Monday, September 5, 2016

The Founders and Ministers, Some Thoughts

John Fea has demonstrated that at the state level some ministers were banned from public office. At the federal level, I'm not aware of America's Founders adopting such a policy as it might (?) violate Article VI's "no religious test" clause.

Only one of the signers of the Declaration of Independence, John Witherspoon, was an active minister. David Barton wrote an article where the best evidence he could muster was that a few others WERE ministers in the past, but not at the time the DOI was written.

Yet, I don't think America's Founders so much minded ministers being involved in public political life provided they were supporting the right political theology. Even the more heterodox founders offered qualified support to the work George Whitefield or even Jonathan Edwards did ministering to folks; though they disagreed with the theology, and wished such Protestantism to further reform to a creed more enlightened, liberal for the era.

But some ministers like the heterodox ones Joseph Priestley, Richard Price, Jonathan Mayhew, Charles Chauncy, orthodox ones like John Witherspoon, Ezra Stiles, or those in between like Bishop James Madison played key roles in expositing America's Founding political theology.

The politics were a synthesis: it was citing the Bible, with Lockeanism and Whig thought, and essences discovered in "nature," which is a tradition that Aquinas whom they never cited because they didn't cite Roman Catholics incorporated from Aristotle, whom they did cite. But "nature" also provided the grounds for Lockean teachings, which arguably broke from that earlier tradition. Or at least introduced new things into it.

This Whig political theology was extremely self serving in how it understood the faith. You had to have the "right" understanding of Romans 13. Which is such a text, properly understood, does not stand in the way of what America did when it revolted against Great Britain.

I don't get the sense that America's Founders minded the political involvement of these ministers because they taught what they wanted the public to hear.

28 comments:

Tom Van Dyke said...

I'm not seeing any explications as to why some states banned ministers from public office, so the discussion is rather unhelpful. Perhaps the powers that were just didn't want the competition.

__________

essences discovered in "nature," which is a tradition that Aquinas whom they never cited because they didn't cite Roman Catholics incorporated from Aristotle, whom they did cite

There were plenty of Protestant scholastics.

http://mb-soft.com/believe/txc/scholasp.htm

Reformed scholasticism in this tradition led to what is generally labeled Calvinist orthodoxy.

Lex Lata said...

It seems likely that different Founders and Framers had differing positions regarding the wisdom of making clergy ineligible for elected office. In McDaniel v. Paty, 435 U.S. 618 (1978), a perhaps surprisingly recent case about a clergy ban in Tennessee, the Supreme Court explored how Jefferson and Madison specifically disagreed on the question, at least for a while. Jefferson favored keeping ministers out of public office earlier in his career because he had discerned that the "clergy, by getting themselves established by law, & ingrafted into the machine of government, have been a very formidable engine against the civil and religious rights of man." He even proposed that "Ministers of the Gospel" be included in the list of persons "incapable of being members" of Virginia's General Assembly, in a 1783 draft of the state's constitution. Madison, in contrast, viewed such restrictions as unwarranted infringements on the civil rights of clergymen. By 1800, Jefferson largely came around to Madison's position.

With regard to the federal government, to the best of my knowledge, there was never serious consideration given to a ban on clergy in office. If there was, the Constitution as ratified certainly shows no hints of it.

Tom Van Dyke said...

Lex Lata said...

Wow, great stuff, more than I've seen anywhere on this grenade tossing between David Barton and his critics.

Since the restriction was only legislated in some [a half-dozen?] states, I'd love to know about the justifications and debates. The restrictions against atheists are better known, and also that they were seldom if ever prosecuted.

See also Torcaso v. Watkins, 367 U.S. 488 (1961), although that one was more resolved on "equal protection of the laws" than the [non-]Establishment Clause of the First Amendment.

Welcome, Lex Lata.

Lex Lata said...
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Lex Lata said...
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Lex Lata said...

Hi, Tom. Thanks.

1. Dunno much about the actual justifications for excluding clergy from public office. My tentative and inexpert understanding is that they included some combination, in proportions that probably varied from state to state, of Jefferson-style separationist concerns about undue religious and sectarian influences on civil government, a belief that ministers really should be focused on ministry, and the lingering habits of occasional colonial and possibly even Parliamentary experience.

