Thursday, January 6, 2011

The First Amendment: A Christian Document

The First Amendment was meant, as Justice Joseph Story says, to level all Protestant religions with each other, but not to equalize Christianity with Judaism and Islam. Alternatively, it did level all religions, even Judaism and Islam. But either way, it was only on the federal level. The real purpose of that amendment was merely to protect the state established churches from federal interference. Thomas Jefferson's letter of 23 January 1808 to Samuel Miller evinces a similar view. Therefore, the notion of incorporating the First Amendment onto states is absurd. Some of the men who ratified the First Amendment, actually believed in full religious liberty. Others, however, were merely jealous for their state established churches. So how the hell do you incorporate that into the states via the 14th Amendment?

Now then, if you read works of those who believed in full religious liberty (as opposed to merely jealously protecting the state church), works like John Locke's "A Letter Concerning Toleration," James Madison's "Memorial and Remonstrance Against Religious Assessments," Thomas Jefferson's The Virginia Act For Establishing Religious Freedom", Jefferson's Notes on the State of Virginia (s. v. "Query XVII"), and John Leland's The Rights of Conscience Inalienable; and therefore Religious Opinions not cognizable by Law: Or, The high-flying Churchman, stript of his legal Robe, appears a Yahoo, you'll see the following: that the justification for all these men, was based on the principles of Protestant Christianity. The underlying principle among them all, is that religion is within the jurisdiction and sovereignty of God alone, that no man on earth (whether pope or government official) has the authority to make laws regarding religion. Every man has the freedom to believe whatever he wants, and no man has the right to force him otherwise. The intent of religious liberty, according to these men, is to give all men the ability to worship God freely. In fact, John Locke and James Madison even say that an atheist has no right to religious freedom, because he doesn't believe in the God who granted that freedom in the first place. Similarly, Thomas Jefferson said elsewhere, "God who gave us life, gave us liberty at the same time. Can the liberties of a nation be secure when we have removed their only sure basis, a conviction in the minds of the people that those liberties are the gift of God?" For all these men, religious liberty was a Protestant Christian principle, viz. the opposition to popery, and the freedom of every man to read the Bible for himself and come to his own conclusion. If the First Amendment enshrines religious liberty (which is doubtful, as I show above, regarding states v. the federal government), then the First Amendment is itself a Christian document.

(In my humble opinion, if we extrapolate, we'll see that the concern of being allowed to worship God freely, applies to other areas of life as well, besides religion. If men must be free to worship God, without being compelled to join foreign religious and perform strange rituals not to their liking, does this not also mean that men must not be compelled to believe in or practice other ideologies, such as communism? The Framers spoke of religion alone, merely because religion was the ideology, par excellence. But if you read their concerns, you'll see that their concerns apply generally to all ideologies, not only religious ones. Why should I be forced to subsidize (with my taxes) a public school that teaches doctrines not to my liking? How is that different than forcing me to subsidize a church not to my liking?)

Returning to religious liberty being a Christian concept, in fact, James Madison explicitly credits Martin Luther in his letter of 3 December 1821. Madison is referring to Martin Luther's doctrine of the two kingdoms, in which the state possesses a temporal sword to punish crime and violence, and the church possesses a spiritual sword to punish heresy and inculcate orthodoxy, and neither may infringe on the other's jurisdiction. Both, however, are subordinate to God. Therefore, under Luther's doctrine, the state is separate from the church, but is still subordinate to God and subject to His commands. Christianity is binding on the state no less than on the church, only a different subset of the laws of Christianity is applicable to each, according to the station assigned by God. (Similarly, the fact that only kohanim (priests) can offer qorbanot (sacrifices), does not mean that everyone else is "secular.")

(In my humble opinion, when Locke, Madison, Jefferson, and Leland say that the state can have no jurisdiction over religion because men have not delegated to the state that power under the social contract, and that furthermore, they cannot, as religion belongs to God alone and cannot be delegated to anyone else (nemo potest dare quod non habet - one cannot give that which he does not have), it seems to me that what they are doing is, is giving a justification for Luther's doctrine. Luther distinguishes between the two kingdoms, but Locke et. al. are, I believe, offering a social contract theory-based justification for Luther. Given that it was Reformed Christians who are largely responsible for the invention of social contract theory, in the form of federalism, it seems fitting that Luther be justified based on a secular offshoot of Calvinism.)

So in fact, according to Madison, the morality of the United States's laws was to be a Christian morality. Again, the First Amendment was merely meant to equalize all Protestant sects with each other, but Christianity in the abstract was still to be supreme. The morality of the laws was to be an exclusively Christian one. There was to be no established church, enforcing dogma and ritual, but the state was still to enforce Christian morality. In fact, the First Amendment is very precise, speaking of a religious "establishment," and Jefferson speaks of the separation of "church" and state; the words "establishment" and "church" (as opposed to "religion") are chosen very deliberately, to refer not to religion or Christianity in the abstract, but rather, to concrete entities, to structured organizations. The First Amendment forbids the favoring of a church establishment (Baptist, Anglican, Congregationalist, Presbyterian), but not the favoring of Christianity in the abstract. No wonder that James Madison said, in a letter of 1833 to Jasper Adams, "I must admit...that it may not be easy, in every possible case, to trace the line of separation, between the rights of the religious and civil authority, with such distinctness, as to avoid collisions and doubts on unessential points." (Quoted in John Eidsmoe, Christianity and the Constitution: The Faith of our Founding Fathers (Grand Rapids, MI: Baker Book House, 1987), p. 110.) That's why even people like Thomas Jefferson and James Madison could issue Christian thanksgiving proclamations, calling for repentance and prayer to God. (Clarification: As Jefferson shows, in letter to Samuel Miller, he did not issue thanksgiving day proclamations as President of the United States. However, as Governor of Virginia, he did issue such proclamations. Evidently, Jefferson considered the First Amendment merely a technical legal impediment, but still felt that theoretically, the issuing of religious proclamations was legitimate for the government. On the state level, where no legal restriction existed, he was free to pursue this. This is all the more interesting, given that Jefferson himself authored the "The Virginia Act For Establishing Religious Freedom." Now, that act was not yet in effect when Jefferson was governor, but presumably, he still believed in its tenets. So apparently, Jefferson felt that while the First Amendment forbade the issuing of thanksgiving proclamations, by contrast, the not-yet-legislated "The Virginia Act For Establishing Religious Freedom," authored by him himself, no less, did not. So it is difficult to imagine how on earth we could incorporate the First Amendment via the Fourteenth, when apparently, the First Amendment was of such a peculiar character, limited to the federal government, and intended, according to some, to merely protect the state established churches from federal interference, and intended, according to Jefferson, to be legally more onerous and restrictive than what was morally necessary and proper for the states. Oh, and on the same day that Jefferson and Madison submitted their "The Virginia Act For Establishing Religious Freedom" - which Jefferson authored, and which Madison defended and advocated for with his "Memorial and Remonstrance Against Religious Assessments," the two being partners in the endeavor - James Madison also submitted a "Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers." Just as Jefferson felt there was nothing wrong with issuing religious proclamations, Madison thought there was nothing wrong with punishing Shabbat desecrators. )

Thomas Jefferson, in his famous letter to the Danbury Baptists, speaks of the "wall of separation between Church & State." Now, writing to the Baptists, it makes sense that Jefferson made a reference to Roger Williams, who said, "...when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made His garden a wilderness, as at this day. And that therefore if He will eer please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world..." We should notice three things: (1) Jefferson is relying on Roger Williams, so Jefferson's doctrine of the separation of church and state is obviously a Christian one; (2) the purpose of the wall is to protect the garden of the church from the wilderness of the state, with the threat being not that the church will corrupt the state, but the opposite, that the state will corrupt the church; (3) the church is to be kept peculiarly unto God, which is the same concern we saw earlier, that religion is something that only God, not the state, has jurisdiction over.

In my opinion, the Framers' political philosophy, regarding religious liberty, tended towards libertarianism, but their moral philosophy was always a Christian one. Libertarianism is merely a political philosophy, and can be paired with any moral philosophy. Ayn Rand chose Objectivism to accompany her libertarianism, while the Framers chose Christianity. Myself, I am a libertarian and tends towards the most separatist and radical view of separation, that the state should have nothing whatsoever at all to do with religion, believing that the truth is strong enough on its own, and believing that the state has no jurisdiction in such areas. (I also believe that public schooling is unconstitutional and illegal.) But the First Amendment means what it means, whether I like it or not.

71 comments:

Tom Van Dyke said...

