Koppelman: "Kathleen Brady's The Distinctiveness of Religion in American Law"

The good professor writes:

Religion is something special in American law.  A swelling army of scholars think this is unfair.  Kathleen Brady's new book, The Distinctiveness of Religion in American Law, shows how and when equality between religion and nonreligion became the central theme of religion law scholarship, and offers an original and important response that will persuade almost nobody.

I have reviewed the book for a forthcoming issue of the Journal of Religion.  A draft is now on SSRN, here.

This relates to the most contentious part of the Supreme Court's Establishment Clause jurisprudence. One can argue that America's Founders were concerned about equality and equal treatment/respect in religion that transcended "Christianity." They argued over whether standards like separation, non-cognizance or accommodation were needed to validate such.

For instance, George Washington thought we could have a bill that would tax the general public of Virginia to support the Christian denominations generally, but thought that Jews and Muslims (and "otherwise") should be accommodated with some kind of "proper relief."

Equality between religion and non-religion seems a bigger step. Though it could be argued such is necessary to treat atheists and non-monotheists equally.

Jefferson (at Different Stages of his Life) on Priestley & Price (with some J. Adams Too)

Arguably, the two most notable British Unitarians who influenced the American Founding were the Socinian Joseph Priestley and Arian Richard Price.

Thomas Jefferson, self proclaimed unitarian, militantly so, professed great admiration for both (theologically he was closer to Priestley; though arguably Jefferson was even more heterodox than Priestley. I'm assuming that Socinianism is more heterodox than Arianism).

Some controversy ensues over whether Jefferson was heterodox before 1813. Every serious Jefferson scholar thinks he was. See Warren Throckmorton's ongoing case, all the details of which admittedly, I haven't memorized.

I know Throckmorton invokes a 1788 letter by Jefferson on refusal to be a Godfather because TJ didn't want to affirm the Trinity. There Jefferson notes a lifelong "difficulty" with that doctrine. Throckmorton offers other evidence too, noting:

Jefferson also confided to a Unitarian friend that he attended Priestley’s Unitarian church before 1800, while he was Vice President. In Jefferson’s 1803 Syllabus, he laid out his belief that Jesus was not part of the Godhead. [The] attempt to make Jefferson seem orthodox during the active part of his political engagement is contradicted by Jefferson’ own words.

Throckmorton may have included perhaps (?) what I disclose below. But I want to re-fresh the record.

Let's start backwards with where Jefferson ended. On February 27, 1821, writing to Timothy Pickering, Jefferson stated:

I do not know that you and I may think alike on all points. as the Creator has made no two faces alike, so no two minds, and probably no two creeds. we well know that among Unitarians themselves there are strong shades of difference, as between Doctors Price and Priestley for example. so there may be peculiarities in your creed and in mine. they are honestly formed without doubt. I do not wish to trouble the world with mine, nor to be troubled for them. these accounts are to be settled only with him who made us; and to him we leave it, with charity for all others, of whom also he is the only rightful and competent judge. I have little doubt that the whole of our country will soon be rallied to the Unity of the Creator, and, I hope, to the pure doctrines of Jesus also.

The context of this letter has Jefferson railing against "the incomprehensible jargon of the Trinitarian arithmetic, that three are one, and one is three," while granting latitude towards the Arianism and Socinianism of Price and Priestley.

It's hard for anyone to dispute Jefferson from 1813 onward held to such a heterodox unitarian position. 1813 seemed a watershed year for both Jefferson AND J. Adams where they bitterly rejected and mocked the Trinity. That was the year Great Britain finally got the law off its books making it a crime to publicly deny the doctrine. When reading their correspondence, skip to 1813. That year is practically all about their rejection of the Trinity and orthodox Christian doctrine.

So then let's go to the beginning. The earliest I trace Jefferson's connection to Priestley and Price is the mid 1780s, after the Declaration of Independence, but before the Constitution was ratified and Jefferson's subsequent service in the newly formed Federal government.

