Sunday, August 25, 2013

Are We Looking for Gnats in the Soup?



A spirited discussion has broken out in more than one post between Chris Rodda and Tom Van Dyke below about her treatment of David Barton. I do not want to put words in Tom's mouth but I have surmised that while he agrees with much of what she has written, he feels that she focuses too much on the chaff of Barton's thesis and ignores the wheat.

Put another way, I asked her to think about whether she is straining out a gnat and swallowing a camel? This is because I have been on record for years now agreeing with the Secular Left that David Barton gets it wrong at times. I personally think that he overplays his hand and sees Christianity where it is not quite often. It is public knowledge that many of the facts he uses to prove his case have some serious errors. Nonetheless, despite all this, his overall thesis is more or less correct:

The American Founding was influenced by Christianity a whole lot more than is commonly taught

With that said, I understand where Rodda and others are coming from in their arguments about History with the Religious Right. I find myself in discussions with the Religious Right quite often and in some ways might even be part of it in regards to some of my stances on various issues. As someone that can relate with this group I find it aggravating that so many dismiss other influences besides Christianity in regards to our Founding. I get it believe me.

What I cannot fathom is why Barton gets the microscope and Secularists on the Left get a free pass from Ms. Rodda and others?  Yes, "Christian Nation" meant something different to most of our Founders than it would to some Evangelicals today. But why point that out and ignore that "Secular Nation" meant something different to most of our founders than it does to most strict Secularists today?

If you look closely I call out "some" Evangelicals and "most" strict Secularists above. That is because as someone that has these discussions with both groups quite frequently, I see more "Revisionists" in the latter group than the former by far.

I have always tried to be fair with Ms. Rodda over the years because I respect her love of History. She really does a great job at hunting down facts to prove her case. What troubles me is her narrow focus in regards to this topic and the fact that even David Barton gets a lot of things right.  It also troubles me that she seems to want to take on the low hanging fruit like Barton who is not even a Historian and totally ignore other more prominent voices on the Right that are Historians. This results in glaring holes in her overall thesis.

Long story short, if you are going to call your opponents a bunch of "liars" and focus on a lot of minute points you better make sure that your side has its story straight. I assure you that the Secular Left does not have its story straight in regards to its understanding of the history of religion and the Founding.

With that stated I would like to ask Ms. Rodda a question:

Do you really believe that even the most secularist of our founders like Jefferson looked at America as a "Secular Nation" the same way that you do?  That is the real question in regards to the religion in the public square debate and history.


52 comments:

Tom Van Dyke said...

I'm not part of this "discussion" atall, so please include me out. No good comes of being involved with either David Barton or Chris Rodda. I do think it's fair when Chris Rodda is held to the same standards as she holds others, as she was on the Michael Medved Show.

http://www.liarsforjesus.com/downloads/medved.mp3

By Chris Rodda's own merciless standards, she too is a "liar," as she calls David Barton. Frankly, I'd just as soon never hear of either of them again.

Chris Rodda said...

I am going to say two things here, and then leave it at that.

First, I absolutely DO NOT give secularists a free pass! If you want to see what I do to secularists who spread bogus history, just look at this post on my Facebook page from two weeks ago:

https://www.facebook.com/chris.rodda.75/posts/10201665161860927

(The owner of that page did eventually contact me and removed the bogus quote, and has assured me he will be checking his sources better in the future.)

Second, I will never believe that Barton is not intentionally lying. He is not merely "overplaying his hand" or making honest mistakes. There is just far too much evidence that his lies are deliberate.

Joe Winpisinger said...

Tom,

I try to avoid this discussion but keep getting dragged in. :)

Joe Winpisinger said...

Chris,

You did not answer my question. It is a fair question. Let's get out of the minutia of the quote wars and address the larger thesis here.

I conceded that some Christians use the term "Christian Nation" in a way that would be foreign to the Founding. There you go.

Now let's address the fact that strict Secularists use the term "Secular Nation" in a way that would be foreign to the Founding.

Unlike you I do not see the strict Secularists as liars. Just misinformed. What I am not sure of is if you are one of them.

Not answering a fair and simple question makes me wonder more....

Joe Winpisinger said...

Tom,

As much as I hate to say it. This pissing match has to be addressed before any kind of dialogue can be pursued. Dialogue is more important now than ever. I see signs that we are headed toward such polarization in this nation that Civil War is not an impossibility at some point.