Wow, I'm breathtook by this major onslaught in only your 2nd post here at AC, Mike. There's so much to unpack, since you fit a lot in, and some of it with just links to the Founding documents, which very few will bother to read.

As a point of order, just so that your post gets proper unpacking

Therefore, the notion of incorporating the First Amendment onto states is absurd...So how the hell do you incorporate that into the states via the 14th Amendment?


This is a legal/Constitutional question. I meself have shied away from 20th/21st century 14th Amendment jurisprudence---even from studying it much---because the "living Constitution" means that the living justices of the Supreme Court decide what the Constitution means. This a political reality.

On religion and 20th century Supreme Court decisions like Everson, eminent historian Gordon Wood calls such jurisprudence a "legal fiction." And on the other hand, he says it's probably necessary because we ain't as religious as the Founding era was.

So, as a point of order, I ask us to let that part of yr argument slide for now.

I'd hate to see your excellent historical argument sidetracked into debating the legalities of the "incorporation" of the First Amendment against the states' prerogatives via the 14th.

That is a separate discussion. I'd much rather we discuss what you actually wrote, not the legal, but the history part. Clearly, your post is a result of much sincere thought and research and it deserves a full hearing.

Fresh meat!

jimmiraybob said...

…based on the principles of Protestant Christianity. The underlying principle among them all, is that religion is within the jurisdiction and sovereignty of God alone, that no man on earth (whether pope or government official) has the authority to make laws regarding religion. Every man has the freedom to believe whatever he wants, and no man has the right to force him otherwise.

This is really a Protestant Christian principle? That “every man has the freedom to believe whatever he wants, and no man has the right to force him otherwise.” And then you say “but the state was still to enforce Christian morality.” What does this mean? If I choose to live a good, honest and contemplative life and my world view and morality derive from an adherence to Stoic principles, is the state to step in or deny me full access to the rights and privileges of citizenship until I convert to and/or confess Christianity?

Or is Stoic morality the same as Christian morality? And I use stoicism here, but easily could have used Islamism, Judaism, Mithraism, Hinduism, paganism, agnosticism or atheism. Is there a test to distinguish how I derive my desire to help the poor or to not steal from my neighbor or to not kill except as to protect my life and welfare or that of my family and friends? What if I believe that slavery is abominable? Is that a Christian moral principle? There are at least a quarter of a million lost lives that attest to the ambiguity of that one.

Certainly, many, most or even all of the founders felt that morality and/or virtue was a necessary ingredient for the kind of government that they were attempting to establish. Except for the wildest of anarchists or sociopaths who doesn’t? And many, most or all appear to have believed that, at least broadly speaking, the fundamentals of the Christian religion was good for instilling these necessary traits. However, I don’t see that most or certainly all of them saw Christianity as the only route to acquiring and practicing the necessary virtues required by republican government. At any rate, there is nothing in the Constitution requiring a citizen to be Christian or to practice Christian morality as opposed to general morality consistent with the welfare of the state. This is thinking that even a Roman emperor would find reasonable. Well, maybe until Justinian.

Angie Van De Merwe said...

Human nature being as it is, (and the details about human nature, in this regard, is irrelavant) the Founders all agreed that a limitation of power was the most important aspect to guard to maintain a free society. Otherwise, power abuses, by enslavement, disregard of personal interests, etc. This is why we base our business ethics on a social contract, which values the employee, as well as the CEO. (But, that doesn't affirm Marxist unionization).

Free choice in regards to one's life, which is self-interested, is the best policy to inhibit abuse of power. Both the CEO and the employee, if he is valued, will negotiate the contract. If the employee is not valued, then it is his prerogative to move to another job. Isn't this the value of the 14th ammendment?

Covenant types would like to evaluate everything within their particular paradigm of "Christian faith" and one's "contract" with God. This is where Islam justifies taking the life of another person, if they blaspheme. Certain Christian contexts do, too.

Angie Van De Merwe said...

If Martin Luther was the underwriter of liberty of conscience (I can do no other) against Church authority, isn't Martin Luther King, Jr., the initiator of civil liberties, via the State stands against against how one interprets scripture, as a test for civil liberties...

Angie Van De Merwe said...

You make a good point about Stoicism, as Stoicism was useful for Christian theology when scriptures were written. Philosophy has always underwritten how we understand and "write" our particular histories. The Founders were acting civily to each other though they vastly differed as to whether their new vision should be Federalist or anti-Federalist. It is the same today. What power should the State have as a centralized power in the world and in its citizens lives, and what limitation or accountability of that centrailization of power should the States have? And how is that power to be distributed?

jimmiraybob said...

And, I should note that the first amendment is not a document. Did you mean doctrine? Or are you extrapolating from the particular to the whole?

Naum said...

Believe this to be a misreading of Madison who strove diligently for complete "separation of church and state", that if there was not religious freedom, there could not exist true liberty. Madison wanted the complete eradication of the "establishment", endemic in his writings, including the famous Memorial and Remonstrance against Religious Assessments…

…but the significance of Madison's Memorial and Remonstrance went beyond disestablishment --
it was a "watershed" in political thought. A reconfiguration of the relationship of church and state -- minorities have rights that the majority cannot trample.

Pinky said...

.
One of the lessons we get from the First Amendment is that our American society is legally compartmentalized and that the compartments can be separated from each other and religion and government are examples.
.

Angie Van De Merwe said...

Naum,
Jefferson wrote that the individual was the smallest minority (I am paraphrasing). So, with individual liberties, our government doesn't have the right to trample how the individual should choose or not choose to worship.

Just recently, I am sure you are aware, that Sharia was struck down in Oklahoma. It is being debated now in Indiana! Should groups have rights? Or should the individual have rights? Our Constitution protect the rights of our citizens.

Now it is being evaluated whether a child born to an illegal immigrant should be considered a natural born citizen, which is granted in our Constitution. Where is the line over our suvivalibility and protections against foreign invaders, and "human rights" for the child?

It seems that minority rights have been "group think", and has left the door open to government intrusion into American lives. Individuals should have the right to petition government, but when groups use their power to infilterate government, we all loose in the end.

I wonder if those individual's that wanted a "voice" were sought out by those that wanted to form some "power base"...this is what is happening in our country over healthcare and the poor. Taxes are useful ways to provide for "groups" and their interests.

Groups war and cause incivility, because of identifications with their cause, "priviledge", or value, which can lead to chaos.

Individuals can co-operate, negotiate, and evaluate, where and how their life will "matter". This is what a free society should be about, not whose group "wins" or "looses". And when an abuse of power happens, then shouldn't there be a right of appeal? A public advocate should be what is appropriate to protect individual lliberties from abusive power of groups, or government.

Tom Van Dyke said...

To JRB, I point our Samuel Adams from his 1772 "Rights of the Colonists":

"Just and true liberty, equal and impartial liberty," in matters spiritual and temporal, is a thing that all men are clearly entitled to by the eternal and immutable laws of God and nature, as well as by the law of nations and all well-grounded municipal laws, which must have their foundation in the former.

In regard to religion, mutual toleration in the different professions thereof is what all good and candid minds in all ages have ever practised, and, both by precept and example, inculcated on mankind. And it is now generally agreed among Christians that this spirit of toleration, in the fullest extent consistent with the being of civil society, is the chief characteristical mark of the Church. Insomuch that Mr. Locke has asserted and proved, beyond the possibility of contradiction on any solid ground, that such toleration ought to be extended to all whose doctrines are not subversive of society."


I'm anxious to see Mike defend the rest of his thesis against some very good challenges, though.

Brad Hart said...

Good lord, Mike! What an awesome impression you are making to our blog! I can see that I am going to thoroughly enjoy your posts! Very well done!

The only comment I want to make is essentially an echo of what Jimmyraybob has already said. I don't see how we can conclusively say that our liberties/freedoms are exclusively based on Protestant Christian principles. You are probably right in saying that our founders favored Christianity over Islam, Judaism, etc. but this doesn't therefore mean that rights/liberties are/were based on Christianity alone. Along with using sources like Locke, Luther, etc., our founders also relied heavily on men like Cicero.

That's just my $0.02. Overall this is a HUGE home run! Like TVD, I look forward to hearing your follow up.

Brad Hart said...

@jimmyraybob:

When are you going to become a contributor? We could use your voice as well.

Joe Winpisinger said...

@JRB I agree with Brad

@Mike

One of the better posts we have had on this blog and hits perfectly with a lot that has been tossed around over the last 2 years in our discussions.


Joe/King of Ireland

Jason_Pappas said...

OK, Mike, I have to challenge you if for no other reason than that you put so much effort into the blog. And besides, you never disappoint me with your answers.