2. A technical quibble about Torcaso. The not-especially-clear constitutional reasoning in the opinion is less about the 14th Amendment's Equal Protection Clause (which isn't mentioned) than the First Amendment's Relgion Clauses as incorporated against the states via the 14th's Due Process Clause (per Cantwell v. Connecticut, 310 U.S. 296 (1940), and Everson v. Board of Education, 330 U.S. 1 (1947), two of the principal precedents cited in Torcaso). The Suprmes didn't explicitly declare which Religion Clause--Establishment or Free Exercise--was dispositive in invalidating Maryland's religious test, and discussed both establishment issues and freedom of belief/conscience. My sense is that the latter carried the most weight, though, largely because the opinion wraps up with "This Maryland religious test for office unconstitutionally invades the appellant's freedom of belief and religion, and therefore cannot be enforced against him." That has more of a Free Exercise flavor, by my reckoning.

Tom Van Dyke said...

Thx for the clarification on Torcaso. I must admit I was uninterested in examining the details because I would agree with "the not-especially-clear constitutional reasoning in the opinion" part since his free exercise of [non-]religion was not infringed and as we know incorporation of the Bill of Rights against the states has only been selectively asserted.

http://legal-dictionary.thefreedictionary.com/Incorporation+Doctrine

Basically, since the reasoning on a lot of incorporation stuff is dishonest, it hardly matters which sophistries were used to justify the decisions.

I'm with Justice Thomas in his willingness to undo Everson and the rest of the specious body of incorporation jurisprudence, but can't--esp since I have no problem with the outcome of Torcaso--disagree with the late great Nino either.

Scalia from his book "Reading Law" says

"We would...accept as settled law the incorporation doctrine---whereby the Bill of Rights is made applicable to the states...even though it is based on an interpretation of the Due Process Clause that the words will not bear."

His reason is "Stare decisis--a doctrine whose function is to make us say that which is false under proper analysis must nonetheless be held to be true, all in the interest of stability. Courts cannot consider anew every previously decided question."


Not that that bothers Anthony Kennedy and the swath he cut through Bowers and Lawrence to magically arrive at Obergefell. Let's face it: stare decisis is for suckas, because for 'living constitutionalists', that door only swings one way.

Anyway, thx for the correction.

Lex Lata said...

Well, even Thomas is game for a little incorporation now and then. For instance, see his concurrence in McDonald v. Chicago, 561 U.S. 742 (2010), in which he diverged somewhat from the opinion of Alito, Roberts, Scalia, and Kennedy to advocate incorporation of the Second Amendment against the states via the 14th Amendment's Privileges and Immunities Clause, rather than the Due Process Clause.

As for stare decisis, it has often functioned more as a speed limiter than as a wheel boot on our jurisprudence, especially in cases involving individual liberties and equality. An absolute adherence to the doctrine would've given us far different results not only in Lawrence and Obergefell, but also in Brown v. Board of Education, McLaughlin v. Florida, and Loving v. Virginia, among other decisions.

Art Deco said...

Well, even Thomas is game for a little incorporation now and then.

The First Amendment is explicitly a restriction on Congress. The 3d and 10th Amendments are implicitly directed to Congress. The 9th is incomprehensible. Looked at without context, the others can be read as imperatives the state legislatures must observe (though I do not think they were read that way).

Tom Van Dyke said...

An absolute adherence to the doctrine would've given us far different results not only in Lawrence and Obergefell, but also in Brown v. Board of Education, McLaughlin v. Florida, and Loving v. Virginia, among other decisions.

Yes, because everything is the same as race. If all men are created equal, so are all sexual acts, because slavery.

Lex Lata said...

Art: That's an interesting point that I don't recall seeing in any cases involving incorporation (although it certainly could be out there somewhere). FWIW, I believe Thomas draws the distinction not on an amendment's grammatical subject, but rather on the fundamentalness (my word, not his) of the right asserted and the right's consistency with original intent. He seems to be okay, for instance, with the incorporation of the Free Speech clause against state and local authorities, even though the First Amendment restricts only Congress on its face, as you say. See Good News Club v. Milford Central School, 533 U.S. 98 (2001).

Tom: I assume that's some sort of caricature based on other commenters you've encountered. It's certainly not what I wrote, nor what I believe.

