Sunday, September 30, 2012

Ye Will Say I Am No Christian

Bruce Braden is the editor of “Ye Will Say I Am No Christian: The Thomas Jefferson/John Adams Correspondence on Religion, Morals, and Values." He posted a video where he reads Adams' letter to Jefferson where Adams claims he wouldn't believe in the Trinity if God Himself told him it were true.

Thursday, September 27, 2012

Rodda on Barton and Jefferson-Scottish Common Sense

David Barton, in "The Jefferson Lies," claimed Thomas Jefferson was imbibed in Scottish Common Sense philosophy (also known as Scottish Common Sense Enlightenment).  Chris Rodda disagrees.  Interestingly, Garry Wills argued something similar (though Wills said David Hume influenced Jefferson and I doubt Barton would admit the "bad" Hume could influence the "good" Jefferson even if it were true).   The recently departed Ronald Hamowy, who was the preeminent expert on the Scottish Enlightenment, disagreed with Wills in this devastating attack.

At least two very important founders, by the way, were unquestionably strongly influenced by SCSE: John Witherspoon and James Wilson.

Sunday, September 23, 2012

"Getting Back to the Constitution": The Truth Part 3

Laws of Nature and Nature's God

In my last post on this topic I continued with the thoughts of Gary Amos on the history of the idea of "laws of nature and nature's God" as used by Thomas Jefferson and company in the creation of the Declaration of Independence. Amos uses this discussion to support his overall case that the Declaration of Independence was a document heavily influenced by historically Christian thought. Especially in the arena of Interposition or what some call the disposing of tyrants. A legal case that found a home in Christian thought for more than a thousand years before Jefferson and company used it. All this is part of my larger argument that those that want to "get back" to the Constitution have to first understand the Declaration of Independence. Here is more from Amos on "laws of nature and nature's God":

Five reasons are usually given to prove that the phrase "laws of nature and nature's God" is against the Bible and Christian teaching. First, some say that Jefferson invented the phrase "law of nature and nature's God" as a way to reject Christian law heritage in the colonies. This means that the Declaration represented not only a break with England but a break with America's Christian past. By using the phrase, the founders in 1776 intended to give birth to America as a secular, non-Christian nation.
Second, some say that the phrase is the product of deism and eighteenth-century Enlightenment rationalism, intellectual movements in Europe and America that rejected the Bible and Christianity. 
Third, many writers charge that Jefferson took his ideas about the "laws of nature" from John Locke and that Locke was a deist. By copying Locke, Jefferson for the Declaration around deistic beliefs.
Fourth, some claim that the "law's of nature" idea, though not with Jefferson, was still a reaction against Calvinism and the Puritan colonial legal tradition.
Fifth, some admit that Christians used the idea of the "laws of nature" long before Jefferson wrote, but insist that Christians borrowed it from the Greeks and Stoics. Even if the founders thought they were using Christian ideas, they were not. Today's Christians, then, must reject and use of the "laws of nature" either by Christianity or by Jefferson because we know better.
The common core of all these arguments is that Jefferson and the founders rejected a Christian view of law and intentionally embraced a pagan view of law. This chapter will show that all five reasons are flawed. The founders did not "invent" the idea of "laws of nature and of nature's God." The did not borrow it from deists or Enlightenment rationalists as a way to make America a secular, non-Christian nation. Instead, they relied on a Christian theory of law that had been part of common law centuries before the enlightenment and deism arose. It is true that Jefferson and the colonists were influenced by the writings of John Locke, but Locke was not a deist in his view of God nor in his views of politics and law. To say that Jefferson argued from the "laws of nature" as a way to reject a Calvinist view of law is indefensible since the term was always central to Calvinist legal theory. Finally, the intellectual heritage of the Declaration of Independence cannot be traced to a pagan source, because it is impossible to equate the use of "nature" in the Declaration with the way "nature" was used by the Greeks or Romans.
As a whole, this chapter will demonstrate that much of conventional wisdom is wrong about the legal theory of the Declaration of Independence. It is a mistake to trace that legal theory to deism, the rationalistic Enlightenment, the Renaissance, and ancient Rome and Greece while excluding the direct influence of the Bible and Judeo-Christian intellectual tradition. The legal theory of the Declaration of Independence stands clearly inside the mainstream of Christian tradition of legal theory.  

The above excerpt is from the book Defending the Declaration.

Saturday, September 22, 2012

Akhil Amar and Justice Thomas

I admit I haven't yet watched this video; but I can't wait to savor it.

