Friday, April 24, 2015

Hall on Stewart's "Nature's God"

Mark David Hall has published a piece for the Spring 2015 issue (pp. 285-291) Christian Scholars Review entitled "A Failed Attempt at Partisan Scholarship." It reviews Matthew Stewart, Nature’s God: The Heretical Origins of the American Republic.

We get an exclusive preview. See below:
Matthew Stewart is upset.  It seems there have been many attempts, “most of them misinformed, some shamelessly deceitful,” to deny the “basic fact” that America’s founders embraced a version of deism that is “functionally indistinguishable from what we would now call ‘pantheism’; and pantheism is really just a pretty word for atheism” (4-5).  “Christian nationalists” such as David Barton, Gary DeMar, John Eidsmoe, and “Tim La Haye” [sic] who challenge this reality not only “misread the American Revolution . . . they betray it” (445).  
Given this complaint, one might think that Stewart would engage books written by these men.  But he ignores them.  Instead, he points to four volumes that provide “a good start on exposing the deceitful historiography of Christian nationalism” (445).  Of these books, Michelle Goldberg’s Kingdom Coming (2007), Jeff Sharlet’s The Family (2008), Rob Boston’s Why the Religious Right is Wrong about the Separation of Church and State (2003), and Chris Rodda’s Liars For Jesus (2006), only the latter—a self-published screed—comes close to meeting this description.  The others make occasional references to David Barton but are far more interested in revealing theocratic conspiracies by leaders of the religious right.
            In addition to popular Christian authors, “new Christian nationalists” are also a “powerful force” within the academy (445).  The only example Stewart gives of such a work is a volume I co-edited with Daniel L. Dreisbach and “Jeffery” [sic] Morrison entitled The Forgotten Founders on Religion and Public Life (University of Notre Dame Press, 2009).  We, in cooperation with contributors Mark Noll, Edith Gelles, Gary Scott Smith, William Casto, Gregg Frazer, Thomas Buckley, Jonathan Den Hartog, David Voelker, Kevin Hardwick, Robert Abzug, and Rosemarie Zaggari, succeed in “creating the illusion of a debate where in substance there is none” (445).  That Stewart considers any of these scholars to be “Christian nationalists,” new or otherwise, should give anyone familiar with the literature on religion and the American founding pause.  Many of these scholars have also written well-received books and articles on the subject, yet these are completely ignored by Stewart.  So are relevant works penned by Jane Calvert, Thomas Curry, John Fea, Nathan Hatch, James Hutson, Thomas Kidd, Donald Lutz, George Marsden, Vincent Philip Muñoz, Ellis Sandoz, and Barry Shain.   
            Stewart does mention books by Alan Heimert, Steven Waldman, Patricia Bonomi, T.H. Breen, and Jack Rakove that contend, in his estimation, that “the American Republic owes its independence and its individual freedom to its Protestant Christian legacy” (72, 460).  But he dismisses this view as getting “the history of ideas almost exactly wrong” (73).  These authors miss, in Stewart’s mind, the central truth that the “Reformed religion brought carnage to Britain and Germany in the seventeenth century and madness to America in the eighteenth because it was a symptom of modernity, not a cause—a pathology, not a theory” (73).[1]
            In contrast to “new Christian nationalists” and others who see the relationship between religion and the American founders as complex, Stewart much prefers the clarity of R.R. Palmer, who “could still write” as late as 1959 that, “[a]s for the leaders of the American Revolution, it should be unnecessary to demonstrate that most of them were deists” (445).  Those were the good old days.
Or were they?  It seems to me that it is still quite common for writers to echo Palmer’s assertion.  Included among their number are Brooke Allen, Edwin Gaustad, Steven Green, Richard Hughes, Susan Jacoby, Harvey Kaye, Steven Keillor, Isaac Kramnick, Frank Lambert, William Martin, R. Laurence Moore, Geoffrey Stone, John Wilsey, and Gordon Wood.[2]  If these authors bother to defend their claims, something R.R. Palmer did not do, they follow a distressingly common and problematic path.  In most cases they focus on the religious views of some combination of the following men: Benjamin Franklin, George Washington, John Adams, Thomas Jefferson, James Madison, Thomas Paine, and Alexander Hamilton.  On rare occasions they reach beyond this select fraternity to include another founder, and almost inevitably they concede that not all founders were as enlightened as the ones they profile.  However, they leave the distinct impression that most founders, and certainly the important ones, were deists.
            Stewart departs little from this pattern.  The vast majority of the examples he gives of founders rejecting orthodox Christian views come from five men: Franklin, Jefferson, Paine, Ethan Allen and Thomas Young.  Virtually no one—including popular Christian authors—denies that these men came to embrace heterodox views.  The first three are well known and are regularly discussed in books of this sort.  Stewart’s relatively minor deviation from the common approach is his heavy reliance on Allen and Young.
Ethan Allen is reasonably well known as the hero of Fort Ticonderoga, an important advocate for Vermont statehood, and the author of the first American book advocating deism, Reason the Only Oracle of Man (1785).  Even admirers recognize that Allen was a poor writer, that the book sold fewer than 200 copies, and that it had almost no influence.  After its publication he played virtually no role in American politics, which perhaps helps explain why writers who argue that America’s founders were deists do not spend a great deal of time discussing him.