“Again, the First Amendment was merely meant to equalize all Protestant sects with each other, …”

What other game was there in town? Was there a large enough Jewish contingent that one had to worry about Judaism becoming established on the national level? Even the large pockets of Catholics weren’t a likely prospect for a national domination. Isn’t a easier to just say that Protestants feared each other due to the establishment of Protestant Churches on the state level?

“The real purpose of that amendment was merely to protect the state established churches from federal interference.”

Perhaps. But then why use the words “Congress shall make no law respecting an establishment of religion” instead of “the establishment of religions will be left to the states.” It amounts to the same thing. Of course the Virginians were interested in protecting their disestablishment of the Anglican Church. Could not this wording also be seen as expressing an aspiration as well as providing a model for the states to emulate? After all, they each disestablished their Churches with Massachusetts being the last in the 1830s. I’d like to know more.

Your most interesting point is “The intent of religious liberty, according to these men, is to give all men the ability to worship God freely. In fact, John Locke and James Madison even say that an atheist has no right to religious freedom, because he doesn't believe in the God who granted that freedom in the first place.” Locke also excluded Catholics.

The reason I find this interesting is the lost notion of reciprocity. There were few atheists at the time (mostly nihilists and proto-fascist Hobbesians) so this is more academic. Catholics, however, were quite real. Before the 18th century, I doubt liberty would be extended to groups that don’t seem to accept the principles in question (or their foundation.) In my youth many asked why Communists should be allowed the freedoms that they, when in power, deny others. Many today ask the same about devout Muslims.

I think you’re right about the limits of 17th and 18th century tolerance. Still, the degree of tolerance of the Founding Fathers (including that towards Catholics) is quite impressive for the times and for any period. It would serve us well in the centuries that followed.

Hope this furthers the discussion.

bpabbott said...

Kudos from my corner as well.

Re: "Again, the First Amendment was merely meant to equalize all Protestant sects with each other, …"

I'm also skeptical of such a broad conclusion. Such may be understood to imply (or infer) that the Founders wished liberty to be a privilege limited to Protestant Christians.

There is little support for such an implication, and ample support that liberty was seen as substantively supported by Protestant theology (but not necessarily in a unique sense), but also a natural right of *all* men.

Angie Van De Merwe said...

jimmyraybob,
You have some great questions. Morality is about behavior. Christians morality is "what" exactly? I think you make a great point about morality in regards to the state. One must be a law abiding citizen. The State should never mandate or positively legislate behavior. Otherwise, we have some form of Statism...

@ Mike, I think combining Christian morality and libertarianism is dangerous. What exactly do you mean that one is to have libertarian ideals/political philosophy and behave as a Christian? That undermines the right of choice, individual interests as to commitments of value. Christian love makes no demands....does it? or are we going to legislate what is specifically "Christian"? Then we have a theocratic government!

Tom Van Dyke said...

Well, we're looking forward to Mike's replies in defense of his thesis. I would support that the First Amendment is a Protestant "document," because of the particulars of Protestantism, that once the Reformation cast out the Roman church's "magisterial" [definitive] scriptural authority, it was a free-for-all.

It was a practical matter. As Voltaire wrote of England in 1733,

"Go into the Exchange in London, that place more venerable than many a court, and you will see representatives of all the nations assembled there for the profit of mankind. There the Jew, the Mahometan, and the Christian deal with one another as if they were of the same religion and reserve the name of infidel for those who go bankrupt. There the Presbyterian trusts the Anabaptist, and the Church of England man accepts the promise of the Quaker. On leaving these peaceable and free assemblies, some go to the synagogue, others in search of a drink; this man is on the way to be baptized in a great tub in the name of the Father, by the Son, to the Holy Ghost; that man is having the foreskin of his son cut off, and a Hebraic formula mumbled over the child that he himself can make nothing of; these others are going to their church to await the inspiration of God with their hats on; and all are satisfied.

If there were only one religion in England, there would be danger of tyranny; if there were two, they would cut each other's throats; but there are thirty, and they live happily together in peace."


Dang, but don't that sound like America of the Founding era.

See also the Treaty of Westphalia, 1648, which ended the Thirty Years War and the Eighty Years War and ended the religious wars in Europe.

http://en.wikipedia.org/wiki/Peace_of_Westphalia

We cannot understand 1776 and 1787---religion and the Founding--- without understanding the 1600s and 1700s outside of the American shores. Of this I am sure.

Tom Van Dyke said...

And as for Naum's comment, I would add that we should not necessarily look to Madison's arguments as his own beliefs.

He used Christian/Protestant arguments because they were his audience. It was his swinging of the Baptists against the "statist," establishmentarianism Anglicans and/or Presbyterians that swung the day, not "Enlightenment" [secular] arguments.

When Madison argues that disestablishmentarianism will ensure the theological purity of each sect, he is arguing on their home ground, not necessarily his.

[And now you know what JFK's "antidisestablishmentarianism," a famous longest word, was referring to...]

:-)

Jason_Pappas said...

“… once the Reformation cast out the Roman church's "magisterial" [definitive] scriptural authority, it was a free-for-all.”

Hmmm, that sounds more like a Catholic interpretation of the Reformation! Let me not touch that!

I do agree that we need to keep in mind the religious wars, especially the Thirty Years War. The viciousness of this war shocked educated Europeans like Hugo Grotius (who influenced the Founders) and encouraged them to establish ethical-political norms independent of religion, on natural law common ground. Let’s remember his famous phrase: “What we have been saying would have a degree of validity even if we should concede [etiamsi daremus] that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to him.”

This study of nature avoids denominational arguments and appeals to what should be common ground. If we see how the 13 colonies could be united in the secular pursuit of nations-creation despite the great differences in religion, it is the seeking of common ground through the empirical study of nature and the frightful example of the religious wars that should be kept in mind.

It was quite an achievement. Europeans expected 13 independent quarreling or warring nations. It seemed miraculous to them that a peaceful republic (or republics) could be created with such a motley group of people.

Pinky said...

.
Just a simple question; but, why must we always think of our American Founding as coming out of some single vein as though the Founders had no ability to come up with original ideas?
.
Certainly, human beings use our personal experience in the development of our ideas; but, we are also capable of original thinking apart from our experience.
.
When discussions are framed as this one appears to be doing as it unfolds, alternative thinking gets lost on the wayside.
.
I think we can credit our Founding Fathers with more genius than that.
.

jimmiraybob said...

When are you going to become a contributor?

Thanks all who have asked this now or previously. I really appreciate it. I've been reading here for 2 years - I think about 2 years - and I'm still trying to catch up with some of the lines of discussion (even Romans 13.....).

AC has been absolutely great in presenting different perspectives and in pointing the way to great primary and secondary sources of info. To my detriment.:) I almost always try to get to most of it - hence a reading list of some several thousand books (possible exaggeration although it doesn't feel like it) that keeps expanding faster than I can absorb the books that I already own.

For instance, I just got a good used hardcover volume of Pauline Maier's American Scripture, which has been often mentioned and I believe heavily recommended by Mark in Spokane some time ago - yes, I'm a little slow. (No, not that kind of slow. Well, maybe sometimes. I digress.)

But, contributing is always in the back of my mind and I have a few themes that I would explore.

Right now though, I remain in absorb-and-occasional-comment mode. I am the grasshopper (obscure Kung Fu TV series reference).

Tom Van Dyke said...

Well, your comments and objections are ace, JRB, even when I'm on the receiving end of them. You keep us on the straight and narrow, and are invaluable to the proceedings around here.

Cheers.

Joseph Talmadge said...

Some comments and a question. I’ll start with the question:

“In fact, John Locke and James Madison even say that an atheist has no right to religious freedom, because he doesn't believe in the God who granted that freedom in the first place.”

Can you give the citation in which Madison says that atheists have no right to religious freedom?

Memorial and Remonstrance for example says the following, “Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.” Ralph Ketcham in his biography of James Madison interprets it as follows: “The free exercise of religion implies the right to believe in no religion at all, so even the most permissive tax to support religion might violate some consciences.”

“The real purpose of that amendment was merely to protect the state established churches from federal interference.”

I would argue this is only half of the story. The amendment was a political compromise between those who wanted government to have nothing to do with religion, like Madison, (One key phrase in Memorial and Remonstrance is “We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.”) and people like Fisher Ames, who probably wanted to preserve the state establishment of religion in Massachusetts.

