Monday, February 8, 2010

Two Cheers For a Wallbuilders' Brief...Well, Maybe One, One and a Half

Hey it's better than no cheers.

Some group called the National Legal Foundation filed an Amicus Curiae brief on behalf of David Barton's Wallbuilders in the case of PATRICK M. McCOLLUM v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION.

Note, David Barton did not write the brief. Rather an attorney named Steven W. Fitschen did.

Read the brief and/or google the case for the more specific facts of the case in controversy. I deal with the larger issue that is in dispute.

And that is what the term "religion," as understood by the Founders, in the Constitution's "religion" clauses, means. In particular whether "religion" was meant to extend beyond monotheism.

First, why the brief gets less than my full support: It argues that non-monotheistic religions were originally intended less than full "religious" rights under the Constitution. I disagree and the text of the Constitution supports my reading (but may support theirs too).

Interestingly, I've heard some atheist advocates agree with a core tenet of Wallbuilders' argument. That is, the brief argues atheism is not a "religion" as America's Founders understood it, and consequently, not entitled to the constitutional protection that monotheism receives. Some atheists argue (albeit in a different context) indeed, atheism is NOT a religion, just as not collecting stamps is NOT a hobby.

But the bottom line of the dispute: How the term "religion" -- as it appears in the First Amendment and Art. VI. Cl. 3 of the US Constitution [where the term "religious" is used] -- defines.

The bottom line as I have concluded: "Religion" didn't have a univocal meaning. This illustrates problems with certain forms of "originalism." Parts of the text of the US Constitution use notoriously vague language. And certain forms of originalism argue "the text either means X -- intent or expected application, etc. -- or it means anything." What they don't note is that X can mean X1, X2, X3, and so on, all with results that vary or contradict one another.

But, that doesn't mean X can mean anything. Take for instance, the Second Amendment. The right to bear arms, in a literal, originalist, textual sense, could mean an individual right to any arms the US government possess, i.e., even private nuclear missiles, if a very rich citizen manages to get them. Indeed, a chief concern of the framers and ratifiers of the Second Amendment was citizens have access to the same weapons the government does so they could potentially "check" an emerging tyranny.

Or, the text of the Second Amendment, in a literal, originalist sense, supports narrower readings that contradict the extreme results outlined above. That is, such holdings may still be within X territory. Yet, the notion that the Second Amendment means a right to, for instance, ride a bicycle is in Y territory, not supported by the original meaning of the text of the Second Amendment. (For that, perhaps the 9th Amendment or Privileges or Immunities Clause of the 14th vindicates said right.)

With religion, the text of the religion clauses supports a universalist reading that all religions or lack thereof are covered. "Religion" means "religion." Atheism, witchcraft, polytheism are "religions" and consequently covered.

Did the Founders believe that? Well some did and some didn't. And some offer evidence at different times and places that could support different results.

In support of the notion that "religion" meant at least "monotheism," the brief cites James Madison's Memorial and Remonstrance because such has been "so often cited in the cases and literature." There Madison writes, “religion [is] the duty which we owe to our Creator and the manner of discharging it . . . .”

Hmmm. "Religion" sounds monotheistic there. It also does in Thomas Jefferson's 1786 Virginia Statute on Religious Liberty, that Madison helped pass, which begins with the assertion that "Almighty God hath created the mind free." Yet, Jefferson claimed:

Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word "Jesus Christ," so that it should read, "a departure from the plan of Jesus Christ, the holy author of our religion;" the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.

In short, religious rights apply universally.

Madison too likewise supported Jefferson's understanding when he wrote in his Detached Memoranda:

The opponents of the amendment having turned the feeling as well as judgment of the House agst it, by successfully contending that the better proof of reverence for that holy name wd be not to profane it by making it a topic of legisl. discussion, & particularly by making his religion the means of abridging the natural and equal rights of all men, in defiance of his own declaration that his Kingdom was not of this world.