          One contribution of Nature’s God is to introduce the deist founder Thomas Young.  Young is not unknown to students of religion and the founding, but he is usually described in passing as Ethan Allen’s mentor and the unacknowledged coauthor of Reason the Only Oracle of Man.  Stewart contends that Young was not, in fact, the volume’s coauthor.  As well, he does a good job of highlighting Young’s underappreciated contributions such as advocating resistance to perceived acts of British tyranny in Boston and helping to craft the Pennsylvania Constitution of 1776.  Yet Young died in 1777 and so played little role in the creation of America’s constitutional order. 
          No reasonable student of religion and the founding denies that the five founders regularly quoted by Stewart rejected orthodox Christian beliefs.  But the case is far more questionable with the other important founders Stewart claims as radical deists: Washington and Madison.  Indeed, Stewart gives no evidence that they rejected orthodox Christian ideas, to say nothing of embracing deism or pantheism.  Like other texts in this genre, the proof he offers is highly selective or misleading.
          For instance, Stewart writes: “Jefferson, Dr. Benjamin Rush, Gouverneur Morris, and possibly the Reverend Ashbel Green, Washington’s own minister . . . were convinced” that Washington was “a deist, not a Christian” (31).  As evidence he cites Jefferson’s diary entries for February 1, 1800, where he recalled that Rush told him that Green observed that Washington was not forthright about his religious views and a second entry where he reported that Morris told him that Washington was not a Christian.  It is noteworthy that there is no mention of anyone even suggesting that Washington was a deist, and contrary to Stewart, it is not clear from Jefferson’s “tone” what the Sage of Monticello thought (452).[3]  Using second and third hand accounts is inherently problematic, but if Stewart is going to do so, he should engage competing accounts.  For example, John Marshall, the great jurist who served on Washington’s staff during the War for Independence, wrote that the general was a “sincere believer in the Christian faith, and a truly devout man.”[4]  Similarly, a Frenchman who knew Washington said that “[e]very day of the year, he rises at five in the morning; as soon as he is up, he dresses, then prays reverently to God.”[5]  Yet Stewart ignores these accounts.
          Even more troubling, Stewart quotes Washington selectively and uses ellipses to remove problematic words in his quest to prove him to be a child of the Enlightenment.  Consider his use of Washington’s famous Circular to the States (1783), which he quotes to show that America’s first president joined the radical deistical project of discarding, in Stewart’s words, “the politically dangerous delusions that arise from the common religious consciousness” (389).  In a footnote to this sentence he concedes that Washington also gives credit for America’s progress to “the pure and benign light of revelation,” but dismisses this as “a characteristic gesture of Washington and the deistic Enlightenment—to give credit for pacifying the rebarbative masses…” (528).  But consider the sentence in full (passages quoted by Stewart in bold):
The foundation of our Empire was not laid in the gloomy age of Ignorance and Superstition, but at an Epocha when the rights of mankind were better understood and more clearly defined, than at any former period, the researches of the human mind, after social happiness, have been carried to a great extent, the Treasures of knowledge, acquired by the labours of Philosophers, Sages and Legislatures, through a long succession of years, are laid open for our use, and their collected wisdom may be happily applied in the Establishment of our forms of Government; the free cultivation of Letters, the unbounded extension of Commerce, the progressive refinement of Manners, the growing liberality of sentiment, and above all, the pure and benign light of Revelation, have had a meliorating influence on mankind and increased the blessings of Society.[6]
Given Stewart’s argument, it would seem reasonable for him to address Washington’s claim that “the light of Revelation” has had an influence “above all” other factors. 
          But things get worse (at least for Stewart’s argument) if one reads the last sentence in the Circular: 
I now make it my earnest prayer, that God would have you, and the State over which you preside, in his holy protection, that he would incline the hearts of the Citizens to cultivate a spirit of subordination and obedience to Government, to entertain a brotherly affection and love for one another, for their fellow Citizens of the United States at large, and particularly for brethren who have served in the Field; and finally that he would most graciously be pleased to dispose us all to do Justice, to love mercy, and to demean ourselves with that Charity, humility, and pacific temper of mind, which were the Characteristics of the Divine Author of our blessed Religion, and without an humble imitation of whose example in these things, we can never hope to be a happy Nation.[7]   
Do popular Christian authors make too much of this paragraph with its prayer, paraphrase of Micah 6:8, and reference to Jesus Christ (“the Divine Author of our religion”)?  Perhaps.  But a scholar interested in presenting an accurate account of Washington’s views should engage this part of the text, not simply ignore it.  It is ironic that Stewart’s use of primary sources, here and elsewhere, bears a strong resemblance to the worst practices of the popular Christian authors that he criticizes. 
          Stewart makes a weak case that Washington is a deist, and he offers even less reason to believe that Madison is appropriately labeled as such.  He does mention in passing a few other founders who held heterodox views, e.g., John Adams, Gouverneur Morris, Joel Barlow and Philip Freneau.  But rejecting some tenets of orthodox Christianity is not the same thing as embracing deism, a distinction that seems lost on Stewart.  Indeed, it is shocking how little evidence Stewart offers to support this affirmative claim.  