When the discussion ends the guns come out historically.

Joe Winpisinger said...

Chris,

Why are Barton's mistakes purposeful lies and those of strict secularists not?

Chris Rodda said...

Oh ... I should add one more thing. I've been asked repeatedly by Tom why I don't debunk Howard Zinn. The answer to that question is that there is no need for anybody to debunk Howard Zinn. Both conservatives and liberals alike already consider his work to be highly biased. In the reader poll taken last year by the History News Network (a site that certainly has more liberal readers than conservative readers) to find "the least credible history book in print," Barton's Jefferson book came in first; Howard Zinn's book came in second.

Joe Winpisinger said...

Chris,

My question still remains unanswered. Did our founders look at the term "Secular Nation" in a different way than strict secularists do today?

It is a fair question.

Chris Rodda said...

Joe ... I am not going to answer you questions right now, but it is not because I'm trying to evade them. I am just finishing up my next book, and have already had far to many distractions and interruptions. The questions you want me to answer are fair, but would just require too much time for me to answer properly right now, and I don't want to just give quick answers that don't thoroughly explain what I want to say. After I get this book out of here I'll be happy to discuss your questions.

This really has to be my last comment for a while. I have Barton lies to debunk, dammit! :-)

Joe Winpisinger said...

Chris,

Fair enough. I will be waiting for an answer. Jefferson and his advocacy for public fasts within the realm of state government and refusal to support them within the realm of Central Government as President is a good place to start.

Let's remember he was probably the biggest radical in regards to our Founding Fathers.

History is not on the side of strict Secularists.

Doug Indeap said...

As Tom pointed out in an earlier post, the question whether ours is a “Christian nation” is quite vague, so much so that debate about it commonly produces much heat but little light. While it may be "fair," in a Fox News balanced sort of way, to also ask whether ours is a "secular nation," the same sort of uncertainty about what the question even means may reasonably lead one to doubt whether the question is worth pursuing. To the extent one nonetheless wants to do so, it would be important and useful to define terms and, in particular, to distinguish between “society” and “government.” To the extent one equates “nation” with “society,” whether it is legitimate and appropriate to label our nation “Christian” or "secular" may be debated on various grounds, e.g., the demographic makeup of the population. To the extent one equates “nation” with “government,” it is an entirely different matter that calls for analyzing the legal nature of our government.

While it is much debated in some circles whether the Constitution separates church and state, it is at least plain that the Constitution (1) establishes a government on the power of "We the people" and not a deity, (2) accords that government limited, enumerated powers, (3) says nothing to connect that government to god(s) or religion, (4) says nothing to give that government power over matters of god(s) or religion, and (5), indeed, says nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. As used by some, the term "secular" characterizes the government as thus described in the Constitution. (The term "secular," of course, as used in other contexts may mean other things.) The founders later buttressed the Constitution's treatment of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions.

What might be gained by a further semantic inquiry whether the Constitution's provisions in this regard may be said to render ours a "secular nation" is not apparent.

Joe Winpisinger said...

Doug,

I agree with most of what you say. When secularists used the term "Secular Nation" I am certain it means something different than it did to the founders.

I disagree with your conclusion as to why the Constitution avoided the whole "God" thing. It was obviously because religion and slavery were the two possible deal breakers in what was already a tense Convention.

They punted and left religion as a state matter.

Doug Indeap said...

Joe,

As I didn't say why the Constitution avoided the whole "god" thing, I don't know what you have in mind when you say you disagree with my conclusion about that.

It may well be that some of the founders steered clear of religion because, as you posit, they pragmatically figured it was a deal breaker. Others may have had other personal, philosophical, or political motivations.

Whatever their motivations (and whether singular or various), the important point is that they founded the federal government on the power of the people and without reference to god(s) or religion (except for the constitutional provisions that basically kept religion and government apart, at least in certain respects). That suffices to characterize the government as "secular" (at least in some accepted senses of that term).

True enough, in the Constitution, the founders addressed only the federal government, thus leaving the state governments to sort out their own relationships to religion. The states did just that during the course of the disestablishment political movement of the late 1700s and early 1800s.