Jerry Newcombe and Mark A. Beliles have a new book out which explores the current controversy (and examines the arguments of among others, David Barton, Gregg Frazer, Throckmorton and his co-author Michael Coulter). Though known to sympathize with the "Christian America" view of history, the timeline they give on page 380 seems accurate enough (to my eyes). I would stress, though, there is not sufficient evidence that Jefferson's turn towards explicit unitarianism at that time -- 1785-86 -- came from the orthodox Trinitarian direction as opposed to one more deistic and less self consciously "Christian" than where Jefferson's beliefs terminated.

Newcombe and Beliles document how John Adams, meeting with Jefferson in England in 1786 took him to a Unitarian Church with a service led by Richard Price.  Jefferson penned a letter to Price in 1785 praising Price's Observations on the American Revolution which Price earlier sent a copy. Price also sent a copy to among others, George Washington who similarly praised the tract. Price's addresses is explicitly pro-unitarian.

In their ensuing correspondence, Price further discusses religion with Jefferson. As Price wrote him on October 26, 1788:

I am now reading Mr. Necker’s book on the importance of religious opinions. ...  He should have defined it, and taken care to distinguish the religion he means from the Superstitions that go under the name of religion, and which have done unspeakable harm in the world. What he Says is true only of a rational and liberal religion; that is of a religion which enforces the obligations of morality by motives drawn from the authority of a righteous and benevolent Deity and a future retribution. But he Seems never to have consider’d that there has been in almost all religions a melancholy Separation of religion from morality. Popery teaches a method of pleasing God without forsaking vice, and of getting to heaven by penances, bodily mortifications, pilgrimages, saying masses, believing mysterious doctrines, burning heretics, aggrandizing Priests &c. Mahometans expect a paradise of Sensual pleasures. Pagans worship’d lewd, revengeful and cruel Deities, and thus Sanctify’d to themselves1 Some of the worst passions. The religion likewise of many Protestants is little better than a compromise with the Deity for wrong practises by fastings, Sacraments hearing the word &c. Would not Society be better without Such religions? Is Atheism less pernicious than Demonism? And what is the religion of many persons but a kind of demonism that delights in human Sacrifices and causes them to look with horror on the greatest part of mankind? Plutarch, it is well known, has observd very justly that it is better not to believe in a God than to believe him to be a capricious and malevolent being. These reflexions have Struck me very forcibly in reading Mr. Necker’s book. They shew how incumbent it is on all who wish the happiness of the world to endeavour to propagate just notions of the Deity and of religion. I can reflect with Some Satisfaction that this has been one of the Studies and labours of my life.

Jefferson's response, dated January 8 of that year, affirms Price's sentiment while connecting their shared enlightened heterodox theological zeitgeist to the US Constitution.

I was favored with your letter of October 26th[;] ... its subjects ... were to me, as everything which comes from you, pleasing and instructive. I concur with you strictly in your opinion of the comparative merits of atheism and demonism, and really see nothing but the latter in the being worshipped by many who think themselves Christians. Your opinions and writings will have effect in bringing others to reason on this subject. Our new Constitution, of which you speak also, has succeeded beyond what I apprehended it would have done.

Then in a letter written on July 12, 1789, Jefferson asks Price the following:

Is there any thing good on the subject of the Socinian doctrine, levelled to a mind not habituated to abstract reasoning? I would thank you to recommend such a work to me. Or have you written any thing of that kind? That is what I should like best, as none are so easy to be understood as those who understand themselves.

Price replies, August 3, 1789 introducing Jefferson to Joseph Priestley's Socinian writings:

In consequence of your desire that I would convey to you some tracts on the Socinian doctrine, I desire your acceptance of the volume of Sermons and the pamphlets that accompany this letter. The first part of Dr. Priestley’s letters I cannot immediately get; but it shall be sent to you by the first opportunity. The pamphlet entitled Two Schemes of a Trinity &c. is reckoned by the Socinians one of the best of all the publications in favour of their doctrine. You will see that Dr. Priestley and I differ much, but we do it with perfect respect for one another. He is a materialist and fatalist and we published some years ago a correspondence on these Subjects. ...

