Tuesday, September 24, 2013

Sandefur on Legislature Prayer

Check it out here. A taste:
The reason Jesus asked to be left out of such things, and why James Madison reiterated this when explaining why legislative prayers are unconstitutional, is because they knew that they aren’t about any real devotion or religion, anyway. They’re about showing off one’s credentials to one’s constituents and pacifying voters with professions of faith—and more, of making life uncomfortable for those who aren’t members of the same denomination.

34 comments:

Tom Van Dyke said...

I'm not in favor of using Jesus in public prayer for the reasons given here.

However, there are some Christians who feel leaving Jesus out would be to deny him. Free exercise as guaranteed by the First Amendment applies here too. [That the 1stA envisioned banning public prayer is contradicted by the early days of the republic, including Madison losing the Congressional chaplain battle.]

Tim Kowal said...

Right out of the playbook. Chase the content out of the prayer, and then shame the faithful for having denied Christ. Delightful.

wsforten said...

There is a great deal of error in this article. First, to claim that legislative prayer violates Matthew 6 is to claim that Christ Himself violated the Sermon on the Mount every time that He prayed in public such as His prayer in John 11:41-42. Aditionally, it is incorrect to assume that Christians are prohibited from participating in legislative prayer simply because Christ did not mention doing so. Christians typically rely on the whole Bible when determining what is or is not permitted to them, and in I Timothy 2:8, Paul said that men should pray everywhere. Last time I checked, the legislative chamber was considered to be part of everywhere.

On top of this misrepresentation of Christian doctrine, both the article and the amicus brief are founded on the fallacious neutrality interpretation of the establishment clsuse. This portion of the First Amendment does not require the government to treat all religions in an equal and neutral fashion. It simply prohibits the creation of a national Church. Giving preference to one religion over another in legislative prayers does not constitute an establishment of religion. According to my research, a religion cannot be considered to be established unless, at the very least, the salaries of the clergy are being paid out of the national treasury; and Warburton identified six characteristics which mark the relationship between the government and an established religion. None of these characteristics are evident in the practice of legislative prayer.

I wrote a brief article on the establishment clause which can be read online at: http://www.thefederalistpapers.org/current-events/what-freedom-of-religion

jimmiraybob said...

wsforten – “religion cannot be considered to be established unless, at the very least, the salaries of the clergy are being paid out of the national treasury; and Warburton identified six characteristics which mark the relationship between the government and an established religion. None of these characteristics are evident in the practice of legislative prayer.”

First of all, I assume that you’re referring to the Reverend William Warburton? Is “at the very least, the salaries of the clergy are being paid out of the national treasury” one of Warburton’s establishment characteristics or is this your own conclusion?

What is Warburton’s definition – overall fundamental understanding – of religious establishment by the state (not just characteristics)? Did he favor establishment? How did he describe the relationship?

wsforten said...

I outlined Warburton's position and provided a link to his book on the subject in the article that I referenced above.

JMS said...

Dear Bill – you stated that “According to my research, a religion cannot be considered to be established unless, at the very least, the salaries of the clergy are being paid out of the national treasury.” Perhaps that is not the case in Greece v Galloway and Stevens, but it was in the case SCOTUS will probably cite as precedent (Marsh v Chambers, 1982) and it is shockingly so in the U.S. House and Senate. The Senate chaplain earns $151,000 a year, and the House chaplain earns $172,500 a year. By reference a Member of Congress last year could have earned $174,000, so the Chaplain will earn almost as much as a Member of Congress ! At one time (i.e., since the founding), the Chaplains were a voluntary position. In late 1994, prior to the convening of the 104th Congress, some thought was given to having volunteers of rotating denominations fill the post of House chaplain. However, the Republican leadership decided to maintain a full-time paid chaplain. As Justice Brennan wrote in his Marsh v. Chambers dissent, “Brennan’s dissent – “the practice of official invocational prayer is unconstitutional. It is contrary to the doctrine as well the underlying purposes of the Establishment Clause, and it is not saved … by its history… .” I have no problem with military chaplains providing spiritual solace to men and women far from their communities (and places of worship) and often in harm’s way. But legislators, at the town, city, state or federal level are free to seek whatever spiritual guidance they need privately or in communion with others at a nearby place of worship. This is the old Joseph Story vs. James Madison interpretive battle again. But I side with Madison, who wrote, “The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation?”

