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,” http://www25.uua.org/uuhs/duub/articles/johnadams.html (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."