Saturday, December 14, 2019

Frazer and Fortenberry's Latests on Romans 13

Both Dr. Gregg Frazer and Bill Fortenberry are evangelical Protestants of the fundamentalist stripe. And one thing such Protestants are good at is disagreeing with one another. With that, check out the links -- audio lectures -- to their most recent comments on Romans 13 and the acceptability of rebelling against government under any circumstances.

Here is Gregg's. Here is Bill's.

Sunday, December 8, 2019

Let Every Soul Be Subject Unto Whose Authority?

 Jonathan Mayhew, Romans 13, and the American Revolution

In the twilight years of his life, while writing from his home in Quincy, Massachusetts, John Adams had cause to reflect on those bygone years in which the play that was the American Revolution took center stage for the world to see.  Writing to his fellow revolutionary sage, Thomas Jefferson, Adams expressed to his one-time friend, turned foe, turned friend anew, his innermost feelings on myriad of topics ranging from simple farming tips to complex theological debates.  Aside from letters little more was ever exchanged between these two statesmen, with one major exception.  Included in his July, 1818 letter to Monticello, Adams enclosed what he called “a curious piece of New England Antiquities” which had proven to leave a profound impact on a young John Adams.[1]  At the tender age of fourteen, Adams had digested a sermon which he claimed to have read “until the substance of it was incorporated into my Nature and indelibly engraved on my memory.”  This sermon, along with the minister who delivered it, were credited by Adams for having destroyed the bigotry and fanaticism of all who remained loyal to England’s king, and served as a catalyst for the Revolution itself.[2]      
                The sermon to which Adams referred was the now widely lauded A Discourse Concerning Unlimited Submission and Non-resistance to the Higher Powers by Congregationalist Minister Jonathan Mayhew.  Historians have recognized the brilliance of Mayhew’s sermon for literally generations, crediting Mayhew with leading public opposition to Britain long before the first shots at Lexington were fired.  And while the acclaim is certainly justified, the crux of Mayhew’s contribution to the American Revolution often goes overlooked.  In a world in which Biblical reasoning was needed for virtually every important question in life, the dilemma of justifying opposition to authority proved to be of paramount importance.  The Apostle Paul’s admonition, found in the thirteenth chapter of the Book of Romans, to “be subject unto the higher powers,” along with the reminder that “Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation,” proved to be a formidable obstacle in America’s path to independence.[3]  In his quest to better comprehend heaven’s will as it related to scripture, Jonathan Mayhew established not only a framework for better understanding the critical admonitions of Romans, Chapter 13, but also developed the requisite rhetorical ammunition that would galvanize an entire generation of American colonists to the cause of revolution.  

The Christian Paradox of the American Revolution

Colonial American society, particularly in Boston, was a world saturated in Christian and Biblical dogma.  As acclaimed American Historian Mark Noll put it,  “The Bible sanctified all manner of public speech…Once the Bible had achieved a place of honored distinction for selves and society, it became a lens through which believers perceived the external significance of temporal events, but also a torch that shone its illuminating rays on those events.”[4]  As the events leading up to the American Revolution transpired, American colonists were left to decipher God’s divine purpose for such trials.  And since the Bible served as the proverbial Rorschach test through which all important decisions were assessed, it was only natural that ministers and parishioners alike would consult what the Good Book had to say on such matters.   
Chief among these matters was the issue of opposition to authority.  Historian Daniel Dreisbach supports this assertion when he writes, “Bible texts weighed heavy on the American mind during the conflict with Great Britain…Romans 13 was the single most cited…and on their face, these texts made little allowance for resistance to civic rulers.”[5]  The cognitive dissonance created by these two seemingly divergent desires –  the aspiration to please God and the yearning for independence from Britain – meant that the colonists had arrived at a critical fork in the road.  Would revolution imply an overt disregard for God’s holy warning as found in Romans 13? 
The answer to that question proved to be anything but simple.  If American Christians were to follow the admonitions of scripture, then they could not ignore the caution issued by Paul in Romans 13.  At the same time, if these same colonists wanted to separate from Great Britain, a powerful and palpable biblical justification would be needed in order to rationalize their act of rebellion. 
In the end the division would come down to personal interpretation of scripture, as Loyalists tended to embrace a more absolutist view of the Bible while Patriots took a more nuanced perspective.    Historian Gregg Frazer’s work on this very issue supports this conclusion.  Frazer writes:
In their sermons, as a general rule, the Loyalist preachers appealed more to the Bible and held to a more literal and contextual interpretation of the relevant tests of scripture than did the Patriot preachers.  In addition, Loyalists typically took passages at face value without adding to or subtracting from the text, while the Patriot preachers adjusted texts to fit their purpose by adding qualifying language.[6]

