Saturday, December 12, 2009

Dr. Kalivas Responds

The following is a detailed response for a Dr. Kalivas to the assertions of myself, Tom Van Dyke, and Dr. Gregg Frazer that when the Constitution was ratified that it "left religion to the states":

"My understanding of Article VI is there does not have to be a conflict for Article VI to be “invoked.” The relevant clause of the Article is quite specific:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

It says the National Constitution and all laws of the country are the supreme law of the land. It further states that each state’s judiciary is bound to the national constitution and to the laws of the national government. The clause then goes on to stipulate that anything in the “constitution or laws of any state” that are contrary must conform to the laws of the land. In short, the US Constitution and the laws of the national government must be adhered to by the states, no matter if there is or is not a conflict, but a conflict naturally creates conditions for court challenges of state law. There is no provision for when this clause will be or won’t be “invoked,” it is always in force. However, when a conflict between state and national legislation does occur then state laws are subordinate to the national law and Constitution. That being said, if the States began legislating to institutionalize or impede religion or religious worship, then such state laws would be un-Constitutional and subject to nullification either through state legislation or through a judicial ruling, which can happen in a variety of ways. Religion was not left to the states, if the establishment or interference of religion was exercised at the state level then it would be in violation of the spirit and wording of the Constitution. The intent of many founders varied, but regardless of those multiple views, what came out of the constitutional convention and the wording of the actual First Amendment in conjunction with Article VI have some relevance here. To cite those few state constitutions from the Pre-Federal Era that lingered into the first decades of the 1800s as examples of how religion was left solely to the states plays with the chronology of events as well as under appreciates the context of the times and the time it took to effect changes. However, the fact remains that those changes to state constitutions did happen and those examples were gone by the 1830s.

Further, the spirit and intent of The First Amendment section on religion, as first proposed by Madison can be gleaned here from one of the original proposal for that amendment: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretense, infringed.” This was not the specific wording that was later ratified as the First Amendment, but it does provide a window on Madison’s (and his friend Jefferson’s) views that matters of religion were not to be left to regulations or infringements by the government. And, as it was the national government that made laws for the country, and Article VI made those laws supreme over the states, then it suggests that it was not the states that should regulate or legislate on matters of religion, but that religion should be left up to the free will of the individuals per their individual “conscience” and not up to either national or state governments.

This was not a Republic founded as a Christian or Religious Republic, nor was it godless as there are references to the Divine Creator, Providence, and other iterations of god used by the founders. However, it is clear in the Constitution and the Declaration of Independence that sovereignty, the authority to govern at the national and state levels emanated and rested with the people and their elected governments. It is also was quite in keeping with the tenor of the late 18th and early 19th centuries to pay homage to the Divine Creator, or Providence without subscribing to a view that the government was ordained and guided by God and Biblical sources -- such reliance on God is not evident in the language or authority structured by the US Constitution for the new society it created over the past two centuries."

I will leave the abstract arguments over the Constitution to the others who know way more about this than I do.  What jumped out at me was the last part of the last sentence when Dr. Kalivas states, "such reliance on God is not evident in the language or authority structured by the US Constitution for the new society it created over the past two centuries." I responded with the following comment:

"That is the rub it did not such much create a new society as it built upon the "British Liberal Traditon" that is founded on natural rights and common law rights. The DOI is a legal document that presents the Christian case for interposition. Up until Parliment attempted to nullify their rights as Englishmen the representatives of the colonies argued from their rights as Englishmen. When those were taken away they appealed to natural rights. 

See my post above on Gary Amos."

It seems the debate about the American Revolution "creating some new society" it just beginning to heat up!  Feel free chime in on the "religion left to the states" thread as well as it seems we have two threads going at once. 


Tom Van Dyke said...

Madison lost that battle. That is the lesson to be drawn from the Founding.

Further, the First Amendment has primacy over Article VI by virtue of being ratified last, and it tells Congress to butt out of religion, which even Mr Separation hisself, Jefferson, concedes is therefore left to the states.

