Monday, May 19, 2014

New Paper From Mark David Hall

I received a message from Dr. Hall:
... I just published an article that readers of AC might find to be of interest. Here is the citation and the abstract. 
Mark David Hall, “Madison’s Memorial and Remonstrance, Jefferson’s Statute for Religious Liberty, and the Creation of the First Amendment,” American Political Thought. 3 (Spring 2014): 32-63. 
Jurists, scholars, and popular writers routinely assert that the men who framed and ratified the First Amendment were influenced by James Madison’s Memorial and Remonstrance (1785) and Thomas Jefferson’s Statute for Religious Liberty (1786). In this essay I demonstrate that there is little evidence to support these claims. Because these documents represent only one approach to church-state relations in the era, jurists and others who believe that the religion clauses should be interpreted in light of the founders’ views need to look well beyond these texts if they want to understand the First Amendment’s “generating history.”

61 comments:

wsforten said...

Thank you for the notice, Jon. I'll try to get a copy and look over it. I'm curious as to how much Dr. Hall credits the Baptists of Virginia for there efforts in establishing religious freedom.

Tom Van Dyke said...

I just heard Lynne Cheney plugging her new Madison book and there was a story of Madison and Baptist John Leland sitting under a tree for hours. After that, Leland was on Madison's side.

Here's an account:

On March 7, 1788 the Baptist General Committee of Virginia met to discuss the question,

"Whether the new Federal Constitution, which had now lately made its appearance in public, made sufficient provision for the secure enjoyment of religious liberty; on which it was agreed unanimously that, in the opinion of the General Committee, it did not."

Baptists apparently determined to nominate Leland, and oppose Madison, as the delegate from Orange County at Virginia's convention to ratify the Constitution. A defeat for that seat would have embarrassed the "Father of the Constitution" and might have imperiled adoption of the Constitution. On the eve of the election, Madison visited Leland at his farm on the Fredericksburg road outside Orange. Eugene Bucklin Bowen of Cheshire, Massachusetts documented the traditional Baptist account of their meeting:

"Both Madison and Leland were candidates for the Virginia Convention on ratifying the Constitution. It was evident, however, that Leland had more votes than had Madison. Madison though having practically written the Constitution couldn't get an election from his own state for its adoption. They finally met under a certain oak tree near Orange which has been carefully preserved to this day, and fought it out. It was a battle royal with Leland insisting that there should be an article in the Constitution guaranteeing religious liberty. Madison, however, was afraid to put it in on account of the opposition of some of the colonies, Massachusetts in particular. A compromise was agreed upon. This was that Leland should withdraw and advocate the election of Madison. This, they thought, would ensure the adoption by Virginia. It was a tough battle but on the vote of 168 they won out by a margin of 10 over Madison's remaining opponents. . . . This agreement between Madison and Leland was conditioned upon Madison's joining Leland in a crusade for an amendment to the Constitution guaranteeing religious liberty, free speech and a free press." (J.M. Dawson, Baptists and the American Republic, Nashville: Broadman Press, 1956, p. 108-109 says the original manuscript of Bowen's account is in the manuscript division of the Library of Congress.)

After the Constitution was adopted, Leland rejoiced that it would be possible for a "Pagan, Turk, Jew or Christian" to be eligible for any post or office in the government. (The Writings of John Leland, ed. L.F. Greene. New York: Arno Press, 1969, p. 191.)

If Leland and Madison made a bargain, then Madison kept his part. On June 7, 1789 Madison submitted the first version of the amendment that became the First Amendment of the Bill of Rights.

Tom Van Dyke said...

Ooops, here's the source for the above.

http://www.mainstreambaptists.org/mbn/patriots.htm

Also--ibid.--it may have been more Madison joining the Baptist parade than the other way around...

Madison's "Memorial and Remonstrance" circulated in 13 petitions and garnered 1,552 signatures. The General Committee's resolution circulated in 29 petitions and garnered 4,899 signatures. The original petitions are in the Virginia State Library.

See also

http://americancreation.blogspot.com/2008/09/scholarly-malpractice-and-founding.html


"The story of how Madison and a diverse band of evangelicals and civil libertarians mounted, in 1785, a successful public relations campaign against [Patrick] Henry's bill, highlighted by Madison's celebrated religious liberty manifesto, the Declaration and Remonstrance, is a familiar one in American church-state literature, especially since it resulted in 1786 in the passage by the Virginia Assembly of Jefferson's landmark Statute for Religious Freedom.

The downfall of the general assessment bill is usually depicted as a kind of slow moving Armageddon, in which Madison and his followers, representing the forces of light and progress, gradually vanquish the legions of reaction who would have dragged America back into the dark ages of religious persecution and bigotry."


...


"This explanatory failure is the result of a form of scholarly malpractice that Herbert Butterfield denounced early in the last century as the Whig interpretation of history. According to Butterfield, "Whig" historians regularly succumb to the temptation of concentrating on precursors of present day "progress" and denying their opponents the benefit of "historical understanding."