Dr. Dreisbach seems to agree with Frazer’s conclusion when he states, “Many Americans came to believe there were nuanced interpretations of these proof texts for submission and passive obedience which permitted a righteous disobedience of civil authorities.”[7]
                While it is certainly the case that most Patriot ministers adopted a nuanced approach to Romans 13 and other scriptures, which may have appeased a portion of the colonists, the fact remains that a viable, concrete solution to the Romans 13 problem was not to be found among the Patriot clergy.  Loyalist preachers still occupied the moral high ground from the perspective of allegiance to Bible teachings.  As Anglican Bishop Charles Inglis reminded his fellow colonists, “I feel inclined to think that Paul did not believe that Government of kings was an invention of the devil.  ‘I exhort,’ says the same apostle, in another place, ‘that first of all supplications and prayers be made for all men and for Kings, and for all that are in authority, that we may lead a quiet and peaceful life in all godliness and honesty.”[8] Simply put, Paul’s words were to be taken at face value.  There was no wiggle room with Romans 13, and those who played fast and loose with such revelation were doomed to the damnation Paul had promised.  For Patriot ministers, simply twisting the words of Paul would only go so far with a very small minority of colonial Christians.  Finding a way to both uphold the Apostle Paul’s original admonition of submission to authority, while at the same time opposing that authority, was the defining paradox of the American Revolution. 

Setting the Stage

Jonathan Mayhew began his career as a Congregationalist minister in Boston during a time of tremendous change.  The Calvinist hegemony, which had dominated New England Protestantism for generations, was beginning to erode making room for different interpretations of Christian soteriology.  For Mayhew, this meant that newer ways of understanding God’s plan for mankind, and humanity’s role in that plan, were slowly gaining traction.  Many of these concepts appealed to Mayhew in ways that would change him as a minister.  From his days at a student at Harvard, Mayhew became enamored with teachings on natural law and appeals to a more rationalist view of Christianity, which caused many to question his devotion to traditional orthodoxy.  As Mayhew biographer J. Patrick Mullins points out, Mayhew had begun to adopt the study of “natural religion” that would eventually cause the young preacher to “declare his independence from the orthodox Calvinism of his fellow Boston clergymen.”[9]
                This change in Mayhew’s theological beliefs was foundational to how he would come to understand the concept of submission to authority.   The shift from strict Calvinist beliefs to a more Arminian (and some even thought Unitarian) theology did not always resonate with Mayhew’s Boston neighbors.  As Historian Chris Beneke points out, “Mayhew represented a small, but outspoken, liberal faction within New England Congregationalism.  Shunned by strict Calvinists, he was known early on as an ‘amiable heretic.’”  Despite the labels, Mayhew established for himself a reputation for being a thoughtful and sincere pastor.[10]  Mayhew’s liberal leanings as a pastor were not simply the creation of his mind but were deeply influenced by the men he studied and came to admire.  In turn, these same figures would shape Mayhew’s understanding of how resistance to authority could be both biblically justified and even divinely mandated. 
                The person most responsible for shaping Jonathan Mayhew’s views on resistance theory is John Locke.  Locke’s contributions to the development of classical republicanism have been well known to historians for centuries.  For a young Mayhew, however, it was Locke’s treatise on the Bible that would leave the greatest impact.  As a child of seventeenth century, Locke was aware of the political upheavals that had captivated England, culminating in the English Civil War and eventual execution of Charles I.  As such, Locke had seen the good and the bad that had happened when a people chose not to submit to their leaders as Paul had admonished.  What had emerged, for Locke, from all this bloodshed and upheaval was a simple truth that would come to define not only his life but also the world view of Mayhew a century later.  The simple truth was that “the doctrine of Christ was a doctrine of liberty…Christians were exempt from subjection to the laws of heathen governments.”[11]
                What these heathen governments looked like was something Locke never answered.  Instead, Locke concluded his treatise on Romans 13 with a quasi-rebuking of the Apostle Paul, who “is wholly silent and says nothing” with regards to “how men come by a rightful title to this power.”[12]  In other words, Locke could see in Christianity a religion based on human liberty, but was not able to provide the context in which one should assert that same liberty. 
                Locke was not unique in this dilemma.  Reformers like Martin Luther and John Calvin, who also esteemed the Christian faith to be a religion of liberty, were unable (or unwilling) to contradict Paul’s admonition to “be subject unto the higher powers.”  For Luther, Romans 13 was “truly the most important piece in the New Testament” but was also an example of how God’s laws and man’s laws deserve different treatment.  Luther writes:
You must not understand the word law here in human fashion, i.e., a regulation about what sort of works must be done or must not be done. That's the way it is with human laws: you satisfy the demands of the law with works, whether your heart is in it or not. God judges what is in the depths of the heart. Therefore his law also makes demands on the depths of the heart and doesn't let the heart rest content in works; rather it punishes as hypocrisy and lies all works done apart from the depths of the heart.[13] 