“I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the States the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise or to assume authority in any religious discipline has been delegated to the General government. It must then rest with the States.”

For the record, it has never been argued on these pages that the American government was some sort of covenant with God, nor that sovereignty rested anywhere but with the people.

Even the papists knew that, as Algernon Sidney admits in the 17th century:

Anonymous said...

Dr. Kalivas I believe is interpreting Art. VI from a 20th perspective through which we are accustomed to Congress enacting any legislation it wants, the President issuing executive orders on anything he wants, and the Supreme Court ruling on any question it wants. Our government, for better or worse, is today truly national. But our early republic operated as designed under a federal system with divided sovereignty. The constitutional convention divided government powers between the states and the general government as they deemed appropriate . Art. VI indeed established the laws of the general government as supreme, but only in the specific powers delegated (how’s that for an archaic jurisprudential concept ) to it. With no power delegated to the general government regarding the establishment of a national church, the legal status of religion was left to the states. The first amendment reinforces the policy by explicitly prohibiting the Congress from interfering with state establishments. And the chief support of this view is evident in the way the states subsequently operated.


King of Ireland said...

The brief by Sandeur that Jon linked in the last post really goes into the whole ideas of state citizenship vs. national citizenship. I think I said the same thing to Dr. Kalivas in a comment a while back about the 20th Century perspective.

Randy Barnett has a good essay on the whole limited government idea at Cato from 2008. I think I will link it in my next post.

King of Ireland said...

I think Madison's letter to Jefferson that I quoted from previously from the site Ben linked backs up what Tom is saying here.

David Kalivas said...

A colleague of mine, Jeffrey Sommers has been following this discussion and tried to offer a comment, but the system did not let him. Dr. Sommers subsequently emailed me with the request to post his comments, which follow this note:

From Jeffrey Sommers:

I have followed this debate with great interest. On the one hand, as some rightly declare, the central government was much weaker at our nation's founding than at present. To be sure there have been some guilty of projecting their biases on the past with regards to Federal power and the issue of religion. Conversely, I would argue that many on this list also project their preferred understanding of the past in a kind of presentism that also fails to capture an understanding of our nation at birth.

Indeed, we need to be mindful that in New England only 84 years before the Declaration of Independence was penned by Jefferson, religious zealots still busied themselves by burning witches at the stake. Indeed, the jihadist beheaders of American journalist Daniel Pearl might have felt quite comfortable in that America rather than our present United States.

As we know our original founding document, the Articles of Confederation, restricted Federal power by design. The great fear of many founders, especially the Anti-Federalists, was the hijacking of the republic by the military and/or by a charismatic leader that would impose his/their will (which could include a religion) on the people.

It is also clear that many (not all) founders were influenced by the Enlightenment and Deism. Among those were Jefferson. Jefferson has endless quotes pronouncing his relegation of religion to the states and as many to the individual. For Jefferson, the question of individual rights was best protected by local government, and the more local the better. That said, the Anti-Federalists were keen to ensure that neither states nor the Federal Government would impose state religions and would protect individual liberties.

Indeed, writing on the topic of religious tolerance and protection of such rights to “Hindoo (sic) and Infidel of every denomination”:

--Where the preamble (to the Virginia Constitution) declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed by inserting "Jesus Christ," so that it would read "A departure from the plan of Jesus Christ, the holy author of our religion;" the insertion was rejected by the great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mohammedan, the Hindoo and Infidel of every denomination.—

This commentary continues in a second posting, which follows this one.

David Kalivas said...

Part II of Jeffrey Sommer's Comment:

In conclusion, some general points:

1) ironically, it was the more (not total, but more) secularist Anti-Federalists who were the chief advocate of States’ Rights. Whereas the more religious, Federalists, were for increased central control in government generally. This is, of course, the opposite of today, with today’s religiously minded projecting their present view of states’ rights onto the past regarding States’ Rights.

2) the state churches referenced, such as in Mass. (entrenched bureaucracies with powers to tax) were all gone by the 1830s. The Federal government was fairly weak at its inception, but what is interesting to note is not the persistence of state religion, but how with a few short decades of the Constitution’s pronouncements against state religion, that even in the land of the Salem Witch Trials, state churches were gone. Rather than being in the ascendant, state churches were on the way out.