Jefferson then develops a fascination with Joseph Priestley's writings. It's evident that from 1813 onward Priestley had become Jefferson's favorite theologian. Jefferson corresponded with Priestley in the window between when Price introduces Jefferson to Priestley's writings and 1813. In a later post I may detail more on Jefferson's pre-1813 correspondence with Priestley.

Rather, let's examine how Jefferson invokes both Price and Priestley in the year 1800. Writing to an ideological confidant, Bishop James Madison, on January 31, 1800, Jefferson praises Adam Weishaupt of the Illuminated Freemasonry legend. Before we see what Jefferson wrote, I note I don't see this as part of any kind of nefarious conspiracy. Freemasonry at the time was theistic, virtue orientated and religiously ecumenical in a way that was in principle universalistic. Hence it "fit" with their enlightenment zeitgeist.

The Illuminated Masonry of Weishaupt came to be known as the stuff of conspiracy and legend. But the context of Jefferson's letter, as I see it, has Jefferson trying to shoehorn Weishaupt's theology into his projected ideal of the works oriented unitarian theologies of Price and Priestley.

Wishaupt seems to be an enthusiastic Philanthropist. he is among those (as you know the excellent Price and Priestly also are) who believe in the indefinite perfectibility of man. he thinks he may in time be rendered so perfect that he will be able to govern himself in every circumstance so as to injure none, to do all the good he can, to leave government no occasion to exercise their powers over him, & of course to render political government useless. this, you know is Godwin’s doctrine, and this is what Robinson, Barruel & Morse have called a conspiracy against all government. Wishaupt believes that to promote this perfection of the human character was the object of Jesus Christ. that his intention was simply to reinstate natural religion, & by diffusing the light of his morality, to teach us to govern ourselves. his precepts are the love of god & love of our neighbor. and by teaching innocence of conduct, he expected to place men in their natural state of liberty & equality. he says, no one ever laid a surer foundation for liberty than our grand master, Jesus of Nazareth. he believes the Freemasons were originally possessed of the true principles & object of Christianity, and have still preserved some of them by tradition, but much disfigured. the means he proposes to effect this improvement of human nature are ‘to enlighten men, to correct their morals & inspire them with benevolence. secure of our success, sais he, we abstain from violent commotions. to have foreseen the happiness of posterity & to have prepared it by irreproacheable means, suffices for our felicity. this tranquility of our consciences is not troubled by the reproach of aiming at the ruin or overthrow of states or thrones.’ as Wishaupt lived under the tyranny of a despot & priests, he knew that caution was necessary even in spreading information, and the principles of pure morality. he proposed therefore to lead the Freemasons to adopt this object, and to make the objects of their institution, the diffusion of1 science & virtue. he proposed to initiate new members into this body by gradations proportioned to his fears of the thunderbolts of tyranny. this has given an air of mystery to his views, was the foundation of his banishment & the subversion of the Masonic order, and is the colour for the ravings against him of Robinson, Barruel & Morse, whose real fears are that the craft would be endangered by the spreading of information reason & natural morality among men.—this subject being new to me, I have imagined that if it be so to you also, you may recieve the same satisfaction in seeing, which I have had in forming the Analysis of it: and I believe you will think with me that if Wishaupt had written here, where no secrecy is necessary in our endeavors to render men wise & virtuous, he would not have thought of any secret machinery for that purpose: as Godwin, if he had written in Germany, might probably also have thought secrecy & mystycism prudent.

Now, this letter was written in 1800, just before Jefferson became President of the United States. Though not railing against the Trinity, he seems pretty clearly in Price and Priestley's unitarian theological camp, expositing heterodox political theology.

One final thing for now. It's my contention that the self consciously "unitarian" "Christianity" of the 1813 Jefferson onward was arrived at NOT from an orthodox Trinitarian direction, but rather the other side. From a place more deistic and less self consciously "Christian."