Also see these two posts (one and two) by Ilya Somin on whether blacks were part of "We The People."  It's often said that, if you looked at what America's Founders did, "rights" belonged to white propertied Protestant males.  Not exactly (it's complicated).  Viewed through the lens of "states' rights," the states did different things.  Blacks, women, non-Protestants had "rights" in some states, not others.

Justice Thomas' point is interesting.  The Constitution unmoored from the Declaration gives us a pro-slavery Founding.  Read together, we get an anti-slavery Founding.

Thursday, September 20, 2012

Get Well Warren Throckmorton

He had a heart attack.  He's been doing such outstanding work over the past year on the American Founding and religion.

Tuesday, September 18, 2012

Kenneth C. Davis Turns the Corner

There's a new book, Don't Know Much About American Presidents, by Kenneth C. Davis that's available starting today. Here's a selection taken from the question:
Did Washington say "So help me God" when he took the oath of office?
[George Washington] took the oath of office on April 30, 1789, a cool, clear Thursday morning. One similarity of modern inaugurations was the big crowd. A large throng of New Yorkers filled the streets of what is now the city's financial district, them the center of a city that was much smaller than modern Manhattan.
Washington arrived by carriage to what had been previously been New York City Hall, given a "face-lift" by Pierre L'Enfant, future designer of the nation's capital city. The entire government operated out of the single building, renamed Federal Hall. Washington managed more people on his Mount Vernon plantation than worked for the new national government.
For the inauguration he was dressed in a brown suit, white silk stockings, and shoes with silver buckles, and he carried a sword. The suit cloth was made in a mill in Hartford, Connecticut, and Washington had said that he hoped it would be "unfashionable for a gentlemen to appear in any other dress" than one of American manufacture.
Standing on the second-floor balcony, the "Father of Our County" took the oath of office on a Masonic Bible. Legend has it that he kissed the Bible and said "So help me God" --- words not required by the Constitution. But there is no contemporary report of Washington saying those words. On the contrary, one eyewitness account, by the French minister, Comte de Moustier, recounts the full text without mentioning the Bible kiss or the "So help me God" line. Washington's use of the words was not reported until late in the nineteenth century. (The de-mythologizing of this piece of presidential history occasioned a suit by notable atheist Michael Newdow, who sued unsuccessfully in 2009 to keep all mention of God out of the inauguration of Barack Obama.)
What followed was the first Inaugural address, written by James Madison. Here Washington spoke freely of "the propitious smiles of Heaven" --- a divine hand in guiding the nation's fate. These heavenly references raise the perennial question of faith in the early republic. But, as Ron Chernow writes, "Washington refrained from endorsing any particular form of religion."
There is no question that Washington was a Christian who spoke of Providence and called for days of prayer and fasting --- even during the Revolution. But on the other side of the coin is his expressed belief that religion was a personal matter and not to be dictated or even sanctioned by government. It was a sentiment best expressed in a famous letter to America's first synagogue, in Rhode Island, shortly after he took office.
In it, Washington wrote: "All possess alike the liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent national gifts. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support."
Washington's letter is a reminder that while most of the founders and framers were Christians --- Protestants, more accurately --- they were devoted to the ideal of a secular democracy in which matters of conscience could not be dictated by the government.
In contrast to Davis's earlier Don't Know Much books he has now turned the corner, and he has gotten most of his answer right. He, regretfully, misspoke on two counts: 1) there are several eyewitness reports that saw Washington kiss the Bible; 2) Michael Newdow did not sue " to keep all mention of God out of the inauguration of Barack Obama."
1) In New York, at that time, the practice of swearing on a Bible and; kissing it upon completion of the oath was the legislated manner (except for those with religious scruples) in which a religious test oath was administered. So, it's not surprising for those on the scene, more familiar with New York's oath protocol than the French minister, to notice Washington having kissed the Bible.
2) Newdow sought only to restrain Chief Justice John Roberts from prompting Obama with the concluding words, "So help me God." The inclusion of inaugural sponsored religiously based prayers were a second objection. In neither case did Newdow attempt to limit President Obama from personally engaging in religiously based speech.
Despite these two misques, Davis comes out standing tall by reminding us that when describing Washington there are two sides to the coin.