Along with Luther, fellow Reformer John Calvin did not remain silent on the words of Paul in Romans 13:

[Paul] calls them the higher powers, not the supreme, who possess the chief authority, but such as excel other men…And it seems indeed to me, that the Apostle intended by this word to take  away the frivolous curiosity of men, who are wont often to inquire by what right they who rule have obtained their authority; but it ought to be enough for us, that they do rule; for they have not ascended by their own power into this high station, but have been placed there by the Lord’s hand. And by mentioning every soul, he removes every exception, lest any one should claim an immunity from the common duty of obedience.[14]
In short, Luther encapsulated his understanding of Romans 13 into the framework of his emerging theology on grace vs. works, while Calvin left absolutely zero wiggle room at all.  For these important Reformers, the question of absolute authority was just that: absolute.  There was no arguing with Paul’s divine declaration, which meant Jonathan Mayhew had to look elsewhere to find the requisite reconciliation. 
                Mayhew would find all the theological ammunition he needed in two powerful sources.  First, the Vindiciae Contra Tyrannos (A Defense of Liberty Against Tyrants), written at some point in the middle of the sixteenth century, was an anonymous treatise which defiantly suggested that a people were not bound to obey a king who had disobeyed divine law.  Appealing to biblical examples in which opposition to authority was warranted by God himself, the Vindiciae portrayed the relationship between king and subordinate as a covenant in which all honor and reverence to God’s laws was promised by the monarch, who in turn received the adoration and allegiance of his subjects.  Any violation of this arrangement was a breach of the covenant and merited the wrath of God’s vengeance.[15]  
                The second source upon which Mayhew drew inspiration was the Scottish Presbyterian minister Samuel Rutherford, who in the 17th century began to challenge to concept of divine right kingship.  His bombshell work, entitled Lex Rex; or the Law and the Prince (Lex Rex meaning “the law is king” was a play on words, since its reverse “the king is law” had served as the traditional creed for all monarchical  government up to that point), refuted the notion that a king deserved absolute loyalty but instead was subject to the laws of God, for God had chosen them to serve as his agents on earth.  As Rutherford put it, “The people have power over the king by reason of his covenant and promise. — Covenants and promises violated, infer co-action, de jure, by law.”[16]

The Sermon that Changed a Nation

For Jonathan Mayhew, the teachings of natural law, supported by men like Locke and Rutherford, served as the principal lens through which he would decipher the true message of Paul as found in Romans 13.  Instead of trying to justify or twist the words of scripture, as had been done by many of his predecessors, Mayhew took Paul at face value.  As J. Patrick Mullins reminds us, Mayhew “reconciled the natural right of resistance with the Christian duty of obedience in light of scripture, history and real Whig political philosophy.”[17]  In other words, Mayhew’s hermeneutics adopted many of the same beliefs as those of his predecessors, but ignored the notion that one had to twist the words of Romans 13 in order to support an agenda.  Mayhew believed he could have his cake and eat it too. 
The year 1750 marked the debut of Jonathan Mayhew’s landmark sermon.  As opposed to so many of his predecessors, Mayhew didn’t look to twist words of scripture or to double down on their absolute significance.  Instead, Mayhew let prudence dictate the interpretation of scripture.  Appealing to other Bible examples in which an absolutist tone is rarely if ever assumed, Mayhew wrote:
But who supposes that the apostle ever intended to teach, that children, servants and wives, should, in all cases whatever, obey their parents, masters and husbands respectively, never making any opposition to their will, even although they should require them to break the commandments of God, or should causelessly make an attempt upon their lives ? No one puts such a sense upon these expressions, however absolute and unlimited. Why then should it be supposed, that the apostle designed to teach universal obedience, whether active or passive, to the higher powers, merely because his precepts are delivered in absolute and unlimited terms?[18]
Such was the tone of Mayhew’s entire sermon.  He was quick to rebuke the standard practices of both the Loyalists and the Patriots and instead turned Romans 13 from being a warning for the subjects of a king into a divine admonition that put the king himself on alert.   Emphasizing Paul’s reminder that a king was to be a “minister of authority to thee for good,” Mayhew wrote, “They are to consult the good of society as such; not to dictate in religious concerns; not to make laws for the government of men’s consciences; and to inflict civil penalties for religious crimes.”[19]
Mayhew went even further with his condemnation of evil leaders, stating that Paul’s message rebuked those who “use all their power to hurt and injure the public,” adding that “such as are not God’s ministers, but Satan’s.”[20]  In so doing, Mayhew had successfully shifted the burden of Romans 13 to God’s chosen leaders and off of the masses.  In Mayhew’s mind, it wasn’t the American colonists who needed to worry about God’s wrath but rather the King of England, who was “acting in an illegal and oppressive manner.”[21]
Even though his sermon was delivered two decades before independence was even debated in Philadelphia, Mayhew’s perspective on Romans 13 reveals an important truth about how many Americans came to view the American Revolution.  The American Revolution was not a coup d’etat.  There was no removal of the King of England.  Instead, the American Revolution was a separation due to the perceived wickedness and illegitimate reign of the King.  This perspective, of a separation of Britain, can be traced, in large part, to Mayhew’s unique interpretation of Paul’s declaration in Romans 13, and this view was later canonized by Jefferson in the very words of the Declaration of Independence when he wrote, “"He has abdicated Government here, by declaring us out of his Protection and waging War against us" and, “For abolishing the free System of English Laws in a neighboring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies” and finally, “For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments.”[22]
For Mayhew (and Jefferson?), King George, III was in clear violation of Paul’s reminder to all in authority:For he [the king] is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to [execute] wrath upon him that doeth evil.”[23]  The King had violated the laws of God by infringing, in an evil manner, upon the laws of man.  He had neglected to live up to his end of the bargain, or as Jefferson put it, “We have reminded them of the circumstances of our emigration and settlement here” and, “A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”[24]  There is no demand to remove the King, nor was any act of violence ever attempted on his life.  Instead, the colonists simply removed themselves from the source of the problem. 
Such a remedy was precisely the purpose of Jonathan Mayhew’s sermon.  The goal was not to usurp a ruler but to arm a people with the necessary language and understanding that would keep them safe from the usurpation of a selfish monarch.  As Mayhew stated:
For a nation thus abused to arise unanimously, and to resist their prince, even to the dethroning him, is not criminal ; but a reasonable I way of vindicating their liberties and just rights ; it is making use of the means, and the only means, which God has put into their power, for mutual and self-defense. And it would be highly criminal in them, not to make use of this means.[25]