So why give this Wallbuilders' brief ANY credibility? In arguing that "religion" means at least monotheism it recognizes a degree of religious diversity that one doesn't expect from Christian Nationalist sources. For instance, on page 9, "research shows that 'religion' was sometimes used as a synonym for Christianity, but that it was also used for monotheism."

The brief, on page 10, also favorable cites Justice Scalia's dissent in McCreary County:

The Court thinks it 'surpris[ing]' and 'truly remarkable' to believe that 'the deity the Framers had in mind' . . . 'was the God of monotheism.' This reaction would be more comprehensible if the Court could suggest what other God (in the singular, and with a capital G) there is, other than 'the God of monotheism.' This is not necessarily the Christian God . . . but it is inescapably the God of monotheism.”

The brief also has an interesting discussion on universalism that one doesn't expect Christian Nationalists to address, even favorably citing a Unitarian Universalist website:

This leads to the question of whether a belief in eternal rewards and punishments was an essential part of the Framers‟ definition of religion....The fact that a belief in eternal rewards and punishments was necessary for full participation in the body politic might lead one to conclude that such religions were a subset of a larger group of monotheistic religions.

... Various state constitutions guaranteed freedom for religion exercise but prohibited office holding for all but Protestant Christians. Id. Yet clearly, Catholics and Jews, who were targeted by such restrictions, fit within the rest of the definition of “religion.” Similarly, those who do not fear a possible future state of punishment might still fit the rest of the definition of religion. Such a group existed in early national America, namely the Universalists. In fact, this was one of the main points of opposition to the Universalists: “the Universalists by removing the fear of hell were supposed to reduce seriously the supports of morality.” XII New Schaff-Herzog Encyclopedia of Religious Knowledge at 96. Yet it is hard to imagine that the Framers would not have considered Universalism (as the term was used at that time) to be a religion, given the involvement of Universalists and men with universalist sympathies who helped organize the new nation. See, e.g., “John Adams,” (last visited January 27, 2010) (article on the Unitarian Universalist Association‟s website discussing Adams‟ religious views, as well as those of various contemporaries. Articles for other Founders can be located on this site as well).

[pp. 12-14.]

Finally the brief recognizes Madison's Memorial and Remonstrance protects more than mere Christianity:

... In the Memorial and Remonstrance, more definitional evidence to be gleaned. Madison asked the rhetorical question: “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?” From this use of the word “religions” we can clearly see that sometimes the word encompassed more than Christianity. Similarly in article twelve of the Memorial, Madison speaks of those who are “under the dominion of false Religions.”

Thus, it seems best to limit the definition of religion to monotheism.

More difficult issues that the brief doesn't address are found in the record. Many Founders -- even of the orthodox Christians -- believed in the idea of "natural religion" which holds all good men of all religions worshipped a Providence discovered by reason. As it were, when confronted with polytheistic religions some, like John Adams, squinted to "find" monotheism there. For instance, when Adams wrote to Thomas Jefferson, 4 October, 1813:

θεμις was the goddess of honesty, justice, decency, and right; the wife of Jove, another name for Juno. She presided over all oracles, deliberations, and councils. She commanded all mortals to pray to Jupiter for all lawful benefits and blessings. Now, is not this (so far forth) the essence of Christian devotion? Is not this Christian piety? Is it not an acknowledgment of the existence of a Supreme Being, of his universal Providence, of a righteous administration of the government of the universe? And what can Jews, Christians, or Mahometans do more?

Even in his public writings, for instance his 1787 Defense of Constitutions of the United States Adams invokes pagan Greco-Romans like Zaleucus, who supposedly got his laws from Athena, as "plac[ing] religion, morals, and government, upon a basis of philosophy, which is rational, intelligible, and eternal, for the real happiness of man in society, and throughout his duration."


Tom Van Dyke said...

Excellent essay, Jon. I've been meditating on the same issue meself.

"Providence" was the name of the God of the Founding. Even Jefferson, and [arguably] Thomas Paine used it. Franklin as well, in his call to pray to that God which not a sparrow falls without His notice.

I do not recall a Founder who did not refer to this Providence.

