Monday, January 12, 2009

Steven Waldman's Founding Faith

Folks on this blog often speak well of journalist/author/editor Steven Waldman as an even-handed and honest inquirer, and Mr. Waldman has a new book, Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America. I'd like to clip from Michael P. Orsi's review in the new AmSpec:


The place of religion in America is a problem as old as our republic. It has been a flash point of debate between liberals and conservatives on a wide range of issues--such as aid to parochial schools, prayer at civic gatherings, nativity scenes on public property, government assistance to faith-based organizations, and many other concerns. The locus of the problem is interpreting the Establishment Clause of the U.S. Constitution’s First Amendment (1791), which reads, “Congress shall make no law respecting the establishment of religion.”

Constitutional originalists hold to a strict interpretation of this text. They contend that when the First Amendment was ratified it simply prohibited the federal government from declaring itself in support of a national religion or acting in favor of a particular faith. On the other hand, proponents of a dynamic Constitution contend that what the phrase really means is that a strict separation must be maintained between the state and all religion in any form.

In Founding Faith, Steven Waldman, editor in chief of the popular online religion journal Beliefnet.com, investigates the genesis of the Establishment Clause. He presents the religious, philosophical, and political beliefs held by the authors and promoters of the Bill of Rights when the First Amendment was drafted.

Like most writers who delve into the First Amendment, Waldman explores the thinking of the great figures behind the Constitution, in particular the “Big Five”--Adams, Franklin, Jefferson, Madison and Washington--that small circle generally thought of as the key Founding Fathers. He notes a bottom-line fact: the “Big Five” were decidedly pro-religion, and not at all the vague, quasi-secular, hands-off-God deists they are often represented as being. Adams, Franklin, Jefferson, Madison and Washington all agreed on the importance of religion to a healthy democracy.

All to some degree believed that God intervened in the lives of men, and had chosen America for special blessing (the idea often referred to as American exceptionalism). That included Jefferson, whom Waldman presents as the least conventional of the five in his religious sensibilities. The Founders’ real concern was determining how religion could flourish best in America. Madison, whom Waldman paints as the most traditionally pious of the group, was the prime agent behind the First Amendment. He held a strong desire for a strict separation between church and state, because he believed that government presented the greatest potential obstacle to its flourishing. His view reflected his disgust with the European model of national churches, the history of which ultimately proved damaging to religion and an impediment to the freedom of conscience that was sacred to all the Founders.

But Waldman makes the important point that constitutional study has tended to focus too narrowly on the thinking of the “Big Five.” As much as Adams, Franklin, Jefferson, Madison and Washington believed in God and His providential care (both for human beings and for our country) and agreed on the importance of religion in buttressing public morality, Waldman insists that their personal opinions are not the only standard by which the words of the Establishment Clause are to be understood. Indeed, to grasp fully the clause and its implications for religious freedom, it is essential to explore the views of a much wider group, including the members of the committee that drafted the Bill of Rights, as well as the congressional ratifiers.

The input and votes of all these men were vital in bringing the document to its final form and passage. And as Waldman wisely emphasizes, they all had their personal preferences regarding church-state relations, and moreover, represented states with widely divergent approaches to the concept of religious establishment. Some states, like Virginia, had prohibited funding of the Anglican Church as early as 1776, while Massachusetts continued to support the Congregationalist Church until 1833. That the First Amendment emerged from the framing process as it did reflects the fact that the Founders were, first and foremost, politicians willing and able to compromise in order to accomplish what was doable under the circumstances.

Waldman explores the ways in which the culture and denominational composition of each state, as well as the politicians’ personal beliefs, influenced how the Establishment Clause was understood. Pressure from Jefferson and Madison certainly provided encouragement to Virginia’s disestablishment law, while the views of Massachusetts’s John Adams and Fisher Ames, who considered government support for religion essential, had its effect in their state. Participation by men of such conflicting outlooks in the constitutional process argues forcefully that a narrow reading of the agreed-upon amendment is the only fair assessment that can be made. In other words, the First Amendment was intended only to prohibit a federally sponsored religion. Individual states could make their own laws.