Sunday, September 16, 2012

Akhil Amar on Constitutional Gender Equality

Writing in the Philadelphia Inquirer, he find it in the 14th Amendment.  A taste:
Two hundred and twenty-five years ago this week - right here in Philadelphia, "where it all began" - America's Founding Fathers went public with a proposed Constitution promising more democracy than the world had ever seen. Even so, in September 1787, "We the People" basically meant "We the Men." This year, the fate of this manly constitutional project rests more than ever in the hands of women. 
More women than men will cast votes in November. Just for fun, imagine that women were to vote as a unified bloc. Virtually every election in America at every level of government - both candidate elections and issue elections - would be decided by the female vote. More plausibly, note that in any election in which men are closely divided, the candidate or issue position decisively favored by women will prevail. 
For this remarkable turn of events, we must credit not just the Founding Fathers but also their amending daughters, granddaughters, and so on, who have rewritten the Constitution in both word and deed. 
The gender-bending of the Philadelphia Constitution began in earnest after the Civil War with the 14th Amendment, which promises "equal protection" to all - not merely racial equal protection but more generally. The amendment also proudly affirms that all homegrown Americans are "born" with equal civil rights. Just as a child born black or brown enjoys the same civil rights as a child born white, so, too, those born female are equal in civil rights to those born male.
What does the term "equal protection" mean?  I've seen some impressive originalist scholarship that argues both the due process and equal protection clauses were meant to be entirely procedural, not substantive.  That is, properly understood, there is not even a substantive right to be free from government racial discrimination under "equal protection" principles.  Rather, it's a command to the executive branch of government that no individual or group of individuals be excluded from whatever general laws are on the books.  And as written, these clauses do speak of "persons" and "citizens" and don't even mention race.   To use a reduction ad absurdum, even the worst individuals you could imagine -- rapists and pedophiles -- are entitled to procedural equal protection.  We could imagine someone accused of these horrific crimes being singled out by a mob and the police standing by and letting the mob have their way with them.  That would be a denial of equal protection and due process rights to rapists and pedophiles.

(And yes, something like that was done to blacks in Jim Crow, although in a much more sophisticated way; they got access to police calls and their days in court, where the arresting officers and judges on the bench were sympathetic to or sometimes the same hooded Klansmen who violated them; hence no real access to an impartial police force or day in court.)

Yet, there clearly was some substantive right to equality the 14th Amendment intended for racial groups.  And arguably all substantive rights -- including equality rights -- were meant to derive from the privileges or immunities clause.

That's one narrative I think entirely defensible.  I also think originalist scholars can convincingly argue for substantive rights to liberty and equality through the due process and equal protection clauses, respectively (see for instance Timothy Sandefur's work on substantive due process).

Yet, if you gut the privileges or immunities clause (ala Slaughterhouses) those substantive liberty and equality rights will pop up elsewhere as in a game of whack a mole.  And the mole will pop its head from those parts of the text most similar to the rights being asserted.  Hence a substantive right to "liberty" where the term "liberty" appears in the due process clause and a substantive right to "equality" where the term "equal" appears in the "equal protection" clause.

What I am getting at:  The text of the Constitution can do a lot of things and I consider myself a textualist, meaning, viable constitutional law must read the text for what it is in a logically coherent way.  But the text isn't enough; we need more.  We need some kind of theory to undergird and supplement it.  Hence, Akhil Amar's work on an "Unwritten Constitution."

Myron Magnet on William Livingston

Here.  William Livingston is one of those 2nd tier Founders about whom we should be more aware.

Thursday, September 13, 2012

Akhil Amar Guest Blogging at Volokh

Law law professor Akhil Amar is guest blogging at The Volokh Conspiracy.  And he's taking on the Conspirators.  He is arguably America's preeminent professor of constitutional law; therefore, his stuff is worth a careful read.

Eleven Years Ago

Here is the Introduction to an engaging law journal article, KISS THE BOOK . . . YOU’RE PRESIDENT . . . : “SO HELP ME GOD” AND KISSING THE BOOK IN THE PRESIDENTIAL OATH OF OFFICE, by Frederick B. Jonassen, Associate Professor of Law, Barry University, Orlando, Florida. The article appears in the William and Mary Bill of Rights Journal , Volume 20, Issus 3. The Introduction takes us back eleven years ago.