Mayhew not only gave his countrymen the justification they needed to move forward with independence, but he also clothed Paul’s message in a quasi-divine mandate which suggested that independence was the very will of heaven.  As a result, Mayhew was able to achieve something that Martin, Luther, John Calvin, John Locke, etc. were never able to accomplish.  Jonathan Mayhew had made a divine mandate to obey God’s leaders a heavenly directive to insist that one’s leaders live in accordance with God’s laws, first and foremost, otherwise no allegiance was merited.  Such a revelation may not seem dramatic to those in the modern world, but it was revolutionary for a community that continued to pray for their king. 
Now, more than any time before, Paul’s words of warning, in Romans 13, did not seem as daunting.  Instead, Jonathan Mayhew had made them a liberating cry of freedom from any leader who would not live up to their end of the bargain.  The spirit of his message not only galvanized a people but found its way into the very founding charters of a new nation; a nation which Mayhew never got the privilege of seeing but whose soul will forever be etched in its collective character.   

[1] John Adams to Thomas Jefferson, July 18, 1818.  In Lester J. Cappon, ed., The Adams-Jefferson Letters: The Complete Correspondence Between Thomas Jefferson & Abigail & John Adams (North Carolina: The University of North Carolina Press, 1987), 527.
[2] John Adams to Hezekiah Niles, February 13, 1818.  From Founders Online, National Archives website.
[3] Romans 13:1-2.  The Holy Bible: The King James Version (World Wide Bible Assoc.: 2019).
[4] Mark Noll, In the Beginning Was the Word: The Bible in American Public Life, 1492-1783 (Oxford University Press, 2016).  Pp. 326.
[5] Daniel Dreisbach, Reading the Bible with the Founding Fathers. Oxford University Press, 2017.  Pp. 110.
[6] Gregg Frazer, God Against the Revolution: The Loyalist Clergy’s Case Against the American Revolution.  University of Kansas Press: 2018.  Pp. 36. 
[7] Dreisbach, Reading the Bible with the Founding Fathers, 110.
[8] Charles Inglis, The True Interest of America: Impartially Stated in Certain Structures on a Pamphlet Entitled Common sense, 2nd ed. Philadelphia: Printed and sold by James Humphreys, June, 1776. Sabin Americana, 1500-1926. 
[9] J. Patrick Mullins, Father of Liberty: Jonathan Mayhew and the Principles of the American Revolution (University of Kansas Press: 2017). Pp. 20.
[10] Chris Beneke, "The Critical Turn: Jonathan Mayhew, the British Empire, and the Idea of Resistance in Mid-Eighteenth-Century Boston."  Massachusetts Historical Review 10 (2008).  Pp. 40
[11] John Locke, A Paraphrase and Notes on the Epistles of St. Paul to the Galatians, First and Second Corinthians, Romans, and Ephesians (1717; reprinted Boston, MA: Hilliard, Gray and Company: 1832). Pp. 367.
[12] Ibid, 367.
[13] Martin Luther, Commentary on the Epistle to the Romans (Grand Rapids: Zondervan Publishing, 1954), p. 164.
[14] John Calvin, Commentaries on the Epistles of Paul to the Romans (1539; reprinted for the Calvin Translation Society, 1849).  Online edition.  Pp. 478
[15] Vindiciae Contra Tyrannos, (Basel, France: 1579).   
[16] Samuel Rutherford, Lex Rex; or the Law and the Prince (1644).  Online edition.
[17] J. Patrick Mullins, Father of Liberty, 52.
[18] Jonathan Mayhew, A Discourse Concerning the Unlimited Submission and Non-resistance to the Higher Power. (Boston, MA: 1750). Pp. 12.
[19] Ibid, 28.
[20] Ibid, 28.
[21] Ibid, 34.
[22] Thomas Jefferson, The Declaration of Independence, 1776. 
[23] Romans 13: 4
[24] Jefferson, Declaration of Independence. 
[25] Mayhew, Discourse, 40. 