Later, of course, the Constitution was amended (14th Amendment) so as to limit the state governments with respect to religion as well. That change, naturally, was not the doing of the founders, so inquiring whether the Constitution, as thus amended, squares with the founders' views is largely pointless--a fool's errand.

Tom Van Dyke said...

Later, of course, the Constitution was amended (14th Amendment) so as to limit the state governments with respect to religion as well.

You mean to say that was the Supreme Court's interpretation 50 to 100 years after ratification of the 14th Amendment. ;-(

Whether that squares with the views ratifiers of the 14th Amendment is quite another question*, not a fool's errand, and not yet completely a closed case [although it certainly appears that way at the moment].

_______________

*http://vftonline.org/EndTheWall/blaine14.htm

"At the time, religion was not mentioned or thought of in connection with any of the Civil War Amendments.

Religion was not mentioned in the Civil War Amendments for the excellent reason that there was no religious issue in the Civil War. There was a religious issue afterward. President Grant was an adherent of the most complete separation between church and state. He was not satisfied that the Constitution kept the federal government out of the religious affairs of the people; he wanted the states to be subjected to a similar prohibition. In the last year of his administration, an amendment was introduced in the Congress to accomplish this purpose. Known for its proposer in the House, James G. Blaine, who eight years later would be Republican candidate for President, the Blaine Amendment would have extended the religious clauses of the First Amendment to the states and, for good measure, have added a prohibition of aid to parochial schools.

The House passed the Blaine Amendment and sent it to the Senate where it was proposed by Senator Frelinghuysen, former Attorney General of New Jersey and a leader of the Congress which had passed the Fourteenth Amendment. Senator Frelinghuysen noted that the First Amendment was "an inhibition on Congress, and not on the States." He continued:

The [Blaine Amendment] very properly extends the prohibition of the first amendment of the Constitution to the States. Thus the [Blaine Amendment] prohibits the States, for the first time, from the establishment of religion, from prohibiting its free exercise, and from making any religious test a qualification to office.

Senator Eaton of Connecticut found the Blaine Amendment offensive. "I am opposed," he said, "to any State prohibiting the free exercise of any religion; and I do not require the Senate or the Congress of the United States to assist me in taking care of the State of Connecticut in that regard." Senator Whyte agreed: "The first amendment to the Constitution prevents the establishment of religion by congressional enactment; it prohibits the interference of Congress with the free exercise thereof, and leaves the whole power for the propagation of it with the States exclusively; and so far as I am concerned I propose to leave it there also."

In other words, both proponents and opponents of the Blaine Amendment agreed that nothing in the Constitution prohibited the states from establishing a religion or from interfering with the free exercise thereof. Certainly no one imagined that the Fourteenth Amendment had extended the religion clauses of the First Amendment to the states. As many members of the Congress which considered the Blaine Amendment had sat in the Congress which voted for the Fourteenth Amendment seven years earlier, it is unlikely they overlooked its possible significance.

The Blaine Amendment did not receive the necessary votes in the Senate. For the next half century it was reintroduced in Congress after Congress. It never passed. It was not abandoned, however, until the Supreme Court, by judicial fiat, made it superfluous."

Doug Indeap said...

Tom,

OK, have it your way, yes, the Constitution was amended in 1868 to protect from infringement by states the privileges and immunities of citizenship, due process, and equal protection of the laws, and the Supreme Court later interpreted the 14th Amendment to effectively extend the First Amendment’s guarantees vis a vis the federal government to the states. While some, including you I gather, disagree with the Court's interpretation, that is by now firmly settled law. In any event, it is a large subject I don't propose to explore here. I'll just add that you are right to note that in interpreting the 14th Amendment it is not a fool's errand to assess the intent of the drafters and ratifiers of that Amendment. I said nothing to suggest otherwise.

My only point pertaining to the 14th Amendment was to observe that it is a fool's errand to inquire whether the Constitution, as amended by the 14th Amendment (according to the Supreme Court), corresponds with the founders' views. You see this sort of thing, for instance, when someone argues about what Jefferson or Adams or Madison thought about religion in schools, and extrapolates that to the modern circumstance of public schools run by states. While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments could extend the Bill of Rights' constraints to state and local governments.

Tom Van Dyke said...

