Friday, August 18, 2017

Meet the Left's David Barton

Duke University prof Nancy MacLean's breathlessly-titled Democracy in Chains, allegedly a smear of economist/political philosopher and Nobel laureate James Buchanan as a nefarious racist "Bond villain" [as one Duke colleague put it], has created quite a stink in historiographical circles. So far, our usual suspects aren't the least bit exercised about it, and that's not surprising--if it can't be weaponized against the right, it doesn't exist. Indeed, many in the leftish edu-industrial complex have circled the wagons for her, as is their custom.

From the WaPo's Volokh Conspiracy:

Did Nancy MacLean make stuff up in ‘Democracy in Chains’?


Critics of “Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America” have accused its author, professor Nancy MacLean of Duke University, of mangling quotations to change their meaning, asserting facts that are not only false but are not supported by her own footnotes, and drawing wildly speculative conclusions about matters regarding which she has no documentary evidence. In short, critics accuse MacLean of making stuff up. Co-blogger Jonathan Adler links to many of these (and other) critiques in this post.
Many historians and others who have become aware of these criticisms have responded not by investigating the allegations, but by reasoning that MacLean is a respected historian, and respected historians don’t just make things up, and therefore MacLean’s critics must be wrong. (Adler also links to a couple of substantive defenses).
That’s where her allegations of a coordinated conspiracy against her book come in. As Adler notes, MacLean was asked in her recent interview with the Chronicle of Higher Education, “Do you have any evidence for your claim in that Facebook message [that you wrote] that the attacks on your work are ‘coordinated’?”
She responded, “I’m not saying they called each other up and planned a series of critical responses to my book. What I’m saying is many of the critics come from similar backgrounds — they are libertarians who trained at or are employed by the very institutions I write about in my book.”
In other words, no, she doesn’t and didn’t have any evidence of coordination. 

Massaging if not mutating quotes, generating factoids, complaining of a plot by her critics--sure does sound a lot like beseiged "pseudo-historian" David Barton, except that MacLean is a "real" historian because she has the documents to prove it. Read about the whole silly thing, here and also here at

Presidents Washington and Jefferson Distance Themselves From Robert E. Lee

In case you need a laugh...

Thursday, August 17, 2017

Cato's Encyclopedia of Libertarianism: George Washington

The Cato Institute's "Encyclopedia of Libertarianism" can now be accessed online here. I wrote the entry on George Washington which you can view here. The way it worked was I wrote something and submitted it to Cato. The late, great Dr. Ron Hamowy -- one of the premiere scholars of the Scottish Enlightenment -- then extensively edited it and made it into a much better piece.

Here is an example of how it worked:
Washington, like the authors of The Federalist Papers, had a particular affinity for ancient Rome. His favorite play was Joseph Addison’s 1713 work about the implacable enemy of tyranny, Cato the Younger, and throughout his life, he saw the play numerous times. He commonly quoted from it and had it performed before his troops at Valley Forge. The play concerns the Roman Senator who committed suicide rather than submit to the tyranny of Julius Caesar. Washington’s stoic sense of honor developed, in large part, from the profound influence this play had on his character.
Many people think that "Cato" of the "Cato Institute" is an acronym. It's not. It's actually named after the subject of this play. I wrote this passage, but the phrase "the implacable enemy of tyranny" was added by Dr. Hamowy.

Here is what I wrote about Washington and religious issues:
Enlightenment writers also contributed to Washington’s belief that men of all religions—Christian or non-Christian, orthodox or heterodox—should possess full and equal rights under the laws of the United States. That religious liberty was granted to all Americans, at least at the federal level, was unprecedented. As Washington wrote on January 27, 1793, to the New Church in Baltimore, whose founder, Emanuel Swedenborg, taught novel doctrines not in accord with prevailing Christian orthodoxy:
We have abundant reason to rejoice that in this land the light of truth and reason has triumphed over the power of bigotry and superstition and that every person may here worship God according to the dictates of his own heart. In this enlightened Age & in this Land of equal liberty it is our boast, that a man’s religious tenets, will not forfeit his protection of the Laws, nor deprive him of the right of attaining & holding the highest offices that are known in the United States.

Tuesday, August 15, 2017

If Confederate Statues Go, What of the Founding Fathers?

Many of those defending statues to Confederate leaders like Robert E. Lee argue that, if we remove them on the grounds that they participated in or defended the evil institution of slavery, what does that say about America's Founding Fathers? Won't they come for the Founders next? Today, it's Robert E. Lee's statue in Charlottesville, Virginia. How much longer before we're talking about the Washington Memorial in our nation's capital?

The President seemed to echo this sentiment in his rather disjointed news conference earlier today. As part of his disjointed and highly controversial remarks about the Charlottesville violence, Trump said: "[M]any of those people were there to protest the taking down of the statue of Robert E. Lee. So, this week it's Robert E. Lee. I noticed that Stonewall Jackson is coming down. I wonder is it George Washington next week and is it Thomas Jefferson the week after? You know, you really do have to ask yourself where does it stop?"

Let me say something very controversial (but keep reading before you jump on me)...

Donald Trump is partly right.

Now, before your brain explodes, let me explain. Trump is wrong to defend (or express sympathy for) the white nationalist protesters at the center of the violence this past weekend in Charlottesville. He's shamefully (and inexcusably) wrong to have not sooner denounced white supremacy as well as the white nationalist and neo-Nazi protesters that caused so much pain and suffering in Charlottesville (and to our nation's spirit). And then, after he eventually did so, he completely undercut himself, seeming to walk that back in today's wacky and crazy news conference.

In NO way am I defending Donald Trump and how he's handled this whole sad, shameful episode in our history. But...

He is correct that many in our country are not content to stop with Confederate leaders. They will come for the Founding Fathers next. In fact, in some cases, they already have.