George Washington & Voltaire

That pic of George Washington is from the "Voltaire" medal. Supposedly, Voltaire really liked Washington so much, he help to create a medal of Washington's likeness.

That's a story in itself that this post won't go into (I myself need to learn more about it). I haven't seen much else to connect Washington to the "deist" Voltaire. Though Tom Van Dyke's post on Voltaire reminds me of one quotation of Washington's that sounds quite "Voltaire like."

As Voltaire said:
This is the country of sects. An Englishman, as a free man, goes to Heaven by whatever road he pleases.

And George Washington writing to his French friend, Marquis de Lafayette:

Being no bigot myself to any mode of worship, I am disposed to endulge the professors of Christianity in the church, that road to heaven which to them shall seem the most direct plainest easiest and least liable to exception.

This kind of makes Washington sound like an outsider to the faith, which perhaps he was. But, nonetheless, such a sentiment perfectly captures America's ideal of pluralism and non-sectarianism.  

Wednesday, December 4, 2019

Voltaire on Religious Pluralism, and also that clergymen basically suck

It was the French anti-religionist Enlightenment philosophe Voltaire, of all people, who realized in his On the Church of England the genius of what we call religious "pluralism," that if differences in dogma are multiple enough, that's a good thing for all practical purposes.

I'll put his last paragraph first because it's the best, and go on from there, because it applies to Founding-era America even more than England in 1733:

If there were only one religion in England, there would be danger of tyranny; if there were two, they would cut each other's throats; but there are thirty, and they live happily together in peace.

And as historian Gordon Wood notes about the Founding:

There were not just Presbyterians, but Old and New School Presbyterians, Cumberland Presbyterians, Springfield Presbyterians, Reformed Presbyterians, and Associated Presby­terians; not just Baptists, but General Baptists, Regular Baptists, Free Will Baptists, Separate Baptists, Dutch River Baptists, Permanent Baptists, and Two-Seed-in-the-Spirit Baptists.

Oy. That's a lotta Presbyterians and even more Baptists. And that's just the tip of the pluralist iceberg. Thank God for heresy. Let's yield the floor back to Voltaire with some excerpts on Anglo-America, and read his England of 1733 as America in 1776:

This is the country of sects. An Englishman, as a free man, goes to Heaven by whatever road he pleases.


Although the Episcopalian and the Presbyterian are the two main sects in Great Britain, all others are welcome there and live pretty comfortably together, though most of their preachers detest one another almost as cordially as a Jansenist damns a Jesuit.

Go into the Exchange in London, that place more venerable than many a court, and you will see representatives of all the nations assembled there for the profit of mankind. There the Jew, the Mahometan, and the Christian deal with one another as if they were of the same religion and reserve the name of infidel for those who go bankrupt. There the Presbyterian trusts the Anabaptist, and the Church of England man accepts the promise of the Quaker. On leaving these peaceable and free assemblies, some go to the synagogue, others in search of a drink; this man is on the way to be baptized in a great tub in the name of the Father, by the Son, to the Holy Ghost; that man is having the foreskin of his son cut off, and a Hebraic formula mumbled over the child that he himself can make nothing of; these others are going to their church to await the inspiration of God with their hats on; and all are satisfied.

If there were only one religion in England, there would be danger of tyranny; if there were two, they would cut each other's throats; but there are thirty, and they live happily together in peace.

Well, if you got all that, it's no surprise that America circa 1776 didn't like bishops or even clergymen much. Always stirring up trouble between the sects and ruining everybody else's fun, when they're not drunk and out having fun themselves.

