Friday, March 25, 2011
Eugene Volokh On Bryan Fischer's Erroneous Claim
Here. EV makes an important point. I don't mean to keep beating the dead strawman. But Fischer makes one key error common among Christian America types: That the original Constitution protected "Christianity" and excluded other religions. The problem is, the Constitution doesn't say that; it says it protects "religion" not "Christianity." And there is evidence -- EV reproduces it -- that the Founders understood "religion" meant more than just "Christianity." Finally, the First Amendment uses the term "religion" in two clauses like a Siamese twin that shares one heart. It's logically impossible for the term "religion" to mean one thing for Free Exercise purposes and another for Establishment Clause purposes. The "thereof" in the FEC relates back to the term "religion" as used in the EC.
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Yes, but in their day, religion was a matter of Christian sects, or Judiasm, as people did not travel as far as they do today. Or am I wrong?
Maritan makes the argument for a wall between society and the STATE, which I believe was one of the sermon's (last post) points.
"It's logically impossible for the term "religion" to mean one thing for Free Exercise purposes and another for Establishment Clause purposes."
I'm not sure about logically impossible, but I'll grant you unlikely. Interesting thought, though: If free exercise means free exercise of Christianity only, then the Establishment Clause does not prohibit establishment of Islam.
Daniel,
You make the distinction between Free Expression and Establishment. Would "Free Expression" be one's personal choice, whereas the Establishment of religion would be the State sanctioning it through its laws, in a positive way?
But, when one thinks of a wall of separation between Church (society) and State (government), and our laws are not "positive laws"intruding into society, then how is the State to protect "human rights abuses", when it concerns Muslim women in our own counrty,as to Shairia?
I guess we can't to be consitant and to continue to allow society to function without "Big Brother"! But, isn't this the "rub" today, as State is to be influenced by Church. How can this be, if not to protect from Islamic radicalization, where religious law supercedes civil rights? Civil Rights, then is our only hope, then.
I just worked on a reply to Daniel that got eaten by the tech. monkey.
"If free exercise means free exercise of Christianity only, then the Establishment Clause does not prohibit establishment of Islam."
Yeah, if "religion" in the FA only pertained to "Christian" sects, as Christian Americanists claim, Congress could make a law respecting the establishment of "Islam" because it is not a "religion" dealt with in the FA.
Christian Americanists more often claim while the FEC protects all religions, the EC only dealt with "Christian sects." I think the idea is government can still privilege "Christianity" in general as long as it doesn't discriminate among the Christian sects. Fischer goes further and states govt isn't constitutionally required to respect the free exercise of "Islam."
But I would reiterate on logical construction of language grounds, The term "religion" in the FA for BOTH the FEC and EC is used ONCE; it's the same term: "Religion" in the EC and "thereof" in the FEC relating back to the "religion" of the FEC. Whatever "religion" means for the FEC it must so mean for the EC.
Jon,
Don’t apologize for beating the dead strawman; reports of its death are greatly exaggerated.
You know well That the founders understood themselves to be defending a generic Christianity, and that in the process of defending that generic (or “civic”) Christianity they defended tolerance of non-Christianity in a limited sphere as a Christian principle. To early Americans, as Toqueville rightly pointed out, Christianity and freedom were inseperable, two sides of a coin. They had a christocentric view of freedom, and were constituting a free nation, which was inter alia a Christian nation.
If Fischer is wrong about anything (and I’m not taking any position on that for now) it is on his interpretation of Islam, not his interpretation of the Constitution. Fischer believes that “Islam is a totalitarian ideology dedicated to the destruction of the United States”, and that “Islam requires Muslims to rob, kill and pillage infidel Christians wherever they find them”. The founders would not extend the protections of “religion” to such a belief system. Fischer may be wrong about Islam, but if the founders agreed with him on Islam, then they would also agree with him on the constitutional implications.
Or am I wrong? Did the founders think that the Constitution protected the rights of a belief community that stoned rape victims if they could not produce four eyewitnesses to testify to the rape? Note that for our purposes it does not matter whether this is an accurate description of Islam; it is enough that Fischer would accept it as such.
-Kristo.
Why it's our old blogbrother Kristo, as I live and breathe!
I think Volokh perhaps mistakenly conflates the individual's freedom to practice the Muslim faith with Christianity as the American society's guiding ethos.
As I recall, Joseph Story was aware of the distinction, that the constitutional protection of freedom of religion was not synonymous with a prostration of Christianity or an elevation of Judaism or Islam to equal status.
For one, the First Amendment didn't forbid religious tests at the state level or even Christianity as a state's established religion.
I also think Kristo's objection has some currency, not in the legal sense, but the philosophical one: GWash welcomed all religions as long as they were compatible with peace, harmony and good citizenship within the American milieu.
Hi Tom!
