Monday, August 8, 2011

Intratextualism and "Religion" During the American Founding

Eugene Volokh has an interesting post which references law review articles from among others Akhil Amar on the idea of "intratextualism" -- that is, the same word being used more than one time in a legal document and how the multiple uses of a term can define its proper meaning.

Here is a comment I left:

I’ve studied the “religion” at the time of the framing in detail from the perspective of “political theology,” and the issue certainly applies.

The First Amendment says

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


And Art. VI Cl. 3 of the unamended Constitution says

no religious test shall ever be required as a qualification to any office or public trust under the United States.


So we’ve got “religion” and “religious” as in “religious test.” It probably would be proper to define "religion" as having the same meaning in both clauses, but as a matter of logic we MUST define “religion” in the EC and FEC as having the same meaning because the term is used only once and “thereof” in the FEC relates back to “religion” in the EC. It’s like a Siamese twin that shares the same heart.

The reason I say this is, perhaps because they misunderstand a quotation of Joseph Story, some Christian Nationalists have argued either 1. “Religion” in the First Amendment meant “Christianity” only (this claim is wrong but at least it avoids the problem of logical construction where “religion” in the EC and FEC are given two different meanings) OR 2. Whereas Free Exercise was meant to apply universally the EC somehow only protected or privileged “Christianity.” This claim is wrong as a matter of simple logic. If one can prove “religion” had a particular free exercise clause meaning, it automatically applies to the establishment clause and vice versa. (And yes, there is a great deal of evidence that the Founders meant what they said: “religion” means “religion” not “Christianity”).

18 comments:

Phil Johnson said...

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The very nature of "not being able to get into the heads of the Founding Fathers" because of the time barriers opens a door to all sorts of possibilities when it comes to such details. No one can put a lock on what any FF meant with the use of any word under dispute based on such flimsiness as that which comes straight out of this or that bias. Happenstance? So, we are left with no other alternative than to apply our meanings. I'm sure this problem has kept many a judge up long nights fretting over his or her decisions.
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Doesn't anyone think the Founding Fathers were "with it" enough to know that simple fact of reality? How many drafts did it take them to develop any particular document? Is there someone here that thinks the FFs didn't know what they were doing?
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Angie Van De Merwe said...

Our Founding Fathers were Westerners. They were enlightened as to and about science. They were primarily influenced by the Christian tradition, because of their cultural background. And I think they disagreed as to the interpretaton of religion. That was the point of dis-establishment, n the first place, wasn't it? Religion was a personal matter, not to be defined/limited by public policy. And these religious protections were valued because they valued individual conscience.

Today, though, we have the problem of our very laws that protect our civilizaton, being undermined by religious law. This should be of concern to any of us that value civilization.

Phil Johnson said...

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Hey, Angie.
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What do you think? Did the Founding Fathers have the presence of mind to know that people interpret words differently depending on the circumstances of their times? Or do you think they thought words have meanings that never change?
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I did read the article Rowe references in his post here. There are more than 70 comments one of which says the author has too much time on his hands. I think I agree with that.
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Angie Van De Merwe said...

Criminals live outside the law.

Citizens live by, within or under the law.

Polticians, and lawyers live BEHIND the law.

'The rule of law' was to grant every citizen the same status, if a rule was to mean anything.

'The consent of the governed' means that 'the people' or average citizen had a voice that was to be respected.

History is the basis of maintaining a 'realist' worldview, while philosophy holds to an 'ideal'. We learn from history to hold to our ideals. I think this is good and honest analysis of human nature, and governments.

One primary belief the Founders had, that should still hold true today, was the balance of power, which was to divided and separated. Such a view limits, corrects and stabilizes government. Otherwise, the empowered, political class will strip 'the people' of their voice and their right of consent. And the end will be tyranny!

Words have meanings within context of the text AND within history. Social change is not a goal to be sought for its own sake. Conservativism goes very slow on changing the traditions and understandings of the past. Principles and history must lead any decision for change. Philosophy without history is blind, but history without philosophy is dead.

Tom Van Dyke said...

Elegantly put, AVDM.

Angie Van De Merwe said...

Thanks, Tom.
One could interpret what I said in numerous ways, depending on how one defines the term "philosophy" and what one means by ideals.

Because I believe in a naturalistic scheme, and history is the basis of a realist viewpoint, philosphy has to be connected to the real world. That is, it is not theological. It would be the Founder's ideals of "life, liberty and the pursuit of happiness".

Our history is grounded in many strands that culminated in our Constitutional government, which protects in the real world the lives of the citizens that live within the nation's boundaries.

The ideals of life and liberty are defined differently by those citizens under our Constitution. These differences are philosophical differences in how they understand our society, and how society should "work". These are political philosophies that make for our culture wars.

Angie Van De Merwe said...

TOM, BUT, I MUST also add that history proves that when revolutions happen, most of the time, dictators step in to bring "social order". This is so important to remember today, as the riots are happening all over the world.

I just heard where the liberals in Britain have said that these riots are understandable, and valid!! Are we to believe that everyone is entitled to "cell phones" and many other gadgets, just because they are available? The "poor" are being used to further the radical agenda, for free societies. And it is very disturbing...

And what has happened n our culture wars with "God" being useful for both sides only intensifies the battle! People must understand that what they think their "faith" requires, or affirms, is usually justification for what they want or need to believe....which is really "self justification"....even in the "name of good works" (feeling needed or important, valued, etc.).

Phil Johnson said...

