Thursday, December 31, 2009

Are Religious Tests UnDeclarational?

Tom Van Dyke's citing Daniel Dreisbach's understanding of religion & the original Constitution that responds to Kramnick and Moore's "The Godless Constitution" thesis is fair, as far as it goes.

However I find Dreisbach's mantra -- religion is left to the states -- unsatisfactory in the sense that it avoids the natural rights framework of the American Founding. The natural rights of conscience were the most "unalienable" of rights intimated in the text of the Declaration of Independence. Under the "religion was left to the states" rule (indeed, as originally conceived, the overwhelming MAJORITY of things were left to the states that our modern, post 13th, 14th Amendment AND post Wickard v. Filburn understanding of the Commerce Clause world finds anathema) state and local governments get to ride roughshod over many unalienable rights of conscience.

This is, some might not like to hear it, EXACTLY like "slavery was left to the states." And that's because, as with religion, it was. BOTH issues involve fundamental matters of unalienable rights that states originally were permitted to violate, as per federalist compromises.

Now, the hard question that follows, with regard to religion, is, what practices did the original US Constitution permit that violated the natural, unalienable rights of conscience? Prohibiting anyone from openly professing their religious beliefs and practicing them in a peaceful manner that didn't contravene the secular civil law? Yes, some states did that, and virtually everyone agrees THOSE things, originally constitutional according to the "religion is left to the states" rule, violated the natural rights of the DOI. They are today, understandably, held to be unconstitutional.

But there are harder questions. What if I am free to practice my religion under the confines of the secular civil law, but am barred from holding public office because I am not of the "right" religion of the state? What if the state uses my tax dollars to support a sectarian religion in whose doctrines I don't believe?

Answering these questions is the matter of not just one book, but many. So I'll pick my battles, one at a time and carefully. Regarding sectarian religious tests, the original Constitution permitted states to enact them. But, at the very least, Ben Franklin, Benjamin Rush, Richard Price, and many others thought they violated the natural rights of conscience that the Declaration of Independence protected.

For instance, what follows is PA's original Constitution which Ben Franklin helped pen. It contains a religious test that violated the natural rights of the Declaration of Independence. It held:

And each member, before he takes his seat, shall make and subscribe the following declaration, viz:

I do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration.

Franklin despised the "un-Declarational" religious test contained therein. (He had to accede to such a test as a political compromise.) As he wrote in a letter to John Calder:

I agreed with you in Sentiments concerning the Old Testament, and thought the Clause in our Constitution, which required the Members of Assembly to declare their belief that the whole of it was given by divine Inspiration, had better have been omitted. That I had opposed the Clause but being overpower'd by Numbers, and fearing might in future times be grafted on [it, I Pre]vailed to have the additional Clause that no [further or more ex]tended Profession of Faith should ever [be exacted. I ob]serv'd to you, too, that the Evil of it was [the less, as no In]habitant, nor any Officer of Government except the Members of Assembly, were oblig'd to make that Declaration. So much for that Letter. To which I may now add, that the[re are] several Things in the old Testament impossible to be given by divine Inspiration, such as the Approbation ascrib'd to the Angel of the Lord, of that abominably wicked and detestable Action of Jael the Wife of Heber the Kenite. If the rest of the Book were like that, I should rather suppose it given by Inspiration from another Quarter, and renounce the whole.

Benjamin Rush -- originally an orthodox Christian, but later converted to universalism, believing all will eventually be saved -- likewise despised PA's religious test. Here are excerpts from two of his letters to English Whig Richard Price (who in turn greatly influenced our key Founders).

In the first, Rush calls such a test "a stain from the American Revolution."

[15 Oct. 1785]

I took the liberty of publishing, with your name, your excellent letter on the test law of Pennsylvania. It has already had a great effect on the minds of many people, and I doubt not will contribute more than anything to repeal that law. Dr. Franklin, who has succeeded Mr. Dickinson as our governor, has expressed his surprise at the continuance of such a law since the peace, and we hope will add the weight of his name to yours to remove such a stain from the American Revolution.

And here he notes that such test was eventually repealed:

[22 Apr. 1786]

I am very happy in being able to inform you that the test law was so far repealed a few weeks ago in Pennsylvania as to confer equal privileges upon every citizen of the state. The success of the friends of humanity in this business should encourage them to persevere in their attempts to enlighten and reform the world. Your letter to me upon the subject of that unjust law was the instrument that cut its last sinew.