Now, perhaps Providence could accommodate a polythestic scheme, but aside from Adams' private musing and a perhaps jestful reference by Franklin, it's not on the radar of the Founding. Neither did the Greco-Roman vision of a gray afterlife in Hades fit the Founding cosmology.

So let's leave that for now.

In the 21st century, the battle is between theism and not so much atheism but "anti-theism." The Enlightenment figures David Hume and Voltaire might be considered atheists, but scholars disagree even on them.

And there is not a single significant Founder who can even be suspected of atheism like Hume or Voltaire.

And so, what did "religion" mean to the Founders?

What is lost in our day and age is that for most of human history, God [or gods] were considered reality, not fancy or a matter of opinion. That reality consists of more than just the measurable was as uncontroversial as that oxygen exists even though we can't see it.

To the Founders, "religion" did not go to the question of whether or not God exists. Of course He does. He is in the air we breathe. He is the air we breathe, reality.

I look forward to unpacking your essay further, Jon, because we can look at "religion" in the abstract, where all permutations are possible, or we can focus on man's actual religions as of 1787. But I think a stroll through comparative religion will only reinforce the argument made by Scalia, whose breadth of the study of man and his history is often underrated by those who know far less about it than he.

I'm thoroughly convinced that "religion" meant the details about God, about which men of good conscience could disagree, not the question of God---I can't find any evidence of the latter anywhere in the Founding documents.

In the 21st century, we have the question of God. In the 18th, in America, in the Founding era, there was no question.

King of Ireland said...

Great job Jon! Not much to comment on here in that this is such a deep subject. Very fair and balanced by the way as usual.

King of Ireland said...

If atheism or "secular humanism" are religions then this sets up some modernist "philosophy" up to be challenged in court as an establishment of religion. Public schools are a the den of Marx himself with NCLB. If everything is a "religion" and I think it is. Then this sword goes both ways. Barton has some good points at times.

bpabbott said...

Atheism itself can't qualify as a religion, as it need not be anything more than an absence of theism.

However, as religion needn't be theistic, atheists aren't disqualified from being religious. Neither Buddhism, Taoism, or Ethical Culture assert a belief in God(s).

I think secular humanism qualifies as a religion, but many secular humanists would likely object to that qualification as they, and our society, generally presume religions to incorporate supernatural, miraculous, superstitious, (mythical?) or other concepts that lie beyond nature. Which are all things that arguably a excluded from by the secular humanist position.

jimmiraybob said...

Atheism, witchcraft, polytheism are "religions" and consequently covered.

One problem with including atheism (or non-theism, or agnosticism) as a religion is that the federal Congress would be forbidden from making any laws at all [I'm sure there are some that are now standing and applauding :)]. It would be like saying "Congress shall make no laws respecting an establishment of mode of belief," since atheism merely means a lack of belief in a God or gods.

jimmiraybob said...

KOI - If everything is a "religion" and I think it is. Then this sword goes both ways.

Yikes. I think that this would cut more than two ways. Talk about your legal and philosophical challenges:

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

jimmiraybob said...

TVD - In the 21st century, we have the question of God. In the 18th, in America, in the Founding era, there was no question.

That is a very narrow reading of history. Jefferson, in writing to his nephew Peter Carr (Aug. 10, 1787), not only allows that God/god could be questioned but also that God/god should be questioned:

Question with boldness even the existence of a god; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear.

It is highly unlikely that someone of such prominence who was writing sincerely to a family member regarding matters of religion (and matters of eternal life and damnation) would have expressed this casually or as something completely out of the realm of acceptable thought at the time. And by acceptable, I mean something that could be freely expressed without fear of severe persecution or prosecution.

I'm sure that you are right, as you would be today, to say that most Americans would not question the existence of a monotheistic god or the God of the Bible, but that's a far cry from "there was no question."

TVD - That reality consists of more than just the measurable was as uncontroversial as that oxygen exists even though we can't see it.

But, as Joseph Priestley would and did attest, oxygen is physically quantifiable. If the Enlightenment in the west was about anything it was about open and empirical inquiry and scientific discovery - often leading to the demystification of previously unseen entities and processes previously, through the eons, attributed to the gods or God.