Tom Van Dyke said...

"Custom and practice" is also recognized as the spirit of the law. When Madison's interpretation of the First Amendment is immediately rejected in custom and practice, it's hard to say that the ratifiers understood it as a ban on gov't-sponsored prayer.

According to my research, a religion cannot be considered to be established unless, at the very least, the salaries of the clergy are being paid out of the national treasury

I don't think this is a bad argument, but I do think it's an untenable one, for much the same reason. But if you open it up a bit, though, you get to the anti-Catholic schools Blaine Amendment [that failed] and Blaine laws [that several states passed], a much more arguable call.

Bill's stronger argument is against Sandefur's "Jesus asked to be left out of these things." A lot of secularists [and even some evangelicals] make great hay out of "my kingdom is not of this world." Fortenberger has a scriptural rebuttal seldom heard in these things.

. First, to claim that legislative prayer violates Matthew 6 is to claim that Christ Himself violated the Sermon on the Mount every time that He prayed in public such as His prayer in John 11:41-42. Aditionally, it is incorrect to assume that Christians are prohibited from participating in legislative prayer simply because Christ did not mention doing so. Christians typically rely on the whole Bible when determining what is or is not permitted to them, and in I Timothy 2:8, Paul said that men should pray everywhere. Last time I checked, the legislative chamber was considered to be part of everywhere.

wsforten said...

Thank you for commenting, JMS. You have provided an excellent example in support of my claim. My position is that an established religion is one in which the salaries of the clergy are paid out of the national treasury. In Madison's Detached Memoranda, he objects to the appointment of chaplains in the legislature precisely because they are "to be paid out of the national taxes." Madison appears to have the same definition of an established religion as I do.

However, before we get too deep into a discussion on Madison's Detached Memoranda, we should remember that this is an unpublished document written at the end of Madison's life which contradicts many of the positions which he previously held. For example, at one point in this document, Madison objected to "Religious proclamations by the Executive recommending thanksgivings & fasts." This stands in direct contradiction to Madison's own proclamations for prayer, thanksgiving and fasting which he made on July 9, 1812; July 23, 1813; November 16, 1814 and March 4, 1815. These proclamations were fully consistent with Madison's previous position on public expressions of religion which he expressed in a letter to William Bradford on September 25, 1773.

I have sometimes thought there could not be a stronger testimony in favor of religion or against temporal enjoyments, even the most rational and manly, than for men who occupy the most honorable and gainful departments and are rising in reputation and wealth, publicly to declare their unsatisfactoriness by becoming fervent advocates in the cause of Christ; & I wish you may give in your evidence in this way.

More importantly, it must be remembered that Madison's view in his later years was not the view which prevailed among the legislators which voted to accept the First Amendment. The same legislature which voted on the Bill of Rights also voted to appoint chaplains for each of the two houses. Even beyond that, I doubt whether there was a single state legislature which did not also appoint chaplains over their houses in the same year that they voted to accept the proposed First Amendment. And as Madison noted, these chaplains were paid out of the public treasury. Obviously, the people of that era did not understand the prohibition against an established religion to be a prohibition against paying chaplains to provide religious services for the legislature.

Of course, this seems to be a contradiction of my claim that an established religion is one in which the clergy is paid out of the public treasury. The public provision for chaplains seems to be (as Madison believed in his old age) an establishment of a national religion. This supposed contradiction can be resolved, however, if we recognize that the chaplains of the legislature are not paid for their role as clergymen of a particular religion, but rather they are paid in exchange for services rendered to the legislature. To pay an individual clergyman for rendering specific services is a far cry from paying the salaries of the entire clergy of a particular religion, and it is this latter form of provision which appears to form the basic definition of an established religion.

jimmiraybob said...

wsforten – “According to my research, a religion cannot be considered to be established unless, at the very least, the salaries of the clergy are being paid out of the national treasury…”

The post that you cite at The Federalist Papers, and to which you provide a link, does not support this. In your conclusion you give two propositions:

If the founders understood with Bishop Chandler that the choice was between establishment and toleration…[and] If they [the founders] recognized with Bishop Warburton the six common characteristics of an established church …”

And neither of these propositions received a shred of actual evidence. And what you draw from these propositions, the following conjecture, which appears to be the conclusion of the post, is, “In essence, this understanding of the First Amendment would mean…”

Possibly.…..if you’d supplied any reasonable evidence. Otherwise two ”ifs” and a “would mean” do not make an argument. But it does make a hypothetical proposition.

