Saturday, January 24, 2009

The Original Meaning of "Religion"

I'm still thinking about writing a scholarly article on the original meaning of the term "religion" in the US Constitution. Endless articles have been done on the original meaning of the religion clauses by much better scholars. They explore such things as whether the free exercise clause meant to include exemptions from generally applicable laws and exactly what the establishment clause prohibited, the erection of a national sect only (like the Church of England) or something more. See among others the work of Phillip Munoz, Philip Hamburger, Marci Hamilton, Douglas Laycock, and Akhil Amar. My article would focus on what "religion" means in the specific sense of whether it's "Christianity only" "religion in general" or something else.

How does the difference matter? If it's "Christianity only" then according to the original meaning of the religion clauses, non-Christian religions wouldn't have a right to freely practice their religion.

Does it even matter? In a sense yes; in a sense no. It doesn't matter in the sense that the question has been settled by judges and policy makers; even the most conservative jurists on the Supreme Court of the United States believe non-Christian religions are protected under the religion clauses. However, that "religion" originally meant "Christianity" is one of the central tenets of the "Christian America" thesis. I don't argue Christian Nationalists want to deny non-Christians the right to freely exercise their religion; though the Christian Reconstructionists (who are extremist and marginal) who borrow from Barton's work do. But I do sense these Christian America types argue non-Christians religions are lucky we Christians give them religious rights, because the original meaning of the Constitution holds we don't have to.

If you don't believe me, see mega-church pastor and Christian America promoter (David Barton speaks at his church) Robert Jeffress claim that "[n]o serious student of history doubts the framers of the First Amendment were referring to Christian denominations." Well, no, many serious students of history, for instance, the majority of the PhDs in history at prestigious universities, do not believe "religion" in the First Amendment meant "Christian sects." Though I have seen a few ultra-leftist "critical legal" theorists claim something like this in order to show just how unacceptable "originalism" is. [As the theory goes "rights" were intended to protect white, propertied, Protestant males only.]

But to the meat of the argument, the Constitution uses the term "religion" only once in the First Amendment and "religious" as in "no religious test" once in the unamended Constitution. My research concludes "religion" meant "religion in general" not "Christianity only," for all three clauses. Much groundbreaking work has already been done on the "no religious test" clause. This work demonstrates it did NOT refer to sectarian Christian tests only as Christian Nationalists argue, but rather abolishes all religious tests for public offices and permits, if the people so decide, the election of a non-Christian to public office. As Kramnick and Moore point out in The Godless Constitution the side that objected to the US Constitution on the grounds that it permitted non-Christians to be elected to office lost once the Constitution was ratified. However, the authors downplay the fact that their pious fears were largely assuaged by the fact that the "religiously correct" knew electors ultimately had the right to vote for "Christians only" if they so chose.

Now, so far, I've spoken of "religion" in the First Amendment and not differentiated between the Free Exercise Clause and the Establishment Clause. And I've done so for good reason. And that's because, even though the FEC and the EC deal with two different concepts, the term "religion" is used only once. As the clause reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..." Note the term "religion" is used once in the EC and the term "thereof" is used in the FEC. The "thereof" in the FEC relates back to the term "religion" in the EC. It is logically impossible for something to qualify as a "religion" under the FEC, and not under the EC. This is a profound observation legal scholar Philip Hamburger makes at the 1 hour and ten minute mark in this video.



Hamburger notes some Wiccans have argued they are a "religion" for Free Exercise purposes, but not for Establishment Clause purposes. He correctly counters that such construction of the First Amendment is logically impossible because the term "religion" is used once for both of the clauses. It's like Siamese twins who are two distinct entities but share the same organ, like a heart. And in this case the term "religion" in the Establishment Clause is the "heart" that both the EC and FEC share.

I bring this up because I've seen some Christian Nationalists argue that non-Christian religions are protected under the First Amendment's Free Exercise Clause, but the Establishment Clause meant "Christian sects only." That construction of the Constitution's text is logically unsound and hence not viable. Some of them (the Christian Reconstructionists) might argue "religion" for BOTH clauses meant "Christianity" only. And that would pass the logical construction test; but the historical record shows non-Christians had rights under the term "religion" in the First Amendment.