The constitutional scholar Leonard Levy makes, I think, the clearest statement of what the Establishment Clause means by noting the following. 1) The Constitution delegates to the Federal government no power whatsoever over religion. 2) The Bill of Rights further takes away powers from the Federal gov’t; they don’t add to them. Hence the purpose of the amendment is to guarantee that the Federal government has no power whatsoever over religion, not simply to protect state established churches.

Furthermore, while the Madison defended the “necessary and proper” clause of the Constitution in Federalist #44, part of the function of the Establishment clause was to make certain that “necessary and proper” did not apply to religion. In the only document that remains of the debate on the Establishment Clause, Madison’s views are quoted as follows:

“Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the Constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.”

Joseph Talmadge said...

To continue:

“The real purpose of that amendment was merely to protect the state established churches from federal interference. Thomas Jefferson's letter of 23 January 1808 to Samuel Miller evinces a similar view.”

I would argue that this is a misinterpretation of Jefferson’s letter. First of all, to attempt to find consistency in Jefferson’s thoughts and deeds is as maddening as trying to corral Jello with a box of rubber bands. Reverent Miller had written to Jefferson asking him as president to proclaim days of fasting and thanksgiving just as Washington and Adams had done before him. In his reply, Jefferson, who always wanted to avoid confrontation as much as possible, tried to explain to the reverend why he cannot. First he says, “I consider the government of the U S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.” Then he goes on to say, “Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority.” Jefferson here is stating the obvious: at the time the Bill of Rights was written it did not apply to the states. Nowhere in the letter, however, does Jefferson say that the purpose of the amendment was “merely” to protect state established churches. As the author of the Virginia Statute, it is clear that Jefferson disapproved of state established churches. What he didn’t want is for the Federal government to tell the states what to do (whether it was about religion or slavery for that matter).

Joseph Talmadge said...

To continue:

“The real purpose of that amendment was merely to protect the state established churches from federal interference. Thomas Jefferson's letter of 23 January 1808 to Samuel Miller evinces a similar view.”

I would argue that this is a misinterpretation of Jefferson’s letter. First of all, to attempt to find consistency in Jefferson’s thoughts and deeds is as maddening as trying to corral Jello with a box of rubber bands. Reverent Miller had written to Jefferson asking him as president to proclaim days of fasting and thanksgiving just as Washington and Adams had done before him. In his reply, Jefferson, who always wanted to avoid confrontation as much as possible, tried to explain to the reverend why he cannot. First he says, “I consider the government of the U S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.” Then he goes on to say, “Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority.” Jefferson here is stating the obvious: at the time the Bill of Rights was written it did not apply to the states. Nowhere in the letter, however, does Jefferson say that the purpose of the amendment was “merely” to protect state established churches. As the author of the Virginia Statute, it is clear that Jefferson disapproved of state established churches. What he didn’t want is for the Federal government to tell the states what to do (whether it was about religion or slavery for that matter).

Tom Van Dyke said...

Jason, I'm not saying anything that didn't occur to Philip Melanchthon, the "co-founder" of Lutheranism. He was unsurprised at the Michael Servetus affair, that questioning even a basic doctrine like the Trinity was inevitable.

As this book argues:

"Luther and Melanchthon had unwittingly driven a wedge between creeds and the Bible by insisting that creeds are subject to inspection and criticism according to their agreement with the Bible."

And so, as Gordon Wood notes, by the time of the Founding,

“There were not just Presbyterians, but Old and New School Presbyterians, Cumberland Presbyterians, Springfield Presbyterians, Reformed Presbyterians, and Associated Presby­terians; not just Baptists, but General Baptists, Regular Baptists, Free Will Baptists, Separate Baptists, Dutch River Baptists, Permanent Baptists, and Two-Seed-in-the-Spirit Baptists.”

And of course, that's only a partial list.

I do want to lend some support to Mike's extravagant claim of the 1st Amendment as a "Christian" document. Certainly the wording is enough to make a secularist choke, but one might wonder if it would have been necessary without Protestantism and its proliferation of sects and its rejection of the "magisterium."

As we see in Locke's Letter Concerning Toleration, once Rome's theological authority is denied, there is nothing truly "orthodox" anymore:

"It will be answered, undoubtedly, that it is the orthodox church which has the right of authority over the erroneous or heretical. This is, in great and specious words, to say just nothing at all. For every church is orthodox to itself; to others, erroneous or heretical. For whatsoever any church believes, it believes to be true and the contrary unto those things it pronounce; to be error.

So that the controversy between these churches about the truth of their doctrines and the purity of their worship is on both sides equal; nor is there any judge, either at Constantinople or elsewhere upon earth, by whose sentence it can be determined. The decision of that question belongs only to the Supreme judge of all men, to whom also alone belongs the punishment of the erroneous. In the meanwhile, let those men consider how heinously they sin, who, adding injustice, if not to their error, yet certainly to their pride, do rashly and arrogantly take upon them to misuse the servants of another master, who are not at all accountable to them."


Not a Catholic view atall, Jason. Protestant. Lutheran! Melanchthonian! Lockean! I'm hurt that you should charge me with theological bias.

Tom Van Dyke said...

Mr. Talmadge, how nice to hear from you!

I share your objections, which I hadn't got to yet.

I too am unfamiliar with Madison denying atheists religious liberty.

I also agree that Mr. Makovi has a rather contentious reading of the Jefferson letter to Rev. Miller. He simply says the US Govt has no power over religion, even down to declaring days of thanksgiving, an opinion shared by Andrew Jackson, altho not many others.

Jefferson acknowledges that religion was left to the states; he does not reveal whether he agrees with the idea or not, only that the Constitution as written demands it.

Which is why I asked for a pause in your claim that the 1st Amendment can't be "incorporated" against the states via the 14th. This is at the cutting edge of current jurisprudence and controversy, and "incorporation" is a completely separate and legal issue from our consideration of religion and the Founding.

What we can discuss---aside from the fact that religion was left to the states, which "incorporation" would render moot---is IF the 14th incorporates the 1st, what does the 1st really mean?

Jason_Pappas said...

@TVD "I'm hurt that you should charge me with theological bias." I attached a connotation to “free-for-all” that mislead me to assume a certain critical view of the turn of events. My apologies!

Tom Van Dyke said...

It's cool. What I have learned here is that the story of America simply cannot be told without Protestantism and the forces of Reformation, and so I've had to study up on it pretty much from scratch. I find Melanchthon particularly wise, and sadly overlooked.

Hey, had the American Founders been Catholic, we'd have been Canada. Or Mexico. Or Revolutionary France! Ugh.

jimmiraybob said...

Actually, I’ve tried but cannot keep your arguments straight - it could be me, it's been a long week. So I’ll unpack one of your arguments the best that I can and then follow one founding father at a time.

MM - “If the First Amendment enshrines religious liberty (which is doubtful, as I show above, regarding states v. the federal government), then the First Amendment is itself a Christian document.”

• Religious liberty is a uniquely protestant Christian doctrine/principle/concept (you never say unique but that seems implied).
• The First Amendment enshrines religious liberty.
• Therefore, by incorporating a uniquely protestant Christian doctrine/principle, the First Amendment is a Christian document.

I think that this is the argument. I’d contend that the first premise is wrong and you doubt the second. I guess that argument’s over, it’s not a Christian document. But then you address the first premise with Madison.

MM - “Returning to religious liberty being a Christian concept, in fact, James Madison explicitly credits Martin Luther in his letter of 3 December 1821. Madison is referring to Martin Luther's doctrine of the two kingdoms, in which the state possesses a temporal sword to punish crime and violence, and the church possesses a spiritual sword to punish heresy and inculcate orthodoxy, and neither may infringe on the other's jurisdiction. Both, however, are subordinate to God. Therefore, under Luther's doctrine, the state is separate from the church, but is still subordinate to God and subject to His commands. Christianity is binding on the state no less than on the church, only a different subset of the laws of Christianity is applicable to each, according to the station assigned by God.”

Madison responding to the Rev. Schaefer (1821) – “It illustrates the excellence of a system which, by a due distinction, to which the genius and courage of Luther led the way, between what is due to Caesar and what is due to God, best promotes the discharge of both obligations.”

Madison is giving the Reverend a kind and cordial response to a prior correspondence and not giving such an explicit and expansive endorsement as you imagine. Madison does, elsewhere, explicitly endorse a complete separation of religion and government – “Strongly guarded as is the separation between religion and & Gov't in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history (Detached Memoranda, circa 1820) – and it’s not just to protect religion from government but government from religious encroachment. Yes, Madison would look favorably upon a two domain system but that does little to nothing to establish that he is endorsing “religious liberty being a [uniquely] Christian concept.”

continued below

secularsquare said...