As usual with things in blogworld it will take longer to study your citations and make a meaningful and pointed response than is possible in the short-term life of a post. But, I’ll try to get something more substantive up if possible considering work and play and such that take priority. I have read the Chandler pamphlet(1) from which you cite and the relevant sections of the Warburton piece(2) (as well as the summary of Warburton's that he gives in a later collection of his works(3)), and it appears that you've selected what is convenient to your argument and let the more substantial and fundamental characteristic of, or reason for, establishment untouched, which is that the civil authority in recognizing religion as a partner should give preference and privileges and receive return favor (a covenant relationship that would favor some citizens over others). In short, 1) the Reverend (Bishop) Chandler says that it is necessary for the civil authority not only to protect, but to support” religion – protect and support*, or preference and privilege, being foundational, and 2) Warburton is not listing necessary and defining criteria, or characteristics, that constitute an establishment (an alliance with mutual benefits between the civil authority and religion) but listing the privileges that religion could expect from such an alliance (and did receive in England and other contemporary European countries), which includes financial support from government coffers – upon which you focus - but also obtaining a presence in government and coercive support from government(4).

Continued Below

jimmiraybob said...

And let’s look at the Madison quote that you used in The Federalist Papers post:
“the existing character, distinguished as it is by its religious features, and the lapse of time now more than 50 years since the legal support of Religion was withdrawn sufficiently prove that it does not need the support of Government, and it will scarcely be contended that Government has suffered by the exemption of Religion from its cognizance, or its pecuniary aid.”

Madison did not focus on pecuniary aid but leads with “by the exemption of Religion from its [Government’s] cognizance.” In other words, Madison, like Chandler and Warburton, recognizes that the fundamental essence of establishment is government cognizance, or preference.

Overall, the framers could have included the phrase “shall make no law to establish a national religion” or “shall make no law to establish religion by providing monies from the national treasury” but they didn’t. They were big boys and knew what they were doing and knew how to use the language and knew history. That’s why we get “shall make no law respecting an establishment of religion” – because they knew the full extent and dangers to the national(5) unity and stability that they were trying to achieve, of mixing ecclesiastic and civil authority (in mutual alliance – see religious wars, Europe).

Additionally, both of your sources were Anglican clergy* presenting a decidedly Anglican (Church of England) view – not likely to have played a major positive role in the constitutional debates or the development of the establishment clause. (The Reverend (Bishop) Chandler was also an outspoken loyalist that felt more comfortable leaving the colonies and living in England from 1775(1) to 1785. By Tom’s rules this alone is grounds for automatic elimination from consideration.) And both of these authors are making a political case for alliance. But we have over two hundred years of American evidence that alliance between church and state is not necessary.

*cue founding anti-clergy rhetoric

Continued Below

jimmiraybob said...

NOTES

1) Thomas Bradbury Chandler, 1774. A Friendly Address to All Reasonable Americans, on the Subject of Our Political Confusions: In Which the Necessary Consequences of Violently opposing the King’s Troops, And of a General Non-Importation, are Fairly Stated. [As I said above, he left the colonies in 1775]

As to the quote that you use, “An established religion, is a religion which the civil authority engages, not only to protect, but to support; and a religion that is not provided for by the civil authority, but which is left to provide for itself, or to subsist on the provision it has already made, can be no more than a tolerated religion,” the primary consideration is whether the civil authority chooses to protect and support religion to receive reciprocal benefits. The secondary consideration is whether religion is to provide its own sustenance or receive financial support from government. In the Bishop’s view, the state needs to provide financial support in addition to coercive protection to make a religion established rather than tolerated – a tenuous argument and not one that I’ve ever read by a founder or framer.