As I have noted before, I think Jefferson's chief theological influence before encountering Price, Priestley (and Conyers Middleton, who also cut up a Bible and was a source TJ named in 1813 with Priestley), was the more deistic Lord Viscount Bolingbroke. 

If Jefferson were coming from an orthodox Trinitarian direction towards his ultimate destination, why didn't he apparently stop at Price's Arianism for a short while? What I observe is Jefferson becoming familiar with and praising Price's works oriented unitarianism in 1785 and by 1789 asking about Socinianism and consequently being introduced to Priestley to whom Jefferson seems immediately to appreciate.

Likewise, the place where Jefferson from 1813 onward ends up is MORE heterodox than Priestley's Socinianism. As I have noted before, Priestley never (as far as I know) like Jefferson did, cut out large portions of the Bible -- like everything St. Paul "revealed" -- as false. And Priestley unlike Jefferson affirmed Jesus' resurrection.  

Below is how I envision a theological spectrum from most orthodox to most heterodox:

1. Christian orthodoxy; 2. Arianism; 3. Socinianism; 4. Deism; 5. Atheism. 

I know reality can be more complicated and not so easily boxed. I don't think Jefferson was ever an atheist. And the "Deism" of 4 doesn't necessarily equate with cold "strict deism." But looking at the larger picture I see Jefferson, in his adult life moving from Bolingbroke's Deism towards Priestley's Socinianism. But remaining stuck in the middle. 

In short, I'd rate Jefferson a 3.5. (Likewise, since "Deism" is a broader category than what we may previously have thought, the cold, strict, deist whose God neither reveals nor intervenes is not a 4, but a 4.5).

James Madison on Defining Christianity

Or, to put it another way. He doesn't. Rather, he asks (very good) questions that he doesn't answer. 

I've reproduced this before; but it calls for a rerun because the question is so important. Madison didn't believe civil governments could take "cognizance" of religion. He wrote about such in the context of remonstrating against a bill that would support Christianity generally.

He thought government taking cognizance of Christianity in particular would lead to arguments over what's Christian and what's not. That wasn't part of civil government's just powers.

It's interesting that James Madison doesn't provide an answer to the question here or elsewhere. Madison had a commitment to theism generally, and a perhaps very broad understanding of Christianity generally that would accept all of the differences we see him writing about below.

But we don't see commitments along the lines of, "I believe the Roman Catholic Church is the true one, but if not, you have to at minimum believe in X to be a 'real Christian.'" Or "I believe the atonement is limited; but folks could disagree and still be 'good Christians.' But no true Christian could countenance Y."

Here is a link to the original.

3. What is Xnty? Courts of law to Judge.

4. What edition: Hebrew, Septuagint, or Vulgate? What copy what translation?

5. What books canonical, what apocryphal? the papists holding to be the former what protestants the latter, the Lutherans the latter what the protestants & papists ye former.

6. In what light are they to be viewed, as dictated every letter by inspiration, or the essential parts only? Or the matter in general not the words?

7. What sense the true one for if some doctrines be essential to Xnty those who reject these, whatever name they take are no Xn Society?

8. Is it Trinitarianism, Arianism, Socinianism? Is it salvation by faith or works also, by free grace or by will, &c., &c.

9. What clue is to guide [a] Judge thro' this labyrinth when ye question comes before them whether any particular society is a Xn society?

10. Ends in what is orthodoxy, what heresy.
Dishonors Christianity.

panegyric on it, on our side.
Decl. Rights."

And George Washington Called Providence "She" and "It"

This is an interesting article -- an op-ed, which by their nature are slanted -- from the NYT on the gender of the God of Abraham. Quoted below is what the piece concludes:

Counter to everything we grew up believing, the God of Israel — the God of the three monotheistic, Abrahamic religions to which fully half the people on the planet today belong — was understood by its earliest worshipers to be a dual-gendered deity.

Along the way the rabbi who authored the piece uses original Hebrew to make his case. I don't read Hebrew. If any readers do, I wonder, are his translations accurate?