Butterfield warned that Whig historians will fix their eyes on "certain people who appear as the special agencies of...progress." In Whig eyes Madison and his supporters deserve to be explained and extolled because they are the pioneers of what is currently regarded as the "progressive" doctrine of strict separation of church and state. No time need be wasted on their opponents, as an offhand remark by Irving Brant, a prime example of Butterfield's Whig historian, indicates."


"Madison's Memorial circulated as a petition during the summer and fall of 1785 and was eventually signed by over 1500 Virginians, an impressive figure but less than one-fifth of all signatories of anti-assessment petitions. The most popular petitions came from the pens of Baptists, who agreed with Madison's position on the total separation of church and state but argued for it from different premises, from their traditional scriptural view that Christ's kingdom was not of this world rather than from a Lockean theory of the social compact."

wsforten said...

I read Dr. Hall's article last night and found it to be very interesting. He seems to accept the strict separationist view of Madison's "Memorial and Remonstrance and Jefferson's "Statute for Religious Liberty" and then argues that neither of these two were very widely cited in debates regarding the First Amendment. I think that he presents a strong case in support of his argument, but I also think that he is mistaken in his underlying premise. I do not think that Madison's and Jefferson's two contributions support strict separationists in the first place.

Many people have pointed out that both Madison and Jefferson took actions while in office which are inconsistent with a strict separationist view of either man. Madison’s proclamations of days of prayer, Jefferson’s attendance at church services in government buildings, their public support of the use (and even payment) of chaplains in the legislature and several other actions are often cited. Dr. Hall references some of these actions as well, but he attributes them to his claim that Madison and Jefferson’s strict separationist view was not shared by most of their colleagues. I disagree with Dr. Hall on this point and agree with those who claim that the actions of Madison and Jefferson are evidence against either man being a strict separationist.

However, while most critics of strict separationism focus on the actions of Madison and Jefferson, I actually think that a strong case can be made against strict separationism from the actual text of the “Memorial and Remonstrance” and the “Statute for Religious Liberty.” This case rests on the definition of the term “establishment.” Dr. Hall hints at this when he briefly quotes Leonard Levy’s complaint that the founders “left nothing to clarify the meaning of an establishment of religion.” Dr. Hall dismissed that line of discussion as not being pertinent to his argument, but I would argue against Levy that the reason that the founders did not specifically clarify the meaning of the word “establishment” is that it never occurred to them that their experiment would be so successful that future generations would fail to understand a term so widely prevalent in their day. In this respect, those who opposed the founding of our nation did a better job than the founders, and we can turn to the one of the foremost proponents of established religion in America, Dr. Thomas Bradbury Chandler, who provided the following definition:

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. http://books.google.com/books?id=ZaVbAAAAQAAJ&pg=PA56

Chandler’s definition identifies for us what Madison and Jefferson opposed when they argued against the establishment of religion. The "Memorial and Remonstrance and the "Statute for Religious Liberty" were not arguments for strict separationism. They were arguments against the type of establishment identified by Chandler. Once we recognize Chandler’s definition, Madison and Jefferson’s opposition to this system can be seen in the text of both documents.

wsforten said...

For example, Madison’s third reason concludes with this statement:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

When we are armed with the knowledge of Chandler’s definition we can see right away that Madison equated the term “establishment” with the concept of forced contribution, and this equation is carried throughout the remainder of the document. I’ve argued this point here in the past (http://americancreation.blogspot.com/2013/09/sandefur-on-legislature-prayer.html), and I’ll refrain from repeating all my previous points other than to mention that even Madison’s “Detached Memoranda” agrees with my claim that Madison and Jefferson argued against an establishment of religion of the sort that was defined by Chandler rather than in support of the strict separationism that is so often attributed to their words today.

Thus, while I think that Dr. Hall did an admirable job supporting his contention that Madison’s “Memorial and Remonstrance” and Jefferson’s “Statute for Religious Liberty” had very little influence in the national debate over the First Amendment, I would suggest that even if he is mistaken, the actual texts of these two documents defy the attempts to use them in support of strict separationism.

jimmiraybob said...

wsforten - " Once we recognize Chandler’s definition...."

Why accept the Reverend Chandler's definition? Perhaps it is because it artificially, via selection bias, supports the conclusion that you wish to draw?

Why not present what Jefferson and Madison wrote? There is an abundant record that each left to us that does not support your conclusion - as I've posted in comments before.

Mark David Hall said...

Thanks for taking the time to read the article.