For more on this topic (and if you'll forgive the self-promo), I encourage you to check out "George Washington and Robert E. Lee Are Not The Same" over at my blog on the American Revolution.

While I do not believe the Confederacy should be celebrated or memorialized as a noble cause, I do believe the Founding Fathers deserve our respect and a place of honor in public life. And I will vigorously oppose any effort to downgrade their hero status. I won't defend the statue to Robert E. Lee in Charlottesville, but I will fiercely defend to my dying breath the Washington Monument in our nation's capital.

Friday, August 11, 2017

When Pseudo-Scholars Attack

Fresh from beclowning himself at history, Grove City College psych teacher Warren Throckmorton tries his hand at embarrassing himself on theology.

Throckmorton's leftism has led him to devote a large part of his life to attacking the Religious Right. In this case, Throckmorton presumes to interpret the Bible and lecture conservative Rev. Robert Jeffress on the meaning of Romans 13

What Throckmorton loses in the haze of his partisanship is that Biblically, Jehovah used unworthy rulers such as King Saul as the instrument of his justice against wicked peoples like the Amalakites and Canaanites. Indeed, Babylonian King Nebuchadnezzar was used to punish the wicked Israelites themselves. In this theology, the goodness of the ruler or righteousness of his intentions is irrelevant. He is merely the "sword of God's wrath" against the evildoers. [Indeed, in this Romans 13 passage, Paul was referring to Emperor Nero.]

I don't purport to speak for God or even as a theologian except to note that according to his own religion, Jeffress's interpretation is as valid as anyone else's, especially duffers like Throckmorton operating far above their pay grade.  And we can certainly hope that God sees fit to use the world's rulers to end the wicked tyranny of the Kim family, who have murdered millions and make their people suffer hell on earth. This is what matters, and I agree with Jeffress that they do indeed have the divine authority to do so.

Wednesday, August 9, 2017

Throckmorton: "Dear Robert Jeffress: The President’s Authority to Wage War Does Not Come from God"

From Dr. WT here. A taste:
Historically, Baptists Believed in Church-State Separation

Biblically and politically, Jeffress is just wrong to insert himself as a spokesperson for God into the situation.He should turn in his Baptist card.

During the revolutionary and post-revolutionary period, Baptists were among the staunchest supporters of separation of church and state. Now the Baptist-in-name-only Jeffress advises Trump that God has given the green light for lethal action in North Korea.

Romans 13 Doesn’t Apply

First, in our non-theocratic republic, the authority for Trump’s actions comes from the Constitution, not God. America is not a new Israel where the prophets advised the King when to attack an enemy. Jeffress is not God’s mouthpiece to the president with orders from on high.

Second, the Romans passage doesn’t apply in this situation.

Although rulers come and go in accord with God’s providence, the rulers do so within God’s timing and the political structure of their state. Paul does not establish a mechanism for a ruler to discern God’s plan.
Regarding citizens of a nation, they are to respect the authority of that nation’s rulers. The words are addressed to citizens of a nation, not to our president about strategy for deposing rulers of other nations. This isn’t a mandate for America to become take out evil dictators around the world. While in some cases it may further America’s interests to do so, the authority and mandate don’t come from these verses.

Monday, August 7, 2017

Taking David Barton Seriously

From Religion in US History here. A taste:
Charlie pointed out to us that white evangelicals often take the brunt of academia’s ironic superiority. There is perhaps a no more popular (and, for some, no more deserving) target of this academic ridicule than David Barton. Circa 2012, when his publisher Thomas Nelson pulled his book The Jefferson Lies from print after finding “some historical details included in the book that were not adequately supported,” Barton found himself the topic of numerous biting blog posts. For a while, academics had a field day on the internet with a collective reaction of “can you believe this guy!” coupled with “this is crazy, right?” Barton’s book, and his obtrusive Texas flag button-downs, became a meme for bad scholarship.
Yeah, I realize there is a much larger and more interesting world relating to religion and the American Founding than David Barton's missteps.

It's interesting the position we have found ourselves in. It's almost as though in order to begin discussing the topic, whether one is on the left, right, center or libertarian, one is obliged to give Barton a (metaphorical) kick in the stomach and then get to business. It's almost like a throat clearing "may it please the court" that appellate attorneys give during oral arguments.

Saturday, August 5, 2017

Chris Rodda on New White House Chief Of Staff, Constitution, Oaths & Affirmations

Check it out here. A taste:
Really? As George Washington was about to step out on the balcony to be inaugurated somebody suddenly thought, “Oh shit, we need to have some kind of oath for him to take?” But this is the ridiculous story that the new White House chief of staff actually believes is “generally accurate” — a story that would be hard to believe even if the president’s oath weren’t right there in the freakin’ Constitution. But it is in the Constitution, a “piece of paper” that you would hope that someone who has risen to as influential a position as John Kelly has would be intimately familiar with.
When Ray Soller, who deserves the credit for catching Kelly’s historically absurd oath story, emailed a number of people, including myself, about this back in May, I was appalled by it for two reasons — not only because I’m someone who has been fighting the Christian nationalists’ revisionism of American history for over a dozen years, but also because I work for the Military Religious Freedom Foundation (MRFF) and have been watching with horror as the same historical revisionism that for years has been steadily making its way into our public schools, the halls of Congress, and even Supreme Court opinions, has also been creeping into our military, with the most well-known Christian nationalist historical revisionist, David Barton, speaking at our military bases and his books and videos being found in military base libraries — including the libraries at several of the military service academies and the military’s other colleges.
Not only did Kelly tell his completely insane story (which of course also included the long-ago-debunked myth that George Washington added the words “so help me God” to his oath) at the commencement at one of our military service academies, but his not knowing that the president’s oath is in the Constitution went completely unnoticed by every news organization that covered this commencement. The only attention at all that was given to John Kelly’s incredible display of constitutional ignorance came from a few bloggers who, thanks to Ray Soller’s alerting them to it, posted about it on their blogs.