Frazer on Green's Latest

At the Claremont Review of Books, Gregg Frazer reviews Steven K. Green's "Inventing a Christian America: The Myth of the Religious Founding."

A taste:

The book’s treatment of the early colonial period is quite informative and well supported, emphasizing the “melding [of] theological and Enlightenment concepts” as “Puritan-Calvinist patterns and ideas informed revolutionary and constitutional ideology.” His discussion of the founders’ own religious beliefs starts with the same balance and nuance, arguing that the “portrayal of the founders as religion-despising deists is as inaccurate as the claim that they were all born-again Christians.” He even employs the term I use in The Religious Beliefs of America’s Founders (2012), “theistic rationalism,” and occasionally strengthens the “theism” element by making it the noun rather than the modifier. Green soon abandons any notion, however, that religious influence “melded” with Enlightenment thought or that Christianity “informed” the founders’ views. Suddenly, it’s all rationalism and no theism, with any reference to divine Providence—even in private writings—dismissed as political rhetoric. How does Green know the founders’ motives and intent? Is there a reason to doubt their sincerity? He gives none. Even if we are skeptical of public pronouncements, why wouldn’t private correspondence, diaries, and memoranda reliably convey a person’s beliefs? After warning against simply taking religious statements at face value and against isolating favorable quotes, Green does that very thing in support of his own position.

Journal of the American Revolution: "The Public Universal Friend: Jemima Wilkinson and Religious Enthusiasm in Revolutionary America"

By Michael Tuosto here. A taste:

The Public Universal Friend is an exploration of the development, culture, and tenants of the sect, so aside from the occasional repetition, the lack of a chronological order is appropriate. The sect was born in 1776. Jemima Wilkinson was living in Cumberland, Rhode Island in 1776 and she contracted typhus, which was introduced into the area by a Continental ship. When she recovered she claimed the Holy Spirit had descended into her body and she assumed the role of the Public Universal Friend. After this transition “the person” recognized “itself” as a “he” because of the presence of the holy-spirit. The author illustrates the confusion felt by contemporaries over this supposed change in sex by interchanging the pronouns, ...  

Jemima Wilkinson the prophet began preaching throughout New England, including Rhode Island, Connecticut, and Massachusetts. Throughout the 1780s a sect known as the Society of the Universal Friends began to develop. The excessive number of funerals and executions resulting from the Revolution fostered a widespread demand for salvation and created the opportunity for the Public Universal Friend to succeed in forming a new religious sect. Deaths of spouses and sons in battle, diseases spread by armies, and a pacifist sentimentality among former Quakers and New Light evangelicals were some reasons the Public Universal Friend was able to establish a unique American religion.  

The sect was heavily influenced by Quakerism and New Light evangelical beliefs and characteristics.  ... They eschewed traditional doctrine espoused by elitist professional clerics, traditional denominational institutions and rituals, the concept of original sin, and the puritan concept of predestination. They embraced spirit-driven preaching by charismatic leaders, universal salvation, and free will. Furthermore, the Public Universal Friend encouraged celibacy, prohibited lust, discouraged marriage, and opposed slavery. It is unclear whether the Public Universal Friend had a messianic complex, but the devastation imposed by the Revolution did provide a fertile landscape for fears of Armageddon and the need for salvation before the final judgment.  

The Public Universal Friend is emblematic of a distinctly American religious culture. The turn away from theological arguments and educated clerics can be viewed as anti-intellectual and while there might be some truth to that, I prefer to think about it as just another expression of American’s aversion to the shackles of authority. Moyer explains that “… the forces of popular religion reshaped American spiritual life as control over faith shifted away from the established clergy and orthodox theology and toward lay folk who favored more … liberating creeds …The Public Universal Friend’s emphasis on universal salvation and stress on the individual believer’s relationship with the divine … served to ease, if not erase, hierarchies of class, race, and sex.” The Public Universal Friend embodied the strengthening democratic ideals in Revolutionary America.