I agree that TJ and JM did not advocate anything like the sort of strict separation of church and state favored by groups like the ACLU and AU today. In my article I even noted:

"I do not mean to suggest that Jefferson and Madison held identical views. Nor were they as extreme in their separationism as some modern jurists and scholars believe. But they did advocate a stricter separation between church and state than did most founders." (note 11)

The proper interpretation of their views is not really an issue in my article. But if one wants to argue that the founders favored the strict separation of church and state, about the only way to do this is to argue along the following lines (something I call Everson's syllogism):

1. The Establishment Clause must be interpreted in light of the Founders’ intent.

2. Thomas Jefferson and James Madison represent the Founders.

3. Jefferson and Madison favored the strict separation of church and state.

4. Therefore, the Establishment Clause requires the strict separation of church and state.

I think #3 is highly problematic, but that #2 is dead wrong. Much of my scholarship has been aimed at expanding the discussion about religious liberty and church state relations in the era. There were other founders, including founders who were actually involved in drafting the First Amendment (Roger Sherman, anyone?).

One counter response is that TJ and JM were so influential that they deserve a lion's share of the credit. With respect to the First Amendment, numerous jurists and scholars have claimed the drafters were influenced by the VA ST and the Memorial. In this article I show that there is virtually no evidence to support that assertion.

MDH

jimmiraybob said...

When I try to access this online (U Chi Pub) I get "Preview or purchase options are not available" - apparently for this most recent issue. Is there another online source?

If not, my local St Louis University apparently has either e-access or carries the dead tree version. Not sure if they'd have a most recent edition.

Mark David Hall said...

I am happy to send anyone an electronic copy. Just email me at mhall@georgefox.edu. Thanks for your interest.

wsforten said...

Jim,

As far as I know, neither Madison nor Jefferson left to us an actual definition of an established religion. To understand which definition they were using, we must obtain a definition from some other source and compare it to their writings to see if it fits. I have done this with Chandler's definition and discovered that it does indeed fit what Madison and Jefferson wrote. Everything that these men wrote about the establishment of religion has to do with the direct funding of a particular religion from the public treasury. But this understanding of an established religion is not limited to Chandler, Madison, Jefferson and Warburton. It is the only understanding of established religion which I have been able to discover from the writings of the 18th and early 19th centuries. Another excellent example of this understanding can be found in John Rogers book A Vindication of the Civil Establishment of Religion which was published in 1728. Rogers' first attempt at defining an establishment of religion did not seem to have anything to do with funding for that religion.

the Civil Establishment of that Religion can imply nothing else, but adding Civil Sanctions to the Rules of that Society, or, in other Words, making the Rules of that Society, Laws also of the Civil Community. http://books.google.com/books?id=0phZAAAAYAAJ&pg=PA76

But on the very next page, he explained that such funding was a necessary component of religious establishment:

I here observe that these Circumstances are accidental to the nature of an Establishment, whose Idea does not necessarily imply a Confinement to one Religion, or a Prohibition of others; but only a Distinction of that, or those approv'd and directed, by Privileges and Provisions for Support and Protection ascertain'd by Law. Whatever Religion is thus favour'd and distinguish'd from others by the Laws of any Commnity, is properly the establish'd Religion of that Community.

With what Measures of Support, Encouragement, or Protection the Religion so preferr'd shou'd be favour'd, must be left to the Piety, Munificence, and Wisdom of the Magistrate: But wthout some Distinction of the favour'd Religion in these Particulars, I cannot conceive an Establishment, or how an establish'd Religion differs from one not establish'd.


And then, in the chapter explaining what he meant by "Civil Sanctions," Rogers wrote:

when the publick Profession, Worship, and Administrations of any particular Religion, are thus distinguish'd by Allotments of Support and Favour, ascertain'd and confirm'd by Law, That Religion is establish'd. http://books.google.com/books?id=0phZAAAAYAAJ&pg=PA84

Thus, once again, we have a definition of an established religion that rests on the claim that, in order to be established, a religion must receive financial support from the public treasury.

jimmiraybob said...

wsforten - "To understand which definition they were using, we must obtain a definition from some other source and compare it to their writings to see if it fits."

No. They have left enough writings of their own to derive a fair representation of how they viewed matters of church/religion and state.

As to whether "establishment" turns on public funding of religious tenets and teachings then all government officials, in their official capacities and as long as they draw a paycheck, should, to mesh with the letter and spirit of such an establishment, refrain completely from religious proselytizing and scheming to preferentially favor one religion over another. It is unconstitutional and offensive to the principle of free conscience.

Certainly, Madison and Jefferson are not "the founders", just as there is no original intent of "the founders", but they certainly count as intellectual and legislative leaders in these matters.

To preface my further comments, that I'll post as time permits, I'd refer any interested reader to Madison's Detached Memoranda and The Virginia Act for Establishing Religious Freedom (1786) and emphasize that the right of free conscience and the right to freely express our ideas is either a universal principle or nothing but empty words. This principle is either bound in our Constitution for all citizens or not. For one religion or sect to be supported by our government magistrates as superior to all others is beyond their call to government service and a a zealous imposition to their fellow citizens that do not share in their beliefs. I think that if there was a consensus among "the founders" it is precisely along these lines.

jimmiraybob said...

jrb - " I think that if there was a consensus among "the founders" it is precisely along these lines."