          Those who argue that America’s founders were deists often limit their claims to “key,” if unrepresentative, founders, but Stewart also contends that deism “spread in America far beyond the educated elite” (5).  He provides few examples of such deists, but he does offer several contemporary accounts.  For instance, he quotes the following passage from a 1785 evangelical petition against Patrick Henry’s general assessment bill: “Deism with its ballefull Influence is spreading itself over the state” (31).  But again, consideration of the full text from which Stewart is quoting tells a different story.  The full sentence reads: “But it is said Religion is taking its flight, and that Deism with its banefull Influence is spreading itself over the state.”[8]  Note that the authors are not themselves making the claim; they are referring to someone else, presumably supporters of the general assessment bill.  Advocates of government subsidies have an obvious incentive to exaggerate the problems they seek to address with taxpayer dollars.
          Many scholars who contend that the founders were deists understand the god of deism to be, in Stewart’s words, “a ‘watchmaker God’ who fashions a world of mechanical wonders and then walks away to the sound of ticking noises.  Deism, according to this line of interpretation, was just a watery expression of the Christian religion…” (5).  Stewart rejects this conventional view.  Instead, he contends that America’s founders embraced a form of deism that is “functionally indistinguishable from what we would now call ‘pantheism,’ and pantheism is really just a pretty word for atheism” (5).  America’s founders as functional atheists; now there is an interesting claim. 
          Stewart spends a good portion of Nature’s God examining the philosophical roots of America’s heretical origins.  He traces them to Epicurus and Lucretius, who developed a rationalist, materialist philosophy that looks to nature, not God, for guidance.  Their quest was embraced by modern thinkers such as Thomas Hobbes, John Locke, and Isaac Newton, but critical to this enterprise is the work of Benedict de Spinoza.  Spinoza, it turns out, is the “principal architect of the radical political philosophy that achieves its ultimate expression in the American republic” (147-48).  Stewart concedes that “[t]here was—and is—no meaningful evidence at all in revolutionary America” of Spinoza’s influence (3).  But this doesn’t matter as Locke embraced Spinoza, and Locke is “the single greatest intellectual influence on America’s revolutionaries” (141). We know this because Carl Becker told us so in 1922 (141).  Ah, the good old days.
          Stewart recognizes that Locke can be read as being more or less compatible with Christianity, but he dismisses this debate with the unsupported assertion that “by the time his work reached American ears, only the radical interpretation [of Locke’s works] mattered” (241).  Making almost no reference to what the founders (elite or otherwise) actually read or cited, he argues for a clear line of influence from Epicurus to Hobbes to Spinoza to Locke to the American founders.
          Stewart regularly makes sweeping statements that leave the impression America’s founders were radical deists who wanted to create a godless republic, but he occasionally offers the qualification that many Americans were traditional Christians and that intellectual traditions not antithetically opposed to Christianity may have had some influence as well (e.g. 32, 352).  But these qualifications are too few, faint, and far between.  By focusing on a handful of founders with radical religious views, some important—Franklin, Jefferson, and Paine—and others relatively unimportant—Allen and Young—he grossly distorts the founders’ religious views and political commitments.  Even brief consideration of a wider range of founders reveals a very different picture.[9]
          Before concluding, I should observe that Stewart’s grasp of basic political and constitutional issues in the era leaves much to be desired.  To give just a few examples, Pennsylvania’s Constitution of 1776 did not contain a “bristling array of checks and balances” (376).  James Wilson was the only delegate to the federal convention of 1787 to argue for the direct, popular, and proportional election of members of the House and Senate and the President, yet Stewart labels him the “personification of the ‘conservative’ side of the Revolution” (387).  Presumably to convince readers that Wilson was a conservative, Stewart notes that he was “the architect of the ‘three-fifths’ compromise that embedded the institution of slavery in the new Constitution” (387).  Wilson did propose this compromise in Philadelphia, but scholars have long debated who, exactly, should be considered its “architect.”  And if Wilson’s association with slavery makes him “conservative,” it should perhaps be noted that he voluntarily manumitted the one slave he owned, whereas “radical deists” such as Jefferson, Madison, and Washington felt no need to do the same (at least during their lifetimes) for their hundreds of slaves.  
          Nature’s God suffers from a number of serious flaws.  Stewart virtually ignores the vast literature on the role of religion in the American founding and he utterly fails to engage scholars whose works challenge his thesis.  He misuses and misconstrues primary sources and largely ignores founders (key and otherwise) who do not fit his thesis.  Alan Ryan, in a friendly blurb, describes the book as “partisan scholarship.”  It seems to me that Ryan is half right.  Readers interested in a polemical account of religion in the American founding almost completely ungrounded in history may enjoy this book, but anyone interested in a serious treatment of religion in the era should look elsewhere.