A "stain from the American Revolution." Perhaps not "unconstitutional" according to 1791's amended Constitution. But clearly, "un-Declarational."


Tom Van Dyke said...

Jon, a necessary nuance is missing here. Not your [this] post particularly, but the way it's all reduced to a simple "Christian nation" vs. "Godless Constitution" culture war.

Very few on either side actually care about anything but "winning."

But as a great man once wrote,

“Truth is a demure lady, much too ladylike to knock you on your head and drag you to her cave. She is there, but people must want her, and seek her out.”

So, back to business:

The rights of individual conscience and free exercise of religion [or none] were seen by many of the ratifiers as an entirely separate thing from being an officeholder, representing his state and therefore its view on the establishment of religion.

Both individual and state rights were accommodated in the US Constitution, per Justice Joseph Story in his seminal Commentaries on the Constitution [1833]: "…the whole power over the subject of religion is left exclusively to the State governments to be acted upon according to their own sense of justice and the State constitutions.”

To my knowledge, not a single state limited freedom of conscience, requiring any intervention by the federal government. You could be a Jew, a Muslim, an atheist, and nobody would come knocking on your door.

They got it, freedom of conscience under the Declaration. Done. The ratification of the US Constitution didn't even come into play, because the Declaration's principles were never under threat.

Now, you quote several theological "liberals" here, Pennsylvanians Franklin and Dr. Rush, and their sentiments about "religious tests" were not uncommon in America. However [deep breath], even though Franklin and Rush succeeded in liberalizing Pennsylvania's "religious test" for statewide office, Pennsylvania remains one of the 7 states that in 2009 still has a religious test on the books!

We can skip over that fact or else it's a serious sin of omission against historical truth.

Neither can we drag in the "privileges and immunities" principles and dynamics of 14th Amendment [ratified 1868] jurisprudence with the Founding. Nor is it fair to lump the accommodation of religion at the Founding with the Constitution's unfortunate but necessary compromise [3/5] with slavery.

The latter would be really dirty pool.

There is more to America than its Constitution; a nation is more than the sum of its laws. That's where Kramnick and Moore get it wrong from the first, as honest scholars, which they admit they are not.

Even if the Constitution was Godless, the nation wasn't. That's the point.

King of Ireland said...


I am one who believes that more harm has been done by the 14th Amendment than good. The state governments were supposed to be a check on the National. Slavery and Jim Crow were obviously wrong. I think Religious tests are too. But in the guise of helping minorities much of this taken the other way has actually hurt them.

Look at NCLB. I taught in the inner city for years. I think the NCLB has made things worse. It gives kids the excuse to blame the teacher and the school. Cato thinks Charters are going to work but they are worse. They get well meaning but ignorant project based white people to go and "help" the poor people for a few years and then they either use to go off and teach somewhere else or to pad their resume for another kind of work with some "peace core" type experience.

I know this is probably off topic a little but the 10th Amendment did say that the rights not given to the National government were retained by the STATES and the people. I under stand individual rights need to be protected from local and national governments that would use the tyranny of the majority but things are out of whack. I think you friend Sanfeur's national citizenship argument in the incorporation battle for the 2nd amendment will end up doing more harm than good too. Tough I fully understand he has forgotten more about all this then I will ever know.

jimmiraybob said...

TVD - ...which they admit they are not.

Where can I read this admission to being dishonest scholars?

Tom Van Dyke said...

p. 12-14

jimmiraybob said...


Just like the term “revisionisim” is neither good nor bad or true or not true in and of itself, neither is the term “polemic” a synonym for dishonest. For you to intimate that they are, or have admitted to being, dishonest and then point the reader to the sentence in which they identify their bias at the outset is absurd. They were clearly and admittedly NOT advancing a scholarly work but a work based on decades of scholarly reading and research.

TVD - Even if the Constitution was Godless, the nation wasn't. That's the point.

Have you actually read The Godless Constitution, which incidentally was reprinted in 2005, or any other reviews than Dreisbach's? The authors make this point early and often.

Tom Van Dyke said...

No, JRB. I'm not interested in polemics, not theirs, not David Barton's. And yes, a polemic is an advocacy case, not a scholarly exploration. Dreisbach's critique is fair.