Washington, Jefferson, Madison and Franklin, to name only a few, unquestionably championed science and made no preconditions that it comply with the Bible or an understanding of the existence or nature of God/god(s) or the supernatural in general.

TVD - In the 21st century, the battle is between theism and not so much atheism but "anti-theism."

I'd contend that the battle has always been against atheists (agnostics and heretics), from the Grecos to the Romans to the Christians - and to the shores of this country. The Romans considered the early followers of Jesus as Christ to be atheists because they would not acknowledge a belief in the Roman pantheon of gods (at the very least this was considered rude and destabilizing to the Empire).

Just as the Romans feared for the stability of the Empire, the founders had to worry about the stability of a new nation. And, among so great a diversity of religious, social and economic conditions as prevailed in the colonies and early states - and then there's the question of new immigration - they could hardly be seen as establishing a religious preference by government, monotheism or otherwise. Christianity (in the various forms) may have been in the majority among the people of the new nation but there was still Judaism, free-thinking (challenging prevailing religious pretexts), to some extent Islam/Mohammedism (introduced in large part through slavery), and Hinduism, etc. - not to mention native American religious customs and beliefs.

King of Ireland said...


Obviously you missed my point. What do you think the difference is between a "philosophy" and a "religion"? This does cut both ways.

bpabbott said...


Re: If everything is a "religion" and I think it is. Then this sword goes both ways.

I understood your words in the manner that JRB did. It is now clear that what I inferred is not what you implied. Can you explain what it is you meant?

King of Ireland said...

I meant that I cannot see the difference between a "Philosophy" and a "Religion" both seek to influence government why is one restricted more than the other? In short, how is secular humanism as less of a religion than Christianity? This cuts both ways.

bpabbott said...


Thanks, for the clarification!

I avoid qualifying philosophies such as Secular Humanism as a religion because it doesn't rely (even excludes) God(s) and other supernatural assertions. I don't avoid it because I think the supernatural is a prerequisites for religion, but because my impression is that most people equate religion with theism.

On the subject of religion with no supernatural assertions, I think a quick read of Einstein's thoughts on the subject illustrates how a religion might look in the absence the supernatural.

However, it is my understanding that sort of religiousness seen in Einstein's writings is not part of Secular Humanism, but woud qualify as Religious Humanism

So it is my opinion that, in general conversation, referring to Secular Humanism as a religion is misleading. However, with respect to legal matters (say the 1st amendment's religious clauses) I think it entirely appropriate to qualify Secular Humanism as a religion.

jimmiraybob said...

KOI - I think that philosophy and theology are and have been much more closely related. Religion implies a communal and institutional structure centered on a set of dogmatic beliefs that are not open to criticism or open inquiry.

While philosophy and theology are and have been concerned with questions of the human condition and our standing in relation to the existential world and beyond, philosophy is more of an open inquiry about the possible existence and nature of a god or gods, whereas, theology starts from the preconception that there is a God or gods and then proceeds to define its/his/her existence and nature. There is even a subcategory philosophy that examines theological beliefs from non-reverential or devotional perspective.

Aristotle explored the unmoved mover, then sects of Jewish supports of Jesus as messiah and then later Christians hammered out a theological basis (or multiple bases), then religion(s) made it institutional and communal.

Theology is spiritual and religion is functional, at least as I see it.

Secular humanism, in as much as it becomes institutionalized to bring a community of like minded individuals together to provide meaning, purpose and comfort, sounds like religion in the structural sense but does that make it a religion? Good question.

Traditionally, the general definition of religion assumes at least a reverence for a central deity and a supporting theology. Paganism is a religion that worships gods, all of the Abrahamic religions worship the singular God, and so forth. Philosophy and secular humanism (not the same thing) does not involve or mandate the worship of a god or Gods.

So, should non-deity-based organizations with a non-deity-based cosmology (philosophy) be categorized with deity-based organizations with well-defined thoelogies as the same kind of social and political entity? I don't think so. And, I'm not sure what the advantage would be to either?