Of course, there was not unanimity of opinion in the matter of government and religion. I'd refer to the preamble to the Confederate Constitution - "invoking the favor and guidance of Almighty God" - as indicative of the opposition to the Jeffersonian/Madisonian view on the relationship between religion and state.

jimmiraybob said...

MDH, thanks.

wsforten said...

Are you admitting that you are not aware of an 18th century written definition of religious establishment which contradicts those which I have already provided?

jimmiraybob said...

First things: "Congress shall make no law respecting an establishment of religion..."

The 1st Amendment makes no distinction between a legal establishment, a monetary establishment, or establishment by other means. If, upon framing and accepting this document, the founders had had the intent of restricting the sentiment to match the definition that you've chosen they could have memorialized it appropriately.

The 1st Amendment makes no mention of establishment of a national religion. It explicitly states "establishment of religion," of which a simple reading renders "Congress shall make no law respecting an establishment of religion..."

So, no. There is no admission of anything being rendered. Madison and Jefferson make plenty of explicit statements regarding the distinction between the religious realm and the civil government realm. As I have time i will be more explicit....as I've done before.

I should point out, also as I've done before, that the "establishment" as defined by the Reverend Chandler is valid but limited. And, as I point out above, if the definition that you put forward [that which]"the civil authority engages, not only to protect, but to support" turns on the use of public funds, then any actions by the public magistrate who draws funds from the public treasure that is designed to selectively protect and support (establish religious preference under the rubric of government authority) religion or a particular sect, is a violation of the 1st amendment.

If the Reverend Chandler's definition [that which]"the civil authority engages, not only to protect, but to support" does not turn on the use of public funds then by advocating religion or specific sects then......well, actually the same.

My overall point is that you do not have to turn to someone elses definition when there is a treasure trove of original documents available to derive the intent of either author.

jimmiraybob said...

And, by "violation of the 1st amendment" I mean seeking to use the coercive authority and powers of the state to sway the consciences of its citizens in matters not delegated to the civil authority in a non theocratic republic.

Tom Van Dyke said...

Anonymous jimmiraybob said...
And, by "violation of the 1st amendment" I mean seeking to use the coercive authority and powers of the state to sway the consciences of its citizens in matters not delegated to the civil authority in a non theocratic republic.


Freedom of religious conscience is never disputed by anyone, then or now. I'm really getting tired of this one.

Bill Fortenberry said...

Good point, Tom. Here's a quote from the preface to Rogers' book which illustrates it:

Men who acknowledge a divine Revelation, may possibly form different Apprehensions of its Import and Direction, esteem themselves obliged in Conscience, not only to refuse a Compliance with some Rules of an establish'd Scheme, but, in some Instances, to act in Opposition to them. And tho' such Actions, when they manifestly endanger Civil Peace, will not be protected from the Censure of the Magistrate by the mere Plea of Conscience; yet where the Sincerity of that Plea may be presumed, buth Humanity and Religion will persuade all the Tenderness towards it, that can consist with pubick Security. http://books.google.com/books?id=0phZAAAAYAAJ&pg=PR9

By the way, it's interesting to note that the Senate did not pass the First Amendment until after they removed the phrase referring to freedom of conscience. I suspect that their reasoning may have been similar to Rogers' musings about abuses of this freedom endagering publick safety.

Bill Fortenberry said...

Hey, it looks like Google finally managed to update my profile correctly.

jimmiraybob said...

tvd - "Freedom of religious conscience is never disputed by anyone, then or now."

You're kidding, right?

First of all, Mdison's contention was freedom of conscience - a natural right - that no man, or government, could coerce another man's personal convictions in religion or otherwise. And it wasn't just that each person held sole sway over their personal conviction and conscience, the constitution protects the natural right of expression.

It's no secret that in the colonies and continuing into the early states, it was not a done deal that everyone had the right to follow their conscience in religious matters and that certainly applies to expression of dissenting views. You love to cite that the states were free to determine religious matters and certainly the states, many of them, not only had religious establishments (in the sense of the Reverend Chandler’s definition) and had established laws to punish and bar from enfranchisement any who dared hold or express different religious views.

Old Europe, of which the colonies were certainly a part even if separated by an ocean, was rife with religious bigotry and resulting purges, massacres and warfare. And the established alliance between gentry/aristocracy and ecclesiastical bodies and clergy was a powerful force of resistance to change that meant a dilution dissolution of their accustomed authority.

As to the change of language of the 1st Amendment Madison expressed to Jefferson a sentiment that may have been at play:

"...because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of Conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests opened a door for Jews Turks & infidels."(1)

As to now, there are many who do not respect the notion of an individual right of conscience and free expression, here in America and certainly throughout the world. It wasn't and it isn't a done deal.