And what I do know is that the term "Godless Constitution" is thrown around as a trump card by many who have apparently read the work, although it admits it's presenting one side. I do believe we've moved on from polemics to an actual discussion of the facts, and that's what we're here for, or at least I am.

If you want to argue their case, great. That's what we're here for, too. Plenty of threads going, no waiting.


Ray Soller said...

Jon, in line with what you just wrote here is an extensive essay, Prelude to Article VI: The Ordeal of Religious Test Oaths in Pennsylvania by Stephen A. Smith, University of Arkansas, 1992, that's posted at Here's my favorite snippet:

After legislative repeal of the political loyalty oaths in Pennsylvania, Noah Webster urged repeal of the religious tests as well. The repeal of the political oaths, he wrote, was "a prelude to wiser measures; people are just awakening from delusion. The time will come (and the day may be near!) when all test laws, oaths of allegiances, abjuration, and partial exclusions from civil offices will be proscribed from this land of freedom. . . . They originated in savage ignorance, and they are the instruments of slavery."[73] Such rhetoric had a certain resonance that would be endorsed by the Republicans and would not be disputed by the Constitutionalists.

[73] Noah Webster, On Test Oaths, Oaths of Allegiance, & Partial Exclusions from Office

jimmiraybob said...

Dreisbach's critique is fair.

It may have been fair but moot since the authors make no attempt to hide it. Why attack something that's not in contention? [Holy cow, you mean there are polemics in this here polemic? (attempt to mooch off of Casablanca)]

There's no dishonesty at work here. Unlike Barton's work that is so often criticized here the author's clearly label their bias.

I do believe we've moved on from polemics to an actual discussion of the facts...

This is kind of funny since most of the facts presented here come from polemical writings.

In part, by accident, I posted a longer comment at Brian's Post upstairs.

I do agree with the general critique that it would be a more satisfying book if they'd included footnotes or end notes. But that would have been another book and not the one that they wanted to write for a non-specialist audience.

bpabbott said...

Review of The Godless Constitution God Discussion dot com.

1 Star: No Academic or Historical Sources Support The Findings of This Book…

… and the author's admit this in the Notes page:

"…we have dispensed with the usual scholarly apparatus of footnotes"

They give no historical sources because there are none; they only source other modern non-academic writings. They totally ignore the documented writings of all of the Signers of the Constitution and simply pretend they don't exist.

There are reasonable historical debates that can be made on this subject, but this book is a sham. It is a shame that such a book can even be published by people who claim to support academic study in our country.

No one should read this book because it simply is not true and does not support any legitimate discussion or debate on this issue. It is a fraud and people on either-side of this debate should not support this kind of approach to important matters.

bpabbott said...

Review of The Godless Constitution God Discussion dot com.

5 Stars Abrasive Title for a Moderate, Thoughtful Book

An ill-chosen title, also, since it probably decreases the book's chances of being read by its proper audience. The subtitle – A Moral Defense of the Secular State – is far more suitable. Authors Kramnick and Moore have explicitly written their 'defense' as a respectful appeal to the Christian communities of America, Protestant and Catholic both, to re-evaluate the history of "church-state" separation in the USA, and to re-consider the paramount [value] of that concept to the integrity of both the government and their own religious faiths.

Kramnick and Moore begin their 'moral defense' with a close examination of the historical/cultural context in which the Constitution was written. According to their ample evidence, it was not an oversight that no mention of God or Christ was made in the Constitution. Rather, it was the explicit intention of the chief authors – Madison and, by proxy, Jefferson – to create a secular government. Revisionist and politically-motivated polemicists in recent years have attempted to assert that the Founding Fathers were not at all committed to a "wall of separation" but rather just assumed that America was and forever would be an explicitly Christian nation. The authors write: "It is not true that the founders designed a Christian commonwealth, which was then eroded by secular humanists and liberals; the reverse is true. The framers erected a godless federal constitutional structure, which was then undermined as God entered the first U.S. currency in 1863, then the federal mail service in 1912, and finally the Pledge of Allegiance in 1954."