Journal of the American Revolution: "The Great Awakening and the American Revolution"

By Daniel N. Gullotta here. A taste:

In conclusion, while I would agree that it would be an overstatement to claim that without the Awakening there would have been no Revolution, the Awakening is a historical reality that more historians need to grapple with in understanding the Revolution’s origins. After the First Great Awakening, the so-called preordained order of society was completely tuned upside down. It was during the revivals that the colonists began to view themselves as capable of interpreting the will of God for themselves. While John Winthrop may have promised that the Massachusetts Bay Colony would be like “a city upon a hill,” it was the First Great Awakening that truly provided the ground for the American colonists to begin to see themselves as a chosen people. They believed that God was working within the American colonies in a special way. Not only this, but the Awakening provided the means by which colonists could communicate this revolutionary ideology. The First Great Awakening was not the American Revolution, but it was an American revolution.

Tom Krannawitter on David Barton on George Washington's Faith

On Facebook, Tom Krannawitter who used to lead the Claremont Institute made an apt comment on David Barton's Wallbuilders' video on George Washington's "Christian" faith.

TK wrote:

It's difficult for me to understand why so many people find these sorts of things so interesting -- whether they be cheerleaders for or academic opponents of David Barton.

Many of his contemporaries stated that George Washington was a Christian. Sure. That's easy to believe.

(What George Washington actually believed, and whether his personal beliefs were the same as his statements to the pious Christian public around him, is something only George Washington knows. Perhaps God too. But certainly no other human beings knows with certainty what was in the depths of the mind of George Washington or any other human being. Ever.)

And many of Barack Obama's contemporaries state that he's a Christian.

And many of Donald Trump's contemporaries state that he's a Christian.

And King Charlemagne was a Christian -- who persecuted and lopped off more heads than historians can count.

Many communist and socialist revolutionaries in third world countries over the past century have been Christians -- as they gunned down the "bourgeoisie" with Soviet or Chinese machine guns.

American "Social Gospel," socialist preachers were Christians -- who not only advocated for socialism, they advocated for socialism from the pulpits of Christian churches.

The guru godfather of American progressive-style socialism, Woodrow Wilson, was deeply Christian.

And, of course, King George III, against whom George Washington led a violent revolution, was a Christian, as many of his contemporaries attested.

So which is more interesting: The religion common to the people identified above? Or how those people differ in their words and actions, their opinions and arguments and efforts?

Joseph Smith and Freedom of the Press

Over at my personal blog, I wrote a review of the Lds Church's recently renovated Church History Museum, which features a number of new exhibits, many of which address some of the more controversial historical and theological topics that face the religion today.

It is not my intention to present a review of the museum here at American Creation.  Feel free to read/comment to my review over at my personal blog if you wish.  Instead, I want to focus on one issue mentioned in the museum that sparked a very interesting debate on my Facebook page today, namely the issue of the Nauvoo Expositor.  For those of you unfamiliar with the Nauvoo Expositor story, allow me to briefly explain the history.

Some Context:

By 1844, the Mormons had established a firm and substantial presence in both Missouri and in Illinois.  The city of Nauvoo (Hebrew for "Beautiful Place") had emerged as their new headquarters. Joseph Smith, along with his First Counselor in the church's First Presidency (the main governing body of the church), was running for President of the United States.  Relations between the Mormons and Illinois were rough to say the least.

In addition, some of Joseph Smith's own confidants in the church were beginning to turn on him. One man in particular, named William Law (who had also served on the church's First Presidency) had experienced a falling out with both Smith and the church.  The rift became severe enough that Law was eventually excommunicated from the Mormon faith.

The primary source of conflict between Law and Smith had to do primarily with their differing over the doctrine of plural marriage (polygamy).  To make a long story short, Law believed that Joseph Smith had become a "fallen prophet" and that polygamy was incompatible with the message of Jesus. William Law was also upset because his wife, Jane, had alleged that Joseph Smith himself had propositioned her to live in a polyandrous relationship.  A friend of Jane Law later wrote that, "The Prophet asked her [Jane} to give him  half of her love; she was at liberty to keep the other half for her husband [William]."