1) Madison to Jefferson October 17, 1788

jimmiraybob said...

Vested interests and old world style order v. principles of free conscience.

"Our Assembly is to meet the first of May, When It is expected something will be done in behalf of the Dissenters: Petitions I hear are already forming among the Persecuted Baptists and I fancy it is in the thoughts of the Presbyterians also to intercede for greater liberty in matters of Religion. For my part I can not help being very doubtful of their succeeding in the Attempt. The Affair was on the Carpet during the last Session; but such incredible and extravagant stories were told in the House of the monstrous effects of the Enthusiasm prevalent among the Sectaries and so greedily swallowed by their Enemies that I believe they lost footing by it, and the bad name they still have with those who pretend too much contempt to examine into their principles and Conduct, and are too much devoted to the ecclesiastical establishment to hear of the Toleration of Dissentients, I am apprehensive, will be again made a pretext for rejecting their requests. The Sentiments of our people of Fortune & fashion on this subject are vastly different from what you have been used to. That liberal catholic and equitable way of thinking as to the rights of Conscience, which is one of the Characteristics of a free people, and so strongly marks the People of your province, is but little known among the Zealous adherents to our Hierarchy. We have, it is true, some persons in the Legislature of generous Principles, both in Religion & Politicks, but number not merit you know is necessary to carry points there. Besides, the Clergy are a numerous and powerful body, have great influence at home by reason of their connection with & dependence on the Bishops and Crown, and will naturally employ all their art & Interest to depress their rising Adversaries; for such they must consider dissenters who rob them of the good will of the people and may in time endanger their livings & security."

Madison to William Bradford April 1, 1774

jimmiraybob said...

As to Madison's view of presidential religious proclamations (1):

"Religious proclamations by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed.

"Altho' recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers.

"The objections to them are

"I. that Govts ought not to interpose in relation to those subject to their authority but in cases where they can do it with effect. An advisory Govt is a contradiction in terms.

"2. The members of a Govt as such can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities. They cannot form an ecclesiastical Assembly, Convocation, Council, or Synod, and as such issue decrees or injunctions addressed to the faith or the Consciences of the people. In their individual capacities, as distinct from their official station, they might unite in recommendations of any sort whatever, in the same manner as any other individuals might do. But then their recommendations ought to express the true character from which they emanate.

"3. They seem to imply and certainly nourish the erronious idea of a national religion. [jrb: a de facto establishment] The idea just as it related to the Jewish nation under a theocracy, having been improperly adopted by so many nations which have embraced Xnity, is too apt to lurk in the bosoms even of Americans, who in general are aware of the distinction between religious & political societies. The idea also of a union of all to form one nation under one Govt in acts of devotion to the God of all is an imposing idea. But reason and the principles of the Xn religion require that all the individuals composing a nation even of the same precise creed & wished to unite in a universal act of religion at the same time, the union ought to be effected thro' the intervention of their religious not of their political representatives. In a nation composed of various sects, some alienated widely from others, and where no agreement could take place thro' the former, the interposition of the latter is doubly wrong:

Continued Below

jimmiraybob said...

"4. The tendency of the practice, to narrow the recommendation to the standard of the predominant sect. The Ist proclamation of Genl Washington dated Jany 1. 1795 recommending a day of thanksgiving, embraced all who believed in a supreme ruler of the Universe." That of Mr. Adams called for a Xn worship. Many private letters reproached the Proclamations issued by J. M. for using general terms, used in that of Presit W--n; and some of them for not inserting particulars according with the faith of certain Xn sects. The practice if nor strictly guarded naturally terminates in a conformity to the creed of the majority and a single sect, if amounting to a majority.

"5. The last & not the least objection is the liability of the practice to a subserviency to political views; to the scandal of religion, as well as the increase of party animosities. Candid or incautious politicians will not always disown such views. In truth it is difficult to frame such a religious Proclamation generally suggested by a political State of things, without referring to them in terms having some bearing on party questions. The Proclamation of Pres: W. which was issued just after the suppression of the Insurrection in Penna and at a time when the public mind was divided on several topics, was so construed by many. Of this the Secretary of State himself, E. Randolph seems to have had an anticipation.

"The original draught of that Instrument filed in the Dept. of State in the hand writing of Mr Hamilton the Secretary of the Treasury. It appears that several slight alterations only had been made at the suggestion of the Secretary of State; and in a marginal note in his hand, it is remarked that "In short this proclamation ought to savour as much as possible of religion, & not too much of having a political object." In a subjoined note in the hand of Mr. Hamilton, this remark is answered by the counter-remark that "A proclamation of a Government which is a national act, naturally embraces objects which are political" so naturally, is the idea of policy associated with religion, whatever be the mode or the occasion, when a function of the latter is assumed by those in power.

"During the administration of Mr Jefferson no religious proclamation was issued. It being understood that his successor was disinclined to such interpositions of the Executive and by some supposed moreover that they might originate with more propriety with the Legislative Body, a resolution was passed requesting him to issue a proclamation.

