natural ruler of any other man. Mansfield says that “all men are created equal” is a self-evident half-truth because men are equal in some respects and unequal in others. But no sensible person—and certainly not Jaffa—would dispute that human beings are unequal in many ways. For Jaffa, the meaning of “created equal” is that although many men are better than other men at the tasks of ruling, it is also true that “all men have been endowed . . . with a nonangelic nature.” Everyone being subject to the same selfish passions, no one should be trusted with absolute power. To illustrate this point, Americans in the founding era frequently compared human to divine rule, which they cheerfully admitted was absolute monarchy without the consent of the governed. As the town of Malden, Massachusetts, wrote in 1776, the reason that the rule of God without our consent is acceptable, but that the rule of man without our consent is not, is that God, “being possessed of infinite wisdom, goodness, and rectitude, is alone fit to possess unlimited power.” Even if we admit that there is some tiny number of men who are sufficiently godlike that they could be trusted with absolute power without consent, it still would not establish a politically relevant claim. For, Jaffa writes,
Plato’s Republic is imaginary precisely because, according to Plato himself, philosophers do not wish to rule, and anyone wishing to rule is not a philosopher. Anyone who asserts a right to rule on the basis of his claim to wisdom is accordingly condemned in advance as a charlatan by philosophy itself. . . . Philosopher-kings are not possible, and genuine philosophers will always prefer a regime of equality under the law.

Peter Manseau: "America is not a 'Christian' nation"

Writing at Fox News of all places. A taste:
No matter how many Christians live here, we are not a Christian nation. For the sake of people of all faiths and of no faith, we should hope we never become one.

Friday, March 6, 2015

More from Thomas Kidd on Obama claim Islam was “'Woven into the fabric of our country'"

Islam in Early America

 Check out Thomas Kidd's argument. A bigger taste:

President Obama created controversy in a recent speech when he asserted that “Islam has been woven into the fabric of our country since its founding.” He followed this statement with rather generic statements about Muslim immigrants coming to America and finding economic opportunity and freedom.
But what about the idea that Islam has been “woven into the fabric” of America since the founding? What role did Islam, and Muslims, play in colonial and Revolutionary America? Part of the reason that the president gave few details about Islam and the founding era is that most of Islam’s role at that time was either in negative associations, or in real Muslim slaves.
Neither gives much fodder, I’m afraid, for positive examples that the president might cite.
[T]he typical Muslim appearing in Anglo-American writing during the Revolutionary period was not an African slave; more likely he would have been a Barbary pirate or a Middle Eastern despot. A close look at the uses of Islam in the Founding period and early republic shows reveals a well-established political and literary tradition: citing the similarities between an opponent’s views and the “beliefs” of Islam as a means to discredit one’s adversaries.

Kidd: “'Woven into the fabric of our country'? Islam in Early America"

Check out Thomas Kidd's argument here. A taste:
As I noted in a chapter on Islam which I contributed to Daniel Dreisbach and Mark David Hall’s book Faith and the Founders of the American Republic,

There were actual Muslims living in America during the Founding period, but the vast majority of them were toiling as slaves in the South. Of course, Muslim traders and sailors also passed through American ports on occasion, but most American Muslims were Africans forcibly imported to work on American plantations. The exact number of Muslims, of course, is hard to discern, but historian Michael Gomez has estimated that perhaps 200,000 slaves came from African regions with significant Muslim influences. This does not mean that all of these were Muslims, but it does suggest that hundreds of thousands of slaves may have been at least marginally familiar with Muslim beliefs.

Laura Miller: "The stubborn myth of the Christian country: Why the U.S. has always been 'one nation, under gods'"

The Salon writer reviews a new book. A taste:
As Peter Manseau, author of “One Nation, Under Gods: A New American History,” would have it, nothing has done more damage to the ideal of American religious pluralism than the “stubborn persistence of words spoken more than a century before the United States was a nation at all.” Those words are “a city upon a hill,” preached by the Puritan John Winthrop to his fellow colonists as they prepared to leave their ship at Massachusetts Bay in 1630. Most strenuously invoked by Ronald Reagan, the city on the hill, according to Manseau, has for the past 50 years “dominated presidential rhetoric about the nation’s self-understanding, causing an image borrowed from the Gospels to become a tenet of faith in America’s civil religion.”