Mark David Hall
Herbert Hoover Distinguished Professor of Politics
Faculty Fellow William Penn Honors Program
George Fox University

[1] John Adams apparently made the same mistake when he wrote “I love and revere the memories of Huss Wickliff Luther Calvin Zwinglius Melancton and all the other reformers how muchsoever I may differ from them all in many theological metaphysical & philosophical points.  As you justly observe, without their great exertions & severe sufferings, the USA had never existed.”  John Adams to F. C. Schaeffer, November 25, 1821.  Quoted in Mark David Hall, Roger Sherman and the Creation of the American Republic (Oxford, 2013), 24, wherein I argue that Reformed political thought had a significant influence on large number America’s founders.
[2] Citations supporting this claim available upon request:

[3] Paul Leicester Ford, ed. Works of Thomas Jefferson, (G.P. Putnam’s Sons, 1905), 1: 352-53.  As Stewart acknowledges, Green later denied every questioning Washington’s orthodoxy (452).

[4] Marshall, The Life of George Washington (James Crissy, 1832), 2: 445
[5] Quoted in Gilbert Chinard, ed. George Washington as the French Knew Him: A Collection of Texts (Princeton University Press, 1940), 119
[6] Daniel L. Dreisbach and Mark David Hall, The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church-State Relations in the American Founding (Liberty Fund Press, 2009), 296-97.
[7] Ibid., 298.
[8] Ibid., 308.
[9] See, for instance, the approximately thirty-three founders and traditions profiled in Dreisbach, Morrison, and Hall, eds., The Founders on God and Government (Rowman & Littlefield, 2004), Dreisbach, Morrison, and Hall, The Forgotten Founders on Religion and Public Life, and Dreisbach and Hall, eds, Faith and the Founders of the American Republic (Oxford, 2014).