Probably a hot commodity among the Anglican clergy though….and their accounts-receivable people.

http://books.google.com/books?id=ZaVbAAAAQAAJ&pg=PA56#v=onepage&q&f=false

For more loyalist appeal see also Thomas Bradbury Chandler, 1767. An Appeal to the Public, in Behalf of the Church of England in America Wherein the Original and Nature of the Episcopal Office are Briefly Considered, Reasons for Sending Bishops to America are Assigned, The Plan on Which it is Proposed to Send Them is Stated, and the Objections Against Sending Them are Obviated and Confuted: With and Appendix, Wherein is Given Some Account of an Anonymous Pamphlet.

http://archive.org/details/appealtopublicin00chan

2) William Warburton, 1736. The Alliance Between Church and State: Or, the Necessity and Equity of an Established Religion and a Test-law Demonstrated. Fletcher Gyles, ed.

http://books.google.com/books/about/The_Alliance_Between_Church_and_State.html?id=PsxbAAAAQAAJ

3) William Warburton, 1788. The Works of the Right Reverend William Warburton (7 Volumes). Richard Hurd, ed.

http://books.google.com/books?id=5UsuAAAAYAAJ&pg=PA400&lpg=PA400&dq=warburton+established+religion&source=bl&ots=LDSn44V1En&sig=5K8C0NgCyOxB1Y3sCTKtsP3bzzE&hl=en&sa=X&ei=vh1CUorlB8GAqQHZrIDYAQ&ved=0CDsQ6AEwAg#v=onepage&q=warburton%20established%20religion&f=false

4) Speaking of the Church of England, Warburton (1736) included:

“II. The second Privilege the Church receives from this Alliance is a Place for her Representatives in the Court of Legislature.”

“III. The third and last Privilege the Church gains by this alliance, is the being intrusted with a Jurisdiction inforced by Civil coercive Power.”

5) Feel free to use “republican” if desired.

jimmiraybob said...

And when I say "a covenant relationship that would favor some citizens over others" I mean, at a minimum, that the coercive power of the government would effectively work prejudicially against the individual right of conscience* that is the proclaimed fundamental natural right, via the natural law, of the sovereign citizen. Which, all in all, was the backbone of the founding political ideology.

*especially in matters of religion and religious affiliation.

jimmiraybob said...

Also too, of possible interest to the blog, the Reverend Warburton appears to have been an advocate of allying church and state in the Hebraic style that Eric Nelson describes in the Hebrew Republic(1), which has been featured and discussed here. This would extend his hypothesis to a strain of political thought contemporary with the founding era. Maybe this has already been covered here?

1) Eric Nelson, 2011. The Hebrew Republic: Jewish Sources and the Transformation of European Political Thought. See especially Section 3.

wsforten said...

Jim,

I wonder if you would mind taking a moment to clarify a few points in your response. You seem to be under the impression that I identified funding from the public treasury as the sole requirement for a particular religion to be an established religion, but I specifically stated that this was the least of the requirements. I referenced Warburton's book to demonstrate that there are additional interactions between the state and an established religion which must be taken into consideration. Warburton identified six characteristics of that relationship as I mentioned in the article. As Warburton pointed out in the section of his book that I referenced, these six characteristics are all drawn from "the great Preliminary or Fundamental Article of Alliance ... that the Church shall apply all its Influence in the Service of the State; and that the State shall support and protect the Church." It was from the practical application of this foundational description that Warburton derived the six characteristics that I listed. So, with all of this, I'm really confused about why you think that I identified funding from the public treasury as the sole requirement for an established religion.

My confusion is deepened when I recall that I specifically listed Warburton's six characteristics as an explanation of Madison's reference to "cognizance." Warburton's influential book is used to explain what kind of cognizance governments gave to an established religion. This, in turn, tells us what kind of cognizance would be denied to religions which were not established. I am not aware of any statement by Warburton, Chandler or Madison which defines "cognizance" as mere preference. Could you perhaps cite a few instances in which these three individuals provided such a definition?