Just to clarify the distinction between what I am saying and the more limited claim that you are supporting, I believe that the issue of compatibility with basic Christian morality was legally relevant as well; compatibility of the moral teachings of any belief system with basic Christian morality was part of the going definition of one of the two ambivocal meanings of the word "religion" at that time and in that context.
"religions" usually used as a plural (or in a context that implied distinguishing specificity) referred to specific belief systems comprising both moral and non-moral content, but "religion" as a generic term referred to any belief system that referred to God in establishing “basic” morality (to include accountability to God for wrongdoing, and basic Christian standards of outward morality, e.g. Christian views of sexual morality).
This ambivocality is the basis for, e.g., various states having “no religious test” clauses in their constitutions, but also requiring public officials to adhere to basic tenets of Christianity: the latter requirement did not constitute a “religious” test in the specific sense, and it was the specific sense that was intended in the test clauses.
Note, BTW, that what I am saying about the meaning of “religion” is milder than, e.g., what Webster had to say in his 1828 dictionary. Webster, that old Christian firebrand, doesn’t refer to non-Christian religions until his fourth definition, and even then only after cautiously stipulating that it might be possible to live a moral life without religion. By implication, he is saying that the first three definitions are of Christian “religion” in varying senses, and that even the fourth definition only qualifies as religion if it supports morality in the same sense as the first three.
And then, to close the loop on my point, surely the meaning of the word “religion” was legally relevant, so there is more than just a philosophical point at stake.
-Kristo.
"If Fischer is wrong about anything (and I’m not taking any position on that for now) it is on his interpretation of Islam, not his interpretation of the Constitution. Fischer believes that “Islam is a totalitarian ideology dedicated to the destruction of the United States”, and that “Islam requires Muslims to rob, kill and pillage infidel Christians wherever they find them”. The founders would not extend the protections of “religion” to such a belief system. Fischer may be wrong about Islam, but if the founders agreed with him on Islam,..."
This is a very big presumption. Who would defend such a theological system except someone from the inside who believes and practices it. I know I sure as Hell don't.
I agree with Justice Scalia’s opinion in Smith. I am also convinced by the research of among others Philip Hamburger. V. Phillip Munoz and Marci Hamilton that the “Free Exercise” of religion as originally understood did not demand a “right” to accommodation from secular laws that burden religiously motivated practice, but that government is free to grant such accommodations as a privilege. I.e., what the FFs did to the Quakers who didn’t want to take up arms. That for the most part solves concern about any fanatical religious practice. Jews, Christians and Muslims who peacefully demean themselves under the secular civil law are welcomed to peacefully practice their religion. Those that don’t face the sword of the civil law. And the civil law very generously gives an almost absolute right to speak one's religious conscience. But if it goes beyond speech into funny stuff, then the civil norms may limit. That was the Founders formula.
Perhaps the Founding Fathers misunderstood Islam, but I see no evidence -- at least from what I have so far uncovered (I was just alerted to a Pajama's media article this morning which I am going to read) -- that the FFs thought of Islam like Bryan Fischer did.
Here is one from George Washington putting Jews and Muslims in the same box of toleration and accommodation while defending the gentle Christian state establishment idea in Virginia.
“...[Y]et I must confess, that I am not amongst the number of those who are so much alarmed at the thoughts of making people pay towards the support of that which they profess, if of the denomination of Christians; or declare themselves Jews, Mahomitans or otherwise, and thereby obtain proper relief.”
– To George Mason, October 3, 1785.
Here is John Adams saying Jews, Christians and Muslims all have "religion" in the Abrahamic sense of the term.
“It has pleased the Providence of the first Cause, the Universal Cause, that Abraham should give religion not only to Hebrews but to Christians and Mahomitans, the greatest part of the modern civilized world.”
– John Adams to M.M. Noah, July 31, 1818.
Here is Ben Franklin saying that the purpose of the meeting house church he helped construct for "the public" was for any religious sect "the public" so choose, including an Islamic one.
“Both house and ground were vested in trustees, expressly for the use of any preacher of any religious persuasion who might desire to say something to the people at Philadelphia; the design in building not being to accommodate any particular sect, but the inhabitants in general; so that even if the Mufti of Constantinople were to send a missionary to preach Mohammedanism to us, he would find a pulpit at his service.”
– Ben Franklin, Autobiography.
I appreciate the distinction between "religion" and "religions," Kristo. Joseph Story also wrote:
Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration [i.e., the First Amendment], the general, if not the universal sentiment in America was, that christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship.
Now, later on, Story says unequivocally that religion was left to the states, and that the federal gov't was not empowered to assist.
If the First Amendment has any power/credibility in protecting religious conscience, then, the State NOR the Federal government should impinge on how an individual chooses to worship. Otherwise, there is no need for the First Amendment, because the State would act as "the government" over-riding individual liberties.
Hi Jon!