The first rule in constitutional interpretation is we begin with a sound, logical construction of the text. Often the text is broad and "indeterminate," can support multiple meanings. But just because a text can support multiple meanings doesn't mean it can support anything. For instance the text of the Second Amendment clearly refers to some kind of "guns," but is indeterminate regarding whether government is permitted to distinguish between handguns and howitzers. But if someone argued the Second Amendment guarantees a right to play tennis, it would flunk the text test. Likewise arguing the Free Exercise Clause covers non-Christian religions, but the EC covers only "Christianity" flunks the test of logical construction of the Constitution's text.

Christian Nationalists are fond of offering a quotation by Joseph Story (a theological unitarian who thought unitarianism was "Christianity") to prove their point where Story noted:

The real object of the First Amendment was not to countenance, much less to advance Mahometanism, or Judaism, or infidelity by prostrating Christianity; but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.


Now, Story's quotation may shed light on the underlying aim of the First Amendment (which may have had multiple underlying aims). However, it still cannot trump the TEXT of the Constitution, which uses the term "religion" not "Christianity" and where the term "religion" MUST by logical necessity cover the same faiths for both clauses.

So we come back to the blog where Christian Nationalist minister Robert Jeffress left a comment using Joseph Story's quotation to attempt to prove "religion" in the US Constitution originally meant "Christianity" only. The blog's host, Dr. Bruce Prescott, effectively countered with George Washington's 1790 letter to the Jewish congregation in Newport, Rhode Island:

The Citizens of the United States of America have a right to applaud themselves for giving to Mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens.


Now this is one piece of many evidences. But that it came from the Father of America makes it quite compelling. This proves "religion" in the First Amendment meant more than just "Christianity" where the meaning of "religion" in the Free Exercise Clause, by logical necessity, defines the meaning of "religion" in the Establishment Clause and vice versa.

30 comments:

bpabbott said...

My only critique is that your didn't quote the observation by Philip Hamburger at the 1 hour and ten minute mark :-(

I'll remedy that :-)

"[...] to the benefit or pain of both claues, one can't pick and choose between them, its a sort of natural regulatory process within the first amendment, that we have the same use of the word religion [...]"

Jonathan Rowe said...

Thanks Ben. If/when I write the article, I am going to have to quote Hamburger exactly.

Tom Van Dyke said...

George Mason's original formulation read:

“All men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular sect or society of Christians ought to be favored or established by law in preference to others.”

Pretty straightforward, and a reading of the First Amendment itself argued by many today. Why that wording didn't survive would shed light on this inquiry. Cheers.

Jonathan Rowe said...

But that's not the wording that ended up in the US Constitution.

bpabbott said...

George Mason's "original" was not part of the federal discussion was it?

Madison formulated the original (borrowing from Mason for sure).

Some uderstanding for how the wording was chosen can be found by examing the records of the discussions/debates (although the record is sparse).

Congressional Debates: Religious Amendments, 1789

Religion and Expression

Establishment of Religion

Free Exercise of Religion

Madison has left far more for use to examine than any other founder.

James Madison And National Religion

In any event, what the historic record does contain will not settle all debates, but it is sensible to be familiar with it.

Our Founding Truth said...

The Citizens of the United States of America have a right to applaud themselves for giving to Mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens.


Now this is one piece of many evidences. But that it came from the Father of America makes it quite compelling. This proves "religion" in the First Amendment meant more than just "Christianity" where the meaning of "religion" in the Free Exercise Clause, by logical necessity, defines the meaning of "religion" in the Establishment Clause and vice versa.>

Really? If the context isn't the first amendment, how can you say his quote is referring to the first amendment?

Anyway, Madison proves only Christianity could be an established sect. Other religions were not known as sects, and Madison's context of the first amendment, and everyone else, is a National Religion.

A National Religion could only be one religion, not many. It's an absolute impossibility for more than one religion to be referred to in the establishment clause. The establishment clause refers only to a particular sect of Christianity. The free exercise clause is just that; free exercise of any religion.