I'm also unsure of why you mention that the founders could have worded the First Amendment differently if they really intended to convey the meaning which I have presented. That is certainly true. The founders could have chosen any number of words to convey that meaning, but it has nothing to do with the question of whether the meaning I presented is what they actually intended convey with the words that they did choose to use. The question is not "Could they have conveyed this meaning with words that would be more clear to us?" but rather "Is this the meaning that they intended to convey?"

Furthermore, I'm afraid that your point about Warburton and Chandler being Anglicans makes no sense at all. Yes, they were Anglicans, and no they did not play a major positive role in the constitutional debates. That is part of my point. These men argued in favor of religious establishments not against them. Thus, their views represent the negative that the founders were working against. I relied on them to identify the position to which the founders were opposed.

On a side note, you are correct in pointing out that Warburton followed one of the traditions identified by Eric Nelson in his book The Hebrew Republic. The proper identification would be that Warburton held to the Erastrian view of the relationship between church and state. This was the dominant view in Western Europe at that time, and you can read more about it from Nelson himself at this link: http://www.fpri.org/articles/2011/05/religious-origins-religious-tolerance

jimmiraybob said...

wsforten - ”You seem to be under the impression that I identified funding from the public treasury as the sole requirement for a particular religion to be an established religion.”

No, I’m under the impression that you identified it as a minimum threshold – a minimum requirement before establishment could be considered to be on the table. And that’s what I was addressing.
You wrote, ”According to my research, a religion cannot be considered to be established unless, at the very least, the salaries of the clergy are being paid out of the national treasury…”

This, apparently, is your own invention based on selectively misrepresenting the Reverend Warburton's writings. Warburton, whom you appear to building upon, was not itemizing necessary conditions for an establishment, or alliance between state and religion, but identifying benefits, or privileges and advantages, that could/would result from preference given by the civil authority.

jimmiraybob said...

jrb - ”And let’s look at the Madison quote that you used in The Federalist Papers post:

“the existing character, distinguished as it is by its religious features, and the lapse of time now more than 50 years since the legal support of Religion was withdrawn sufficiently prove that it does not need the support of Government, and it will scarcely be contended that Government has suffered by the exemption of Religion from its cognizance, or its pecuniary aid.

”Madison did not focus on pecuniary aid but leads with “by the exemption of Religion from its [Government’s] cognizance.” In other words, Madison, like Chandler and Warburton, recognizes that the fundamental essence of establishment is government cognizance, or preference.”

wsforten - ” My confusion is deepened when I recall that I specifically listed Warburton's six characteristics as an explanation of Madison's reference to "cognizance." Warburton's influential book is used to explain what kind of cognizance governments gave to an established religion. This, in turn, tells us what kind of cognizance would be denied to religions which were not established. I am not aware of any statement by Warburton, Chandler or Madison which defines "cognizance" as mere preference. Could you perhaps cite a few instances in which these three individuals provided such a definition?”

Consistent with the body of Madison’s writing he was using cognizance to mean official recognition or acknowledgment(1) by government, and by extension, recognition or acknowledgement leading either to prejudicial or preferential treatment – non-recognition. So, I’ll clarify: “…the fundamental essence of establishment is government cognizance, and by extension, resulting in either prejudice or preference that, in the case of Warburton, could/would result in tangible benefits.”

1) Webster’s American Dictionary of the English Language (1828) @

http://1828.mshaffer.com/

COGNIZANCE, n.

1. Judicial notice or knowledge; the hearing, trying and determining of a cause or action in court.

The court of kings bench takes cognizance of civil and criminal causes.

In the United States, the district courts have cognizance of maritime causes.

2. Jurisdiction, or right to try and determine causes.

The court of kings bench has original jurisdiction and cognizance of all actions of trespass vi et armis.

3. In law, an acknowledgment or confession; as in fines, the acknowledgment of the cognizor or deforciant, that the right to the land in question is in the plaintiff or cognizee, by gift or otherwise; in replevin, the acknowledgment of the defendant, that he took the goods, but alledging that he did it legally as the bailiff of another person who had a right to distrain.