"It was thought not proper to refuse a compliance altogether; but a form & language were employed, which were meant to deaden as much as possible any claim of political right to enjoin religious observances by resting these expressly on the voluntary compliance of individuals, and even by limiting the recommendation to such as wished simultaneous as well as voluntary performance of a religious act on the occasion."

jimmiraybob said...

"4. The tendency of the practice, to narrow the recommendation to the standard of the predominant sect. The Ist proclamation of Genl Washington dated Jany 1. 1795 recommending a day of thanksgiving, embraced all who believed in a supreme ruler of the Universe." That of Mr. Adams called for a Xn worship. Many private letters reproached the Proclamations issued by J. M. for using general terms, used in that of Presit W--n; and some of them for not inserting particulars according with the faith of certain Xn sects. The practice if nor strictly guarded naturally terminates in a conformity to the creed of the majority and a single sect, if amounting to a majority.

"5. The last & not the least objection is the liability of the practice to a subserviency to political views; to the scandal of religion, as well as the increase of party animosities. Candid or incautious politicians will not always disown such views. In truth it is difficult to frame such a religious Proclamation generally suggested by a political State of things, without referring to them in terms having some bearing on party questions. The Proclamation of Pres: W. which was issued just after the suppression of the Insurrection in Penna and at a time when the public mind was divided on several topics, was so construed by many. Of this the Secretary of State himself, E. Randolph seems to have had an anticipation.

"The original draught of that Instrument filed in the Dept. of State in the hand writing of Mr Hamilton the Secretary of the Treasury. It appears that several slight alterations only had been made at the suggestion of the Secretary of State; and in a marginal note in his hand, it is remarked that "In short this proclamation ought to savour as much as possible of religion, & not too much of having a political object." In a subjoined note in the hand of Mr. Hamilton, this remark is answered by the counter-remark that "A proclamation of a Government which is a national act, naturally embraces objects which are political" so naturally, is the idea of policy associated with religion, whatever be the mode or the occasion, when a function of the latter is assumed by those in power.

"During the administration of Mr Jefferson no religious proclamation was issued. It being understood that his successor was disinclined to such interpositions of the Executive and by some supposed moreover that they might originate with more propriety with the Legislative Body, a resolution was passed requesting him to issue a proclamation.

"It was thought not proper to refuse a compliance altogether; but a form & language were employed, which were meant to deaden as much as possible any claim of political right to enjoin religious observances by resting these expressly on the voluntary compliance of individuals, and even by limiting the recommendation to such as wished simultaneous as well as voluntary performance of a religious act on the occasion."

Tom Van Dyke said...

As to now, there are many who do not respect the notion of an individual right of conscience and free expression, here in America and certainly throughout the world. It wasn't and it isn't a done deal.


There he goes again. Unless it's Hobby Lobby, of course, then all bets are off.

jimmiraybob said...

The above quote is from Madison's Detached Memoranda

jimmiraybob said...

tvd - "There he goes again. Unless it's Hobby Lobby, of course, then all bets are off."

Well. I guess when you've got nothing of substance to say you may as well wave your arms and jump up and down.

Since we're on a Madison roll, the letter that he wrote to the Reverend Jaspar Adams contains a fair summary of his view of separation of religion from the state (1):

"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(2) 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(3), beyond the necessity of preserving public order, & protecting each sect agst trespasses on its legal rights by others."

1) @
http://www.beliefnet.com/resourcelib/docs/9/Letter_from_James_Madison_to_Reverend_Jasper_Adams_1.html

2) Madison clearly saw two separate realms.

3) And he clearly thought that the civil and religious realms should remain separate with government not touching religion (a phrase used at the convention, though not by Madison) via inappropriate support of religion or specific sects or by undue hindrance (Madison thought these were the same).

Tom Van Dyke said...

Bold face yours.

Or one could write

the line of separation between the rights of religion and the Civil authority(2) with such distinctness as to avoid collisions & doubts on unessential points.

Bold face mine.

But there's no discussion here. You're the one waving his arms and shouting Theocracy! Theocracy! while the real battle line is at Hobby Lobby--whose religious conscience is under actual and direct assault--not your tender ears being traumatized by hearing the name of Jesus.

As for your endless pounding of Madison [even where accurate], the subject is Mark David Hall's paper and the contention that Madison's weight is way overrated in the larger landscape of the Founding. You've completely bulldozed the whole point.

And proved Hall's.

jimmiraybob said...

tvd - "You're the one waving his arms and shouting Theocracy! Theocracy! "

You're a nut, yah know that?

I made a passing reference to theocracy in the context of Madison's use of theocracy (above). I made no assertion of theocracy in America much less waved my arms and shouted anything. You continue to fight the foe that you imagine.

If anybody steered the discussion awry it was wsforten and you. I was responding accordingly.