Monday, April 20, 2015

Likko on My Post About Judges Making Law

The website "Ordinary Times" published my post on judges making law to which contributor Burt Likko replied. His was a very long and thoughtful reply. A taste:
Nor is the notion of “common law” necessarily an outgrowth of the school of philosophy identified as “natural law,” and “natural law” in turn is not necessarily (although often is) associated with the notion of a divine lawgiver. Rather, it is based on the idea that there is an unchanging, transcendent core to the law, a core that is inextricably intertwined with concepts of morality. So one might base a natural law philosophy upon a Kantian categorical imperative, for instance. And a natural lawyer might eschew the notion that precedents set by past judges are binding upon future decisions, because future cases may present different permutations of the intent of the parties and the effects of the ruling in ways that the past case did not consider. A positivist or a realist, meanwhile, might readily adhere to the notion of binding precedent; the positivist awaiting instruction from the sovereign to change the law before making a ruling contrary to precedent and the realist determining that predictability of the legal system is of greater importance to its users than effecting a fair outcome in the individual case.
Antonin Scalia himself occupies, and to a large degree personifies, the hybrid of textualism and originalism associated with “conservative” jurisprudence in the contemporary legal world. Recall that for him, the judicial act of interpreting the law and applying it to a particular case sometimes involves a search for the generally-accepted meaning of a word at the time that a law was written. It’s interesting that he delves down into semiotics in the article, as he doesn’t usually get quite that abstract in his casting-about for an exposition on language and communication.
But this originalist-textualist position is at once vulnerable to two criticisms: ...
 Read the rest here

Thursday, April 16, 2015

Judges Making the Law (With a Little Blasphemy Discussion)

We hear the term "judicial activism" often bandied about. The term has a number of different meanings, one of which is judges "making up the law." Whether such is good, I won't address. Rather, I note I agree with Erwin Chemerinsky and Catherine Fisk that such is nothing new.

The common law was built on judges making the law under the auspices of "discovering" it by looking up at the “brooding omnipresence in the sky” as Justice Oliver Wendell Holmes once derisively put it.

Justice Scalia, however, argues in this article that post-Holmes' debunking of the metaphysics behind the common law and post-Erie Railroad Co. v. Tompkins (where the Supreme Court announced there was no general federal common law), little justifies judges making law:
But democracy has overtaken all that. Modern governments, or modern governments in the West at least, are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people’s representatives. Such a system is quite incompatible with the making (or the “finding”) of law by judges and most especially by unelected judges. Even in state courts, it is a rare case that does not involve interpretation of an enacted text. And federal courts have, since the decision of Erie R.R. v. Tomkins [sic] in 1939, completely abjured common-law powers except in a few limited fields such as admiralty; they do not pretend to have the power either to “find” or to “make” a law unevidenced by enacted text or (in cases coming within their diversity jurisdiction) by the text of state judicial decisions.
Scalia may be right. He's certainly right that state judges making law under the auspices of the uncodified "common law" that traces back in an unbroken line to England before America was founded is rare. Though it was much less rare during the time of the American Founding.

Though, when judges do use their common law powers to "make the law," as opposed to interpret a text, such uncodified state law is lower in hierarchy (as in higher law trumps lower law) than a simple state statute. As Walter Berns put it in his classic "Making Patriots":
But there was no disagreement about the place of the common law. Indeed one of the first things done by the states after independence was to declare (here in the words of the New Jersey constitution of 1776) that “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution].”
That section of Berns' book also discusses the notion that "Christianity" is part of the "common law." Jefferson didn't agree; but some other Founders did. Jefferson essentially blamed the "judicial activists" of his day for that one. But according to the theory of "modern government" to which both Scalia and Berns allude, the common law is a very weak place to rest a "fundamental" principle. It can be trumped by a simple statute or future court decision.

[We debate whether such even exists; but if it does, we can't amend the "laws of Nature and of Nature's God." We can amend the Constitution, but it's very difficult to do. Statutes are much easier to amend. And common law is the weakest of these sources.]

The notion that "Christianity is part of the common law" thus slowly died, mainly in the 19th Century. For instance, in 1837, in one of the few blasphemy cases ever tried in the United States after the Constitution was ratified (I think there were four of them), the Delaware court in The State v. Chandler claimed:
If in Delaware the people should adopt the Jewish or Mahometan religion, as they have an unquestionable right to do if they prefer it, this court is bound to notice it as their religion, and to respect it accordingly. 