I believe this post more accurately describes the purpose of the first amendment than most of the comments. It might be added that it not only protected state establishments, but also protected states that had no establishments.


On some other issues:


the morality of the United States's laws was to be a Christian morality.


Well, as the United States was an outpost of Western Christendom, what else would it be?

principles of Protestant Christianity

Those ubiquitous principles of Protestant Christianity informed the ways that Brits and Americans thought about everything. But they could be used to support anything.


They not only supported Madison and Jefferson's anti-establishment polices, but also supported the initial declaration of Virginia's House of Delegates that first time they dealt with the post-revolutionary status of the church in 1776 that “public assemblies of societies for divine worship ought to be regulated.” And those principles supported state established churches in the North.

Those principles also supported Locke's Letter on Toleration as well as England's Corporation Act (1661), Act of Uniformity (1662), Conventicle Act (1664), Five Mile Act (1665), and Test Act (1673) .

And those principles supported the idea of consent of the governed in Locke's Two Treatises as well as the divine right of kings in Filmer's Patriarcha.

Paul the apostle might as well have been writing about the scriptures when he wrote “ I am made all things to all men.”

jimmiraybob said...

Somewhat off topic - Speaking of right of conscience when it comes to religion, can you guess who said this, "'We either live together, or we die together'?"

If you guessed that it was an Egyptian Muslim rallying to protect the minority Coptic Christian Christmas services against extremists bent on disruptions, you'd be right. You don't see that everyday. I think that Madison and Jefferson would be wondering what the government is doing to protect their citizens and the public order.

jimmiraybob said...

If this appears twice, my apologies.

MM - “So in fact, according to Madison, the morality of the United States's laws was to be a Christian morality.”

You do not establish this. This conclusion does not follow from anything that you’ve presented up to this point.

MM - “- James Madison also submitted a "Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers." Just as Jefferson felt there was nothing wrong with issuing religious proclamations, Madison thought there was nothing wrong with punishing Shabbat* desecrators. )”

From Religion, Public Life, and the American Polity (p. 84) -

“On 31 October 1785, Madison introduced the third consecutive revised bill dealing with religion, which was entitled “A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers.”88 The evidence indicates that this bill, enacted on 27 November 1786 in a slightly amended form, also was penned by Jefferson.89

“The bill, in essential parts, exempted clergymen from being arrested while conducting religious services in any place of worship.90 The measure also authorized severe punishments, including imprisonment and amercement, for disturbers of public worship or citizens laboring on Sunday*.

...

“The bill was designed to benefit adherents of all denominations by preserving the sanctity of religious worship. It did not, however, expressly require church attendance in order to avoid punishment for Sabbath breaking.”

Continued below

Angie Van De Merwe said...

jimmyraybob,
Your argument sounds plausible. Our Constitution was to unite us, and to provide for peace. Government is to protect citizens from instability.

As to the sectarians (Baptists and Quakers), these aren't especially geared to "government", because of their view of "conscience" and "The Bible"! So, it was wise of Madison to protect such sects from others who might fear social instability.

Pinky said...

.
It's good that comments are beginning to get outside the framework of the original post here.
.

Pinky said...

.
Our government is "of the people, by the people, and for the people."
.
The People decide the purpose of government. The Founders created the framework within which we can work out our problems as time moves us into the future.
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We need to understand this point as reality.
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Angie Van De Merwe said...

If government is to protect sects from discrimination, as to their choice or form of worship, then how do we still maintain our laws concerning the individual, when it concerns conscience. Should we allow stoning of adulterers? Shunning still happens in some sects. So Where are the lines and how do we define those lines, when it comes to liberty and law and the indivdiual conscience?????

Pinky said...

.
Angie brings up a problem with our legal system.
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For example, in response to her question about stoning and adultery, could an act be signed into law that makes adultery a capital crime with the penalty of death by stoning?
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Or is the question just so ridiculous that it doesn't deserve any attention?
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Angie Van De Merwe said...

Perhaps the "air we breathe" regarding religion is different than in the times of the Founding...

Tom Van Dyke said...

Perhaps the "air we breathe" regarding religion is different than in the times of the Founding...

That's exactly what Gordon Wood says, Angie. And why we have difficulty getting into the Founders' heads, IMO. My historical view is that the Founding era was up to its eyebrows in the Judeo-Christian sensibility, whereas in 2012 we are not only "children of the Enlightenment," [and that especially includes the relatively nonreligious Hume, Voltaire and Rousseau who were not major factors in the Founding], but of modernity as well, not only John Stuart Mill [utilitarianism] but John Rawls [progressivism].

A lot of stuff you present here is thoroughly modern, whether it's Ayn Rand or those "human development" dudes or other examples of "radical individualism." Unless you can tie them to the Founding, it's unfair, discourteous and improper.

___________

It's good that comments are beginning to get outside the framework of the original post here.

Not really. There's a whole internet out there for that. And considering this discussion is still "live" [we haven't even heard from Mr. Makovi yet], threadjacking should be discouraged, not encouraged.

Tom Van Dyke said...

To get back to business, I think I agree with JRB's criticisms of the OP [original post] to the letter. I don't think JRB's arguing from ideology, only on scholarly precision, that certain claims in the OP are not backed up by evidence.

If you can get a point past JRB's epistemological scalpel, it has a good chance of actually being true. Think of it as peer review, and we should appreciate JRB taking the time to read the blog so painstakingly. [I do.]

“The bill, in essential parts, exempted clergymen from being arrested while conducting religious services in any place of worship.

JRB, this echoes to me of the Baptist preachers being arrested for "preaching the Gospel without a license," and whom Patrick Henry defended as their attorney.

I do want to quibble with your

it’s not just to protect religion from government but government from religious encroachment. Yes, Madison would look favorably upon a two domain system but that does little to nothing to establish that he is endorsing “religious liberty being a [uniquely] Christian concept.”

I have a problem with "religious encroachment." Everything I've read from Madison is precisely and explicitly on the grounds of religion-as-CHURCH and state, not religion-as-faith and state.

Not just you, but I think equating "church establishment" and "faith" is at the heart of much of our culture war stuff, indeed even to the contentions at the Supreme Court.

If one is fairly hostile to religion in the public square, he sees "establishment of RELIGION" while reading the First Amendment.

I, on the other hand, based on my studies---and I admit I might have a predilection to see it a certain way---see "ESTABLISHMENT of religion," meaning official state churches, or "Christian nation" in a completely literal sense. But not even the European "Christian nations" were remotely theocracies.

As I signaled to Angie in trying to penetrate the Founding era "air they breathed," virtually all the Founding literature considers atheism as unthinkable as a legitimate option. [Kind of how we think of Satanism today; tolerated perhaps, but toleration is the limit.] Everybody was going to have some sort of religion [religion-as-faith; even Tom Paine said he went to revolutionary France to "save them from atheism]. The only question was how to reconcile us to countless belief systems.

Now, I think it's true that Madison often argues that we cannot establish any "official" belief system because that would leave some sects out in the cold. I think this is an argument for his audience---esp the Baptists---and not one he was really concerned with himself.

Still, Madison's arguments, to my knowledge, focus exclusively on religion-as-church rather than religion-as-faith. In fact, there are several letters from clergy that try to rope Madison in for their particular religion-as-faith [specifically religion as-dogma or sectarianism], but his replies are always the same, against religion-as-church establishment, and appealing to their own self-interest, that establishment will threaten their particular sect.

[He also employs an argument that I found in Adam Smith's Wealth of Nations, that state-financed churches get fat, happy, and unresponsive to their flocks. therefore churches are better off---and serve the Lord---better without gummint money.]

Thx for the discussion, and I agree that the Egyptian Muslims rallying in defense of their Coptics is a beautiful thing. That it's news because it's so rare is disconcerting, however. Still, it could be the start of something good, and with Egypt facing Mubarak's death [he's 82] and his son taking over not certain, Egypt---with a very strong "Muslim Brotherhood" presence---has some serious soul-searching to do, and sooner rather than later.

Jason_Pappas said...

With regard to the distinction of “religion-as-church rather than religion-as-faith” let me add a third: religion-as-morality. When I read the Founding literature the context often suggests the word “religion” is being used to proxy for “morality” or because it is the institution that propagates morality. Quite often I can’t tell. I wonder if others find this ambiguity. We could also add “religion-as-dogma” as another possibility. After all, religion is used for many purposes.

jimmiraybob said...

...religion-as-CHURCH and state, not religion-as-faith and state.

I agree. I don't think that he or I would think that a person should or could check the things that fundamentally inform our outlook and judgment.