4. A badge on the sleeve of a waterman or servant, by which he is known to belong to this or that nobleman or gentleman.

5. Knowledge or notice; perception; observation; as the cognizance of the senses.

6. Knowledge by recollection.

wsforten said...

Do you not realize that you have just demonstrated the primary definition of cognizance in the early 19th century to be the right of a court to hear a particular case or class of cases? You have successfully shown that Madison's reference to government not having cognizance over religion was a reference to the denial of the right of the government to try causes of a strictly religious nature. This form of cognizance is exactly what is described in the third of Warburton's list of six characteristics.

wsforten said...

By the way, in case you are considering arguing against the very definition which you provided, let me point out that volume 1 of the 1813 publication of the Laws of the State of New-York contains at least 45 references to the courts of that state either having or not having cognizance over particular issues under the law.

jimmiraybob said...

wsforten,

Before running all over hill and holler let's back up a bit. Are you saying that the civil authority paying the salaries of clergy from the public treasury is not a least/minimum requirement for establishment per the following statement?

”According to my research, a religion cannot be considered to be established unless, at the very least, the salaries of the clergy are being paid out of the national treasury…”


jimmiraybob said...

And before I address your last two comments I'm putting up the text of Madison's letter that you pull the "cognizance" quote.

From Beliefnet @ http://www.beliefnet.com/resourcelib/docs/9/Letter_from_James_Madison_to_Reverend_Jasper_Adams_1.html

Letter from James Madison to Reverend Jasper Adams
James Madison - 1832

I recd in due time, the printed copy of your Convention sermon on the relation of Xnity to Civil Gov' with a manuscript request of my opinion on the subject.

There appears to be in the nature of man what insures his belief in an invisible cause of his present existence, and anticipation of his future existence. Hence the propensities & susceptibilities in that case of religion which with a few doubtful or individual exceptions have prevailed throughout the world.

Waiving the rights of Conscience, not included in the surrender implied by the social State, and more or less invaded by all religious Establishments, the simple question to be decided is whether a support of the best & purest religion, the Xn religion itself ought, not so far at least as pecuniary means are involved, to be provided for by the Govt rather than be left to the voluntary provisions of those who profess it. And on this question experience will be an admitted Umpire, the more adequate as the connection between Govts & Religion have existed in such various degrees & forms, and now can be compared with examples where connection has been entirely dissolved.

In the Papal System, Government and Religion are in a manner consolidated, & that is found to be the worst of Govts.

In most of the Govt of the old world, the legal establishment of a particular religion and without or with very little toleration of others makes a part of the Political and Civil organization and there are few of the most enlightened judges who will maintain that the system has been favorable either to Religion or to Govt.

Until Holland ventured on the experiment of combining toleration with the establishment of a particular creed, it was taken for granted, that an exclusive & intolerant establishment was essential, and notwithstanding the light thrown on the subject by that experiment, the prevailing opinion in Europe, England not excepted, has been that Religion could not be preserved without the support of Govt nor Govt be supported with an established religion that there must be a least an alliance of some sort between them. It remained for North America to bring the great & interesting subject to a fair, and finally to a decisive test.

In the Colonial State of the Country, there were four examples, R. I, N. J., Penna, and Delaware, & the greater part of N. Y. where there were no religious Establishments; the support of Religion being left to the voluntary associations & contributions of individuals; and certainly the religious condition of those Colonies, will well bear a comparison with that where establishments existed.

As it may be suggested that experiments made in Colonies more or less under the Control of a foreign Government, had not the full scope necessary to display their tendency, it is fortunate that the appeal can now be made to their effects under a complete exemption from any such Control.

It is true that the New England States have not discontinued establishments of Religion formed under very peculiar circumstances; but they have by successive relaxations advanced towards the prevailing example; and without any evidence of disadvantage either to Religion or good Government.

Continued Below

jimmiraybob said...