It will be seen then that in our judgment by the constitution and laws of Delaware, the christian religion is a part of those laws, so far that blasphemy against it is punishable, while the people prefer it as their religion, and no longer. The moment they change it and adopt any other, as they may do, the new religion becomes in the same sense, a part of the law, for their courts are bound to yield it faith and credit, and respect it as their religion. Thus, while we punish the offence against society alone, we leave christianity to fight her own battles, ...
In essence, it claimed a secular rationale for blasphemy prosecutions.

[In one of the other few blasphemy cases, Ruggles v. People of New York, decided in 1811, Chancellor Kent claimed the leaders of non-Christian religions were "imposters."]

Today, most common law bodies of law still relevant have been codified into statutes. But judges are expected to interpret those statutes and sometimes "fill in gaps." Legislatures, in turn, can rewrite the statutes if they don't like how judges have been interpreting them.

One question I ask: According to Scalia's theory, was there ever a "golden age" in America where judges weren't improperly making the law? Scalia seems to concede that prior to Erie, when judges more often "made law" under the auspices of the "common law," judges engaged in something whose justificatory foundation was as solid as that of "Divine Right of Kings." And of course, we know that the 20th Century is the hallmark of "judicial activism."

The record of the judiciary in the 19th Century wasn't spotless either. That period gave us, among other things, Dred Scott, Plessy v. Ferguson, the Slaughterhouse cases and the Holy Trinity case.

But I don't think the few rotten apples spoil the bunch. Most of the present Supreme Court cases are non-politicized; they are boring and uneventful. The newsworthy cases that are politicized with presently Justice Kennedy breaking the tie are the exception. But the exceptions are significant.

My assessment of the judiciary is that it is not unlike the two other branches of government: Don't look for perfection because you won't find it.

Sunday, April 12, 2015

Mike Lee's "Our Lost Constitution"

Via The Originalism Blog [itself highly bookmarkable], which is affiliated with the University of San Diego School of Law's Center for the Study of Constitutional Originalism:

Recently published—Senator Mike LeeOur Lost Constitution: The Willful Subversion of America's Founding Document (Sentinel 2015)
Here is the book description from Amazon: 
The still-unfolding story of America’s Constitution is a history of heroes and villains—the flawed visionaries who inspired and crafted liberty’s safeguards, and the shortsighted opportunists who defied them. Those stories are known by few today.
In Our Lost Constitution, Senator Mike Lee tells the dramatic, little-known stories behind six of the Constitution’s most indispensible provisions. He shows their rise. He shows their fall. And he makes vividly clear how nearly every abuse of federal power today is rooted in neglect of this Lost Constitution. For example:

   • The Origination Clause says that all bills to raise taxes must originate in the House of Representatives, but contempt for the clause ensured the passage of Obamacare.
   • The Fourth Amendment protects us against unreasonable searches and seizures, but the NSA now collects our private data without a warrant.
   • The Legislative Powers Clause means that only Congress can pass laws, but unelected agencies now produce ninety-nine out of every one hundred pages of legal rules imposed on the American people.
Lee’s cast of characters includes a former Ku Klux Klansman, who hijacked the Establishment Clause to strangle Catholic schools; the Chief Justice of the Supreme Court, who called the Second Amendment a fraud; and the revered president who began his first of four terms by threat[en]ing to shatter the balance of power between Congress and the president, and who began his second term by vowing to do the same to the Supreme Court.

Fortunately, the Constitution has always had its defenders. Senator Lee tells the story of how Andrew Jackson, noted for his courage in duels and politics, stood firm against the unconstitutional expansion of federal powers. He brings to life Ben Franklin’s genius for compromise at a deeply divided constitutional convention. And he tells how in 2008, a couple of unlikely challengers persuaded the Supreme Court to rediscover the Second Amendment’s right to keep and bear arms.