I do think that establishment goes further than institutions and Madison talks of a fundamental right of conscience and championed a government that does not establish undue advantage that, in effect, inhibits the freedom of conscience.

I certainly see this as a fundamental and critical distinction that provides equal protection to Baptists, Catholics as well as the atheist of smaller religions (in number and not implying importance to the individual practitioners).

It was largely Catholics that fought institutional bigotry in the 19th century, especially in the "public" schools.

Mikewind Dale (Michael Makovi) said...

Oh, wow, I didn't realize all these comments were here! I thought that I'd be getting updates in my inbox regarding comments, this being my post, after all, but apparently, that works only on my blog, not my posts on other blogs! Oy! I'll have to sit down with a big cup of coffee and read all these! But at least I know these are all here!

Angie Van De Merwe said...

Because of the differences of conscience, concerning how/what the Church was/should be, the issue for America is "faith", which has always been the case since the Reformation! We do not believe that any Church should be established by the State. But, the people in the Church should be concerned citizens, as to the government and communities. How this is lived out is variable.

One's conscience has "faith" of some kind, in some institution, whether Church (denominational or Catholic) or university (empiricism) or government (State, as instituted by the Constitution). The Founders, for the most part were empiricists. Therefore, they believed in moral behavior, as to value of the institutions.

As the Framers were interested in protecting all institutions, as they were important for the functioning of society, the First Amendment didn't regard any institution above another! The Church, The State, and the University were all important aspects of a flourishig society. Different institutions had different purposes and/or functions. And these are what we know now as "faith, intellectual and moral development". Tom, I think you make a false distincition as to modernity and the Founding era.

As America is a free society as to individual consicence, we allow diversity of opinions, commitment and value in all these areas.

Angie Van De Merwe said...

I must add, that in a free society, one could have their life commitment in any one or several of these areaa; Church (faith development), State (moral development) or University (intellectural development).

The separation of Church and State was to avoid conflicts of intersts, when it came to personal commitments, and divided loyalities of the Church and over-bearing power of the State, as we were to be a government by and for the people with limited government!

Pinky said...

.
Personally, I think it is ridiculous that intelligent people, purporting to be scholars of American history, have such a difficult time in thinking that the Founding Fathers were seemingly incapable of thinking for themselves.
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I'm sure they understood the implications of religious intolerance run amuck and that they were far beyond being controlled by this or that religious doctrine or dogma.
.
.

Pinky said...

.
How, otherwise, could they have created the documents upon which this terrific system of government was created?
.

Mikewind Dale (Michael Makovi) said...

RE: jimmiraybob:

"This is really a Protestant Christian principle? That 'every man has the freedom to believe whatever he wants, and no man has the right to force him otherwise.' And then you say “but the state was still to enforce Christian morality.” What does this mean? If I choose to live a good, honest and contemplative life and my world view and morality derive from an adherence to Stoic principles, is the state to step in or deny me full access to the rights and privileges of citizenship until I convert to and/or confess Christianity?"

The Protestant Reformation was all about man's right to access God directly, without any interposition. It took some time before this principle was fully applied, but the way I see it, Jefferson and Madison and Leland are merely taking this Protestant principle to its full conclusion. But Roger Williams had already said to John Cotton that a theocratic government was to take God out of heaven and subject Him to humans, and that it was popery. (An aside: a joke I like to make is, "No more potpourri!")

As for morality, I don't mean that men were going to be tested on their personal beliefs. What I meant was, the laws that were instituted were going to be based on Christian morality, and men would be punished for their violation of those laws. Why you obeyed those laws was your own business. The point was that from the perspective of the legislators and judges, it was Christian morality that was governing.

And I believe that whatever tolerance there was for Jews in America - which was more in America than anywhere else in the world save perhaps its competition therein with the English Puritans and Scotland and Holland (also Calvinists, by the way) - was due to the fact that Jews were recognized as basically following the same moral code as Christians, more or less, notwithstanding their Pharisaic heresy. So Jews are going to hell, fine, but at least they obey "thou shalt not steal."

"However, I don’t see that most or certainly all of them saw Christianity as the only route to acquiring and practicing the necessary virtues required by republican government." --- Indeed, the book of Romans says that even non-Christians have the natural law written on their hearts by God. But if you're deriving your tolerance of non-Christians from the book of Romans, then you're being rather Christian!

"At any rate, there is nothing in the Constitution requiring a citizen to be Christian or to practice Christian morality as opposed to general morality consistent with the welfare of the state." --- And Joseph Story say that this is so because the individual states already had it covered. Given that the majority of sovereignty was to be in the states, it makes sense that whatever the states institute to ensure morality (such as religious tests for office), would have been sufficient as well for the little bit of sovereignty the federal government had (mostly over the military and foreign policy and coining specie, and little else) Moreover, given that the First Amendment was meant primarily to ensure that states retained power over religion, it makes sense that the states, not the federal government, would be in charge of ensuring that the citizens had some proper moral behavior and/or moral code.

Mikewind Dale (Michael Makovi) said...

RE: Angie Van De Merwe:

"Covenant types would like to evaluate everything within their particular paradigm of 'Christian faith' and one's 'contract' with God. This is where Islam justifies taking the life of another person, if they blaspheme. Certain Christian contexts do, too."

The way I see history, is like this:

The Puritans of New England viewed themselves as the Israelites, having an actual, real covenant with God. And if you believe this, and I mean truly believe this, then isn't it reasonable to believe that a contract with God is as valid as a contract with a human? A non-Puritan would argue with the Puritan, saying that no such covenant existed, but I think everyone would agree that hypothetically, given such a covenant - given an actual, real commandment from God, telling you to punish heretics in a certain way - then that covenant would be as binding as any human one.

Indeed, Locke's "A Letter Concerning Toleration" explains Biblical Israel in this fashion, and I recently saw that likewise, Samuel Langdon's New Hampshire election sermon of 1788, "The Republic of the Israelites, An Example to the American States", explains Biblical Israel like this as well. That is to say, Biblical Israel could punish heretics because God was the imminent legislator and king there.

So what did Roger Williams say to John Cotton? He said that the covenantal relationship which Cotton thought existed, in actual fact, did not! Apparently, Williams accepted the consequence of their being such a covenant, and so he denied that an actual covenant existed. In other words, whereas Cotton thought New England was actually New Israel, Williams did not.

And I believe that over time, the Protestants came to side more and more with Williams, because as Protestant sects proliferated, they realized that they could not be so confident that they themselves were right and everyone else wrong. Even Cotton said that the Native Americans were to be spared punishment for heresy, for they sinned in ignorance. So once the various Protestant sects saw that the members of other sects were truly sincere and honest in their beliefs, and truly desired to be good Christians, they could no longer persecute each other as being deliberate sinners. Cotton had justified himself, saying that he was only punishing heretics who knew they were sinning. As Protestant sects proliferated, a man of one sect could not so easily anymore quote Cotton regarding other sects. Whereas Heinrich Bullinger had said the Anabaptists were worthy of death for their political beliefs, we see John Jay having a friendly correspondence with John Murray, a Quaker, i.e. an Anabaptist of exactly the sort Bullinger wanted to see die, covering basically the same ground as Bullinger had (especially on whether a Christian nation may wage war), but this time concluding, "We differ in opinion, and, I am persuaded, with equal sincerity." (Eidsmoe, Christianity and the Constitution, pp. 172-177.)

to be cont.

Mikewind Dale (Michael Makovi) said...

RE: Angie Van De Merwe, continued:

In short, then, the Protestants tried to downplay covenant as much as they could, trying to find as much common ground with their fellows as they could. The Great Awakening was responsible, to a large degree, for Protestant Christians in America emphasizing their commonalities and deemphasizing their differences. But even then, it was mostly tolerance for fellow Protestants. Samuel Langdon (op. cit.) and John Rodgers's sermon The faithful servant rewarded both speak of how Protestant Christians have so much in common and should be tolerant of each other, but they say nothing of tolerance for Catholics or Jews. Samuel Adams, in "The Rights of the Colonists," faithfully follows Locke in denying Catholics any right of toleration.

I believe this is because, in the end of the day, the Protestants were not trying to be tolerant for tolerancy's sake. Tolerance as such was not a value for them. Their value was obeying God, and they were tolerant only insofar as they believed God wanted them to be. And in fact, I find this admirable and inspiring. It is easy to be tolerant of something you don't care about, but it is awfully hard to be tolerant of someone who disagrees with you on something you hold dear. When you hold Christianity to be the basis of all existence, then it is difficult indeed to be tolerant of those who disagree with you on Christianity. Whatever tolerance there was in colonial America, then, I find to be all the more meaningful, because, well, it actually meant something to those professing it. They were actually relenting on something dear to them, more dear, in fact, than anything else on earth.