On the afternoon of September 13, 2001, an unmarked police cruiser was driving through the empty streets of lower Manhattan on its way to Fraunces Tavern, the historic restaurant where, on December 4, 1783, George Washington bid farewell to his officers about a month after relinquishing command of the Continental Army that won the Revolutionary War. All of lower Manhattan, including Pearl Street where the old tavern still operates, had been closed to the public in the immediate aftermath of the 9/11 attack on the World Trade Center. The Masons of the oldest Masonic Lodge in New York State, St. John’s Lodge, founded in 1757, were concerned about one of their most prized possessions: a decorative Bible that was printed in 1767 and had been on display in Fraunces Tavern the day the Twin Towers fell. No one had been able to check on the book for two days after the attack. There was a fear that gas leaks in the area could ignite a fire that would damage or destroy the Bible, and thus the Masons asked the Port Authority Police of New York and New Jersey to help them retrieve it, and received a police escort.

As the police cruiser entered lower Manhattan, Thomas Savini, the Director of the Chancellor Robert R. Livingston Masonic Library in New York City, was shocked and unnerved by the absence of life on the usually chaotic streets. “[T]he air was filled with dust and smoke, and it looked like dusk, even though it was mid afternoon . . . .” The Tavern was covered with rubble and debris, but the building itself appeared to be undamaged. Anxiously, Mr. Savini entered and approached the display case where the Bible was housed. He found the precious book unharmed, and carefully wrapped it in the blanket he brought with him to protect the old tome.

Had this Bible been destroyed or lost as a result of the 9/11 attack, Osama Bin Laden might have claimed yet another cause for celebrating the success of the mission, aside from the murder of three thousand civilians on American soil and the destruction of a modern landmark that plausibly represented the American, if not Western, commercial and economic order. This potential source of satisfaction was one that Bin Laden most likely could not have anticipated, but it would have touched the historical essence of American democracy, because the Bible that the Masons retrieved from Fraunces Tavern was the Bible on which George Washington swore the Oath to “preserve, protect, and defend the Constitution of the United States” at the first presidential inauguration, April 30, 1789.

Monday, September 10, 2012

The Democrats' Platform

[Editor's note: American Creation is pleased to have Michael Meyerson write a guest post. He is the Wilson H. Elkins Professor of Law and Piper & Marbury Faculty Fellow at the University of Baltimore School of Law. He authored the highly recommended new book, "Endowed by Our Creator The Birth of Religious Freedom in America." The Amazon page is here.]

By Michael Meyerson

There was a bit of excitement at the Democratic National Convention last week over the use of religious language in the party’s platform. The Democratic National Committee’s Platform Committee’s draft platform omitted any reference to God. After an attack by leading Republicans, the language was amended to include a statement that government must give, “everyone willing to work hard the chance to make the most of their God-given potential.” According to news accounts, this change in language angered many atheists as a betrayal of their beliefs.

There is, however, another way of looking at the platform language. Not every mention of God in the political sphere need be interpreted as exclusionary. Consider the history of the Virginia Statute for Religious Freedom, a landmark piece of legislation, authored by Thomas Jefferson, and enacted into law in 1786, which provided that, “all men shall be free to profess, and by argument to maintain, their opinion in matters of religion.” Jefferson’s original draft declared that, “Almighty God hath created the mind free” and that “all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, … are a departure from the plan of the holy author of our religion…” Some legislators attempted to amend the sentence so that it read, “a departure from the plan of Jesus Christ, the holy author of our religion.” When the legislature rejected the amendment, Jefferson wrote that the legislature’s decision to preserve the language of the statute demonstrated an intent, “to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination.”

Thus, to Jefferson, language such as “Almighty God” and “holy author of our religion” did not disregard, but encompassed, the belief systems of both the polytheistic Hindu and the “unbeliever” infidel. Jefferson’s view of the inclusiveness of this language is consistent with his belief that religion could be divided into, “the moral branch of religion, which is the same in all religions; while in that branch which consists of dogmas, all differ, all have a different set.” God, in other words, could be understood as a deliberately ambiguous term, understood by each individual through the prism of his or her personal beliefs.

If today’s political leaders have the courage of a Thomas Jefferson, they will make explicit that they include all Americans, regardless of their view of religion, as equal participants in our democratic system. It is not the use of the phrase “God-given,” that will matter in the end; it is whether the candidates make explicit their commitment to the framers’ promise of universal liberty of conscience.

Ronald Hamowy, RIP

Ron edited Cato's Encyclopedia of Libertarianism for which I was honored to write the entry on George Washington. He wonderfully edited my piece making it read much better than as originally written. Ron was an expert on, among other things, the Scottish Enlightenment. You can read more about him here.