My only point pertaining to the 14th Amendment was to observe that it is a fool's errand to inquire whether the Constitution, as amended by the 14th Amendment (according to the Supreme Court), corresponds with the founders' views. You see this sort of thing, for instance, when someone argues about what Jefferson or Adams or Madison thought about religion in schools, and extrapolates that to the modern circumstance of public schools run by states. While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments could extend the Bill of Rights' constraints to state and local governments.

If the 14th "incorporates" the 1st against the states, we still need to know what the 1st meant to its ratifiers.

I say this as one who despairs at faithful constitutional interpretation, since "living" constitutionalism doesn't give a shit about what the ratifiers intended. But at least we can convey the truth about what the ratifiers of the 1st understood themselves to be ratifying, so when the "living" constitutionalists rewrite the Constitution, at least we can be honest that they are indeed mutating it.

Doug Indeap said...

Yes, as a starting point, we endeavor to determine what the First Amendment meant to the founders, but that is hardly the end of the inquiry. The founders, of course, intended the First Amendment (as well as the rest of the Bill of Rights) to address the federal government and not the states, so it would make no sense when incorporating this or that part of the Bill of Rights into the 14th Amendment to also incorporate that aspect of the founders’ intent; I’m picturing a dog chasing its tail.

Also, keep in mind that it is the intent of the drafters and ratifiers of the 14th Amendment that should guide its interpretation. By 1868, the understanding of the principles of the First Amendment had developed considerably since the founding. To the extent that the drafters and ratifiers of the 14th Amendment intended to incorporate the principles of the First Amendment, they presumably intended to incorporate the principles as they understood them.

Interpreting the 14th Amendment in that manner according to the intent of its drafters and ratifiers has little to do with the concept of a living Constitution. Apples and oranges.

Tom Van Dyke said...

The ratifiers of the 14th were approving equal rights for the freed slaves. They had zero thought about religion or they wouldn't have repeatedly tried to pass the Blaine Amendment.

*http://vftonline.org/EndTheWall/blaine14.htm

Further, if the 1st is incorporated by the 14th, we need to know what the 1st means.

The argument here is that the ratifiers of both the 1st and 14th had no inkling that 20th century courts, 50 to 100 years later, would use those amendments against religion in the way they have.

It has everything to do with "living constitutionalism" and its post facto rewriting of these amendments. If the constitution is a "social contract" between the people and the government, the government has unilaterally altered that contract--and that's a violation of the very concept of what a contract is.

We can't stop the living constitutionalists, but we can at least reveal what they're doing.

Doug Indeap said...

Tom,

I understand your opinion about the intent of the drafters and ratifiers of both the 1st and 14th Amendments. I’ve tried not to get into those large subjects (see, for instance, http://www.constitution.org/lrev/aynes_14th.htm, revealing considerably more complexity about the intent behind the 14th Amendment than you seem to allow) and instead have addressed the points you’ve raised about interpretation, e.g., intent of drafters or living Constitution.

I think perhaps you and I understand the concept of living Constitution differently. I understand it to refer not simply to any interpretation that may be perceived as a change in the meaning or understanding of the Constitution, but rather to the idea of interpreting constitutional provisions to reflect changes in circumstances and social norms over time or interpreting broadly worded constitutional principles to apply in various ways in various circumstances. That is considerably different, I think, than recognizing that the intent of those drafting the First Amendment and the intent of those drafting the 14th Amendment may differ with respect to their respective understandings of the First Amendment, and interpreting each according to those respective intents. While both interpretive approaches may well result in a change in the Constitution’s meaning over time, the analytical process by which such change results is different, and thus one’s view of the validity of any such change may depend on how one regards the analytical process that produced it.

Tom Van Dyke said...

the idea of interpreting constitutional provisions to reflect changes in circumstances and social norms over time or interpreting broadly worded constitutional principles to apply in various ways in various circumstances

With all due respect, that is bullshit. Hollowing out the words of the Constitution and filling them with new meanings is sophistry, a dishonest rewriting of the American people's contract with our government.

Doug Indeap said...

Tom,

Yes, I understand that you have strong opinions about the concept of a living Constitution--bullshit and all.

Did you understand that I was merely describing the concept as I understand it? And that, as I understand it, that concept is quite different than interpreting the 14th Amendment according to the intent of its drafters (yes, I understand you have strong opinions about what that intent is; no need to reiterate them), including their understanding as of 1868 of the meaning and effect of the First Amendment? With respect to the latter, I have the impression you may agree with that approach, but it's hard to tell, since you seem to skip directly to your opinions of what the drafters actually intended.