The way they achieved this tolerance was to emphasize more and more, Luther's distinction of the two kingdoms, as I showed in my blog post that James Madison did. (Williams had already cited Luther, and Cotton replied that he too held by Luther.) By drawing a distinction between the moral and spiritual duties of Christianity, it became possible to tolerate men who held by one but not the other. But it was still difficult. After all, they did not want to become the extreme Lutherans who say that all the state does is holy, and that the Bible has nothing to say about politics, and that religion is something for your private life, but that in public life, the Bible cannot be applied. The Calvinists in America did not want to take Luther to this extreme end. They tried to judge men based on their morality, and based on their adherence to the natural law which Paul says even gentiles have written on their hearts, but they still tried to have a Biblical definition of morality. They wanted liberty, not nihilism and anarchy (or tyranny, as extreme Lutheranism might have resulted in, in Nazi Germany).

to be cont.

Mikewind Dale (Michael Makovi) said...

RE: Angie Van De Merwe, continued:

But the basic principle was one of finding common ground. They tried to find as much basis as possible for judging fellow Protestants based not on a parochial covenant, but on a general, widespread consensus of morality and natural law. But while they wanted to find common ground, they still wanted to draw the line somewhere (making something be out-of-bounds), and not be nihilists, so they tried to have a Christian definition of morality. Oftenttimes, Jews satisfied this demand, and eventually, even Catholics were admitted. And often, there was a distinction between the public and private spheres: a Jew could be tolerated as a decent member of society, but they didn't want him to actually hold public office. It was one thing to trust him in his own private sphere, but it was something else to trust him with authority over everyone else. (Incidentally, the simplest and most accepted interpretation of Jewish law would say the same: polytheistic gentiles must be expelled from Israel while monotheistic gentiles are tolerated and allowed to live with all their basic human rights untouched, except they cannot hold office. Jews are even commanded to give charity to a monotheistic gentile the same as they give charity to a Jew, and a gentile is called "your brother" (Leviticus 25:35), but he still cannot hold office (Deuteronomy 17:15): that's just going too far. Now, I am just explaining what Jewish law says, not what ought to be done in Israel today.)

The Protestants could not limit themselves purely to social contract, because they refused to totally distance themselves from a view that all laws and morality come from God. They did not want to be pure legal positivists, that whatever the state says, goes. Over time, they grew to accept people who were not of the covenant, but they could never hold a purely secular view of social contract, that entirely divorces God altogether. Even Madison cited Martin Luther.

end of re: Angie

Mikewind Dale (Michael Makovi) said...

jimmiraybob said: "And, I should note that the first amendment is not a document." I consider the First Amendment to be a document, because until it was ratified and joined to the Constitution, it was its own autonomous entitity, its own document. But meh, semantics. If you want to call it a "doctrine," then fine. I'm sure we're both talking about the same First Amendment, whatever we call it. (See, religious toleration in action!)

------------------------------------------------------------------------------------------------------------------------

Naum said:

"Believe this to be a misreading of Madison who strove diligently for complete "separation of church and state"... Madison wanted the complete eradication of the 'establishment'"

Yes, but my argument is that even then, he wanted morality to be Christian. That's why I quoted his statement that it was impossible to draw a perfect line between church and state. Apparently, Madison realized the wall could not be absolute, because morality (as legislated) was still to be Christian in nature. As someone once put it to me, the separation is of church and state, not religion and state, and "church" means a parochial, sectarian establishment, but Christianity in general is religion, not a church.

--

Pinky said,

"One of the lessons we get from the First Amendment is that our American society is legally compartmentalized and that the compartments can be separated from each other and religion and government are examples."

Indeed. But the way I see it, Luther's doctrine of the two kingdoms was applied similarly to the separation of legislative, judicial, and executive functions in government. Of the two kingdoms, temporal and spiritual, the church commanded the spiritual while the state commanded the temporal, but both being under God. This too was a separation of powers.

Mikewind Dale (Michael Makovi) said...

Tom Van Dyke cited Samuel Adams's 1772 "Rights of the Colonists." But I would note that Adams (1) basically follows Locke (and so whatever can be said about Locke, can be said about Adams too), (2) denies toleration to Catholics, and (3) speaks mostly of not persecuting heretics, but says little about state established churches. Indeed, it was none other than Samuel Adams who authored Article III of the Massachusetts Constitution, commanding attendance and support of Protestantism! Joseph Story cites this article with approval, saying that while Locke had proved it was criminal and evil to punish heretics, that this must nevertheless be distinguished from the state's supporting religion, which Story held to be a good thing. (My own reading of Locke tends towards a more Madisonian/Jeffersonian stance. The point is that Story was able to cite Locke to uphold a cessation on punishing heretics, while still countenancing established churches, whether Story felt Locke agreed here or whether he didn't care that Locke disagreed.) While almost every colonial American at the time, as far as I know, was willing to grant freedom of religion worship to everyone, it seems that relatively few - except Jefferson, Madison, and the Baptists - were willing to disestablish the church altogether grant complete freedom (including freedom from taxation for the support of religious establishments) to everyone. It was Patrick Henry who fought for the Baptists of Virginia, to give them the ability to congregate, and yet it was the same Henry who drafted the law of state support for Protestantism which Madison and Jefferson opposed!

Mikewind Dale (Michael Makovi) said...

Tom van Dyke, continued:

But I don't think that Story, Adams, and Henry were on one extreme, and Jefferson and Madison were on the other, entirely opposed. Rather, I see them as being on different places of one continuum. I see Jefferson and Madison (and Locke) as holding by a more extreme version of the same opinion which inspired Story, Adams, and Henry. The basic principles were the same, I believe, but some were more extreme than others in applying them. See my long response to Angie.

Mikewind Dale (Michael Makovi) said...

Brad Hart said:

"Along with using sources like Locke, Luther, etc., our founders also relied heavily on men like Cicero."

My general impression is that the Framers felt the Roman republicans agreed with them. Samuel Adams, for example, very much felt this, and said he wanted a "Christian Sparta." My impression is that the Framers felt the Roman republicans were in agreement with Protestant Christianity. Whether they were right or wrong, this is what the Framers seem to have believed.

Mikewind Dale (Michael Makovi) said...

Joe Winpisinger: Thank you for the compliment!

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Jason Pappas said:

"Isn’t a easier to just say that Protestants feared each other due to the establishment of Protestant Churches on the state level?"

I think that means basically the same thing as I said. What I believe Story was saying was, that the First Amendment was merely meant to remove religion from the national government (although, of course, that power was never delegated to the national government in the first place, as the Federalists would point out), and that in the minds of many, the purpose thereof, was not necessarily to secure religious liberty per se, but rather, to simply reserve religion to the states, as per the Tenth Amendment (which Jefferson cited to Miller). In the minds of many, therefore, the purpose of the First Amendment was not to protect Jews or Muslims, but rather, to protect Protestants, by allowing them to continue to retain the power they already had on the state level, and to prevent any Protestant sects from competing for control of the national government's power over religion, which is to say, to equalize them all on the national level, but not on the state level.

"But then why use the words 'Congress shall make no law respecting an establishment of religion' instead of 'the establishment of religions will be left to the states.'"

In Jewish tradition, I will answer your question with a question: why doesn't the Second Amendment say, "The regulation of weapons will be left to the states"? Remember, according to the Federalists, the Bill of Rights was already superfluous, as everything not delegated to the federal government, had been left to the states anyway. So why argue that a given wording of a given amendment is superfluous (as opposed to a different wording), when the entire Bill of Rights (by its very essence, no matter how you word it) is already 100% superfluous!

"Could not this wording also be seen as expressing an aspiration as well as providing a model for the states to emulate?"

Verily, indeed, to be sure, yes. As my blog post said, some people read the First Amendment as enshrining an ideal, while others read it as protecting their jealously-coveted state establishment. That's why I said it is stupid to incorporate the First Amendment, because it meant very different things to very different people. (Actually, I'd say the entire gamut of Reconstruction Amendments destroyed whatever of the Constitution had survived the Civil War, but that's another subject. If I had my druthers, the Supreme Court would rule that the Reconstruction Amendments were coerced and that their ratification by the South is invalid and null and a void. But I'm not holding my breath for this, of course.)

"The reason I find this interesting is the lost notion of reciprocity."