TVD: Now, I've tended to skip books like Waldman's in favor of reading the Founders for myself, and I admit it's gratifying to independently come to many of the same conclusions as Waldman, particularly:

---on the objection to "key" Founders theses that tend to ignore or diminish the other Founders;
---that the personal opinions of these "key" Founders shouldn't be our standard to judge the First Amendment, nor were they were unanimous on things;
---that the other Founders [Ratifiers] are fully worthy of our attention;
---that even the "key" Founders are not nearly as secular or deist as "common knowledge" proclaims them to be;
---that the Bill of Rights' Establishment Clause was designed as anti-sectarian, not anti-religion;
---and the importance of federalism, which left many religious questions to the states, and that the signing of the constitution by no means ceded such jurisdiction to the federal government as many might think today.

Waldman also explicitly claims what I've only held as a suspicion: that James Madison's reticence to speak about religion came not from disbelief, but from a very humble piety. And "American exceptionalism" is a mainstream we haven't even begun to ford around here.

The second half of the book [and review] is about expansive judicial interpretations of the Fourteenth Amendment, where the federal government's claim to supremacy in such matters has been enforced. Certainly a worthy topic, but one presently outside the scope of this blog, for which I for one am thankful. Should others be interested in the method of working backwards from 2009 instead of forward from 1776, I recommend Jonathan Rowe's other groupblog, Positive Liberty.

18 comments:

Jonathan Rowe said...

Don't worry. We will eventually get to the 14th Amendment here.

You are missing a semicolon in your second --- down.

Tom Van Dyke said...

Ooops. How unaesthetic! Fixed, and it looks so much better now. Thx. ;-D

As for the Fourteenth, it's so close to the skin of current events that once we prick it, we will become like every other blog, and bleed or be bled to death. Intelligent discussion and inquiry will cease: historical fact and argument will and must surrender to opinion and emotion---and in short time one side or the other will annihilate the minority view, as we have already seen at your other groupblog, which is pretty much no longer worth reading.

As you recall---if I recall my Plato and Leo Strauss correctly---politics lies within the realm of opinion. All opinions are equal, afterall: that's the foundation of democracy. And the internet, eh?

Jon, when we first started down this road together those many years ago, I cautioned that I thought the success of your argument lies not before but after Mr. Lincoln's War and thereby the Fourteenth Amendment and then its modern interpretations and expansions.

It is only in cutting the Founding loose that you can achieve your victory. What you sought there simply is not there. Your friends at Positive Liberty have simply cut to the chase---Turnip Truck, 2009, armed only with the words of the Constitution, the Fourteenth Amendment, and an unlimited barrel of cyberink.

It will likely prove sufficient.

Jonathan Rowe said...

Heh. Well, Akhil Amar (who has convinced Justice Thomas of the veracity of his research) and a few others make a strong case for incorporation of the BOR thru the 14th. Every time the Constitution gets amended a new "Founding" occurs.

Brad Hart said...

Hmmmm...I think you might be overstating a couple points from Waldman's book.

First off, Waldman DOES expound upone the key founders quite a bit. In fact, each "key" founder receives their own chapter, in which Waldman explains their essential role in the founding.

Now, you are right about Waldman pointing to the fact that the founders were not nearly as secular as we are often led to believe. This was one of my favorite points in his book.

As for Madison, Waldman also points out how his religion changed after college, becoming more "heretical" than it had been in the past.

For the most part, however, you do share a lot of the same ideas as Waldman, and I must admit that I agree with many of them.

Tom Van Dyke said...
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Tom Van Dyke said...

Thx, Brad. I hope I made it obvious I didn't read Mr. Waldman's book---otherwise I'd have written my own review. And if I overstated any conclusions from Father Orsi's [aha! a Roman Catholic, and a priest at that! Now we know!] review, I apologize.

It appears you HAVE read the book, so I'll simply vanish...into...the...haze....

Still, whenever I get some---any---indication I've been barking up the right tree afterall, I gotta post something like this.