After his excommunication, Law and a number of other former Mormons elected to publish an expose of sorts that would provide an "insider's view" of all the scandalous affairs of Joseph Smith and the Mormon Church.  Their expose would be published as the Mormon Expositor (the full text of which can be found by clicking here).  It was Law's intention to have the Mormon Expositor sent far and wide throughout Illinois and the surrounding areas.

It comes as no surprise that Joseph Smith and his followers were concerned about what was to come to light in Law's Expositor.  Though he and other church leaders had publicly rejected the practice of polygamy and denied any participation in plural marriage, Smith had privately been teaching and practicing it for years.  News like this was coming at a very bad time for both Joseph Smith, his presidential hopes and for the church as a whole.

The Controversy:
The question I pose to you today has nothing to do with polygamy or any other Mormon teaching for that matter.  The issue at hand is HOW Joseph Smith and the Mormons chose to handle the situation. Again, to make a very long story short, Joseph Smith and the Mormons decided to suppress Law's Nauvoo Expositor and to destroy their printing press.  The rash action was justified by the Nauvoo City Charter, which stated that city officials had the authority to suppress anything deemed a "public nuisance."  Under this supposed legal justification, the Mormons, led by their prophet, suppressed Law's Expositor and destroyed the press.

The following video clip is taken from the new LDS Church History Museum's exhibit on this particular topic:

The question of justification for the suppression of the Expositor is the question I now pose to you all. Did Joseph Smith and the Mormons have the LEGAL right to suppress Law's Expositor?  A couple points that should be kept in mind:

- The Nauvoo City Charter granted specific powers to city officials to suppress actions deemed a nuisance to the city.  All city officials were in agreement that Law's Expositor posed a legitimate threat to the city.  Councilman John Taylor stated, "The Expositor is a slander that no city on earth would bear...and should be considered a nuisance."  Fear of mob violence, which had been a reality for Mormons in the past, seemed like the exact sort of "nuisance" the Mormons wanted to avoid.

- We should all keep in mind that this period in history is pre-14th Amendment.  As a result, it was possible for a city charter to trump the protections of the First Amendment (in this case the freedom of the press).  Supreme Court Case Barron v. Baltimore (1833) stated that the Bill of Rights applied to the federal government only, and not to individual state governments.  It is only after the passage of the 14th Amendment (much later down the road) that the rights found in the Constitution became applicable to the states.

-Article VIII, Section 22 of the the original Illinois State Constitution (1818) states that:

The printing presses shall be free to every person, who undertakes to examine the proceedings of the General Assembly or of any branch of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.

The next question is how did the Illinois courts interpret this article.  By 1844 (when Smith and the Mormons suppressed Law's Expositor) not much had been defined.  Elder Dallin H. Oaks, member of the LDS Quorum of Twelve Apostles and a former law professor and Utah Supreme Court Judge (Oaks is also featured in the video referenced above) stated the following in regards to how we should interpret the words from the Illinois Supreme Court.  In his article, "The Suppression of the Nauvoo Expositor" published in the Utah Law Review in 1965, Oaks writes:

The common law defined a nuisance as any unreasonable, unwarranted, or unlawful use of property, or any improper, indecent, or unlawful personal conduct that produced material annoyance, inconvenience, discomfort, or injury to others or their property. Nuisances were private when they affected particular individuals, and public when their effect was general. Under this definition, if the Expositor was a nuisance at all it could have been classified as both a public and a private nuisance, since its libels not only injured private individuals but were also of such a scandalous and provocative character as to be of concern to the community at large. A party injured by a private nuisance could sue to obtain damages or to compel its removal. The commission of a public nuisance was punishable as a crime. In addition, in certain circumstances private individuals could abate private nuisances and private individuals or public officials could abate public nuisances.

[...]

