Sunday, July 28, 2013

Throckmorton Answers Barber

See Warren Throckmorton's answer to Matt Barber's original. And be sure to check out Throckmorton's links to the Volokh Conspiracy.

23 comments:

Tom Van Dyke said...

Nothing wrong with Barber's argument. The US Constitution and First Amendment left religion to the states. "Congress shall make no law..."

jimmiraybob said...

I'll also post these questions here.

Is blasphemy against the God of Christianity an act against the natural law? Is blasphemy against Christianity an act against the natural law?

jimmiraybob said...

Also too, is defense of the civil order using blasphemy laws consistent with the natural law?

Tom Van Dyke said...

exactly

jimmiraybob said...

"exactly"

The Sanhedrin and Rome, in convicting and executing Jesus for blasphemy, were acting in accordance with the natural law? A bit harsh but righteous?

jimmiraybob said...

I've been trying to get a handle on the natural law. I see that it might be good at maintaining the civil order. I had thought that it veered more toward the individual liberty.

wsforten said...

According to James Wilson, "Profaneness and blasphemy are offences, punishable by fine and by imprisonment. Christianity is a part of the common law.”

http://books.google.com/books?id=74s0AAAAMAAJ&pg=PA112

Tom Van Dyke said...

Anonymous jimmiraybob said...
"exactly"

The Sanhedrin and Rome, in convicting and executing Jesus for blasphemy, were acting in accordance with the natural law? A bit harsh but righteous?


Perhaps, per political philosophy. Socrates, like Jesus, accepts his death sentence. The charge was impiety towards the gods of the city, thereby corrupting the youth.

Socrates is of course guilty.

--------

I've been trying to get a handle on the natural law. I see that it might be good at maintaining the civil order. I had thought that it veered more toward the individual liberty.


I'm constantly amazed at how our modern products of American education don't get it, can't feel it. No insult intended--the same was true of our late and banned brother OFT, "Our Founding Truth," a Christian fundamentalist.

Stopped by his long-neglected blog the other day and I see him giving Natural Law a fresh whack, albeit through Calvinist eyes--which will make it a bit squirrelly.

http://ourfoundingtruth.blogspot.com/2013/07/a-much-needed-break.html

Still, I'm pleased to see him trying it again. I was obliged to study Calvinism in order to understand the American founding. Calvinists must study Natural Law, which involves studying >shudder< Roman Catholic thought [Aquinas, Suarez, The "Scholastics"].

And for the secular academy, the reason they've made such a hash of religion and the Founding is that they only understand the Enlightenment as a reaction to not just "religion," but that religion equals "superstition," i.e., irrationality.

No point in studying superstition as a rational set of propositions, only an ad hoc collection of nonsenses.

But Scholastic Natural Law meets Calvinist resistance theory and becomes natural rights, which are worth fighting for: it's even OK with God. And there you have the American revolution, and the English Civil wars before that. To the products of our "Godless" school system, I'm speaking Martian here.

Anonymous jimmiraybob said...
I've been trying to get a handle on the natural law. I see that it might be good at maintaining the civil order. I had thought that it veered more toward the individual liberty.


Both. But the "freedom of religion" is also very community-oriented. The [Calvinist] Puritans of New England didn't see themselves as a modern nation-state; they fled England because it was.

They saw themselves as a community--so if Ann Hutchinson starts up with a bunch of blasphemy and questioning of the social order...hey, woman, out with you. Take your heresy down the street and stop polluting our community with your bad theology and sedition.

So yes, Socrates, in his impiety towards the gods of the city, is indeed guilty in a real way of sedition, and as such is a threat to the public order.

See the last big blasphemy case in the US, People vs. Ruggles [NY, 1811 or so]. Yes, there's outrage at Jesus being called a bastard and Mary a whore, but it still goes to disturbing the peace.

Sit outside a mosque with a sign Prophet Muhammad was a Child Molester

https://en.wikipedia.org/wiki/Aisha

and well...mebbe you shouldn't. [In Europe, there will be blood. in the US, it still won't be pretty.]

So yes, you're quite in the zone here.

jimmiraybob said...

JRB - "The Sanhedrin and Rome, in convicting and executing Jesus for blasphemy, were acting in accordance with the natural law? A bit harsh but righteous?"

TVD - "Perhaps, per political philosophy."

Much like the Spanish Inquisition, I never saw that coming.

Ah yes, OFT. I see him spreading his wings at Warren Throckmorton's place:

"Theoretically, [Calvin] was a genius that founded the United States."

I'm bedazzled.

jimmiraybob said...

Was Jesus of Nazareth demonstrating the natural law or acting against the natural law?

Tom Van Dyke said...

yes

jimmiraybob said...

Have you run all this by the new 2K buddies? It's an impressive, and apparently original, commentary on the NL. Maybe not. Is this a Thomist position?

Tom Van Dyke said...

It's Platonic, but the 2K types should be fine with it per Romans 13. The Thomist position is similar--authority must be obeyed unless it's illegitimate.

http://www.hyoomik.com/aquinas/regicide.html

Historically, the biggest fear and greater evil is anarchy, not tyranny. That's why Luther's fine with slaughtering the Anabaptists.

http://socrates58.blogspot.com/2004/02/luther-death-penalty-for-anabaptists.html

And of course, the Calvinists were fine with burning the heretic Michael Servetus

http://www.jesuswordsonly.com/topicindex/330-did-calvin-murder-servetus-knol.html

that is, until they started getting the brown end of the stick

http://faithandheritage.com/2011/07/vindiciae-contra-tyrannos-part-1/

So it goes.



jimmiraybob said...

wsfortan - "According to James Wilson, "Profaneness and blasphemy are offences, punishable by fine and by imprisonment. Christianity is a part of the common law.”"