Thursday, August 3, 2017

Reynolds, Throckmorton and Baker

On religion and the American Founding.

The estimable John Mark N. Reynolds sparked a discussion on the proper way to understand religion and the American Founding and picked fellow Drs. in the American Christian academy Warren Throckmorton and Hunter Baker as worthy discussants.

Here is Dr. Reynolds' introduction. A taste:
Christians in the academy disagree on many things, but nearly universally reject the historical analysis of David Barton. This is not because they are liberal (though some are) as many of his critics are very conservative politically. It also is not because the “guild” is protecting anything: good high school teachers who compare what Barton claims to the source material one can Google are disappointed in his work. Barton is, at the very least, incompetent.

Let’s move past Barton. How should we view the Constitution?
Here is Dr. Throckmorton's first. A taste:
Despite Sherman’s confidence in the liberal times, the delegates approved the motion without opposition. Pinckney later wrote that he included the no religious test clause because it was “a provision the world will expect from you, in the establishment of a System founded on Republican Principles, and in an age so liberal and enlightened as the present.”

Compared to many of the states at the time, Christianity was not denied, but rather dethroned by the national Constitution. The rule of law and the liberty of conscience was elevated. People of any and no religion can believe what they want in their hearts but the Constitution is the law of the land. In my opinion, the Constitution is neither godless nor biblical. Rather, it is god-neutral, where the believer and unbeliever stand on equal ground before the law.
Here is Dr. Baker's first. A taste:
But what did the founders think of religion?  I’ve made a case that they largely avoided the matter in the federal constitution in deference to the states.  But what about the men, themselves?  They are a mixed bag.  Jefferson was more of an enlightenment deist.  Thomas Paine certainly continued to move in that direction.  Benjamin Franklin probably fits there is some sense, too, but he was also highly pragmatic and was a great friend of the Great Awakening mega-preacher George Whitefield.  Patrick Henry was quite devout.  Benjamin Rush was a Christian.  George Washington sounded like a deist, but also was careful to observe the Christian faith by attending the Falls Church.  I think Philip Hamburger is correct in his assertion that the founders believed different things but were practically united in their conviction that a free people need to be virtuous and religion is critical to virtue.  For that reason, I doubt they intended to found a model secular republic.
Here is the link to Drs. Throckmorton and Baker responding to one another.

First Baker:
I think I could find my way toward agreeing with this statement if we were talking about the second half of the twentieth century.  My view is that the founders intended nothing so grand (or outrageous in the minds of the people of 18th century America) as “dethroning Christianity.”

As I have stated before, the U.S. Constitution is not a document about ultimate truth or even something that sets out the proper course of law and religion.  It had the specific purpose of navigating this new type of government in which the states (traditional governments of inherent authority) would coexist with a federal government that possessed only limited powers delegated by the states and the people.  Surely, it has grown into the type of thing Dr. Throckmorton talks about, but it wasn’t that sort of thing at the time.
Next Throckmorton:
... However, I don’t believe the historical record supports a view that the delegates were united in believing that state governments ought to maintain religious tests or have a state religion. For instance, Jefferson opposed that view. He authored and Madison supported Virginia’s statute on religious freedom which passed in 1786.

In 1780, Ben Franklin wrote to Richard Price about religious freedom in Massachusetts:
I am fully of your Opinion respecting religious Tests; but, tho’ the People of Massachusetts have not in their new Constitution kept quite clear of them, yet, if we consider what that People were 100 Years ago, we must allow they have gone great Lengths in Liberality of Sentiment on religious Subjects; and we may hope for greater Degrees of Perfection, when their Constitution, some years hence, shall be revised.
Seven years prior to the Constitutional Convention, Franklin took the long and liberal view and hoped Massachusetts would revise the state Constitution to eliminate religious tests for office. This was the liberal and enlightened view adopted by the national Constitution in 1787 and which is true in the states today.

Monday, July 24, 2017

Caron on Hamilton & Christianity

See this link for a very moving story from the current Dean of Pepperdine Law School, Paul Caron. It references Dean Caron's personal faith, the currently popular Hamilton play, and a scholarly article I have long championed that I think gives the best account of Hamilton's religious journey. Yes, Hamilton did not become an "orthodox Christian" until the end of his life, after it all came crashing down, after his son died in a duel.

A taste:
For me, the "grace too powerful to name" is the central message and beauty of Christianity.  It alone is what empowers Eliza to forgive Hamilton and restore their marriage amidst "unimaginable" pain.

Seeing this wondrous depiction of forgiveness in the play left me hungering for more detail. What enabled Eliza to forgive Hamilton?  What was Hamilton's actual faith journey? Thankfully, a reader sent me a wonderful article that answers both of these questions:  Douglass Adair & Marvin Harvey, Was Alexander Hamilton a Christian Statesman?, 12 Wm. & Mary Q. 308 (1955).

The article lays out the case that Hamilton's extraordinary fall led him to faith:
Hamilton, who in the years of his early success had almost forgotten God, who in the years of his greatest power had tried to manipulate God just as he manipulated the public debt to increase that power, began sincerely seeking God in this time of failure and suffering.
For twenty-five years his genius, his driving ambition, his energy, his will had carried him from triumph to triumph. His pen and literary talent had transported him from his obscure and unhappy status in the West Indies to what seemed to be the beginning of a respectable, but dull, professional career in provincial New York. Then, adventurer with his obsessive ambition and his arrival coincided with the outbreak of cataclysm that not only overstimulates ambition in some men, but also provides opportunities of magnificent scope for those who dare to take advantage of them. Now his talents and luck carried him ahead by leaps and bounds. By the time he was twenty-two, Hamilton had begun that association with Washington — the most potent figure in all America — which was to serve him so marvelously for the next two decades. By the time he was twenty-five he had allied himself with the Schuylers and automatically gained a top position among the elite of New York. Ten years more and he was Washington's "prime minister," the most influential man in the nation after his chief. Then after 1797, though Washington voluntarily resigned his supreme authority in the state to bumbling John Adams, the President's Cabinet was still made up of Hamilton's men, who could manage Adams for him. When the first test came in the war crisis of 1798, Hamilton, in spite of Adams's violent objections, gained control of the new army recruited according to his own specifications. With his army, and with a certain French war impending, Hamilton could feel he had the game in his hands. He had enemies, it was true, but they were no longer dangerous; for now no competitor could threaten his power and his ability to drive the United States along the path he knew it ought to follow. In 1798 everything that Hamilton had willed had come to pass; everything that he still desired had almost been achieved. His virtuous pursuit of power — to be used virtuously, of course — had been successful even beyond the soaring dreams of the immigrant boy of 1772. Who can blame him for feeling omnipotent? Who can wonder that by 1799 Hamilton confused himself with God.
But within one year Hamilton's power vanished, first by slow degrees, then with sudden and cataclysmic completeness. ... Perhaps never in all American political history has there been a fall from power so rapid, so complete, so final as Hamilton's in the period from October, 1799 to November, 1800. Twelve months earlier his party had seemed stronger than at any time since 1792. His position in the party was unchallenged and seemed unchallengeable. He had every reason to believe that soon his party would advance him to the chief magistracy. ... By 1801 Hamilton, whose will had mastered every obstacle, whose power so recently had seemed firmly consolidated and impregnable, suddenly experienced the nightmare sensation of impotence. ... [T]his sudden political tempest had wrecked his hopes, stripped him of his last chance for glory, ended his power to do good for his country, and stranded him a derelict on the shoals of a petty civilian life. No wonder Hamilton felt himself a failure in 1801. No wonder he suffered the tortures of a potent man suddenly become impotent. No wonder that in his despair he finally turned to God for help and support. ...

Sunday, July 23, 2017

Why John Fea Does What He Does

He explains here. A taste:
My critique of the court evangelicals is a natural extension of my ongoing criticism of conservative activist Barton and other Christian nationalist purveyors of the past.  It is not a coincidence that First Baptist-Dallas pastor Robert Jeffress often preaches a sermon titled “America is a Christian Nation.”  In this sermon he says. among other things:

We don’t restrict people’s right to worship [they can] worship however they choose to worship.  But that doesn’t mean we treat all religions equally.  This is a Christian nation. Every other religion is an impostor, it is an infidelity.  That is what the United States Supreme Court said.

Someone can correct me, but I think First Baptist–Dallas is the largest Southern Baptist church in the world.  Jeffress is an influential figure.  He goes on Fox News and claims to represent American evangelicals.  His profile has risen immensely since he announced his support of Trump.

It’s important to remember that Jeffress’s political theology (if you can call it that) is based on a false view of American history.  And it is not very difficult to trace it to the teachings of Barton.

In the aforementioned sermon, Jeffress comments on a recent Barton visit to First Baptist–Dallas.  He then says, referencing the prince of Aledo, Texas, that “52 of the 55 signers of the Constitution” were “evangelical believers.” This is problematic on so many levels.  First, only 39 people signed the Constitution.  Actually, I think Jeffress might be referring here to the men who signed the Declaration of Independence.  Second, to suggest that most of them were “evangelical believers” is a blatant misrepresentation of history.  In fact, Jeffress doesn’t even get Barton right here.  Barton says (wrongly) that nearly all of the signers of the Declaration had Bible school and seminary degrees.  Jeffress is confused about his fake history. But that doesn’t matter.  People in his massive congregation applaud and cheer when he preaches this stuff.

Wednesday, July 19, 2017

Fea & Throckmorton on Barton's Contuined Use of an 1813 John Adams' Quote

I'm trying to lighten up on following David Barton's continued historical malfeasance. I think other people are better suited to it than I am and there's a world beyond him that interests me. However, sometimes when those other people make a good point, I will chime in, now and then.

John Fea and Warren Throckmorton have good posts on David Barton's use of a "proof quote" from one of John Adams' letters to prove the "Christian America" thesis.

This is from Fea:
 In the second and third paragraphs, Adams notes that the group who met in Philadelphia was so religiously diverse that the only ideas holding them together were the “general principles of Christianity.”  What does he mean by this phrase?  It is hard to tell at first glance.  But if there were indeed “deists” and “atheists” in the room, these “general principles” must have been understood by Adams as a system of belief that was far less orthodox than the Christianity of the ancient creeds.  An “atheist” might be able to find common ground around a Christian moral code (say, for example, the Sermon on the Mount), but could not affirm the existence of God. A “deist” would have rejected the Trinity, the deity of Christ, and, in some cases, God’s providence in human affairs, but he could certainly unite behind a moral code based on the teachings of Jesus. (I titled my chapter on the highly unorthodox Thomas Jefferson, “Thomas Jefferson: Follower of Jesus”). So let’s return to our original question.  What did Adams mean when he said the Continental Congress was held together by “the general principles of Christianity?” If we take the beliefs of the “atheists” and the “deists” (and, I might add, the “universalists, “Socinians,” and “Preistleyans”)  seriously, the “general principles of Christianity” was a phrase Adams used to describe a very vague moral code that all of these men–the orthodox and the unorthodox–could affirm.


The fourth paragraph tells us that Adams believes that these “general principles” of Christianity and liberty could be easily affirmed by a host of secular writers, including Hume and Voltaire, two of the Enlightenment’s staunchest critics of organized Christianity. These “general principles of Christianity” must have been pretty watered-down if Hume and Voltaire could affirm them.  Again, the reference here is to a vague morality, not the particular teachings of orthodox Christianity.
Here is a rule I follow: In general it's not a good idea to quote John Adams or Thomas Jefferson to prove the "Christian Nation" thesis. However, it's a really, really bad idea to quote the correspondence of Adams and Jefferson in the year 1813 to try to do such. 

Monday, July 17, 2017

Was America Founded to be Secular?

Joshua Charles, on behalf of PragerU, tackles the question of whether the Founding Fathers intended the United States to be secular. The Founders and religion is of course a perennial topic of frustration and confusion. It also opens the door for some nuance that is often missing. Rejecting full secularism doesn't necessarily mean support for a theocracy. Sadly, many today fail to see any meaningful difference between a monotheistic framework on the one hand with leaders who encouraged Judeo-Christian thinking versus a

Mr. Charles is a researcher with the Museum of the Bible and is the author of the recent bestseller Liberty’s Secrets: The Lost Wisdom of America’s Founders. 

I'm sure the video will spark much discussion.

Sunday, July 16, 2017

Just "Amend the Constitution"

A lame response. 

I've been reading the comments here on Professors Randy Barnett and Bruce Ledewitz's debate on originalism. One mantra the right of center originalists there seem to repeat is, (me paraphrasing) "if you don't like the Constitution the way it was originally understood, simply amend it."

Yeah, easier said than done. And do we really want or need more amendments?

Why do I think it's a lame response? Put the shoe on the other foot. Don't forget, if we don't like the way the Supreme Court interprets the Constitution, we can always amend the Constitution to overrule said understanding. Similarly, we can amend federal statutory law when the Supreme Court interprets a federal statute in a way in which we disagree. And though it's not necessarily an easy thing to amend a federal statute, it's much, much easier to do that than to amend the US Constitution.

The US Constitution has been amended only 27 times!

Roe v. Wade and Obergefell v. Hodges are two cases with which socially conservative originalists strongly disagree. Well, just amend the Constitution. It was tried. How did that human life amendment or marriage amendment go down?

There is actually a much better answer. We don't see it because most socially conservative originalists don't seem interested in defending arguably the "rightest" original understanding of the 14th Amendment. And I understand why, this understanding holds Brown v. Board of Education to be wrongly decided.

And there an unwritten rule that any theory of constitutional interpretation that holds Brown to be wrong is not viable.

And by the way, this is not the kind of originalism that I defend. I don't trust majorities on matters of fundamental rights. I strongly value individual rights that are antecedent to majority rule and sympathize when majorities who might impinge on such are so frustrated.

So much of our constitutional law involves the 14th Amendment and the federal Constitution constraining state and local governments on matters of civil rights that relate to race, gender, religion and a bunch of other things thing.

The "rightest" original expectation of how the 14th Amendment's text was meant to apply is as follows: The Equal Protection and Due Process Clauses are entirely procedural. They were meant to grant no substantive rights whatsoever. The Privileges or Immunities Clause was meant to grant substantive rights. The Supreme Court's Slaughterhouse Cases were wrong. But it was Congress' role to define and guarantee those rights that constitute Privileges or Immunities.

Brown was wrong NOT because the framers of the 14th Amendment didn't think it would potentially outlaw government mandated segregation. But rather because it's Congress' role, not the Courts to outlaw such by means of statutory law which the 14th Amendment was meant to constitutionalize. Otherwise for Congress to attempt to do such would be an unconstitutional exercise of its powers pursuant to the doctrine of limited, enumerated powers.

So if we don't like the way the Supreme Court understands matters of fundamental rights, the proper response is indeed, "amend." But it's not the Constitution that needs to be amended. Rather it's extant federal statutory law relating to matters of fundamental rights that Congress has power over pursuant to the Privileges or Immunities Clause of the 14th Amendment. Much easier than amending the US Constitution.

Again, this isn't a constitutional world in which I endorse; but it's a better use of the "amend" response than telling your opponent to simply amend the US Constitution if you don't like the way the courts deal with matters of fundamental rights.

Friday, July 14, 2017

Barnett's Response to Ledewitz's Rejoinder

I promised that the last post wouldn't be the last word on the subject. Here is Randy Barnett's most recent post responding to Bruce Ledewitz. Over the years, I followed this "originalism" debate in constitutional law fairly carefully. Perhaps I could be categorized as a "faint hearted originalist." The kind of originalism I would endorse is similar to that which has been espoused by among others, Barnett, Akhil Amar, Jack Balkin and Timothy Sandefur.

One issue I have is I often see it framed as though if we don't interpret the Constitution as "originally" intended, the Constitution can mean "anything." Well, here I stand for the proposition I don't think the Constitution should mean "anything" five members on the Supreme Court decide; there should be constraints and unhappy endings.

Where I do get a bit perplexed is given the broad generalities contained in the Constitution's text, and other ambiguities in the record, there often is more than "one" right answer to legal questions presented such that Justices will often have latitude on fundamental constitutional questions by virtue of the way the system is structured. Yet only one view can prevail. And issues of fundamental import turn on which view prevails.

What to do then?

Interpreting the Bible is analogous. We often hear certain preachers who argue for "one correct" understanding of the Bible say "it means X and only X" in an objecting sense, when in reality it's possible that it could also mean Y and Z.

Yet it's also true that certain positions -- A, B & C -- are not tenable. Certain understandings are more plausible than others; but there are also multiple plausible understandings of the text that contradict one another, where only one outcome is entitled to prevail.

So if someone said that the Bible teaches a Giraffe tempted Adam and Eve in the Garden of Eden, that's an easy one. It's false. End of discussion. Other questions aren't so easy (like what fruit was it that Eve was tempted with? Or what did Jesus mean when He said you should eat His flesh and drink His blood?).

That's what comes to mind when I read Randy Barnett's most recent post. Professor Ledewitz's claimed:
To put it simply, by 1954 de jure school segregation did not constitute equal protection of the laws, whether it did before or not.
To which Professor Barnett responded:
Fact check: Misleading. As Michael McConnell showed in the 1990s (see here and here), nearly everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it. As a constitutional scholar, Professor Ledewitz must be aware of this.  ...
Yes, I've heard it argued that under the original expected application of the 14th Amendment's text, the political legality of racial segregation was preserved (that is, the framers and ratifiers didn't think they were making racial segregation in railroads, public schools, marriage, etc., unconstitutional or something potentially outlawed by the 14th Amendment). Others, like Judge McConnell differ. And currently, as we know, the Supreme Court rules such unconstitutional under the Equal Protection Clause of the 14th Amendment.

Yet, as Barnett alluded to above, it was the Privileges or Immunities Clause that was meant to deal with this. Indeed, there is a strong case to be made that neither the Due Process NOR the Equal Protection Clause guaranteed ANY substantive rights, not against racial discrimination or ANYTHING. That both were entirely procedural clauses. The Due Process Clause targeted courts while the Equal Protection Clause targeted the executive. And held that if you were a "person" -- i.e., a human being -- you had to be held to the exact same set of procedural rules. And this was whether one was black, a Mormon, a Hell's Angel (of whatever the mid-19th Century equivalent thereof) or a thief.

There was no substantive right in either the Equal Protection OR Due Process clauses to be free from racial discrimination, to practice one's religion, to be a member of a rebellious club, or to steal. Rather, by virtue of your humanity, the same set of rules -- whatever they may be -- had to apply to all people.

This is something many people unaware of historical nuances of the civil rights don't "get." If a black person beats up a white person or vice versa, that's assault and battery. There are laws on the books against assault and battery that have always dealt with this. Yet, law enforcement and courts run by majorities or those in power might simply decide not to apply the same already existing rules to selective disfavored groups. It doesn't matter if it's blacks, Mormons or members of the Hells Angels. If you are a person, regardless of character or trait, the same set of rules have to apply. But if the Hells Angel committed robbery, he could be so punished.

The right to be free from racial discrimination, as it were, is a substantive rule and not something the procedural clauses of the 14th Amendment (i.e., Equal Protection) were meant to deal with. However, the 14th Amendment DID intend to give substantive rights, but it was through the Privileges or Immunities Clause, not Equal Protection OR Due Process.

So provided we just switched the Privileges or Immunities Clause for the Equal Protection Clause, Brown, Loving, etc., would be kosher? Not so fast. Even if Judge McConnell's account is correct, look closely to what Barnett reported:
[N]early everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it.
Yes, it was the House and Senate's responsibility to prohibit racial discrimination as a "privilege or immunity" of the 14th Amendment. There is a strong originalist case to be made -- arguably the strongest -- that it's the jurisdiction of Congress to define by statute those substantive privileges or immunities. That the original meaning of the 14th Amendment was meant to provide a constitutional basis for the original post Civil War mid-19th Century Civil Rights Acts.

That would mean that even though such originalism teaches Brown was wrongly decided, Congress would still have the constitutional authority to enact such a decision and the Congress who passed the Civil Rights Act of 1964 could still have statutorily enacted Brown, Loving, etc. as a "privilege or immunity." And they would have.

One day a few years ago, I was in a room full of very distinguished originalists in a private meeting at an ivy league location, where I was the least important person in the room. They agreed what I reported above was the best originalist understanding of the 14th Amendment. Since it was off the record, I'm not going to name names.

One person in the room noted that this understanding, though correct, was awkward. Given the original meaning of the Privileges or Immunities Clause of the 14th Amendment, we could get a new constitutional conventional with every new Congress. The response from the group was that originalists have to do the right thing and deal with unhappy endings.

There's debate as to whether the 14th Amendment was even meant to incorporate ANY part of the Bill of Rights to apply against the states. Justice Scalia has admitted he's not convinced it was, but accepted incorporation because of Stare Decisis. Philip Hamburger, one of the brightest conservative law professors, doesn't think it was. And that means everything in the Bill of Rights -- freedom of speech, establishment, free exercise of religion, rights of criminal defendants -- is left to the states. That would mean Trinity Lutheran was wrong and Professor Ledewitz is right because "religion is left to the states." If a state wants a Blaine Amendment or to establish the Roman Catholic Church, or the Unitarian Universalists for that matter, they could because religion is left to the states.

Or even if the Privileges or Immunities Clause was meant to include both rights contained in the Bill of Rights as well as rights against non-discrimination (i.e., rights to equal treatment) on the basis of race, religion (and other issues) it's still Congress' responsibility to pass legislation to protect those and for courts -- including the Supreme Court -- to attempt to do this is judicial usurpation of Congress' role.

Don't forget, even if religion is otherwise "left to the states," all federal law trumps all state law. Federal statutes trump state constitutions. So if Congress wants to guarantee the free exercise of religion against state and local governments, that would trump any state law that would attempt to do otherwise.

This is a much different constitutional world than the one in which we currently live. And it's one that most notable originalists don't seem interested in publicly defending. But it's arguably the most correct one according to the method of original expected application of the texts.

Wednesday, July 12, 2017

Barnett v. Ledewitz on Religion & the Original Constitution

This is the original offending article by Bruce Ledewitz. This is Randy Barnett's response. And this is Ledwitz's rejoinder.

From the first link:
But, from the point of view of originalism, the decision [Trinity Lutheran] was ridiculous. If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches. And, even if a decision by Missouri to pay the church might somehow be thought not to violate the Establishment Clause, it could not possibly be argued that the original Free Exercise Clause required a payment from Missouri. You could have asked any member of the founding generation whether the Free Exercise Clause ever required the payment of public money to a church and the answer would have been a unanimous no.
My observation: So called "liberalism" has "liberty" and "equality" as ideological book ends. The First Amendment to the US Constitution is a "liberal" text. It's clear the Free Exercise Clause validates a "liberty" right. The Establishment Clause often (but not always) validates an "equality" right. I agree with Ledwitz that this doesn't seem to be a free exercise of religion/liberty issue.

However, Ledwitz's understanding of the Establishment Clause is questionable. Further, Trinity Lutheran did involve an equality or equal treatment issue. Whichever text ends up doing the work, arguably the outcome was correct on originalist grounds. Don't forget the 14th Amendment is part of the Constitution. So we might not necessarily be dealing with late-18th Century originalism,  but mid-19th Century, which incorporates back late-18th Century originalism through a mid-19th Century liberal lens (basically Akhil Amar's  thesis; though I don't think he's alone here). 

This is from Barnett's response:
I am not an expert on the Religion Clauses, so I am not as confident about their original meaning as Professor Ledewitz. But every originalist–indeed every living constitutionist–understands that neither the Free Exercise Clause nor the Establishment Clause originally applied to the states at all. Instead, it applied to Congress. What exactly an “establishment of religion” was in 1791 is a matter of good faith academic dispute. But some thoughtful originalists have maintained that, whatever constituted an “establishment of religion,” the First Amendment’s wording “make no law with respect to” forbade Congress both from establishing a national religion (at minimum) and also from disestablishing a state religion. On this account, the Establishment Clause operated–perhaps exclusively–as a federalism provision, expressly acknowledging that Congress had “no power” in this area, with all powers pertaining to religion reserved to the states. 
In addition, some originalists maintain that, because the original meaning of the Establishment Clause was a federalism provision barring Congress from disestablishing state religions, it did not enunciate an individual right that could be considered a Privileges or Immunity of citizens of U.S. citizens. Others, like Kurt Lash, disagree on the ground that, by 1868, the meaning of the Establishment Clause had evolved so its public meaning at the time of the 14th Amendment did include an individual privilege or immunity. But if Lash and others are wrong about this, then the original meaning of the 14th Amendment protected only free exercise rights from state infringement; it did not bar states from making laws that could constitute an establishment of religion.  ...
 And from Ledwitz's rejoinder:
4. All of Randy’s discussion of the Fourteenth Amendment and related matters is beside the point. The Court did not mention those matters. I wrote that there are no originalists on the Court. A majority of the Justices wrote that the Free Exercise Clause required the payment of public money to a church. That is unjustifiable by any stretch of originalism. They wrote that way because they were assuming incorporation of the Free Exercise Clause against the States as it would be interpreted against the federal government. So they dealt with Free Exercise only and did so in an unsupportable way from an originalist  perspective. Randy writes that they could have written a different opinion. But then they might be originalists. But they did not, so they are not. 
I should also add here that the bigotry of the Blaine Amendments adopted in State Constitutions after 1875, which Randy mentions, should be irrelevant to an originalist, though Justice Thomas has also mentioned them in a similar context. In originalism, original public meaning does not change. For the living constitution, on the other hand, the experience of the Blaine Amendments is part of political learning that demonstrates that our original understanding of Free Exercise was too narrow. Randy's reference to the Blaine Amendments just shows that it is impossible to be an originalist. We learn over time what the Constitution means. It cannot be, should not be and isn't fixed. (That was also true of Justice Scalia's majority opinion in Heller, in which Justice Scalia learned from 19th century state judicial decisions that the second amendment should not be interpreted to protect concealed carry--why are 19th century opinions relevant to the original public meaning of the second amendment?)  
The discussion doesn't end there. We will do a subsequent post to address some further issues.

William Livingston Loved His Wine

At least he loved collecting it. See here. A taste:
A one-of-a-kind wine collection featuring bottles that are nearly as old as the country itself has been uncovered behind a boarded-up wall in a New Jersey museum that was previously the home of the state's first governor.  

The stash of spirits was found hidden in plain sight at the Liberty Hall Museum, which was formerly the home of Governor William Livingston, who served in office from 1776 to 1790.

'It was an oh my God moment,' Bill Schroh, director of museum operations at Liberty Hall Museum at Kean University, told WCBS of the shocking discovery. 

During a six-month renovation of the wine cellar at the historic building, the team found three cases of Madeira wine believed to be from 1796. 

They also found an additional 42 demijohns covered in wicker that date back to the 1820s.

Sunday, July 9, 2017

From the left-leaning The New Republic, 2013:


Howard Zinn's influential mutilations of American history

In the 1980s, in the faculty-filled suburbs west of Boston, the historian Howard Zinn was something of a folk hero. The Boston Globe, where Zinn published a column, ran stories of his battles with the dictatorial John Silber, the president of Boston University, who cracked down on unions, censored student protests, and denied pay raises to enemies such as Zinn. When it was learned that the National Labor Relations Board had reinstated service workers who had been fired for striking, or that the courts upheld a student’s right to hang a “divest” banner from his window, a wave of satisfaction would surge from Cambridge to Brookline to Newton to Wellesley. As Silber’s chief nemesis, Zinn—handsome in profile, gentle in manner—made for a winning poster boy for anyone who reviled Silber’s high-handed rule.

As a faculty brat in those years, I was doubly enamored of Zinn after a classmate gave me A People’s History of the United States, his now-famous victims’-eye panorama of the American experience. In my adolescent rebelliousness, I thrilled to Zinn’s deflation of what he presented as the myths of standard-issue history. Do you know that the Declaration of Independence charged King George with fomenting slave rebellions and attacks from “merciless Indian Savages”? That James Polk started a war with Mexico as a pretext for annexing California? That Eugene Debs was jailed for calling World War I a war of conquest and plunder? Perhaps you do, if you are moderately well-read in American history. And if you are very well-read, you also know that these statements themselves are problematic simplifications. But like most sixteen-year-olds, I didn’t know any of this. Mischievously—subversively—A People’s History whispered that everything I had learned in school was a sugar-coated fairy tale, if not a deliberate lie. Now I knew.
What I didn’t realize was that the orthodox version of the American past that Howard Zinn spent his life debunking was by the 1980s no longer quite as hegemonic as Zinn made out. Even my high school history teacher marked Columbus Day by explaining that the celebrated “discoverer” of America had plundered Hispaniola for its gold and that, in acts of barbarism that would later be classified as genocide, Columbus’s men had butchered the native Arawaks, slicing off limbs for sport and turning their scrotums into change-purses. (This last detail stuck vividly in the teenage mind.) That Mr. MacDougall was conversant with radical scholarship such as Zinn’s suggests that much had changed from the days when Zinn himself had imbibed uncritical schoolbook accounts of the American story. True, in the popular books and public ceremonies of the 1980s, you could still find a whitewashed tale of the nation’s past, as you can today; and many cities around the country shielded their charges from such heresies. But as far as historians were concerned, the sacred cows that Howard Zinn was purporting to gore had already been slaughtered many times. As Jon Wiener noted in the Journal of American History, “during the early seventies … of all the changes in the profession, the institutionalization of radical history was the most remarkable.”
The question of politicized scholarship was in fact deeply divisive not just between the “consensus” historians and the New Left historians, but also among the New Left historians themselves. Some of the young radicals, such as Lasch, Weinstein, and Genovese, insisted that the political or social influence of their scholarship would of necessity unfold slowly, incrementally, and through the sinuous, indirect paths of the culture. For all their leftist bona fides, these men agreed with their stodgy forebears that the intellectual had to hew to the highest standards of rigor; it was by the strength of their scholarship that they might revise entrenched beliefs that gave rise to the social conditions that, as a political matter, they decried. Genovese, most vociferously, flatly rejected the siren song of “relevant” history: he, too, hoped at the time for a socialist future, but he believed that it was best served by history that was true to the evidence, valid in its interpretations, and competent in its execution. This rift in the New Left between “scholars” and “activists” eventually led to the collapse of Studies on the Left, as well as to a donnybrook at the meeting of the American Historical Association in 1969, at which Staughton Lynd, a leading activist, ran for association president on an insurgent plank, prompting the cantankerous Genovese—still very much a radical—to bellow from the floor that Lynd and his allies were “totalitarians.”2
Lynd's insurrection sputtered, but his and Zinn’s position wormed its way into the thinking of generations of graduate students, and it is distressingly easy today to find tendentious scholarship that exhibits a Zinn-like habit of judging historical acts and actors by their contemporary utility. As much as radical history contributed invaluable new arguments and perspectives to historical scholarship, it has also left an unhappy legacy of confusing or commingling political and scholarly goals. At its most egregious, this confusion takes the form of polemical potboilers such as Zinn’s or, worse, propagandistic screeds such as Peter Kuznick’s and Oliver Stone’s The Untold History of the United States. (Three decades after Zinn, five decades after William Appleman Williams, it takes chutzpah to claim that a conspiracy-laden tale about America’s unremitting malice has somehow been “untold,” but then one wouldn’t expect Stone’s history to be any more subtle than his movies.)

Such cant will usually be called out by responsible historians, left, right, or center. More troubling is that “the pragmatic fallacy,” as David Hackett Fischer called it, has insinuated itself into a good deal of historical literature even by respected and able historians, at a level deep enough to be nearly invisible. While excellent work is done by self-identified leftists, too much academic work today assumes such dubious premises as (to name but a few) the superiority of socialism to a mixed economy, the inherent malignancy of American intervention abroad, and the signal virtue of the left itself. Franklin Roosevelt’s rescue of capitalism is routinely treated as a disappointment because he did not go all the way to socialism. Truman’s suspicion of Stalin is treated as short-sightedness or war-mongering. Anti-Communism of even the most discerning sort is lumped in with McCarthyism as an expression of mass paranoia. Labor’s mid-century decisions to work with management to secure good wages and benefits are seen as selling out. And too seldom is it acknowledged that throughout its history the left has operated from low motives as well as high ones, and has caused social harm as well as social improvement, and has destroyed as well as created. 

As always, read the whole thing. Even now, a bald and unapologetic "Zinn Education Project" operates with impunity in American schools.

Friday, July 7, 2017

Mark David Hall: "A Calvinist Deist Polytheist Skeptic?"

Mark David Hall reviews Thomas Kidd's book on Ben Franklin's religion here. A taste:
Franklin may well have adopted radical religious ideas as a youth. But by the early 1730s he seems to have moved toward a “reasonable” version of Christianity that emphasized the necessity of living virtuously and that did not insist on doctrinal specifics. He delineated his core religious convictions in his autobiography:
That there is one God who created the universe, and who governs it by his Providence.
That He ought to be worshiped and served.
That the best service to God is doing good to men.
That the soul of man is immortal, and
That in a future life, if not in the present one, vice will be punished and virtue rewarded.
From a traditional Christian perspective, the problem with this list is not so much the tenets themselves (although some would quibble with the third point) but what is left out. At best, Franklin was uninterested in pondering doctrines such as the trinity, incarnation, or atonement. For example, in a 1790 letter to Yale president Ezra Stiles, Franklin admitted to having “some doubts as to [Christ’s] divinity: though it is a question I do not dogmatize upon, having never studied it.” He concluded that it is “needless to busy myself with it now, when I expect soon an opportunity of knowing the Truth with less trouble.”

Like Thomas Jefferson, Franklin thought that the Bible contained good moral advice even as he rejected the traditional Protestant doctrine that it is the “only rule for faith and practice.” ...

Thursday, July 6, 2017

FDR: Western Civilization Wacko

smoky mountains

"There is, moreover, another enemy at home. That enemy is the mean and petty spirit that mocks at ideals, sneers at sacrifice and pretends the American people can live by bread alone. If the spirit of God is not in us, and if we will not prepare to give all that we are to preserve Christian civilization in our own land, we shall go to destruction."

—Franklin D. Roosevelt,  at the Dedication Ceremony of Great Smoky Mountains National Park, September 2, 1940

There was a time when this sort of thing wasn't considered scandalous.