Everybody else, the normal people, were pretty mellow about the whole thing. That was the American Founding too.

Saturday, November 30, 2019

The Siamese Twin Thesis of the Religion Clauses

The Law and Liberty site has another piece on the Establishment Clause and the doctrine of incorporation. This article is by James R. Rogers and treads much old ground. A taste:
... The Court’s decision to incorporate the Establishment Clause was subject to scholarly criticism early on. The debate over the appropriateness of incorporating the Establishment clause revived in the early 2000s as a result of a series of concurring opinions by Justice Thomas.
The criticism of incorporating the Establishment Clause of the U.S. national Constitution and applying it to restrict state governments via the liberty guarantee of the Fourteenth Amendment arose because incorporation is based on a fundamental misreading of the Establishment Clause, and a misunderstanding of the nature of religious establishments. Justice Clarence Thomas initially questioned the application of the Establishment Clause to the states in the 2002 case of Zelman v. Simmons-Harris. He wrote that the Clause “originally protected States, and by extension, their citizens, from the imposition of an established religion by the Federal government.” He added: “Whether and how this Clause should constrain state action under the Fourteenth Amendment is a more difficult question.”
Thomas pushed further in 2004 in a concurring opinion in Elk Grove Unified School District v. Newdow, “I would take this opportunity to begin the process of rethinking the Establishment Clause . . . the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.” He reasserted his position a year later in Van Orden v. Perry, observing that “the Establishment Clause is best understood as a federalism provision—it protects state establishments from federal interference but does not protect any individual right.”
The Establishment Clause serves two purposes: it both prohibits Congress from Establishing a religion but it also prohibits Congress from meddling with state religious establishments.
Thomas followed and cited some notable scholars (not all of them conservative, for instance Akhil Amar) in the academy for the proposition that, as a federalism provision, the Establishment Clause resists incorporation. I think the argument is strong, but not quite airtight, for reasons I explain below.

In the comments, Dr. Ellis West chimed in:
The historical evidence simply does not support Prof. Rogers and Justice Thomas’ states’ rights interpretation of the establishment clause. See Ellis M. West, THE RELIGION CLAUSES OF THE FIRST AMENDMENT: GUARANTEES OF STATES’ RIGHTS? (2011), and reviewers unanimously accepted the book’s findings. Rogers’ interpretation is also based on the erroneous assumption, unfortunately perpetrated and maintained by the Supreme Court, that the establishment and free exercise clauses have different meanings. For the evidence that they were simply two different ways of saying the same thing, see Ellis M. West, THE FREE EXERCISE OF RELIGION IN AMERICA: ITS ORIGINAL CONSTITUTIONAL MEANING (2019).
While I look forward to reading Dr. West's book, I am not convinced, yet at least, the two different clauses are "simply two different ways of saying the same thing." But I do believe there is something special about the two clauses that resists separating them.

And this is exactly what happens when the Free Exercise Clause gets incorporated to apply to state and local governments, but the Establishment Clause, because it's a federalism provision, does not. Interestingly, it was Professor Philip Hamburger who gave me this epiphany. Now, Hamburger does not think the Establishment Clause ought to incorporate; but rejects the doctrine of incorporation altogether.

So Hamburger's position is consistent. If the two clauses ought to rise and fall together because they can't be separated, his view is they fall together because nothing incorporates.

You might call this insight the "Siamese twin" thesis of the First Amendment's religion clause. When Hamburger explained it, he didn't use the Siamese twin analogy (I think you can attribute that to me), but rather invoked Wittgenstein. It was from a discussion Hamburger was having with fellow scholars of the religion clauses and he noted there were some Supreme Court cases where certain forces were advocating the term "religion" have one meaning for Free Exercise purposes, but another meaning for Establishment Clause purposes.

Hamburger noted from a linguistic perspective (I think that's when he appealed to Wittgenstein) such is a logical impossibility because even though they are two separate clauses, they use the term "religion" only once! The term "religion" is used in the Establishment Clause, but "thereof" in the Free Exercise Clause that relates back to the term in the Establishment Clause. That's why we  call them "clauses"; they are part of the same sentence.

It's like two Siamese twins who share the same heart.