Mark just forwarded me a copy of his article and I will read it this weekend. At that point i suspect i will have something more germane to say if the post hasn't moved too far into the past. Will you be reading it?

It's difficult maintaining a focus while trying to comment when time permits. Suffice it to say that whatever I used above can and might be tied together if time permits.

When MDH wrote:

2. Thomas Jefferson and James Madison represent the Founders.

3. Jefferson and Madison favored the strict separation of church and state.

4. Therefore, the Establishment Clause requires the strict separation of church and state.

I think #3 is highly problematic, but that #2 is dead wrong.

I agreed with #2 in the sense that J & M don't represent "the founders" and took it further by saying that there is no such thing as "the founders" with respect to a single consensus. Something, I assume, is uncontroversial.

I will have to see if MDH provides a definition of "strict separation" before I comment on #3.

My response to #4 also depends on a definition of "strict separation". I would just add that, even though there are some that are up in arms over anything smacking of even slightly attentive separation and the judicial use of J & M, the overall general population, broadly speaking, seem satisfied.

I will jump ahead a bit to give you the present that I've been saving - it will make more sense when I post Madison on chaplainships(1):

Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex (2): or to class it cum "maculis quas aut incuria fudit, aut humana parum cavit natura.(3)"


1) from Madison's Detached Memoranda

2) The law does not concern itself with trifles; - a principle of law, that even if a technical violation of a law appears to exist according to the letter of the law, if the effect is too small to be of consequence, the violation of the law will not be considered as a sufficient cause of action, whether in civil or criminal proceedings.

@
http://www.thefreedictionary.com/de+minimis+non+curat+lex

3) See Horace @
http://books.google.com/books?id=FJooAAAAYAAJ&pg=PA398&lpg=PA398&dq=maculis+quas+aut+incuria+fudit,+aut+humana+parum+cavit+natura&source=bl&ots=3pEqZv4lUu&sig=pa4YQVQVHjUKx2ROFHeUftcg7yE&hl=en&sa=X&ei=UiB9U6--NI6TyATPo4H4DQ&ved=0CEIQ6AEwBQ#v=onepage&q=maculis%20quas%20aut%20incuria%20fudit%2C%20aut%20humana%20parum%20cavit%20natura&f=false

“non ego paucis, offender maculis, quas aut incuria fudit, aut humana parum cavit natura”

Trans – I shall not be offended with a few faults, ones that arise either from inadvertence or from the frailty or our nature (Horace)

@
http://www.eudict.com/?lang=lateng&word=non%20ego%20paucis,%20offendar%20maculis,%20quas%20aut%20incuria%20fudit,%20aut%20humana%20parum%20cavit%20natura

jimmiraybob said...

"Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex (2): or to class it 'cum maculis quas aut incuria fudit, aut humana parum cavit natura.'"(3)

Missed some tags....

jimmiraybob said...

Madison on chaplains in the legislature(1):

"Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion."

[...]

"The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain! To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers or that the major sects have a right to govern the minor."

Yes, I looked it up. There was a Roman Catholic chaplain in the Senate in 1832.

Tom Van Dyke said...

By your continued insistence on quoting Madison, you keep proving Hall's point again and again.

Madison lost the chaplain issue. On this issue the Founders indeed had an identifiable consensus.

jimmiraybob said...

Oy. I'm not trying to do a take down of MDH. I'm not trying to sell an ideology. I'm not fighting the culture war. Chill.

But, if one of MDH's points is that Madison (and Jefferson) was not a strict separationist then at this point I'd have to disagree. To an extent. Again, I'll be looking to see how he defines "strict separation."

Madison, and there's just not enough time or room to consider Jefferson here, was for a sharp division. If you read through what I've posted you get a clear sense of this and there's far more that can be put up to support that point. However, he was willing to overlook some of the violations of strict separation, as he saw them, as a de minimus condition even when he felt that they violated the constitutional principles that he helped to shape.

jimmiraybob said...

tvd - "Madison lost the chaplain issue. On this issue the Founders indeed had an identifiable consensus."

Not so much a consensus as a majority insistence. As Madison said, de minimus. I would assume that Leeland and Jefferson and their allies had a dim view.

Tom Van Dyke said...

Our American history in sum--consensus--indicates otherwise. President Washington issued a religious proclamation of thanksgiving. He also acknowledged God's "invisible hand" in creating America in his inaugural speech.

This nation would have been "founded" one way or another without Jefferson's eloquent Declaration and even without the clever Madison, who lost as many battles in framing the Constitution as he won.

But not without Mr. Washington.

And then Mr. Lincoln's invocations of the Almighty, that this nation "under God"

http://en.wikipedia.org/wiki/Gettysburg_Address#Usage_of_.22under_God.22

shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

Surely even such a cynical and legalistic gentleman as yourself cannot deny the power of the belief in a Higher Power among men, even if you are immune to its efficacy yourself.