3) Jefferson support for all beliefs reflected his libertarianism on such matters. He himself worked to secularize Christianity through the publication of his own Bible that reduced it to an enlightenment book of moral philosophy that cleansed it of all supernatural acts. No mere flip comment, it represents a serious, sustained document of his personal philosophy, and he makes it very clear where he stands.

4) Lastly, regarding Jefferson as a Christian, the Federalists in the 1800 election most certainly did not think him one, and made Jefferson’s “deism,” as the Federalists saw it, their central attack in that campaign. Of course, some of this was political opportunism. The Federalists lost this election, which provides further evidence of weakening religion among elites, who at this time constituted most voters.

I have also noticed when posters demand Dr. Kalivas provides evidence, he typically delivers copious quantities, only to be instructed that he is now being “abstract” or not really understanding the past. From what I have read here, it seems most have a poor understanding of the dynamics at play at our nation’s founding….

Jonathan Rowe said...

It's nice to see community college professors (indeed those of us who publish) being so represented in this debate.

King of Ireland said...

Dr. Summers,

What specifically do you think qualifies as poor understanding?

Jonathan Rowe said...

I liked everything Dr. Sommers said until the last paragraph.

We disagree, on this blog, about how to put the primary source information together and assess it (that's usually where disagreements among otherwise learned scholars occur). But as far as knowing the record, we know the footnotes as well as anybody and have assisted in uncovering some cutting edge new info that properly revises the record.

Ray Soller, for instance, has assisted Dr. Peter Henriques in showing the lack of evidence that GW added SHMG to his oath of office.

Dr. Gregg Frazer whose work we feature and who often comments here (obviously he's been invited to be a front page poster) also influenced Dr. Henriques on how to properly categorize GW's religious creed.

I helped Dr. James Kabala, a young PhD in history from Brown (an adjunct community college professor) track down an error that reports Bird Wilson (son of James) gave a sermon in Albany around 1830 terming all of the Presidents from Washington to Jackson "infidels" and not more than "unitarians." It was actually a Calvinist covenanter (a Gary North type) named James Renwick Willson who gave that sermon.

Michael Novak and Brooke Allen praised my comments when they debated the FFs and religion for Britannica.

There's a lot more.

David Kalivas said...

Understanding the past and present is always a challenging process fraught with bumps and curves, but engaging issues, whether we agree or not, works best when it makes us think more about those things we haven’t thought much about, or those things we need to think more about. I believe Dr. Sommer's comments offers a critically valuable perspective on the early period of the Republic.

Additionally, I agree with the comments regarding federalism during the early period of the Republic that many have made here. The Anti-Federalists were certainly not as greatly concerned about individual liberties as they were with the protection of states’ rights. This is the case for the Bill of Rights, which was designed to protect the states from encroachment of their sovereignty by the national government and was quite specific about those powers not granted to the national government being left to the states and the people (9th and 10th Amendments). The jurisprudence that would develop into the present day has interpreted the words of the Constitution, more specifically the various justices on the Supreme Court and lower courts, and it is that body of jurisprudence that is ultimately critical for understanding the meaning of our Constitution as amended over the past two plus centuries regardless of the intentions of the Founders.
In this long discussion there is an area of inquiry that is of interest to me, but that I have not been able to explore, nor expressly focus on until now. Namely -- what was happening within the national political culture and the cultures of the states regarding religious freedom and individual conscience? Was there a political cultural shift taking place that led to the cessation of established and privileged churches in states that amended those practices out of their pre-Federal Era Constitutions by1830s? It was not an era of increasing state encroachment or interference in religious beliefs and worship, quite the opposite was happening. So I have to wonder, did the First Amendment and the Bill of Rights provide a cultural context that in turn helped shape a political culture of individual liberty, including the freedom of religion, that in turn helped shape the tone and substance of future jurists and interpreters of the Constitution?

Something to think about.