What's your point? You are, it seems, agreeing with Fischer. You say "Perhaps the Founding Fathers misunderstood Islam, but I see no evidence ... that the FFs thought of Islam like Bryan Fischer did."
Fischer agrees with you on that. He explicitly makes the point that the nature of Islam as explained by the ambassador of the Bey of Tripoli was a surprise to TJ, and furthermore that it was not accepted at face value at first hearing.
Fischer's point is that the FFs wouldn't extend the protection of religion to a belief system that called for robbing, killing, and pillaging otherwise innocent Christians wherever they could be found. You claim this is a big presumption, on Fischer's and my part. Really?
To take a favourite claim of yours, that many FFs thought that all religions offered a path to salvation (a claim I agree with, but only because of a restricted use of the word "religion"), can you show any evidence of a FF who thought that robbing, killing, and pillaging otherwise innocent Christians wherever they could be found was a valid path to salvation?
Fischer's point is completed, of course, with the claim that “Islam requires Muslims to rob, kill and pillage infidel Christians wherever they find them” (paraphrasing the ambassador). This, if anywhere, is really the only place to criticize his analysis. Unless you intend another? But if this is his only (or principal) error, then his error (if he is in error) has nothing to do with his understanding of the FFs or the Constitution, which was my original point.
-Kristo.
"You claim this is a big presumption, on Fischer's and my part. Really?"
I didn't take it that you agreed with Fischer's presumption about Islam. Do you? GWBush said he thought Islam at its heart a "religion of peace."
Fischer based his argument on his particular understanding of what Islam at its heart is, an understanding that America's Founders didn't share.
Messrs. Rowe and Miettinen:
It depends on whether we're discussing Islam as just another Abrahamic sect, like Judaism, Catholicism, or one of the countless flavors of Protestantism.
Or what Islam actually is, as Jefferson and Adams found out in their negotiations with the Barbary pirates, yet refused to believe.
Christopher Hitchens, the Jefferson biographer, is helpful here, on the reality of it.
http://www.city-journal.org/html/17_2_urbanities-thomas_jefferson.html
Jefferson and Adams, our old standbys, were obtuse when it came to reality. Even after their first-hand experience with it, they used Islam as a non-Christian strawman against America's normative Christianity.
They were ideological assholes on this point.
Hmmm... my comment from a few days ago seems lost. Oh well.
The gist was just an outline of what Fischer was saying, and that my intent was mainly to make clear his meaning – so as to point out how his “erroneous claims” aren’t his, and that he wasn’t saying anything about what the FFs thought of “Mahometanism” as they knew it.
As for Islam as Fischer understands it, my personal take is a bit off-topic, but I think that Fischer is technically correct (Islam as it is taught today in respected Islamic theological schools is indeed anti-constitutional), but that this matters less than some might fear. In the long run, I have more faith that the US will incubate and launch into the world a form of Islam compatible with constitutional government than I have fear that anti-constitutional Islam will subvert constitutional government in the USA.
Note that at risk is not merely our constitution in its current form, but rather the foundational principle of constituted (as opposed to absolute) government.
-Kristo.
Kristo,
I think we proceed from different premises on how we read BF. I don't see him as, at all, making such a nuanced case (he is free to chime in here and clarify) but rather asserting that by "religion" a) America's Founders in no way intended to include "Islam" and b) only meant "Christianity." Hence, "establishment of religion or prohibiting the free exercise thereof" meant "establishment of Christianity or prohibiting the free exercise thereof." Likewise BF believes the Founders agreed with him that Christians and Muslims DO NOT worship the same God. That Christians worship the true God of the Universe, the Muslims' "Allah" a false god.
And BF is entirely wrong on how he reads America's Founders.
If I am misreading BF, again, he is free to chime in and clarify.
I read somewhere that America was founded on pragmatism and moral idealism.
Moral idealism are the values of life, liberty and the pursuit of happiness, while pragmatism is utilitarian.
The reliigious define morality in a different way than a Constitutional government. The Consititution defines the boundaries of government and the rights of the individual, while the religious make special knowledge claims.
It doesn't behoove our Constitutional government nor religious tolerance to allow radical Muslims to lay claim to our relgious conscience value. I think Hitchens is right about making laws that would limit or prevent such radicals from coming into our nation! And I don't think there would be any American that would disagree with the protection of child mutilation or equality for women, over and above a relgious right.
I have written more on angiespoint@blogspot.com entitled, "Moral Realsim and Language Games".
Jon,
All religions make the same claim to ultimacy, if they claim supernatural knowledge. Natural claims to knowledg is not especially "special knowledge". Christianity isn't to be politicized, like Islam. Thanks to Martin Luther! Faith has to remain undefined, which allows for religous conscience and political liberty. So, as Tom stated early on in this blog, America is a Judeo-Christiany nation....
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