Sections of the Constitution may have been forgotten, but it’s not too late to bring them back—if only we remember why we once demanded them and how we later lost them. Drawing on his experience working in all three branches of government, Senator Lee makes a bold case for resurrecting the Lost Constitution to restore and defend our fundamental liberties.
From Randy Barnett:
Senator Mike Lee knows how to tell a story. Combining historical fact and his own legal expertise with imagined dialogues and settings, Lee brings the sometimes dry and archaic debates of the constitutional convention in Philadelphia and other episodes to life, and with them the Constitution itself. This is truly an inspired, fascinating, and important book.
And from Michael McConnell: 
Mike Lee won election to the Senate by traveling around his state giving talks about the Constitution. Now he has written a most unusual book, which interweaves lively histories of what he calls the lost clauses of the Constitution with biting critiques of such modern issues as delegation of legislative power to agencies, NSA data collection, church and state, and Obamacare. Readers may not agree with all his conclusions, but they will encounter serious history and a conscientious attempt to grapple with modern issues in light of an enduring Constitution.

Roundtable on the Privileges or Immunities Clause of the Fourteenth Amendment

The audio below is fairly crappy (alas). But these are the "go to" guys -- Kurt Lash (Illinois), Philip Hamburger (Columbia), and Michael McConnell (Stanford) -- for the debate:

Friday, April 10, 2015

Barnett v. Lash on whether the EC Incorporates on Originalist Grounds

From Randy Barnett here. A taste:
So you can imagine that I became a strong supporter of the separation of church and state. I still am, but with two important and relatively recently acquired caveats. The first is that, since I became an originalist in the late 1990s, I have paid closer attention to the text of the Establishment Clause of the First Amendment. Although I have not written on the subject, nor studied it with the seriousness required to make me a true expert, I have come to believe that a constitutional bar on established churches is not a bar on all religious expression in the public sphere. For example, federal offices may close on Christmas, and prayers may be said in Congress before a session begins.
Perhaps more importantly, unlike the protections of the rights of freedom of speech, press, assembly and the free exercise of religion, I no longer think that the Establishment Clause of the First Amendment concerned an individual right or liberty. Instead, as Justice Thomas has insisted, “Congress shall make no law respecting an establishment of religion” meant that Congress could neither establish a national religion nor “disestablish” a state religion.

In this way, the succinctly-worded First Amendment is both antiestablishmentarian at the federal level and antidisestablishmentarian at the state level. And if it did not protect an individual right, the Establishment Clause did not refer to a right that was also among the “privileges or immunities of citizens of the United States,” which was secured against violation by state legislatures by the 14th Amendment. It was not, for example, among  “the personal rights guarantied and secured by the first eight amendments of the Constitution” listed by Senator Jacob Howard in his speech to Congress explaining what the Privileges or Immunities Clause protects.
But also see Kurt Lash's classic 1995 Law Review article to the contrary.  A taste from the abstract (I can't cut and paste from the PDF of the paper):
These conflicting approaches are linked by a common assumption: The historical period surrounding the adoption of the original Establishment Clause is directly relevant to determining the intent behind the incorporated Establishment Clause. Such an assumption, however, places the Founding cart before the Incorporation horse. Incorporation doctrine assumes that, at some point, the people changed their collective mind about the role of federalism in the protection of individual liberties; what was once left to state discretion is now restricted by the Fourteenth Amendment. But if the people changed their mind about the role of federalism in the promotion of individual liberty, perhaps they also changed their mind about the role of the Establishment Clause. In fact, we are not the first generation since Madison wrote his Memorial and Remonstrance to question the melding of the scepter and the cross. Obscured in the search for the Founders' intent are the subsequent struggles over the meaning and value of the Establishment Clause. In the years following the adoption of the Bill of Rights, state after state grappled with the issue of civil power over the subject of religion. Slowly, through a long series of cases and controversies, the idea evolved that citizens ought to be free from government-imposed religious establishments.
Kurt Lash and Akhil Amar stress a particular dynamic forgotten in the search for "original meaning." If it's true that the Bill of Rights should be incorporated via the 14th Amendment -- and there is some good evidence for it (see the above link to Sen. Howard's speech) -- the "original" period for understanding the text is just after the Civil War, not during the original Founding.

In other words, it's not a late 18th Century understanding of the First Amendment; it's a mid-19th Century understanding that is the original one, at least pertaining to what is incorporated through the 14th Amendment.

The strange result -- and I can't remember how Amar grapples with it -- is that the First Amendment might have a different original understanding when applied directly to the Federal government (the late 18th Cen.) than as applied to states via the 14th (the mid-19th Cen. understanding).