My position (not that you asked) is more along the lines that racial discrimination is analogous in certain ways to discrimination based on sexual orientation, and that the situations also differ in many practical and legal respects. But that's rather beside my point, which was simply that stare decisis can produce unjust outcomes if it were a principle of categorical finality, rather than a rebuttable presumption. We can disagree about whether Lawrence and Obergefell were correctly decided, but surely we're in accord on the justice of overcoming stare decisis in Brown, McLauglin, and Loving.

Tom Van Dyke said...

As I said, stare decisis is for suckas. By definition 'living constitutionalists" reject it. One side unilaterally disarms. That we all like Brown is fine and dandy, but there were problems in the reasoning even there although nobody cares because of its correct outcome.

My position (not that you asked) is more along the lines that racial discrimination is analogous in certain ways to discrimination based on sexual orientation

Analogies are art, not science. I reject your analogy categorically. Race was fully contemplated in the Constitution and in the 13-15th Amendments. Sexual behavior was not. Perverting the Constitution to enshrine the Sexual Revolution as the law of the land is a trick, a sophistry.

And under "Living Constitutionalism," using the Constitution as a weapon against the republic itself is just fine. The Constitution was never intended to abolish morality, in fact, the Founders would have torn it up if they ever thought it might.

And FTR, I brought Clarence Thomas up in the context of stare decisis, not incorporation. However, I think "Art Deco" handled the particulars well. The right to bear arms--that is to say the right to self-defense--is a natural right, and thus no government may infringe. i would thing Justice Thomas would agree that the protection of natural rights is licitly under the federal government's purview.

In contrast, the 1st Amendment explicitly forbids Congress from establishing a church; the states were free to do so. There is no valid mechanism for the 14th Amendment to be concerned with the religion issue one way or another, and indeed the subsequent rush of anti-religion/anti-Catholic "Blaine Amendment" politics is an explicit acknowledgement of that from that same era.

Lex Lata said...

"And FTR, I brought Clarence Thomas up in the context of stare decisis, not incorporation." Ah, thanks. I see what you mean now. I guess I'm not sure how ready Thomas would be to overturn incorporation jurisprudence if push came to shove. Some of it would go, I suppose, such as the Establishment Clause stuff he didn't like, but my sense is not everything. He just hasn't been an anti-incorporation absolutist in practice. As we've already discussed, he explicitly advocated incorporation of the Second Amendment in McDonald, and has either agreed to or acquiesced in the doctrine's application in certain disputes arising under at least the First Amendment ("Congress shall make no law" notwithstanding).

"In contrast, the 1st Amendment explicitly forbids Congress from establishing a church; the states were free to do so. There is no valid mechanism for the 14th Amendment to be concerned with the religion issue one way or another." By the same token, then, the incorporation of the First Amendment's Free Exercise Clause against the states is also invalid, correct? (In your opinion, of course; we know that today's judiciary would generally not agree.)

Art Deco said...

By the same token, then, the incorporation of the First Amendment's Free Exercise Clause against the states is also invalid, correct? (In your opinion, of course; we know that today's judiciary would generally not agree.)

Depends on what you make of the privileges and immunities clause.

See Lino Graglia: the three 14th Amendment clauses can be seen as directed at the legislatures (privileges and immunities), the judiciary (due process), and the executive (equal protection). Under such an understanding, any use of equal protection to test a piece of legislation would be invalid.

Tom Van Dyke said...

By the same token, then, the incorporation of the First Amendment's Free Exercise Clause against the states is also invalid, correct? (In your opinion, of course; we know that today's judiciary would generally not agree.)

No, in contrast to the political/prudential decision on banning Congress from establishing a church, it was fine if the states did. But the free exercise of religion is [and was*] seen as a natural right. Natural rights are pre-political.

Thank you for a very civil and rigorous discussion. You play straight and you play sharp. Respekt. ;-)
_________
*Many state constitutions echo the language from Virginia's statute [iirc] such as Delaware's

all men have by nature the rights of worshiping and serving their Creator according to the dictates of their consciences.

http://www.usconstitution.net/states_god.html

Tom Van Dyke said...

"And FTR, I brought Clarence Thomas up in the context of stare decisis, not incorporation."

Ah, thanks. I see what you mean now. I guess I'm not sure how ready Thomas would be to overturn incorporation jurisprudence if push came to shove. Some of it would go, I suppose, such as the Establishment Clause stuff he didn't like, but my sense is not everything.