Unless the framers were explicit, they always spoke of religion as Christianity; as Hamilton says in the Federalist:

The infinite divisibility of matter, or, in other words, the infinite divisibility of a finite thing, extending even to the minutest atom, is a point agreed among geometricians, though not less incomprehensible to common-sense than any of those mysteries in religion, against which the batteries of infidelity have been so industriously leveled.

~Federalist #31

Usually, the Founding Fathers used the word "religion" to reference to Christianity, because an overwhelming majority of the people at the time considered themselves to be, really or nominally, Christian. And so far as I know, and so far as applies to the sphere of the Founders, no other religion suffered under the "industrious leveling" of the "batteries of infidelity" (at least not that the Founders were concerned about) than Christianity. Also bear in mind that Hamilton never evinced sympathy toward any other religion than Christianity. So here, he is discussing Christianity.

In addition to this, Hamilton cannot be a theistic rationalist, because he is obviously defending the "mysteries of religion," that is, those tenets of religion which cannot be completely solved by human reason, which theistic rationalism holds as the highest authority. So Hamilton seems to be expressing a religious and philosophical difference with theistic rationalism, or rationalism of any kind.
http://herkyreflects.blogspot.com/2007/10/i-didnt-say-it-hamilton-did.html

Our Founding Truth said...

The ratifiers make it clear, the First Amendment granted freedom of conscience but the establishment clause only referred to a particular sect of Christianity, as Constitution signer Henry Abbot explains in the North Carolina Ratification Convention:

"Many wish to know what religion shall be established. I believe a majority of the community are Presbyterians. I am, for my part, against any exclusive establishment; but if there were any, I would prefer the Episcopal."

~Elliot's Debates, Vol. IV, pp. 191-192, July 30, 1788.

Here, also is Governor Samuel Johnston in the North Carolina ratifying convention claiming religion is only Christianity, other religions weren't even a thought:

I know but two or three States where there is the least chance of establishing any particular religion. The people of Massachusetts and Connecticut are mostly Presbyterians. In every other State, the people are divided into a great number of sects. In Rhode Island, the tenets of the Baptists, I believe prevail...I hope, therefore, that gentlemen will see there is no cause of fear that any one religion shall be exclusively established.
~July 30, 1788

As the Governor of North Carolina explains, only a particular sect of Christianity could be established. Any other religion never entered his, or anyone else's mind.

Our Founding Truth said...

"Many wish to know what religion shall be established. I believe a majority of the community are Presbyterians. I am, for my part, against any exclusive establishment; but if there were any, I would prefer the Episcopal." [bold face mine]

~Elliot's Debates, Vol. IV, pp. 191-192, July 30, 1788.

I know but two or three States where there is the least chance of establishing any particular religion. The people of Massachusetts and Connecticut are mostly Presbyterians. In every other State, the people are divided into a great number of sects. In Rhode Island, the tenets of the Baptists, I believe prevail...I hope, therefore, that gentlemen will see there is no cause of fear that any one religion shall be exclusively established. [bold face mine]
~July 30, 1788

Johnston affirms the other states as only establishing Christianity as an option for the establishment clause.

Jonathan Rowe said...

OFT:

You can quote whatever you like, but you still didn't touch the logic that I laid out in my original post. And, quite frankly, I don't know why you would even bother, in that you would have to argue against 2+2=4.

And by the way, Washington WAS referring to the First Amendment in his context when he wrote "For happily the Government of the United States...."

Jonathan Rowe said...

A National Religion could only be one religion, not many. It's an absolute impossibility for more than one religion to be referred to in the establishment clause.

By what logic do you come forth with this assertion? As I understand the term "National Religion" and "sect," (which, by the way, the First Amendment does not use) Christianity, Islam, Judaism or whatever might qualify. The text of the First Amendment, read thru the lens of the the "national religion" standard (which by the way is not part of the text) prevents a "Christian" sect as much as it prevents a Muslim, Jewish, or whatever sect from becoming the "national" religion. In short, Madison's quotation offers your theory nothing.

Jonathan Rowe said...

And by the way, Hamilton WAS, the best evidence shows, a theistic rationalist until near death. The term "infidelity" simply meant someone to one's religious left. Ben Franklin -- a theological unitarian who denied the tenets of orthodox Christianity -- termed those to his religious left (deists and atheists) "infidels."

bpabbott said...