How silly do you think the founders/framers must have felt when they sat back and realized they'd forgotten to add a Department of the Inquisition?

Tom Van Dyke said...

Religion was left to the states. See People v. Ruggles.

wsforten said...

I don't think that they felt silly at all. The First Amendment recognition of freedom of speech and freedom of the press was taken from Blackstone's doctrine of forbidding previous restraints. This doctrine teaches that harmful speech and writing such as libel, perjury, obscenity and blasphemy can only be censored prior to publication in very limited circumstances, but it can be punished severely after publication. This doctrine has a very lengthy history in American jurisprudence, and FindLaw.com has posted a fairly good overview of it.

jimmiraybob said...

wsforten - "...but it can be punished severely after publication."

I'm not sure that I follow. My somewhat tongue in cheek reference to the founders/framers not establishing a Department of the Inquisition was in reference to blasphemy laws and freedom of expression. Show me that there was any intent on behalf of the founders/framers to establish in the supreme law of the land an inquisitional mindset to enforce intellectual orthodoxy; whether through prior restraint or subsequent punishment.

And surely you're not advocating a government that will severely punish free expression of intellectual merit even if it rankles a few orthodox feathers - bowing to a noisy priestly class?

jimmiraybob said...

To quote me from the above post, “What they [the founders/framers] did do is give us the idea that we have a right to freedom of expression and no religious tests.”

Going to the “but the states….” argument, blasphemy laws were on the books to the extent that many of the founders/framers, if expressing private thoughts, could have been prosecuted and excluded from their profession and wealth and/or have been subjected to jail time. What the “but the states….” argument misses is the trend toward extending the ideals encapsulated in the federal Constitution and the reality that the new states were going to have to participate in trade and relations around the world as well as between the states leading to increasing toleration and cosmopolitanism. No longer were we talking about individual and insular colonies.

Blasphemy laws, as a method of enforcing ideological and narrow religious orthodoxy were antithetical to the idea of not just having a right to one’s own conscience but also to expression of ideas. The experiment that is this nation was/is dependent on free exchange of ideas and the leading intellectuals behind the framing knew this.

So yes, the “but the states….” Argument has some validity at and soon following the late 18th and early 19th centuries but it was a carryover of a more rigid and more insular colonial experience (and largely imported from old and failed European practices).
As to prior restraint, you’ll have to show me the citations where Madison and the framers clearly establish Blackstone as its foundation – demonstrate that expression, uninhibited by government(1), is derived from Blackstone rather than out of the first amendment itself. I’m not discounting influence but the idea of freedom of expression without government restraint certainly precedes Blackstone with perhaps is clearest expression via Spinoza.

continued below

jimmiraybob said...

As to how one of the founders, framers and presidents of the new nation put it(2):

"MY DEAR SIR,--We think ourselves possessed, or at least we boast that we are so, of liberty of conscience on all subjects and of the right of free inquiry and private judgment in all cases, and yet how far are we from these exalted privileges in fact.

"There exists, I believe, throughout the whole Christian world, a law which makes it blasphemy to deny, or to doubt the divine inspiration of all the books of the Old and New Testaments, from Genesis to Revelations. In most countries of Europe it is punished by fire at the stake, or the rack, or the wheel. In England itself, it is punished by boring through the tongue with a red-hot poker. In America it is not much better; even in our Massachusetts, which, I believe, upon the whole, is as temperate and moderate in religious zeal as most of the States, a law was made in the latter end of the last century, repealing the cruel punishments of the former laws, but substituting fine and imprisonment upon all those blasphemies upon any book of the Old Testament or New.

"Now, what free inquiry, when a writer must surely encounter the risk of fine or imprisonment for adducing any arguments for investigation into the divine authority of those books? Who would run the risk of translating Volney's Recherches Nouvelles? Who would run the risk of translating Dapin's? But I cannot enlarge upon this subject, though I have it much at heart.

"I think such laws a great embarrassment, great obstructions to the improvement of the human mind.

"Books that cannot bear examination, certainly ought not to be established as divine inspiration by penal laws. It is true, few persons appear desirous to put such laws in execution, and it is also true that some few persons are hardy enough to venture to depart from them; but as long as they continue in force as laws, the human mind must make an awkward and clumsy progress in its investigations. I wish they were repealed. The substance and essence of Christianity, as I understand it, is eternal and unchangeable, and will bear examination forever; but it has been mixed with extraneous ingredients, which, I think, will not bear examination, and they ought to be separated. Adieu."

"Source: VII The Writings of Thomas Jefferson: Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private 396-97 (H. A. Washington ed., 1984)."

1) With narrow secular exceptions.
2) John Adams to Thomas Jefferson (January 23, 1825) @ http://www.churchstatelaw.com/historicalmaterials/8_10_3.asp

I broke this into shorter segments for easier uptake.

jimmiraybob said...

To add a little emphasis:

"To quote me from the above post, “What they [the founders/framers] did do is give us the idea that we have a right to freedom of expression and no religious tests.” "

Tom Van Dyke said...

See People v. Ruggles.

jimmiraybob said...

TVD - "See People v. Ruggles"

Perhaps you'd be kind enough to provide the New York state law that was the foundation of the blasphemy charge.

saleem mohd. said...
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