I have found the ad hom [or at least per hom] approach unproductive: usually it's Scalia's [apparent] inconsistencies. One fellow named Brayton was going to waste my time with a whole formal debate on originalism with punking Scalia as his trump card. [I caught him bragging about it on his blog and pulled the plug before getting sucked in.]

Rather than diss him as unprincipled on the P and I thing, I would charitably submit that perhaps Justice Thomas was using it so that other justices might find convincing. I imagine he might withdraw the argument after seeing how ineffective holding "living constitutionalists" to their own arguments is. If bearing arms/self-defense is a natural right, the 14th is superfluous in defending it.

Lex Lata said...

"No, in contrast to the political/prudential decision on banning Congress from establishing a church, it was fine if the states did. But the free exercise of religion is [and was*] seen as a natural right. Natural rights are pre-political."

"*Many state constitutions echo the language from Virginia's statute [iirc] such as Delaware's: 'all men have by nature the rights of worshiping and serving their Creator according to the dictates of their consciences.'"

Yet for some time after Independence, many states nevertheless found it acceptable to interfere with individual rights of belief and conscience by imposing and enforcing--

(a) Religious tests for public office, including some that were patently sectarian (Protestants only in Georgia, NC, NJ, NH, SC; Trinitarians only in Delaware);
(b) Strict oath criteria that mandated a belief not simply in God but also in a future state of rewards and punishments, effectively barring Universalists and similar religious nonconformists who weren't willing to lie from serving as witnesses, executing legal documents, etc.; and
(c) Bans on clergy serving in elected office.

Yay! I found a way to get back on topic, and will leave off there. Cheers!

Jonathan Rowe said...

Everyone during the Founding era agreed the rights of conscience were natural rights. However, beyond that there was and still is debate. Is freedom of speech a natural right? Property?

Even if freedom of religion is special in the sense that it's a "natural right" that still doesn't tell us whether it's appropriate for it to be justiciable in federal courts if incorporation is bogus.

Jonathan Rowe said...

Re Graglia, that was also Walter Berns' position. There are no substantive rights under not only the due process clause but also the equal protection clause. The privileges or immunities clause is where the federal substantive guarantees of liberty and equality derive. And, if I understand their theory correctly, it's Congress' job to form those substantive rights through legislation. The Slaughter Houses case was wrong decided and probably confused Congress as to what it's proper role is. Brown v. Board of Education, therefore was wrongly decided because it's Congress' job, not the courts to decide that separate but equal is illegal. And they can pass legislation with enumerated constitutional authority of the p or i clause.

Even though Brown, under this understanding was wrongly decided, Congress did act in 1964 and the text of the Civil Rights Act would effectively codify Brown. Congress had authority under the p or i clause to ban such government discrimination. But insofar as it applied to private markets arguably the original meaning of the commerce clause wouldn't support such.

What I wrote above is arguably a proper originalist understanding, but it's also a dead letter. It's not the world in which we live.

Jonathan Rowe said...

There is one thing about Scalia that I discovered on Stare Decisis that I think most people are not aware of:

There is a difference between Justice Scalia's ideal world and the one in which he has made peace. And indeed, if there were 5 Scalias on the Supreme Court he would enact his ideal world. But there are not. If you see Scalia dissenting by himself, it's probably a good reflection of that world. On the other hand if you see him writing a majority decision for 5 or more or joining such a majority it's the world in which he has made his peace.

In Scalia's ideal world there would be no Stare Decisis in constitutional legal decision making.

Tom Van Dyke said...

Yet for some time after Independence, many states nevertheless found it acceptable to interfere with individual rights of belief and conscience by imposing and enforcing--

You suggested there is no substantive difference between the Free Exercise clause and the Establishment clause. The difference is that the former enshrines a natural right, the latter is merely a political [conventional] decision.

If some states encroached on the former, that's a separate discussion.

Jonathan Rowe said...

I think Justice Thomas, unlike Hamburger, Graglia, Berns, and probably Scalia, believes (after Akhil Amar whom he cites) that incorporation IS an appropriate part of the original meaning of the 14th Amendment provided it's done through the privileges or immunities clause (the lead drafter John Bingham is on recording as stating such).

What's incorporated however, must have something to do with individual rights. Therefore, any argument about incorporating the Establishment Clause has to relate to individual rights.