Tom Van Dyke said...

Ratifiers.

"”It is to be the assent and ratification of the several States, derived from the supreme authority in each State — the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national but a federal act.”

“As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.”--Madison

But I see you and I have been through this before.

http://wthrockmorton.com/2013/02/david-barton-controversy-gregg-frazer-weighs-in-on-jefferson-and-christianity-barton-responds/comment-page-1/#comment-603264


You still don't get it. Neither am I quoting Madison's authority, I'm quoting his logic on the nature of law. For the courts to change the meaning of the law is tyranny.

Jonathan Rowe said...

"a dishonest rewriting of the American people's contract with our government."

But one big problem with this notion -- as Randy Barnett points out in his book on unenumerated rights -- is that "the people" who made this contract are long dead. And "the people" who were eligible to vote in the ratifying conventions arguably weren't a valid representation of the population anyway.

Tom Van Dyke said...

That's not an argument, except to say we're in thrall to a regime to which we have given no consent atall.

A silly argument for a "constitutional" scholar. Neither is he to my knowledge a "living" constitutionalist, so this doesn't really fit with his larger thesis, with which I'm familiar.

Jonathan Rowe said...

It's not an argument because I just gave you one line of a larger thesis. The "consent" to which you refer is incomplete. It's not a solid place to rest legitimacy.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=291145

Tom Van Dyke said...

Madison's observation holds--whatever legitimacy the Constitition has, it's in the sense that it was ratified.

I don't argue that the spirit of the law must be ignored, but the 14th simply had no "expected application" to religion, as evidenced by the fact the Blaine Amendment, which was about religion, was in play at the same time [and never was ratified].

The spirit of the law is indeed being twisted by applying it to religion.

________
Barnett's "terminology" is pretty mushy here. Not being "unjust" could legitimize the government exceeding its enumerated powers.

Which is indeed the case today, but Barnett need not be an apologist for it.

"...if laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed as one component of a lawmaking system. To the extent a particular constitution establishes law-making procedures that adequately assure the justice of enacted laws, it is legitimate even if it has not been consented to by the people. This account of constitutional legitimacy does not assume any particular theory of justice, but rather is intermediate between the concept of justice and the concept of legal validity."

Jonathan Rowe said...

"but the 14th simply had no 'expected application' to religion, as evidenced by the fact the Blaine Amendment, which was about religion, was in play at the same time [and never was ratified]."

We haven't delved into the record on the 14th so much yet. But the 14th DID have an expected application to religion.

The stronger argument is that the EC Clause, by way of that expected application, didn't incorporate like the FEC did.

Jonathan Rowe said...

I think the big problem can be summed up as follows.

Ammerica's Founding & the 14th Am. stood for the principles of liberty & equality.

The Founders believed in liberty and equality in regards to religion.

Whereas the FEC vindicates liberty claims for religion, the EC vindicates equality claims (it could be argued that EC vindicates other claims like keeping religion pure from govt's corrupting influence & vice versa; but those principles don't incorporate via the 14th because only "rights" incorporate and they don't relate to "rights" like liberty and equality principles do).

The Founders of the 1st & 14th intended those rights to apply beyond just "Christians" sects.

Atheists & polytheists, among others, want in on the "equal respect" regarding governments' religious speech. It is an equality claim that traces back to the Founding.

It's the last paragraph that gives us the most problems.

Tom Van Dyke said...

We haven't delved into the record on the 14th so much yet. But the 14th DID have an expected application to religion.

How? Where?

Jonathan Rowe said...

The 14th, as originally intended by John Bingham, one of its chief framers, incorporated through the P or I clause, the Bill of Rights to apply against the states.

http://www.law.northwestern.edu/colloquium/constitutionallaw/documents/Spring2011_Lash.pdf

Tom Van Dyke said...

Bingham said a lot of things. Per Madison, it's what the ratifiers understood they were ratifying.

They in no way understood themselves to be ratifying what has become the Lemon Test or a "neutrality" betw religion and irreligion. That was a judicial invention 100 years later.