Wednesday, November 27, 2019

Hall: "A Nuanced Report Card on Religious Liberty"

From Mark David Hall, writing at the Law and Liberty site. Dr. Hall reviews Steven Waldman's new book on religious liberty, which I hope to say more about later. But in the meantime, from Hall:
Steven Waldman has produced an excellent overview of the development of religious liberty in the United States. It is well-written, as one would expect of a journalist (the founder is a veteran of Newsweek, among other publications), but also well-researched and reasonably nuanced. Experts on particular eras or subjects will find details about which they can justly complain, but on the whole, Sacred Liberty: America’s Long, Bloody, and Ongoing Struggle for Religious Freedom deserves high marks. 
Just one of the book’s 18 chapters is devoted to the early colonies. Waldman overstates the extent to which Puritans enforced repressive laws with “sadistic enthusiasm.” Yet he is certainly correct that no colony—not even Rhode Island or Pennsylvania—embraced a modern, liberal conception of religious freedom. 
America’s Founders rejected Old World approaches to church-state relations. They shared a commitment to protecting religious liberty, and many Founders were coming to question the efficacy of religious establishments. These views contributed to the adoption of a constitution that banned religious tests for federal offices, and to the crafting of a First Amendment that says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Saturday, November 23, 2019

Sandefur on Thompson's New Book

At National Review, Timothy Sandefur reviews C. Bradley Thompson new book which seems destined to be a classic. A taste:
Thompson’s presentation is valuable because it helps correct modern mischaracterizations of the revolutionaries’ natural-law theories and shows just how rigorous and thorough their thinking was. His exploration of such questions as the relationship between natural rights and natural law, and between Lockean thought and the republican theories that the Founders drew from the ancient Romans, does justice to the ingenuity and depth of Revolutionary-era thinking.  
In fact, America’s Revolutionary Mind stands as a refutation of two noxious trends in recent American historiography. The first, which Thompson mentions only briefly in a few endnotes, is the effort to downplay the impact of Locke’s ideas on the Founding Fathers. Scholars of the “classical republican” persuasion have argued that, important as Locke may have been, American revolutionaries were more influenced by Greek, Roman, and Puritan writers who placed less emphasis on the rights of the individual than on the stability of society, the importance of tradition, and the need to sacrifice for the common good. Thompson, by contrast, argues that “America’s revolutionary mind is virtually synonymous with John Locke’s mind” and backs that argument up with an arsenal of examples.  
While the Founders certainly consulted the writings of such classical thinkers as Aristotle and Cicero, Thompson argues that they modified the ancients’ republicanism in light of their Lockean commitment to liberty: “For traditional republicans going back to ancient Greece and Rome, the sacrifice of individual interests for the common good was the ultimate standard of moral and political value,” he writes. But thanks to the influence of now-forgotten intellectuals such as Massachusetts minister Jonathan Mayhew, who wove Lockean theory together with Christian doctrine, the Founders adopted “a new and improved understanding of republicanism” that focused on what the Declaration calls “happiness and safety,” the twin pillars of the bourgeois commercial republic.

Saturday, November 9, 2019

The American Theory of Rights: Not in the Social Contract, but in the Natural Law

James Otis might have become the foremost thinker of the Founding, except he was brained by a violent Tory in 1769, and frankly, was showing signs of mental problems before that.  But 'twas James Otis who got the intellectual arguments for the American vision of liberty off to a brilliant start in 1764:

"Government is founded not on force, as was the theory of Hobbes; nor on compact, as was the theory of Locke and of the revolution of 1688; nor on property, as was the assertion of Harrington. It springs from the necessities of our nature, and has an everlasting foundation in the unchangeable will of God."
This is the unique American theory of rights as expressed in the Declaration of Independence--the foundation of man's rights is "the laws of nature and of nature's God."

Here the erudite Otis makes the essential distinction between various "Enlightenment" theories of government and rights [Hobbes and Harrington, yes, even contrary to John Locke!] and the uniquely American vision--our rights come prior to government, we don't negotiate our rights with the government, or with each other:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Rights are prior to government, then
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...

And some years later, in 1790, James Wilson---one of the few signers of both the Declaration and the Constitution, and a future Supreme Court justice, reminds his audiences [that included President Washington] in his lectures on law of just how the American view of rights differs from the British "contract" view of 1688, the supreme legal theorist William Blackstone and Edmund Burke, and even John Locke and the Magna Carta:

"But even if a part was to be given up, does it follow that all must be surrendered? Man, says Mr. Burke, cannot enjoy the rights of an uncivil and of a civil state together. By an uncivil contradistinguished from a civil state, he must here mean a state of nature: by the rights of this uncivil state, he must mean the rights of nature: and is it possible that natural and civil rights cannot be enjoyed together? Are they really incompatible? Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke -- Sir William Blackstone. 
And must we surrender to government the whole of those absolute rights? But we are to surrender them only -- in trust: -- another brat of dishonest parentage is now attempted to be imposed upon us: but for what purpose? Has government provided for us a superintending court of equity to compel a faithful performance of the trust? If it had; why should we part with the legal title to our rights?"

Here is the fatal flaw of "social contract" theory, the British understanding of rights and government according to Burke and Blackstone and Locke---We barter our natural rights with the government and receive "civil privileges" in return.