A substantive norm that relates to equality or non-discrimination on the basis of religion. That's what ought to be incorporated to apply against state and local governments to complement the liberty right of the free exercise clause that gets incorporated.

Tom Van Dyke said...

^Sounds reasonable. Why I assumed that Torcaso rested on equal protection grounds. Although the Supreme Court used the occasion to assert an equality between religion and non-religion, the lower district court explicitly did go to equal protection via incorporation.



From the decision, Justice Henderson for the court:

"However, it is well settled that the First Amendment, providing that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, * * *", is applicable to the states through the Fourteenth Amendment, as a deprivation of "life, liberty, or property, without due process of law", or a denial of "the equal protection of the laws." Hopkins v. State, 193 Md. 489, 496; Hanauer v. Elkins, Pres., U. of Md., 217 Md. 213, 219.

http://www.leagle.com/decision/1960272223Md49_1266/TORCASO%20v.%20WATKINS,%20CLERK

Lex Lata said...

Jon: Your thoughts here are consistent with something I recently read about the disputes over tax assessments to support established churches in the young New England states. Establishment had a significant de facto impact on religious dissenters' ability to organize, preach, and worship as they pleased, notwithstanding their de jure rights of religious liberty.

Tom: "If some states encroached on the former, that's a separate discussion." Fair enough. And mine was a drive-by comment, without even a thesis sentence. Shame on me.

The point I hinted at was that the natural right of the free exercise of religion had substantially different contours for different people and communities, and was often viewed as the right of free exercise of the correct religion, which is not really free exercise. The Madisonian conception to which we're now accustomed was among the most encompassing, but was not universally accepted (and not universally protected) in the republic's early decades. But as you say, another discussion.

Tom Van Dyke said...

the disputes over tax assessments to support established churches in the young New England states. Establishment had a significant de facto impact on religious dissenters' ability to organize

...


The Madisonian conception to which we're now accustomed


It's easy to find in Adam Smith that establishment ossified theology and helped cement bad and unresponsive pastorships in place. I thought I ran across Madison echoing that sentiment but haven't been able to relocate it.

Of course, if so, that also serves a theological agenda: Madison is suspected of unitarian leanings and was blatantly unsympathetic to the extant ecclesial powers-that-be. What you end up with is a value judgment about the powers-that-be. If you see religion as self-evidently good--as Washington did--general support for religion is fine.

GWash was on the other side of the issue from Madison in the big Virginia religious assessments battle. He saw it as no big deal, and exceptions and accommodations could be made for those outside the main churches.

Personally, I suspect Madison's theological liberalism and his desire for its success as his motivation more than his belief that strict separation was in the best interest of the republic. He won in Virginia, but not on secular principle. It was the 3rd-place Baptists who threw their weight in and swung the day.

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

Doug Indeap said...

Much along the lines Tom has suggested above, Dreisbach argues that the Supreme Court should not have "incorporated" the establishment clause constraints into the rights embraced by the 14th Amendment because, according to him, that clause did not express any individual right to be free of government established religion, but rather only allocated jurisdictional authority over that subject between the federal and state governments.

The factual premise of this argument is, I think, debatable. The founders may well have understood and intended the First Amendment to serve both functions. The effort of Dreisbach and others to confine it to just one is in need of evidence.

In any event, it is widely recognized that by the time the 14th Amendment was adopted, the First Amendment and the general concept of separation of church and state were widely understood to embody individual rights. To the extent that the Court’s interpretation of the 14th Amendment is grounded in the intent of those who drafted and ratified it in 1868 (rather than the intent of those who drafted and ratified the original Constitution 80 years earlier), it is that conception that would drive the Court's interpretation of the scope of the 14th Amendment.

Tom Van Dyke said...

the First Amendment and the general concept of separation of church and state were widely understood to embody individual rights

According to Dreisbach, the "general" concept of strict separation as a constitutional imperative is a fiction developed by Hugo Black, et al., in 1947.

http://www.heritage.org/research/reports/2006/06/the-mythical-wall-of-separation-how-a-misused-metaphor-changed-church-state-law-policy-and-discourse

The effort of Dreisbach and others to confine it to just one is in need of evidence.

In any honest inquiry, burden of proof is always to be shared.

Steve Lee said...

http://www.canonandculture.com/answering-john-fea-founders-wouldnt-bar-pastors-public-office-part-1/