Indeed, they did not understand themselves to be ratifying full incorporation of the Bill of Rights, that "Congress shall pass no law" became "no state may pass a law" and therefore 1000s of state laws were thereby declared unconstitutional, including mentions of God in virtually every state constitution. That's patent nonsense.

Jonathan Rowe said...

"Bingham said a lot of things."

Indeed, he was the chief architect of the 14th.

"Per Madison, it's what the ratifiers understood they were ratifying."

I'm not sure if I would push too hard on this. The 14th Am. was ratified at the point of a gun.

Tom Van Dyke said...

Any other method turns the 14th into an undifferentiated mush, where not only are all men equal, all things and all ideas are equal.

Come to think of it, that's exactly where we are now, a dictatorship or relativism if you will, the abolition of all values.

Doug Indeap said...

Tom,

I see that we have been through this before; thanks for the reminder.

I’m intrigued by your insistence in focusing only on the intent of the “ratifiers” in ascertaining the “intent” behind the 14th Amendment (or any other constitutional provision). Whatever philosophical or political reasons Madison had at the time for making the statements you quote, the fact is that the courts have never adopted or implemented any such doctrine. Indeed, not even the ratifiers and Madison adhered to such an idea, as evidenced by the many times during the Virginia ratifying convention he was called upon to explain this or that provision of the Constitution and he responded by explaining what those at the Philadelphia convention had in mind in drafting the provisions. This, of course, is only natural, and one would expect that other state conventions engaged in similar information-gathering efforts to understand what the drafters meant. One would hope, and expect, that the understanding and intent of the drafters and ratifiers largely corresponded.

The courts similarly look to what the drafters had in mind. They do so not only for the commonsense reason that such evidence actually sheds light on what was intended (by both drafters and ratifiers) in this or that provision, but also for the pragmatic reason that evidence of the drafters’ intent often is more readily available or complete. There is also the problem of what to make of the statements of this or that person in the various state ratification proceedings; would such statements be known by and influence the understanding and views of others, including those in other states? Would they, in any event, reflect the broader views of others?

By the same token, I wonder what benefit you suppose that focusing only on ratifiers affords you (or anyone) in attempting to discern the meaning of the 14th Amendment. I suspect that doing so would only limit the available evidence to be considered, perhaps so much so that we’re left more in the dark than otherwise. What’s the point of that?

Tom Van Dyke said...

I’m intrigued by your insistence in focusing only on the intent of the “ratifiers” in ascertaining the “intent” behind the 14th Amendment (or any other constitutional provision).

That's what a contract is. Secret meanings on the pert of one party, or changing the meanings by one party violates the very concept of what a contract is.

Now, "originalism" need not ignore the Framers' intent should those intentions be widely known, or to attempt to divine the meaning of terms as commonly understood at the time. What Madison's saying in the above-referenced quote is that we should look at what the ratifiers, the parties to the contract, would have understood what they were agreeing to.

By "the meaning of terms as commonly understood at the time" means as understood by the ratifiers, the parties to the contract, not the framers, who were merely the drafters, the lawyers if you will, who drafted the contract.

Neither is this to say the ratifiers are excused from reasonably knowing what they were agreeing to. Interracial marriage was plainly a possibility, even if it took 100 years for Loving vs. Virginia. But the existence of the never-ratified Blaine Amendment is proof that the ratifiers never saw the 14th as applying to government's historical accommodation of religion, and that a separate amendment was necessary to that end.

Jonathan Rowe said...

There are many different species of originalism.

The problem with the "contract" claims is what Randy Barnett noted in his thesis on consent and legitimacy. The contract theory as Tom invokes works as a valid mechanism to bind ONLY to those who ACTUALLY consented to the contract and they are dead.

By way of analogy, contracts that run with land -- real covenants and equitable servitudes (they aren't nearly as relevant as they once were now that zoning does most of the work they used to do). In that case the dead can bind the living but ONLY if the living consent by buying the encumbered property in a new contract.

Tom Van Dyke said...

The contract theory as Tom invokes works as a valid mechanism to bind ONLY to those who ACTUALLY consented to the contract and they are dead.


Then we are not bound by the Constitution!

What nonsense.

Jonathan Rowe said...

No. We need a fuller theory of legitimacy than just the consent of a dead minority who ratified the document.

Barnett offers that theory.