Madison Continued

And if we turn to the Southern States where there was, previous to the Declaration of independence, a legal provision for the support of Religion; and since that event a surrender of it to a spontaneous support by the people, it may be said that the difference amounts nearly to a contrast in the greater purity & industry of the Pastors and in the greater devotion of their flocks, in the latter period than in the former. In Virginia the contrast is particularly striking, to those whose memories can make the comparison. It will not be denied that causes other than the abolition of the legal establishment of Religion are to be taken into view in account for the change in the Religious character of the community. But the existing character, distinguished as it is by its religious features, and the lapse of time now more than 50 years since the legal support of Religion was withdrawn sufficiently prove that it does not need the support of Govt and it will scarcely be contended that Government has suffered by the exemption of Religion from its cognizance, or its pecuniary aid. [my bolding to reflect your quote]

The apprehension of some seems to be that Religion left entirely to itself may into extravagances injurious both to Religion and to social order; but besides the question whether the interference of Govt in any form wd not be more likely to increase than Control the tendency, it is a safe calculation that in this as in other cases of excessive excitement, Reason will gradually regain its ascendancy. Great excitements are less apt to be permanent than to vibrate to the opposite extreme.
Under another aspect of the subject there may be less danger that Religion, if left to itself, will suffer from a failure of the pecuniary support applicable to it than that an omission of the public authorities to limit the duration of their Charters to Religious Corporations, and the amount of property acquirable by them, may lead to an injurious accumulation of wealth from the lavish donations and bequests prompted by a pious zeal or by an atoning remorse. Some monitory examples have already appeared.

Whilst I thus frankly express my view of the subject presented in your sermon, I must do you the justice to observe that you very ably maintained yours. I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions & doubts on unessential points. The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded agst by an entire abstinence of: the Govt from interference in any way whatever, beyond the necessity of preserving public order, & protecting each sect agst trespasses on its legal rights by others.

I owe you Sir an apology for the delay in complying with the request of my opinion on the subject discussed in your sermon; if not also for the brevity & it may be thought crudeness of the opinion itself. I must rest the apology on my great age now in its 83rd year, with more than the ordinary. infirmities, and especially on the effect of a chronic Rheumatism, combined with both, which makes my hand & fingers as averse to the pen as they are awkward in the use of it.
Be pleased to accept Sir a tender of my cordial & respectful salutations.

wsforten said...

I still hold to the position that an established religion is one which, at the very least, receives funding for the salaries of its clergy from the public treasury.

jimmiraybob said...

Thomas Jefferson - “When the circle is to be squared, or the orbit of a comet to be traced; when the arch of greatest strength, or the solid of least resistance is to be investigated, take up the problem; it is yours; nature has given me no cognizance of it.”

I'm going to take a bit to research Madison's letter and Jefferson's sentence and see if there's any way that I can discern the meaning of "cognizance" as they've used it. In school once they talked about context. I might give that a try.


1) Works of Thomas Jefferson – Letter XXVIII. — To Mrs. Cosway, October 12, 1786 @

http://books.google.com/books?id=Vy8fx9Sg0MYC&pg=PT1573&lpg=PT1573&dq=thomas+jefferson+cognizance&source=bl&ots=CdYXlHj9nr&sig=oscOouvd5Kw84NG3CCXNigKGOFo&hl=en&sa=X&ei=ubtUUpfPBpGZqQG_ioDIBw&ved=0CC4Q6AEwAQ#v=onepage&q=thomas%20jefferson%20cognizance&f=false

wsforten said...

Did you notice that your search turned up an additional nine occurrences of the word "cognizance" in that particular collection of Jefferson's works? If you would take a moment to read the context of the other nine, you would find that they all refer to the authority of either a court or some other government body to try a particular case or class of cases.

The first occurrence was a reference to the fact that the government of Great Britain had no authority to determine whether a treaty ratified by seven states would be void.

The second and third occurrences both refer to courts of justice trying particular cases.

The fourth is a reference to the act of denying parliament the authority over cases involving sums less than a given value.

The fifth occurrence is found in a statement regarding the authority of France or the United States to hear certain appeals.

The next occurrence refers to the authority of the court of admiralty to hear a complaint from a particular group of sailors.

The seventh is a remark on the absence of authority for a particular court to hear a particular class of cases.

The eighth is interesting, for it is a reference to a limit to the authority of Congress to punish an individual for a particular action.