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... history proves that when revolutions happen, most of the time, dictators step in to bring "social order".
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I'm not so sure any predictions can be made on such a "fact" of history, Angie.
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Angie Van De Merwe said...

Ha Ha, Phil. Maybe I was speaking from personal experience ;-)! (get "out of line" and wham, bam one is disciplined into submission)..... I was thinking of military coups, dictators, and controlling the population at large. These are Statists...

Religious tests are also "Statist". These are ways or means of making judgments about another's "faith". This is why "faith" is left undefined in America. One isn't supposed to be discriminated against, whether or not they are a "true believer"! The civil arena leaves room for diverse viewpoints and opinions, including religious ones (unless they undermine "the rule of law", where all are equal citizens, to be respected)!

Phil Johnson said...

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I think you are speaking to one of the major problems of our American style democracy. Different from other democracies around the world.

Even though there can not be and there are not any official tests of religious belief, there most certainly is a barrier that those who could not pass such a test are discriminated against.

It is being said that Texas governor Parry's purpose in entering the nomination race to choose a candidate for the Republican Party is to destroy Mitt Romney's chance for winning--Romney not being an Evangelical Christian. Parry will run as the Evangelical Wednesday Night Prayer Meeting candidate. I'm sure we'll be exposed to some sermonizing based on the appropriate verses out of the Holy Bible and nothing good from the Book of Mormon.
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Very much a religious test, my dear. And, all together very legal.
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Angie Van De Merwe said...

Some supposed that Perry was the "officially chosen" candidate of the political class. You're saying he is the "officially chosen" candidate of the religious class?

Michele Bachman said she had to choose between being "pro-life" and tax increases. She voted for "pro-life" because that was of greater value! Isn't fisical responsbility more important, otherwise, it doesn't matter what one's personal opinion is about abortion, we will "loose our country"!

But, I know that those that are "true believers" think that their way of understanding is "God's way" and seek to impose that way upon others, for fear, or belief that God's judgment will come...while scientists/psychologists are interested in understanding whether there is a particular way that "man functions best". Under what conditions do men fare better? These are scientific investigations, not philosophical questions or opinions about how society should work!

Angie Van De Merwe said...

I'm am weary of feeling like I am used as a guinea pig!

Phil Johnson said...

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In 1988 Pat Robertson ran for President in the Republican Primaries and beat sitting Vice President George Bush Sr. in the Iowa Republican caucuses.

That heralded in the Evangelical Christian Party in American politics. The "Silent Majority" would be silent no more.

Generally, the Tea Party is a re-presentation of the Evangelical Christian Party movement.

This is a democracy and the situation is just going to have to play itself out. When it is all over, the progressive movement will come out on top. It may not look so good now; but, interestingly enough, that is the way progress usually takes place. The rotters have to have their time on top before the great mass of Americans sees what rotters they truly are.
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And, we are beginning to see their disgustingly mean spirit.
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Angie Van De Merwe said...

Phil,'
The evangelical believes they are RIGHT and that they are the elect who are sanctioned by God Almighty to do his bidding. They have a mandate to subvert every knee to "His will"....and they will fight to the death because of their belief that otherwise people will "go to hell in a handbasket"....it is an aurhoritarian and addictive personality type, an obsessive view/opinion, a narcisstic understanding, and the ONLY WAY...you know "THE Way"!!! And you can argue till you're blue n the face and they won't concur that their belief is just a belief and NOT reality!

As to the progressive movement, one must understand that science must proceed with caution concerning "the human", as experiments done to and on society haven't produced good outcomes...most of the time. Our Republic being an exception to the rule!

Human beings are meant to have choice and be self-determining.

Angie Van De Merwe said...

Phil,
As soon as any judgment is made, that is authoritarianism, narcissism, domination, etc. one has made a "universal standard", that also applies to the one making the judgment!

Intersubjectivity is how the child comes to know and value themselves. This becomes self-awareness, and consciousness concerning one's life, values and commitments. Self defines apart from any outside authority. This is healthy development. But, those that believe "their outsde source" is the only way to live, then it becomes oppressive to self-development...

Phil Johnson said...

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I can talk about Evangelicals until you are blue in the face without skipping barely a beat.
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You can't tell me anything about them that I haven't already tasted.
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But, it's a little different in the world where I exist than it is in the one where you move about. I see Evangelicals who claim they are open to new information coming out of science. It only helps them see the wonders of what God is unfolding for them and in no way does it ever undercut the Holy Bible--only proves it to be more right today than it was thought to be yesterday.
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They have bought into their childish beliefs and, now, as they are grown into reasoning adulthood, they are faced with the dilema of either believing that the universe is some 14,000,000,000 years old or in believing the Biblical account of creation as told in the book of Genesis. They cannot accept the 14,000.000.000 years figure as it would lead to the loss of their faith. It's not so much what they believe; but, it is more about what they cannot allow themselves to accept as reality.
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They are afraid of the truth. And, their religion gives them a safe place where they can hide.
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Phil Johnson said...

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All this stuff like "Right to Life" is code for the test to see if are you a Bible believing Born Again Holy Ghost Christian or not.
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That's all that counts for them.
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The Rapture is just around the next corner or so.
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Phil Johnson said...

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Intersubjectivity is how the child comes to know and value themselves. This becomes self-awareness, and consciousness concerning one's life, values and commitments. Self defines apart from any outside authority. This is healthy development. But, those that believe "their outsde source" is the only way to live, then it becomes oppressive to self-development...
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Profound.
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