OFT: "Madison proves only Christianity could be an established sect."

How so? Did he say/write something explicit or did his works infer something in your mind?

I understand that from a practical perspective only Christianity could be established, but by a legal perspective you'll need explicit language to substantiate your claim.

OFT: "A National Religion could only be one religion, not many. It's an absolute impossibility for more than one religion to be referred to in the establishment clause. The establishment clause refers only to a particular sect of Christianity. The free exercise clause is just that; free exercise of any religion."

The first amendment only includes the word "religion" once. It's meaning must be consistent and encompass all religions and all sects. If you are so sure that is not the case, you'll need to provide compelling evidence ... something "explicit"!

You're making a positive assertion that a single instance of a word carries two inconsistent meanings. As such a claim is quite extraordinary (especially in matters of law) the burden is your's to produce evidence to substantiate that claim ... and not evidence when seen through your eyes leads to your conclusion, but explict evidence that sufficiently narrows the meaning of "religion" with respect to government establishment.

fwiw, I think your position is poorly fortified. The 1st amendment says:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; [...]"

Regarding the two religious clauses, consider each;

* free exercise [of reliigon]

* no law resepecting an establishment of religion.

It is clear (to me) that the free exercise clause carries a specific meaning (the free exercise of religion). However, the "respecting an establishment of religion" phraseology implies a broader meaning for the establishment clause.

For example, is not the very concept of God "an establishment of religion"? Has God been established by anythiing else?

bpabbott said...

OFT: "Madison proves only Christianity could be an established sect."

In January 1784, Patrick Henry introduced a bill, "A Bill establishing a provision for teachers of the Christian Religion".

The bill was defeated. In part due to the published response by James Madison in his
Memorial and Remonstrance Against Religious Assessments
.

Is this not explicit evidence that Madison did not share your opinion that it is ok for the government to establish Christianity as our Nation's religion, but that no specific sect could be preferred (that is your position, correct?).

repsac3 said...

Hi folks.

I'm interested in the topic, and I find what I've read here fascinating (those parts I understood, anyway...), but--as my last parenthetical remark implies--I need a bit of easing in on the topic. (I was hoping you folks had a basic FAQ kinda thing, but if you do, I can't find it.) Can any of you recommend any simpler sites or beginning books on the topic, perhaps?

I'm looking for more specifics on those "Judeo-Christian" principles or values on which some claim American government is based. Lotta folks say we were founded as a J-C nation, but few specify what those J-C values are by name... And my Bible doesn't say much about liberty, freedom and equality... I'm looking for a ource that'll name them, and simply explain how each is both an American and a J-C value, rather than say, an ancient Greek or a Ming Dynasty Chinese value. (Bet you can't guess where I'm inclined to stand on the subject... 8>)

I intend to keep reading here (& looking up every bit of "Straussian this," "Jacobin that," and "who-knows-who whatever" about which I'm unaware as I go along), but this beginning political history student (self-study, for my own edification) would appreciate any push in the right direction that anyone's willing to offer.

Thanks in advance (and should anyone mind, I'm sorry for the intrusion of ignorance...)

((Could be worse... I could be a Nigerian selling blue pills, or something... 8>) )

exteo

Tom Van Dyke said...

...those tenets of religion which cannot be completely solved by human reason, which theistic rationalism holds as the highest authority...

As "theistic rationalism" is an artificial term, it means whatever its originator says it means. John Adams and Joseph Wilson have been quoted here recently with a certain distrust of human reason, as in their view it's subject to distortion by our passions.

Repsac, very nice questions. I recommend our contributor Kristo Miettinen's posts

http://americancreation.blogspot.com/search/label/Miettinen%27s%20Posts

for the view you're sympathetic to, especially the one of "Protestant Natural Law." It's slow going and a lot to catch up on if you've just started looking at the subject. However, the Founders' common understanding of "natural law" is a good place to start, working upward to actual theology. Kristo argues why the Founders' understanding is uniquely [Judeo-]Christian, not pagan Greek, not Buddhist or Confucian.

Those on the "other" side argue that the Founding has its roots in reason and the Enlightenment, not Christian theologico-political theory, even if it comes dressed up in Christian rhetoric. The post on Bishop Madison is one such argument.

