Tuesday, August 21, 2012

Akhil Amar's New Article

It's very good.  It actually mentions David Barton (because his controversy is current).  It also stresses something about the attestation clause (In The Year of Our Lord) that I had not, until recently, been aware of.  When confronted with the notion that this is God in the Constitution, I would usually note, it's just the way of customarily stating the date, not a statement of constitutional principle.  But even more, it wasn't even written or ratified by the framers.  As Amar writes:

As it turns out—though this fact has until now not been widely understood—the “our Lord” clause is not part of the official legal Constitution. The official Constitution’s text ends just before these extra words of attestation—extra words that in fact were not ratified by various state conventions in 1787-88.


Tom Van Dyke said...

Yah, I'd heard that, that the printers put in or something.

The closest to Christianity or God I'm aware of is "excepting Sundays," which is a real reach.

Ray Soller said...

The main purpose of Professor Amar's article is, of course, not to attack Barton with another barb, but to advertise his new book, America's Unwritten Constitution: The Precedents and Principles We Live By

Unfortunately, the author, in the initial appearance of the article, let loose his own "Bartonism" by saying "Over the course of American history, most presidents have in fact chosen to add these words."

It now has been corrected to read, "Over the course of American history, many presidents (and most modern presidents) have in fact chosen to add these words."

Somewhat unbelievably, there now is an incoherent Editor's note at the bottom of the article that reads, "The original version of this article stated that most presidents chose to omit 'so help me God' from the presidential inauguration. It should be most modern presidents."

Ray Soller said...

The Yale Law School website at http://www.law.yale.edu/news/15960.htm still has the original version.

Ray Soller said...

Happily, the Editor's note has been updated to read: The original version of this article stated that most presidents chose to omit "so help me God" from the presidential inauguration. It should be most modern presidents.

JMS said...

Beyond reaffirming that the words “year of our lord” denoted no particular Christian imprimatur on the U.S. Constitution (like in the first Leveller “An Agreement of the People” references to “Anno Domini 1647” and “year of our Lord, 1648”), I liked two points Amar made.

One, the fact that (and this goes back to our occasional discussion about whether the American Revolution was revolutionary or not), “the Framers’ emphatic rejection of religious tests for federal office-holders was not business as usual. It was big news—a truly revolutionary New World idea.”

The second crucial argument is that the Constitution is a “living document,” and that in terms of religious pluralism, inclusiveness and liberty, it has evolved beyond the world of the framers. As Frank Lambert notes, the framers’ goal behind disestablishment, free exercise and no religious tests or oaths was the creation of an unregulated “free marketplace of religion,” but “like markets in goods, the religious market never operated in its pure form free of any government influence.” (Founding Fathers and the Place of Religion in America, pp. 8-11)

Tom Van Dyke said...

Reading between the lines, it's been my guess that Madison wanted that for unitarianism, for which we have only a hint that he sympathized with [a single piece of hearsay].

But it makes sense to me---he quotes something similar to Adam Smith somewhere, that the government-supported pastors get too unresponsive to their flock, to ossified in their doctrine.

Anyway, I pass this suspicion on. No way I can prove it but I haven't seen anything to contradict it.

[As for dragging in the "living Constitution," a little to much modern-day ideology for my taste. Shame, shame.]