Doug Indeap said...

Tom,

Courts have considered, quite a number of times, what to make of a legislature's inaction, e.g., its failure to propose or enact or amend a law. Generally, they consider that of little use in discerning legislative intent. One reason is that one can posit any number of possible reasons legislators may fail to act. They may, as you seem to suppose, consider that a proposed law (e.g., the Blaine amendment) would be needed to accomplish a particular purpose, but decide against doing it because they oppose that purpose. Alternatively, they may decide against enacting a law because they think the law already covers a certain point and thus passing another law to again cover it is unnecessary. Alternatively, they may simply not think much about the subject one way or the other, and thus not take any action on it. And so on. The upshot is that courts generally do not regard legislative inaction as providing much insight to the legislature's thinking. To be sure, now and then, a court points to legislative action to buttress its views, but the vast majority of the time, when lawyers offer evidence of legislative inaction, courts yawn.

Doug Indeap said...

Oops! I meant to say, in that last sentence, that a court now and then points to legislative "inaction."

Tom Van Dyke said...

Blogger Jonathan Rowe said...
No. We need a fuller theory of legitimacy than just the consent of a dead minority who ratified the document.

Barnett offers that theory.


That is an assertion, not an argument and certainly not a counterargument, as it addresses zero of what I have written.

You have offered nothing to refute the conclusion that by your logic, we the living are not bound by the Constitution--and more accurately to the point, that our government is not.

Preposterous.

Tom Van Dyke said...

One reason is that one can posit any number of possible reasons legislators may fail to act. They may, as you seem to suppose, consider that a proposed law (e.g., the Blaine amendment) would be needed to accomplish a particular purpose, but decide against doing it because they oppose that purpose.

That argument is abstracted out of our context of the Blaine Amendment. There's no point in following this vein. As Jon does above, were you arguing your position affirmatively instead of trying to deconstruct mine, basically you're abrogating the Constitution.

Alternatively, they may simply not think much about the subject one way or the other, and thus not take any action on it.

It is true that the development of English "common law" was tantamount to judges writing laws. But that is not how we do things in a constitutional republic.

Or should, anyway. I do not deny that our courts do legislate; I deny they are constitutionally empowered to do so.

Doug Indeap said...

Tom,

Your cryptic, open-ended critique of the courts fails to address the logic and underlying reasons the courts discount the sort of evidence you seem to find so powerful.

Getting directly to the context of the Blaine amendment, it occurs to me that you seem to run afoul of your own ideas about ratifiers and all. The Blaine amendment was proposed by some in Congress (corresponding, by your reckoning, to the drafters or lawyers/scriveners), but did not pass. The ratifiers, thus, had no say or hand in the matter, so I don't see that we can deduce anything about their intent from Congress's action or inaction.

In any event, even if one looks past this drafter/ratifier stuff, the real reason to take care in deducing anything from Congress's failure to adopt the Blaine amendment is that you cannot know whether legislators voted against it because they actually opposed the idea of constraining states with respect to religion, or they thought it unnecessary since the 14th Amendment already covered that point, or they liked the aim of the amendment but opposed some particular language or aspect of it, or they wanted to couple it with some other ideas, or they wanted to wait to see what the courts would do with the 14th Amendment after the Slaugherhouse cases, or they . . . etc. The point is, thus, that there are many other possibilities than the one that looms so large in your mind, and there is no way--apart from speculation--to say with any confidence what Congress's inaction on the Blaine amendment reveals about the intent of those who drafted, or even less those who ratified, the 14th Amendment.

Note too that the Blaine amendment was proposed and rejected by an entirely different Congress than the one that adopted the 14th Amendment. There is another, widely accepted, principle of statutory interpretation to the effect that what a subsequent Congress says about the intent of an earlier Congress in passing a law doesn't amount to a hill of beans. But then, that's just those silly courts talking.

Tom Van Dyke said...

Tom,

Your cryptic, open-ended critique of the courts fails to address the logic and underlying reasons the courts discount the sort of evidence you seem to find so powerful.


Yes, the courts do what they want under the rubric of "living constitutionalism" or whatever it is you're making excuses for.

Stipulated.

You're simply not engaging my argument. As for your own argument, you have not refuted that basically your deconstruction leaves us--and worse of government--unbound by and untethered to the Constitution.