There is little doubt that Thomas Jefferson leaned that way; the question at hand is whether he and his ilk were powerful or influential enough to be the guiding hand, or, Whose Founding Was It, Anyway?

[I do believe you can safely table Leo Strauss for now, with no harm done to your studies.]

bpabbott said...

Tom: "As "theistic rationalism" is an artificial term, it means whatever its originator says it means."

In that sense, aren't all terms artificial?

Personally, I think the term "theistic ratiionlist" has a much clearer (and cleaner) meaning than does "Christian".

In any event, it is always wise to define terms so as not to confuse. I'd go so far as to say 'terms mean whatever the orator says they do.' ;-)

Tom Van Dyke said...

I agree with that last bit. I simply prefer they not have to be accompanied by an instruction book.

"A WORD MEANS WHAT I SAY IT MEANS, NO MORE, NO LESS," RESPONDED THE RED QUEEN..."

Jonathan Rowe said...

Dr. Frazer who coined the term, did not make it arbitrary. It has a specific meaning to it. You may not agree with the sufficiency of the term or that all of the Founders so categorized proper "fit" within it; however it's still not an arbitrary term.

Raven said...

repsac3:

Here is the key: ignore everything said by Our Founding Truth and you will be fine.

Seriously people, do you need any additional evidence to support the claim that Christian Nationalists (like OFT) want a THEOCRACY over this country? I mean, OMG!!!

Tom Van Dyke said...

Dr. Frazer who coined the term, did not make it arbitrary. It has a specific meaning to it. You may not agree with the sufficiency of the term or that all of the Founders so categorized proper "fit" within it; however it's still not an arbitrary term.

I used the word "artificial," not "arbitrary."

Wouldn't Thomas Aquinas fit the definition of "theistic rationalist?"

Jonathan Rowe said...

Perhaps he would. However "theistic rationalist" is as "articial" a term as "Thomist." Aquinas didn't consider himself a "Thomist."

Tom Van Dyke said...

"Thomist" is an organic term, I think, not an artificial one. But we're getting too far afield.

If Aquinas qualifies as a "theistic rationalist," then the term tells us little if it can also be applied to that other Thomas, Jefferson.

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Anonymous said...

Some of these idiots may as well be atheists! Any nut who knows our TRUE history knows the forefathers meant freedom of religion to mean christianity. They ABSOLUTELY did NOT mean cults, satanists, killer muslims (If a muslim doesn't believe they're suppose to kill people, he/she doesn't know his/her koran!), and the like.

Let me give you a make-believe scanario question and if your answer is "no" you are a hypocrite. Should I be allowed to start a religion where my congregation and I believe serial killing is justifiable? I already know your Janus-faced answer!

YOU and your false interpretations can go where you're probably heading anyway!

Brad Hart said...

Piss off, Anon. You didn't even have the courage to put your name to the crap you wrote.

bpabbott said...

Re: "YOU and your false interpretations can go where you're probably heading anyway!"

As far as I know, I'm the only regular atheist here. When I "get where I'm probably heading", I'll be sure to look you up so we can have a chat about this ;-)

Anonymous said...

Brad Hart responds like a true Pharisee would to Jesus and his truths: with CONTEMPT! His truths were "crap" to them God haters too!
Besides, how do you know why I didn't put my name? For all you know, my name is Anonymous. But since you asked it's Jeffrey Dalmer.

As far as the atheist (bpabbott): I fully understand why you would accept the "any and all" religion interpretation regardless of what TRUE history reveals.

Brad Hart said...

My original comment stands. Piss off, dude. Nobody cares what you have to say, Mr. Jeffrey Dahmer.

repsac3 said...

Nameless folks commenting on two year old posts with attacks on folks not just exactly like them are seldom worth anyone's time. (On the other hand, I'd forgotten about this blog, so even this anonymous troll managed to serve some purpose, though not the one he intended...)

bpabbott said...

History is an objective, not a faith based, venture. Facts are pre-eminent. Interpretation of the facts may add color, but must always be recognized as speculative.

If there is information we have accepted as factual that is in error, please provide the factual information ... by "facts" I refer to the objective sort. Meaning information that is not dependent upon the judgement of the individual.