"The reverse is true…" Some of the best evidence for the authors' depiction of the framing of the Constitution comes from the debates in print that preceded the ratification of that Constitution in the various states. The absence of any mention of God was immediately noted and criticized widely, both in the newspapers and from the pulpit. In fact, the "godlessness" of the proposed government was one of the chief arguments of anti-federalists – opponents of ratification – such as Patrick Henry, the inveterate enemy and rival of Thomas Jefferson. Curiously from our 2008 viewpoint, the strongest popular support for this secular state-to-be came from Baptists and Catholics, two communities that realized that they had much to gain from a government not committed to the interests of the established Congregational and Episcopalian squirarchies. The Constitution's first vivid statement of church/state separation was not the First Amendment; it was already embodied in the clause which declares that "no religious test shall ever be required as a qualification to any office or public trust under the United States." That clause was recognized, the authors show, as a formula already existent in the constitution of Virginia, clearly with the objective of protecting the government from the dominance of any one religious community. The First Amendment, seen in this context, had the objective of protecting any variety of religious conviction – including disbelief – from the government. It was the protection of the dissident conscience from government in the hands of any possible religious orthodoxy that primarily appealed to the sincerest Christians of the founding generation.

... continued below ...

bpabbott said...

... continued from above ...

Moore and Kramnick continue to make their case by examining the thought and actions of Roger Williams and other religious dissidents of the colonial era. In chapter Four, they examine the background of American secularism in "the English roots" of church/state separation, considering the abuses in England which the Americans sought to escape as well as the libertarian philosophy of John Locke and others whose influence was paramount among American intellectuals. Chapter Five turns to the thought of Thomas Jefferson, the one founding father most often revered by both sides of any historical issue. Whatever phrases from Jefferson's pen might be cited, it's clear from his actions – his battle to eliminate religious tests and establishment from the Virginia constitution, his role in the writing of the First Amendment, and his foundation of the University of Virginia as the first secular educational institution in American history – that [Jefferson] meant exactly what he said when he spoke of the necessity of "a wall of separation" between religion and government.

The debate and the resistance to a secular government didn't end with the passage of the Bill of Rights. Kramnick and Moore recount the many explicit efforts of some sincere religious folk – Timothy Dwight, the president of Yale, for instance – to amend the Constitution and/or to achieve some recognition of religious rule in such things as Sunday mail delivery. In each generation of American history, in fact, there were spokesmen for "putting God in the government" and in many cases those same people were the spokesmen for important humanitarian causes – abolition, temperance, universal suffrage, welfare programs, child-labor laws, etc. Moore and Kramnick, in fact, celebrate the vigorous social consciences of the religious reformers, and acknowledge the basic point that religious faith has always and will always provide a major component of what makes a nation strong and fair. However, as the authors argue, the politicization of religion – in previous eras and especially at present – is destructive and dangerous. By breaching the wall of separation politically, by attempting to impose a kind of religious political correctness, effectively a "test of faith" as a qualification for full citizenship, both government and religion run the risk of being corrupted.

Chapters 1-8 of this book appeared as a title in 1996. One could easily wish that [the] book had been more widely read then. Chapter nine is an addition in the second edition, reflecting on the administration of George W Bush. The tone of this chapter is patently less optimistic; the authors are far from happy with the course of Bush's political career, and they are justifiably alarmed for the future. Unfortunately, the people to whom they want and need to address their respectful arguments are very unlikely ever to read them, let alone give them the kind of conscientious consideration they deserve.

jimmiraybob said...

bpa - thanks for posting those reviews. That 1-star salute is a hoot.

No Academic or Historical Sources Support The Findings of This Book…

… and the author's admit this in the Notes page:

"…we have dispensed with the usual scholarly apparatus of footnotes"

This is a fuller quote from the notes in the 2005 edition (p. 207) and appears to be the same from the earlier edition:

"Because we have intended the book to reach a general audience, and also because the material we have cited is for the most part familiar to historians and political scientists, we have dispensed with the usual scholarly apparatus of footnotes."

These are no slouch historians and I doubt that they would hang themselves - their reputations and livelihood - out to dry by printing untruths or wildly goosed up stories. It is clearly stated that a particular point of view is being presented.

The charge that the authors "admit to something" is absurd and is intended only to poison the well.

Tom Van Dyke said...

Thx for the above, guys. I don't care about these scholars/ historians/university instructors except they've compromised their scholarly standing. They are partisans, and therefore 3rd parties to the truth. David Barton, too, whatever. We do our own research and argument around here. That's why this blog is worth a shit.

If you want to defend their ideas, go ahead. I don't think they stand up against the counterarguments, but go for it. They wrote the book for people who want to argue.

No time for polemics these days, meself. That's for that other blog.