You're simply affirming my point. The Constitution means whatever 5 justices say it does. I acknowledge that. At this point "originalism" can only be a plea that our government respect our social contract, and respect that its powers are limited, not limitless--and that we elect people who will appoint judges who believe the same.

"To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. ---Madison

http://constitution.org/jm/18170303_veto.htm

When it comes to what the Constitution meant to the people who agreed to it, frankly you don't give a damn. I get it, I get it.

Doug Indeap said...

Tom,

You lost me; what argument of yours did I not engage?

As for having "not refuted" that my "deconstruction" leaves us unbound by the Constitution, I hardly know where to start. What you suppose is my "deconstruction," I do not know. Why you suppose that deconstruction leaves us unbound by the Constitution and why you think it my burden to refute your supposition, I do not know.

What I do know is that I've undertaken to explain and discuss how your notion of deriving (or, as you seem to think, nailing) the intent behind the 14th Amendment by some sort of supposition/deduction about Congress not adopting the Blaine amendment is illogical, far-fetched, and contrary to substantial aspects of a body of law and literature on how courts interpret positive law. Yes, I understand that you hold the courts in low regard, but be that as it may, you seem unready to acknowledge and address the underlying reasons and ideas that courts (as well as academics, philosophers, and pragmatic practitioners) offer about how to interpret law.

As for your further supposition/assertion that I don't give a damn about what the Constitution meant to the people who agreed to it or that I somehow would leave us unbound by and untethered to the Constitution, I confess bewilderment and wonder. I hold no such thoughts. Anyway, I prefer to focus on the issues, ideas, and such, and am not much interested in making this discussion about me.

Speaking of issues, whatever happened to Joe? We never did get back around to that "Christian nation"-"secular nation" question he broached.

Tom Van Dyke said...

You explained nothing except noting that courts ignore the Constitution as understood by its ratifiers, which was my point. You illustrate the problem, for which you are hereby thanked.

The application of the 14th to virtually anything and everything continues unabated, which was also my point. Someday we may return to viewing the Constitution in contractual terms, where its original meaning is relevant.

Doug Indeap said...

For the record, I have not noted that courts ignore the Constitution as understood by its ratifiers. Rather, I have noted that the go about ascertaining the intent of the drafters and ratifiers in a much different (and considerably more sophisticated) way than you apparently would have them do.

Moreover, that the courts, by such means, discern the underlying intent differently than you (and, usually, the lawyers on the losing side; so you're not alone) is hardly the same as ignoring that intent. But then, perhaps that was just your way of expressing disagreement with their result with rhetorical flourish, not meant to be literally deconstructed.

Tom Van Dyke said...

Rather, I have noted that the go about ascertaining the intent of the drafters and ratifiers in a much different (and considerably more sophisticated) way than you apparently would have them do.

No you haven't, but please do. So far you've given any method of constitutional interpretation a pass except the one that respects the understanding under which the Constitution was agreed to.

Doug Indeap said...

Tom,

I discussed at some length (for blog comments anyway) how courts interpret laws in the earlier post you mentioned and linked, and didn't suppose that you wanted (or would appreciate) repetition of that discussion here.

As I noted at the outset, I did not undertake here to debate the details of the 14th Amendment's underlying intent. Nor did I intend to outline a comprehensive description of the theories and practices of statutory (and constitutional) interpretation. My aim was much more modest, merely to call your attention to the shortcomings and incompleteness of the way you were going at it.

Tom Van Dyke said...

You've done nothing except illustrate how courts ignore the understandings under which the Constitution and its amendments were ratified.

Which is the problem, ignoring the point of what a contract even is. If you're going to elide my arguments fine, but pls don't insist you've engaged them. All you've done is prove my point.

The law is whatever you say it is.

Doug Indeap said...

I gather we've reached the end of whatever usefulness our discussion has had. I hear you say that you derive stuff from my comments, stuff that I just don't see. And how you can insist that I haven't engaged your Blaine-amendment argument is beyond me, but, okay, I accept that's the way it appears to you, and I'm content to leave it at that.

Tom Van Dyke said...

I hear you say that you derive stuff from my comments

Actually, Doug, nothing can be derived from your comments except you dispute whatever I or James Madison had to say on the subject. You have declined to defend your own principles of constitutionality, if you have any.