Indeed, I completely agree with you. My brother, also a libertarian, has told me that he tolerates everyone except those who aren't libertarian. Why? Because his "religion" of libertarianism means that he tolerates everyone who tolerates him, and that he will apply "live and let live" to its fullest. But those who wish to tax him and regulate his activities, how can he tolerate them? His religion is that he will leave everyone else alone, if they'll just leave him alone. But what about those who won't leave him alone? I'll note that I basically agree with my brother on all major aspects of libertarianism, including his just-cited words. (However, I'm a minarchist, while he is an anarcho-capitalist, so we have our quibbles.)

Mikewind Dale (Michael Makovi) said...

Oh, and I'm an Orthodox Jew, while my brother is ... about as religious a Jew as Jefferson was a Christian (which is actually a good deal of religiosity) ... so we have our quibbles - no, major arguments! - there too, LOL.

Together, my brother and I crafted a shirt with words, "My rights:", then a picture of Michelangelo's "Creation of Adam," and then "From God, not man!" On the back of the shirt, the Declaration of Independence is briefly quoted. (I'm sure you know which part!) So that's where my Orthodox Jewish minarchism and my brother's skeptical non-Orthodox but still Jewish anarchism meet!

Mikewind Dale (Michael Makovi) said...

bpabbott said:

"Such may be understood to imply (or infer) that the Founders wished liberty to be a privilege limited to Protestant Christians. There is little support for such an implication, and ample support that liberty was seen as substantively supported by Protestant theology (but not necessarily in a unique sense), but also a natural right of *all* men."

I'll simply reiterate that:
(1) The First Amendment meant different things to different people. Some wanted real liberty, others did not (those who simply wanted to reserve power over religion to the states).
(2) As a I said earlier, I believe the difference between those who wanted real liberty (Madison, Jefferson) and those that did not (Samuel Adams, Joseph Story, Patrick Henry), was a small different, of degree, not kind. Madison himself said it was impossible to draw the line perfectly.

Pinky said...
This comment has been removed by the author.
Pinky said...

In response to a comment about American society being compartmentalized, Michael wrote: "Indeed. But the way I see it, Luther's doctrine of the two kingdoms was applied similarly to the separation of legislative, judicial, and executive functions in government. Of the two kingdoms, temporal and spiritual, the church commanded the spiritual while the state commanded the temporal, but both being under God. This too was a separation of powers."
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How can the two kingdoms be separated if they are both "under God"?
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That doesn't seem sensible to me.
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(My previous post had a typo. Otherwise, this is the exact same post.)

Angie Van De Merwe said...

Hi, Pinky,
I was just thinking about the same thing today, but a little differently.

The Church's role of forming faith, which, at maturity, ends in "symbolism" or "meaning making". When there is political liberty, then "faith" can "find its place anywhere", as to meaning=making. If there is no political liberty, then one must view the government/leadership/king/Caesar as "gods", just like the Caesar cult did...

Since we do not believe in the "divine right of kings", and we do believe in individual conscience, we don't have to be atheists to have "faith" in "meaning making". One can "symbolically" worship "God" without all the "frills". It dissolves itself of content other tnan the political world. It is the political world that one illustrates faith, but not in "God", as understood cognitively, but faith as all of life, which is a little like Spinoza, huh? Or what some rabbis might teach in Judiasm!

There are no "two Kingdoms", but there should be political freedom to choose what, when and where one will/is "making a difference". Therefore, one's intellectual develpment should frame the others. "Morality" and "Faith" should be about reasoned existence in this world.Isn't that "Common Sense"?

Angie Van De Merwe said...

Sorry about the fragments...Atheists means one has come into an ownership of "faith", in reason, reasoned existence (experience), and tradition's value. Tradition's value does not "lead" one's opinions, behaviors, commitments, values, as all of these are "reasoned" by the individual, as a responsible adult.

Tom Van Dyke said...

There is a huge space between liberty of conscience and forbidding establishment of a state religion. There was not much controversy the Founders on these issues.

They don't even need to be dragged in, but unfortunately, these issues are conflated with the more ambiguous ones.

Jonathan Rowe said...

"In fact, John Locke and James Madison even say that an atheist has no right to religious freedom, because he doesn't believe in the God who granted that freedom in the first place."

I know Locke says this; but I don't think James Madison ever says this.

Jonathan Rowe said...

"We should notice three things: (1) Jefferson is relying on Roger Williams, so Jefferson's doctrine of the separation of church and state is obviously a Christian one;..."

There is actually no evidence that Jefferson knew of Roger Williams. Jefferson DID know of James Burgh (a British Whig and a theological unitarian) who used the phrase before TJ did. And Burgh did know of Williams.

Jason_Pappas said...

Even Locke's minor paragraph in the first essay on toleration isn't clear. It consists of four sentences. The third one is:

"The taking away of God, though but even in thought, dissolves all; besides also, those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of toleration."

Since the discussion in the essay prior to this paragraph is one of religious toleration and not civil toleration, it is clear he is talking about the religious toleration of atheists. Since atheism isn't a religion it is a self-contradiction to speak of religious toleration of atheism. I've seen several commentaries that point this out. But how about civil toleration of atheism? Locke’s next sentence reads:

“As for other practical opinions, though not absolutely free from all error, if they do not tend to establish domination over others, or civil impunity to the Church in which they are taught, there can be no reason why they should not be tolerated.”

It would seem that atheists could be tolerated in civil, i.e. secular, matters.

The second sentence is sometimes used to imply that Locke wouldn’t be tolerant even in civil matters. It reads:

“Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist.”

If we combine this with Locke’s theory of the contractual nature of government, it might imply that there is no room for atheists in the commonwealth. However, if one is born in an established commonwealth, there is tacit consent. So while an atheist might not be sought out to establish a commonwealth, they might be tolerated in an existing one.

Is not this single paragraph is too obscure to take as clear statement?

Pinky said...

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Jason writes, Since the discussion in the essay prior to this paragraph is one of religious toleration and not civil toleration, it is clear he is talking about the religious toleration of atheists. Since atheism isn't a religion it is a self-contradiction to speak of religious toleration of atheism. I've seen several commentaries that point this out.
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Jason, please forgive me; but, that statement seems so pompous to me. Since when did any atheist lose his or her rights regarding religion in any sense of the word?
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Your statement appears to marginalize and disendow men and women of unalienable rights that you seem to claim belongs only to people of some privileged persuasion.
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That would be un-American in the extreme.
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So, maybe I misinterpreted what you have intended as an otherwise reasonable statement. And, if I have, please accept my apologies and set the record straight.
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Jason_Pappas said...

Pinky, I'm trying to understand Locke's views. If I read him correctly, he is saying that atheists don't practice a religion so that their religious practice doesn't have to be tolerated. When it comes to atheists, religious toleration is a moot point. There is no religion to tolerate!

Civil toleration, however is another matter. Here it looks ambiguous but I think Locke accepts civil toleration of atheists. He doesn't indicate that he wants them run out of town ... as long as they are tolerant and respectful of the rights of others. Doesn't it appear that way?

Jason_Pappas said...

"Jefferson is relying on Roger Williams ..."

Concerning seperation, why don't we consider if Jefferson was relying on Locke?

From the first essay on toleration:

"This only I say, that, whencesoever their [i.e. clergy] authority be sprung, since it is ecclesiastical, it ought to be confined within the bounds of the Church, nor can it in any manner be extended to civil affairs, because the Church itself is a thing absolutely separate and distinct from the commonwealth."

Wow! Absolutely separate! Here's a few other quotes:

"Now that the whole jurisdiction of the magistrate reaches only to these civil concernments, and that all civil power, right and dominion, is bounded and confined to the only care of promoting these things; and that it neither can nor ought in any manner to be extended to the salvation of souls, these following considerations seem unto me abundantly to demonstrate. …

These considerations, to omit many others that might have been urged to the same purpose, seem unto me sufficient to conclude that all the power of civil government relates only to men's civil interests, is confined to the care of the things of this world, and hath nothing to do with the world to come. …

The end of a religious society (as has already been said) is the public worship of God and, by means thereof, the acquisition of eternal life. All discipline ought, therefore, to tend to that end, and all ecclesiastical laws to be thereunto confined. Nothing ought nor can be transacted in this society relating to the possession of civil and worldly goods. No force is here to be made use of upon any occasion whatsoever. For force belongs wholly to the civil magistrate, and the possession of all outward goods is subject to his jurisdiction. …"


Were the Founding Fathers that Lockean?

Pinky said...

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I think I understand the bit about Locke as it was mentioned previously.
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It seemed as though you were also making the same claim.
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That's what I was addressing.
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