The generation which adopted the Constitution and the Bill of Rights did not believe in a broad scope for freedom of expression, particularly in the realm of politics. The men who prepared, ratified, and sat as judges to construe the state constitutions discussed here were products of that same tradition. In attempting to ascertain the meaning of the Illinois free-press guarantee in 1844 we should look to the intentions and temper of their generation and not to the broader freedoms of our own day. 

Although the Illinois free-press provision seems to have been copied from the guarantees previously adopted by Kentucky, Ohio, and Indiana, this particular phraseology was apparently first used in the Pennsylvania Constitution of 1790. Because there seems to have been no early interpretive litigation in any of the first three states, the meaning that the Pennsylvania courts read into this provision is, therefore, of the greatest significance. 

The first judicial opinion on the meaning of the general phrases later embodied in the Illinois Constitution came in a 1788 Pennsylvania case, which held that they simply meant that every citizen had a right to investigate the conduct of public officials "and they effectually preclude any attempt to fetter the press by the institution of a licenser."  This view that the great general guarantees of a free press were simply a precaution against reinstitution of the historic prior restraints or censorships on publication was reiterated by James Wilson, a renowned lawyer and Justice of the United States Supreme Court, who drafted the 1790 Pennsylvania Constitution.

[W]hat is meant by the liberty of the press is that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character and property of the individual.

 The Illinois Constitution also said that the editor should be "responsible for the abuse of that liberty." The usual form of responsibility was a civil action for damages or a state prosecution for criminal libel, particularly seditious libel, which consisted broadly of criticism of the form, officers, or acts of government. Such prosecutions were relatively common, especially at the turn of the 19th century.176 The temper of the times is revealed by an 1805 Pennsylvania case. The defendant was indicted for seditious libel for statements in a weekly paper that were alleged to have been intended to bring the independence of the United States and the constitution of Pennsylvania into hatred and contempt, to excite popular discontent against the government, and to scandalize the characters of revolutionary patriots and statesmen. When the defendant urged the constitutional freedom of the press in defense, the Pennsylvania court gave this exposition of the meaning of the constitutional provision that was the prototype of the Illinois free-press guarantee:

There shall be no licenses of the press. Publish as you please in the first instance without control ; but you are answerable both to the community and the individual, if you proceed to unwarrantable lengths. No alteration is hereby made in the law as to private men, affected by injurious publications, unless the discussion be proper for public information. But "If one uses the weapon of truth wantonly, for disturbing the peace of families, he is guilty of a libel."

[...]

The cases decided before 1844 do not provide a definitive answer to the question whether the Illinois free-press guarantee would have permitted an agency of the state to use its nuisance-abatement powers to suppress a newspaper which was publishing material that offended the public's sense of decency or threatened the public peace or welfare. They do hold that the only purpose of the general free-press lanaguage was to prevent formal prior restraints upon publication, such as licensing and censorship — an interpretation that was generally accepted for over a hundred years. 18° They also show great judicial sympathy for stern repressive measures in the enforcement of the criminal libel and civil damage laws against newspaper editors who abused their privileges. Finally, the courts' references to "suppression" and suppressionist sentiments voiced by some of the founding fathers 181 reveal that damage actions or criminal prosecutions may not have been the only types of "responsibility" considered appropriate for abuse of the liberty. While there is no proof that any of these sources were studied and relied upon by the Nauvoo City Council, the source on which they did rely, Blackstone's Commentaries, is the leading authority to the effect that the liberty of the press consists merely "in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."

I will again pose the question to you all: did Joseph Smith and the Mormons have legal ground to suppress the Nauvoo Expositor?

Richard Price, Bayes’ theorem, and God

Check it out here. A taste from the introduction:

Bayes’ theorem is 250 years old this year. But did the Rev. Thomas Bayes actually devise it? Martyn Hooper presents the case for the extraordinary Richard Price, friend of US presidents, mentor, pamphleteer, economist, and above all preacher. And did Price develop Bayes’ theorem in order to prove the existence of God?