As GWash hisself said in his Farewell Address,

And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

On a personal level, based on your writings at this blog, you're manifestly one of those people President Washington speaks of, a person of a refined education and a mind of peculiar structure.

You're manifestly one of those people President Washington speaks to, JRB, across the centuries...

[Bold face mine.]

jimmiraybob said...

tvd - "Surely even such a cynical and legalistic gentleman as yourself cannot deny the power of the belief in a Higher Power among men, even if you are immune to its efficacy yourself."

I'm much too optimistic to be cynical. And legalistic? Pshaw!

As to "the power of the belief in a Higher Power among men," I've never denied the power of belief and inspiration and have no quarrel with those that have faith in God or express their inspiration and personal conviction in Biblical terms. You keep trying to make me a caricature.

I actually am greatly sympathetic to the broad general principle that every persons' conscience is their own domain. Where I bristle is where I perceive that privilege and exceptionalism are being advocated that affect my rights, either as an American citizen or as a fellow human. The more I study Madison, the more I realize that I'm very Madisonian...maybe not as gifted.

I am in awe of the Reverend Martin Luther King, Jr. and voted for Jimmy carter twice because I shared in their convictions if not their religious faith. And, go Abe, keep those vampires at bay.

I have friends and family of various faith beliefs and even hang with a couple of reverends and, sometimes during family dinners, hobnob with a Deacon.

And I am also sympathetic to the cause of separation between the civil government and religion as expressed by John Leeland or Roger Williams. [And I should mention that one of the reasons that Carter is so hated by the right is that he did not rule as an evangelical by as one informed by his evangelical roots. A damn shame that he did not usher in a Christian Commonwealth.]



Mark David Hall said...

I'm working on a popular talk wherein I take on premises #2 and #3 above. Here is a taste relevant to the discussion above:

"Let me begin by stipulating that Jefferson and Madison desired a stricter separation of church and state than did most founders. Nevertheless, even on this point their views are distorted because of the proclivity of jurists and scholars to focus on just a few documents penned by them, notably Jefferson’s Virginia Statute for Religious Liberty (1786) and his 1802 letter to the Danbury Baptist and Madison’s Memorial and Remonstrance (1785)and his Detached Memoranda (c. 1817). The latter is particularly important for separationists as it is one of the few texts from the era questioning the appropriateness of paid congressional and military chaplains.
These documents, particularly those penned in the nineteenth century, support the separation of church and state. But to what extent do they reflect the views of other founders in that era, or, more significantly, those who drafted and ratified the First Amendment? Believe it or not, this question applies even to Jefferson and Madison. For instance, sometimes after 1816 Madison started to question the appropriateness of paid chaplains. However, in the waning days of the Confederation Congress he voted to pay the congressional chaplains, and then he proceeded to serve on the committee in the first Federal Congress that recommended the appointment of the first congressional chaplain. Similarly, he later came to question the appropriateness of Presidential calls for prayer and fasting, but as a young legislator he introduced Jefferson’s “Bill for Appointing Days of Public Fasting and Thanksgiving” in the Virginia General Assembly, and as president he issued three such calls (although, to be fair, he did so somewhat begrudgingly). So, if we are interested in what Madison intended when he helped draft and ratify the First Amendment, should we consider his thoughts and practices in and around 1789 or thoughts he recorded privately (and never published) thirty years later?
Or take Jefferson, who famously wrote a letter to the Danbury Baptist Association in which he proclaimed that the First Amendment created a “wall of separation between Church & State.” As appealing as the wall metaphor is to contemporary proponents of separating church and state, it obscures far more than it illuminates. Leaving aside the fact that Jefferson was in Europe when the Constitution and Bill of Rights were written, that the letter was a profoundly political document, and that Jefferson only used the metaphor once in his life, it is not even clear that it sheds useful light upon his views and practices.
Jefferson issued calls for prayer and fasting as governor of Virginia, and in his revision of Virginia’s statutes he drafted bills stipulating when the governor could appoint “days of public fasting and humiliation, or thanksgiving” and to punish “Disturbers of Religious Worship and Sabbath Breakers.” As a member of the Continental Congress he proposed that the nation adopt a seal containing the image of Moses “extending his hand over the sea, caus[ing] it to overwhelm Pharaoh” and the motto “Rebellion to tyrants is obedience to God.” He closed his second Inaugural Address by encouraging all Americans to join him in seeking “the favor of that Being in whose hands we are, who led our forefathers, as Israel of old…,” and two days after completing his letter to the Danbury Baptists he attended church services in the U.S. Capitol where he heard John Leland, the great Baptist minister and opponent of religious establishments, preach.
I hesitated to include these sections on Jefferson and Madison because they are not really necessary for my argument. Even if Jefferson and Madison wanted the complete and utter separation of church and even if they completely and consistently acted upon these convictions, I would still contend that it is unreasonable to interpret the Establishment Clause in light of their views. ..."

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