My inquiry into the Founding started only a few years ago, and from a completely open position. And if the Founders had turned out to be total atheists, sybarites, hedonists and just plain political manipulators of the common folks' religion, I wouldn't have been the least surprised.

Dunno about you, but I was brought up on cynicism, like all of us [except my pal Pinky]---every generation has been brought up on cynicism since the '60s.

The facts are making themselves clear---the Founders actually weren't cynical. Every damn one of them was sincere in trying to figure out the Human-God equation, each in their own way.

This came as a great and stunning surprise to me. I had no idea. I thought they were just like us.

[Oh, and Brad, thx for getting my back when the time came, gently yet courageously. People notice stuff like that.]

Tom Van Dyke said...

...a strong case for incorporation of the BOR thru the 14th. Every time the Constitution gets amended a new "Founding" occurs.

Yes, Jon, I believe that's what I was trying to tell you all those many years ago. Kick "the Founding" to the curb.

Me, I might hang around here awhile. Why, I dunno yet. Sentimentality, I reckon.

Positive Liberty is the future. I frankly have no idea why Pinky doesn't go there or why Ben ever chose to come from there and haunt us here. These guys often write that our cyberscribblings on this blog are meaningless---even if someone proves a point about the Founding, so what? We're in the 21st century now.

This blog is a joke, especially after the Fourteenth Amendment and nearly 150 years of interpreting and re-interpreting it.

I'm sure they're right.

I guess Ben and Pinky hang around here because we give them the time of day, unlike whatever other blogs they've commented on.

Do they agree with you? In substance, that would be extremely hard to tell. But they do the Wave. Take that for whatever it's worth.

Me, I offered a cash bounty for them to discuss Singapore. I thought it would be fun to inflict them on each other, as they deserve. But 100 times that bounty says they never get up the guts to walk into the ring, Jon, unless one of them takes a dive...

Life isn't boring, but people are. 8-[D>

Charles said...

I find the following from the review surprising:

Constitutional originalists hold to a strict interpretation of this text. They contend that when the First Amendment was ratified it simply prohibited the federal government from declaring itself in support of a national religion or acting in favor of a particular faith.

and

the First Amendment was intended only to prohibit a federally sponsored religion.

I would think that from an original public/ratfiers' meaning perspective, a key step in interpreting/constructing the EC would be addressing the meaning of "respecting" and "establishment". Taking the EC to prohibit the federal government from "declaring itself in support of", "acting in favor of", or "sponsor[ing] religion" sounds to me a lot like prohibiting "endorsement", and I feel certain many/most critics of recent EC jurisprudence wouldn't buy that.

This, the use of phrases like "strict interpretation" and "strict separation", and the thumbnail descriptions of the opposing views on EC meaning suggest to me that someone isn't up-to-date on EC scholarship. Whether that's Mr. Waldman, Mr. Orsi, or both depends, of course, on whether the review is an accurate reflection of the book. Perhaps Brad will offer an opinion on that.

(Another possibility, of course, is that I'm confused. Notwithstanding my sincere efforts to base opinions about constitutional interpretation on current scholarship, they remain only lay opinions. I trust Jon will correct me if it is I who is off-base.)

In any event, I continue to wonder just how important what the founders - whether "big five" or "cast of thousands" - thought about religion per se or religion's role in a successful society is vis-a-vis constitutional interpretation (or more accurately in this case, I think, construction). Unless those can be related directly to ascertaining the meaning of "respecting" and "establishment", those opinions seem relevant only to original-intent-originalism, which - as I understand it - has become pretty much passe.

OT aside: What tag for indented quotes works here?

Tom Van Dyke said...

Well, Charles, I think it's important to know the original intent of the constitution before we set about ignoring it. It seems the Founders' sentiments are light years away from say, Michael Newdow's and indeed many 20th century Supreme Court decisions.

If we're to run roughshod over what the Constitution actually means, I just want us to be honest about it.

Jonathan Rowe said...
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Jonathan Rowe said...
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Jonathan Rowe said...
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Jonathan Rowe said...