Friday, September 7, 2012

American Freethought Chats With Michael Meyerson

If you wander over to the American Freethought website for Podcast 158, you'll have a chance to listen to John C. Snider, David Driscoll, and Michael Meyerson discussing the author's book, Endowed by Our Creator: The Birth of Religious Freedom in America Sadly, there's no colorful everchanging display to watch while listening to the discussion.

Thursday, September 6, 2012

Another Evangelical Calls Out David Barton

Warren Throckmorton tells us about it here.  A taste from the original piece:
I am afraid I must put this shortly. It is well nigh impossible to cram four years of reading and discussion into a paragraph. I had been deluded by historical exaggerations about a “Christian nation” and a “Biblically-based” Founding. The truth was much messier: in colonial America, the Enlightenment skepticism met with Dissenter Protestantism (plus magisterial Anglicanism and even some Catholicism thrown in). Various liberalisms embodied in the moderate Whig and radical Jacobin strutted about the world revolutionary stage. From a larger, longer perspective: what is a “Christian nation” anyway and how does it apply to America? Wasn’t the Holy Roman Empire a Christian nation which was blessed by the undivided church and in constant communion with the Pope? What about Constantinople and the Byzantine Empire or Canterbury and England, in which the monarch heads the church? The “Christian principle of religious freedom” can be more accurately described as the “Baptist principle of religious freedom.” It was a more recent development that found wide acceptance in a pluralistic confederation of states. Thinkers like Richard John Neuhaus thought America could be Christian, but only in a certain sense. This is left open for debate.

Bill Clinton's 2012 Convention Speech

"We champion the cause for which our founders pledged their lives, their fortunes, their sacred honor— to form a more perfect union. If that's what you believe, if that's what you want, we have to re-elect President Barack Obama."
Except that "our sacred honor" was the Declaration of Independence in 1776. "A more perfect union" is the Constitution replacing the Articles of Confederation government, over a decade later in 1787. But screw it, he was on a roll.

Tuesday, September 4, 2012

Natural Law and the Moral Instinct

"If you will follow my advice, there still may be hopes of your reformation. Apply yourself, without delay, to the study of the law of nature. I would recommend to your perusal, Grotius, Puffendorf, Locke, Montesquieu, and Burlemaqui. I might mention other excellent writers on this subject; but if you attend diligently to these, you will not require any others."--Alexander Hamilton, The Farmer Refuted [1774]

Jean-Jacques Burlamaqui [1747]:
“Moral instinct I call that natural bent or inclination which prompts us to approve of certain things as good and commendable, and to condemn others as bad and blameable, independent of reflexion. Or if any one has a mind to distinguish this instinct by the name of moral sense, as Mr. Hutchinson has done, I shall then say, that it is a faculty of the mind, which instantly discerns, in certain cases, moral good and evil, by a kind of sensation and taste, independent of reason and reflexion.

Examples.II. Thus at the sight of a man in misery or pain, we feel immediately a sense of compassion, which prompts us to relieve him. The first emotion that strikes us, after receiving a benefit, is to acknowledge the favour, and to thank our benefactor. The first disposition of one man towards another, abstracting from any particular reason he may have of hatred or fear, is a sense of benevolence, as towards his fellow-creature, with whom he finds himself connected by a conformity of nature and wants. We likewise observe, that without any great thought or reasoning, a child, or untutored peasant, is sensible that ingratitude is a vice, and exclaims against perfidy, as a black and unjust action, which highly shocks him, and is absolutely repugnant to his nature. On the contrary, to keep one’s word, to be grateful for a benefit, to pay every body their due, to honour our parents, to comfort those who are in distress or misery, are all so many actions which we cannot but approve and esteem as just, good, honest, beneficent, and useful to mankind. Hence the mind is pleased to see or hear such acts of equity, sincerity, humanity, and beneficence; the heart is touched and moved; and reading them in history we are seized with admiration, and extol the happiness of the age, nation, or family, distinguished by such noble examples. As for criminal instances, we cannot see or hear them mentioned, without contempt or indignation.”

This is what separates man from the mere beasts.  Man knows what is good and what is not-good when he sees it. “Natural law” is rooted in man’s nature, not the Bible, nor in arbitrary positive law.

More here.

David Barton’s U.S. Capitol Tour: Did Congress Print the First Bible in English for the Use of Schools?

By Warren Throckmorton here.

Endowed By Our Creator

By Michael I. Meyerson.  I have the book.  From what I've read of it, it's good.  You may read more about it here.