And the ninth occurrence is a statement regarding the Supreme Court's decision that they had no cognizance over a particular question that was brought before them.

Not a single one of these usages of the word "cognizance" lends support to your claim that this word should be viewed as a synonym for the word "preference."

This brings us to the single usage that you quoted and the question of whether Jefferson used this word in the same way in this instance as he did in all nine of the others. The answer to this question can be seen in the line immediately following the on which you quoted. Jefferson was recording a bit of a fanciful dialogue which took place between his heart and his head. The sentence which you referenced was spoken by the heart. After stating that sentence, Jefferson's heart continued by saying:

In like manner, in denying to you the feelings of sympathy, of benevolence, of gratitude, of justice, of love, of friendship, she has excluded you from their control. To these she has adapted the mechanism of the heart.

When we consider this additional bit of context, it becomes apparent that Jefferson did indeed use the word "cognizance" in the same sense in this statement as he did in all the others. Jefferson's heart was observing that the heart had no authority to rule in matters of geometry, astronomy or physics just as the head had no authority to rule in matters of sympathy, benevolence, gratitude, justice, love or friendship. This was a recognition of two areas of authority one in which the head had cognizance and another in which the heart had cognizance. There is nothing in this context to indicate that Jefferson understood the word "cognizance" to be a synonym for the word "preference."

jimmiraybob said...

It means that Jefferson used "cognizance" in more than one sense. The sense of the sentence that I cited is a personal recognition(1) or jurisdiction or authority. It doesn't matter that Jefferson elsewhere uses it in a different sense. The point of the sentence that I cited is that there is more than one sense of the use of "cognizance" - one having nothing at all to do with the judiciary or the civil authority.

It's a simple point.

Can we agree that there is more than one sense in which "cognizance" can be used? And, that the meaning might be derived from the context of use?

jimmiraybob said...

It means that Jefferson used "cognizance" in more than one sense. The sense of the sentence that I cited is a personal recognition(1) or jurisdiction or authority. It doesn't matter that Jefferson elsewhere uses it in a different sense. The point of the sentence that I cited is that there is more than one sense of the use of "cognizance" - one having nothing at all to do with the judiciary or the civil authority.

It's a simple point.

Can we agree that there is more than one sense in which "cognizance" can be used? And, that the meaning might be derived from the context of use?

wsforten said...

Of course "cognizance" can be used in more than one sense. If I did not agree with that, I would not have wasted time with the context in order to demonstrate that Jefferson used it in the sense that I indicated. What I have shown is that Jefferson used this word in its primary sense in every occurrence included in the link which you provided. What you have failed to show is that there has ever been an instance in which the word "cognizance" is used as a synonym for "preference."

I can provide you with literally thousands of examples of "cognizance" being used in the sense which I have described. For instance, James Kent's Commentaries on American Law tells us that:

The exclusive cognizance of our foreign relations, the rights of war and peace, and the right to make unlimited requisitions of men and money, were confided to Congress, and the exercise of them was binding upon the states.

Once again we find this word used to speak of the authority or the right to rule on a particular class of cases. Can you present a single instance from any source prior to 1850 in which "cognizance" was used as a synonym for "preference"?

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jimmiraybob said...

wsfortan - "What you have failed to show is that there has ever been an instance in which the word "cognizance" is used as a synonym for "preference."

You'd asked me to clarify that and I did.

jrb - "So, I’ll clarify: “…the fundamental essence of establishment is government cognizance, and by extension, resulting in either prejudice or preference that, in the case of Warburton, could/would result in tangible benefits."

I am not saying that "cognizance" is used as a synonym for "preference.

jimmiraybob said...

I meant to emphasize by bolding as follows: "...cognizance ... resulting in..."

As in one thing leading to another.

wsforten said...

Ah, I see. You are claiming that Madison was opposed to the government taking cognizance of religious matters because he knew that cognizance would produce preference. I suppose that this is a valid possibility, but my question is: Why would Madison be concerned about cognizance producing preference and thereby violating the separation of church and state when, in the context of government, cognizance of religion is itself a sign of the existence of a state church? Wouldn't it be simpler to just conclude that Madison was opposed to the government taking cognizance of religious issues?

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