Well, the 14th Amendment was important and not wholly unrelated to Founding ideals -- the ideals of liberty and equality as articulated in the DOI (which TVD wants to believe in as America's soul, as opposed to disregard as a document too "Enlightenment" for an orderly republican society, as Robert Bork, Lino Graglia, Russell Kirk and other social conservatives believe).

One could argue the 14th Amendment simply gave the federal government more power to enforce the ideals of the Declaration of Independence.

Pinky said...

,
"I guess Ben and Pinky hang around here because we give them the time of day, unlike whatever other blogs they've commented on."
.
I come here thinking I might learn something. Usually as a result of some controversy that causes me to search out answers. I think I've learned a lot.
.
I sure don't come here to show off how smart I think I am.
.
As for cash awards of a buck, you can't buy a cup of coffee for a dollar in Kalamazoo. Make it worth my while and I might take you up on your offer. Say $350.00 or so? I don't work cheap.
.

Pinky said...

.
I think the comments about the 14th are interesting. The Founders were more inclined toward the ancient Greek ideas of democracy. Then there's the 19th. Which is another reason it is difficult to work backwards to 1776.
.

Tom Van Dyke said...

Yes, Jon, I stipulated you will "win" any argument with the Fourteenth, especially since these days, it's used as a bludgeon to enforce almost any opinion on anything.

All I said was that the way Fourteen is used these days has little to do with the Founding, so I'm not disposed to discuss it on this blog.

bpabbott said...

Michael P. Orsi: "Constitutional originalists hold to a strict interpretation of this text. They contend that when the First Amendment was ratified it simply prohibited the federal government from declaring itself in support of a national religion or acting in favor of a particular faith. On the other hand, proponents of a dynamic Constitution contend that what the phrase really means is that a strict separation must be maintained between the state and all religion in any form."

I'm confused. I'm aware of some who favor a "dynamic" Constitutional interpretation, but I don't see how this is necessarily in opposition to "strict interpretation".

As I'm unfamiliar with Orsi's work, perhaps it is my understanding of his terms that is problematic.

Some clarification by those who are would be appreciated.

(1) Does "strict interpretation" imply a strictly literal interpretation, as opposed to an "original intent" interpretation, or something else.

(2) The term dynamic infers to me a system/process that changes with time. In this context, I'd infer a dynamic interpretation as one takes a position that constitution interpretation be understood in the context of today, and that a static one intends to bound us to the context in which it was written. This perspective does not appear to fit the Orsi's words. What does he imply by "dynamic Constitution"?

Charles said...

"I'm confused. I'm aware of some who favor a "dynamic" Constitutional interpretation, but I don't see how this is necessarily in opposition to "strict interpretation"."

The potential for this sort of confusion motivated my comment above. I read current research papers on constitutional interpretation on a regular basis and don't recall encountering these terms.

Some time back there was an expression "strict construction" (associated with Judge Bork as I recall), but I don't encounter it in current papers. "Construction" (as opposed to "interpretation") today has a reasonably well-defined technical meaning, whereas IMO "strict construction" suggests that it's opposite is "lax construction" - which is polemics, not objective comparison. Politicians still use the phrase occasionally, but IMO it's code for "judges who vote like Justices Scalia and Thomas" and is a reliable sign of not being serious.

"Dynamic" may be intended to refer to the "Living Constitution" idea (associated with Justice Breyer), but I don't encounter that term either. I don't care for either since they imply a degree of flexibility that may exceed that which is inevitable (and therefore justifiable) due to some language in the Constitution being vague or ambiguous (eg, "bear arms", "respecting") or changes in context (emergence of an AF, radio, TV, etc).

The sentence "Constitutional originalists hold to a strict interpretation of this text." also raises red flags. "Originalist/m" today requires a modifier - like Heinz soups, there are "57 varieties". Trying to define it in a half dozen words makes little sense, and defining it as "strict interpretation" makes none.

All with my standard caveat that this is a lay opinion, worth every cent you paid.