Wilson answers his own question, "Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution?"---a "social contract" with government...?

At first, the stirrings of rebellion among the American colonists came from acts of Parliament abridging their "rights as Englishmen." But in the end, the Americans realized that even their "contractual" rights as Englishmen weren't enough---

 Rights reside in man, not in where a man resides.

This is the American way.

Thursday, November 7, 2019

A lesson on how not to write an article

So on social media, I am friends with David Boaz, an author and executive who works for the Cato Institute. He posted a link to an article about Thomas Jefferson and the Declaration of Independence that was critical of himself.

The author is one Robert Curry and the article appeared at The Federalist. Long story short, Boaz supposedly engaged in a mistake that is all too common among academics who study the American founding: he said Jefferson et al. took from Locke's 2nd Treatise and put such into the Declaration. And simply credits Locke for those ideas.

But when we read the article, we observe no "there there." Curry invokes a distinction between what Jefferson wrote in the Declaration and what Locke wrote in the 2nd Treatise but fails to tell us why the distinction is meaningful.

Curry notes that it has something to do with Jefferson's use of the term "unalienable" that was lacking in Locke's original which stressed "property." And how property was missing from the Declaration.  Rather it was replaced with "pursuit of happiness." But again, no clear explication of why the differences makes a difference.

But here is the strange thing; The Federalist article makes Curry look like an ignorant pedant. But he's actually not. When I googled him, I saw that fairly notable, informed people were supporting Curry's work and that he was affiliated with organizations, notably Claremont, with informed folks who do good work.

Indeed, Claremont published a longer article of Curry's which actually gets into better details on his thesis. Curry may still be wrong and I do think he uses too many words to make his point; but indeed there is a "there there" to his thesis.

You are just going to have to read the Claremont article to find out. And perhaps we can blame the editors at The Federalist for their weaker article.

Wednesday, November 6, 2019

A Moral History of the American Revolution

OK, I've gotta get this one. And so do you. See below for ordering information. An affirmative argument.

I'm SO tired of academicians at podunk colleges taking potshots at equally minor league evangelicals such as David Barton and Rick Joyner. And frankly, seeing that crap appear on the front page of this blog.

For instance, John Fea wasted much of his magnum opus Was America Founded as a Christian Nation d-bagging transitory and very minor figures in American politics like Barton, etc. Re-reading it just this morning, the 2011 book seems nearly worthless now, just a handful a years later. In writing a polemic, not a work of history, in service of his politics--against some very lightweight political enemies--he squandered a chance to make anything of lasting scholarly value. [When Historians Attack.]

By contrast, Clemson's C. Bradley Thompson and his America's Revolutionary Mind: A Moral History of the American Revolution and the Declaration That Defined It may indeed prove to be of lasting worth. At least it was written with that in mind:

America's Revolutionary Mind is the first major reinterpretation of the American Revolution since the publication of Bernard Bailyn's The Ideological Origins of the American Revolution and Gordon S. Wood's The Creation of the American Republic. 

The purpose of this book is twofold: first, to elucidate the logic, principles, and significance of the Declaration of Independence as the embodiment of the American mind; and, second, to shed light on what John Adams once called the "real American Revolution"; that is, the moral revolution that occurred in the minds of the people in the fifteen years before 1776.
The Declaration is used here as an ideological road map by which to chart the intellectual and moral terrain traveled by American Revolutionaries as they searched for new moral principles to deal with the changed political circumstances of the 1760s and early 1770s. This volume identifies and analyzes the modes of reasoning, the patterns of thought, and the new moral and political principles that served American Revolutionaries first in their intellectual battle with Great Britain before 1776 and then in their attempt to create new Revolutionary societies after 1776.

The book reconstructs what amounts to a near-unified system of thought—what Thomas Jefferson called an “American mind” or what I call “America’s Revolutionary mind.” This American mind was, I argue, united in its fealty to a common philosophy that was expressed in the Declaration and launched with the words, “We hold these truths to be self-evident.”


And from Robert Bidinotto in his own words: I edited this book in manuscript, and let me tell you: It’s THE book our country needs right now, to counter the anti-American narratives that have been poisoning generations. THIS is the rationale for, and defense of, America that we have all been waiting for — and that we so desperately need in our time. If you are upset with how the history, principles, and Founders of America have been vilified and vandalized, then you absolutely, positively must get “AMERICA’S REVOLUTIONARY MIND” by Clemson historian C. Bradley Thompson. I am thrilled to have helped edit this magnificent examination of America’s founding, revealed through Prof. Thompson’s deep and eloquent exploration of the ideas of the Declaration of Independence — as they were debated and championed by the people of that era. It is a rich work that will enrich your mind and spirit. Buy it today — and spread the word.

Order here: