Sunday, June 21, 2009

Hale v. Everett

You can read the entire decision of Hale v. Everett here.

It's an interesting case; parts of it are extremely disturbing. It reminds me of Harry V. Jaffa's dictum that we have to view the American Founding thru the lens of its ideals, not compromises with those ideals or else we get a "pro-slavery" Founding and originalism loses its moral authority. Yes, that gets us "out" of slavery but also "in" to other places. Using Jaffa's method, this case gets thrown into the ashcan of history.

This case, decided in 1868, has to do with a Society of Unitarian Christians, formed years back. New Hampshire had a "Protestant Establishment" complete with a religious test that excluded non-Protestants from public office. A minority within the Church didn't like the new minister, who was more or less a deist. He claimed that he was a "Protestant" and defined said creed by anti-Catholicism. The NH Supreme Court agreed that anti-Roman-Catholicism was indeed one element "Protestantism," but something more. They also struggle over whether Unitarianism is a sect of "Protestant Christianity." Philip Hamburger notes something similar in Separation of Church & State that anti-Roman Catholic bigotry was one thing that united both the Calvinists and the Unitarians in the North East. Hamburger also shows that many anti-Roman Catholic bigots became champions of the principle of Separation, once Catholics started getting their hands on government aid. True, but there is also a long ugly history of anti-Roman Catholicism with INTEGRATION of Church and State in America, as this very opinion demonstrates. Jews, Roman Catholics and others couldn't serve as politicians in New Hampshire. That, it seems to me, is far worse than anything Everson ever brought us. That's why I argue the "religious equality" value needs to be the driver for the Establishment Clause. And even if the EC is unincorporated and neutered, let the Equal Protection Clause do the work. Religious equality means, at least, government non-discrimination for all religions and lack thereof.

James Madison was right when he argued government needs to stay as far away from involving itself in doctrinal issues.


Tom Van Dyke said...

This case illustrates the deficiency of the term "theistic rationalist," except in contradistinction to orthodox Christian.

[We'll lean on the Wiki here, but it seems straightforward:]

Francis Ellingwood Abbot [1836–1903] is the preacher in question.

As a spokesman for "free religion", he asserted that Christianity, understood as based on the lordship of Christ, is no longer tenable. He rejected all dogma and reliance on Scriptures or creeds, teaching the truth is open to every individual.

Now that's a "theistic rationalist." In fact, Rev. Abbot called his theology "Scientific Theism" in an 1885 book.

But his opponents were Christian unitarians, and this illustrates why claiming those of the Founding era of similar bent is faulty. Ya gotta have some limits. Abbot's sentiments might be agreeable to Jefferson or today's Unitarian Universalists, but not to the Christians in his unitarian congregation.

Indeed, Abbot's defense was that although he wasn't a Christian, he was still a "Protestant!"

The New Hampshire court [and this also reinforces the oft-overlooked fact that the US Constitution left religion to the states], rejected Abbot's argument:

"If Protestantism would include Mr. Abbot in this case, it would of course include Thomas Jefferson, and by the same rule also Thomas Paine..."

...who indeed might be fairly claimed for "theistic rationalism." However, in Hale v. Everett we see that all theistic rationalisms are not created equal, and the term fails not just definitively, but even descriptively.

As for your reading of the Fourteenth Amendment,

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

it seems reasonable that it be applied to individuals, that religious tests may not hold anyone from holding public office, or from any other privileges or immunities.

However, no tests should; we need not single out religious ones, as it conflates the First and Fourteenth.

But you know as well as I that its contemporary reading of the Fourteenth is also being applied to not only groups of people, but to words, images, and ideas as well. The Fourteenth has become a catchall for the culture wars.

Now, even addressing you on this risks detouring the discussion into everybody's opinion on the Fourteenth; as always, I'd rather stipulate all those objections, and stick to the facts of the Founding, the blog's topic. My argument here is simply that even if perhaps the contemporary reading is proper [or in the least inevitable as part of a "living" Constitution], it's not the Founding.


As a denouement to Rev. Abbot's tale, he left the ministry shortly after losing his case, wrote and lectured for many years, and finally---and sadly, we can say---committed suicide by taking poison at his wife's grave. The great American philosopher Charles Sanders Peirce wrote an appreciation of not only Abbot's rationalism, but his theism as well.


Tom Van Dyke said...

As for your anti-Catholicism point, Jon, there's great 21st century rhetorical value in terms like "nativism" and "bigotry" [and we may even stipulate them]; however, it brings us no closer to understanding the Founding as it saw itself---America as a Protestant Christian nation.

Historian Barry Shain reports that

Such aspirations, contrary to the claims of those who would relegate Christianity to the backwaters of American life, are readily discoverable in American legal codes and social practices. For example, only one of the thirteen states, Virginia, failed to require a religious test for those wishing to hold public office. All other states required that state officeholders, including federal senatorial electors, be Protestant (Connecticut, Rhode Island, Georgia, Massachusetts, New Hampshire, New Jersey, North and South Carolina, and Vermont), Trinitarian Christian (Delaware), accepting of the truthfulness of Scripture (Pennsylvania and Vermont), Christian (Maryland), or non-Catholic (New York). Moreover, Delaware’s constitution demanded of officeholders that they “profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost.” And, at the time of the Revolution, “only three colonies allowed Catholics to vote. They were banned from holding public office in all New England colonies save Rhode Island. New Hampshire law called for the imprisonment of all persons who refused to repudiate the pope, the mass, and transubstantiation. New York held the death penalty over priests who entered the colony; Virginia boasted that it would only arrest them. Georgia did not permit Catholics to reside within its boundaries; the Carolinas merely barred them from office.”..

And so, when the US Constitution was ratified---and later, the First Amendment---absolutely nothing changed; those laws stayed on the books. Clearly, the American nation is far more than just its ["godless," we might stipulate] constitution.

Jonathan Rowe said...

However, no tests should; we need not single out religious ones, as it conflates the First and Fourteenth.


Even though we haven't done the 14th in detail yet, there is evidence in the record that shows "privileges or immunities" meant to incorporate the first 8 amendments of the BOR. That means that the First is really part of the 14th.

Jonathan Rowe said...

One problem I have with Shain's quote that you reproduced is that it fails to look at how the events were set in motion, how the federal ideals of liberty of conscience, changed those state religious tests in a more liberal direction.

I haven't even done all of the work yet, but I know that Franklin, as acting GOV. of PA was instrumental in changing their religious test that required "accepting of the truthfulness of Scripture," to one that required simple God belief and future state of rewards and punishments.

THAT was the context of Franklin's quote I've often reproduced where he states some things in the Bible are impossible to have been given by divine inspiration.

Franklin also, in writing to Richard Price, called such a test a "stain" on the "revolution." That perfectly illustrates Jaffa's point that some illiberal practices (like slavery and state sectarian religious tests) run contrary to the "ideals" of the Founding. Shain concedes this point! He argues the Founders didn't intend to include blacks into "all men."

Tom Van Dyke said... the federal ideals of liberty of conscience, changed those state religious tests in a more liberal direction...

Oh, I'd love to see you try to make that case.


Regardless, Shain presents a trove of facts that pinpoint how the states saw themselves at the Founding, which is our topic.

9 states demanded Protestantism,
a 10th demanded Trinitarianism,
and an 11th "Christianity."

These 11 make the rule, the other 2 the exception.

Jonathan Rowe said...

I don't think you/Shain fairly claim Roger Williams' Rhode Island.

Jonathan Rowe said...

The federal case for those ideals relate to the Declaration of Independence and the "unalienable rights of conscience." Indeed, the rights of conscience are the most unalienable. You can't possibly tell me that you think these natural rights of conscience are compatible with sectarian religious tests that ban among others, Jews and Catholics from public office. It's like announcing the natural rights of man in one sentence and then recognizing the legitimacy of slavery in the next. One sentence contradicts the other.

Tom Van Dyke said...

Well, freedom of conscience is by definition for the exceptions; religious tests represent the rule.

The [in]famous "Godless Constitution" book supports Shain pretty much verbatim, including on Rhode Island.

However, your argument that things liberalized in the wake of the constitution is supported here in the case of several states, although not uniformly.