Lash Article on Incorporating the Establishment Clause, Blasphemy & Religion Left to the States

For those who wish to see an originalist case for incorporating the Establishment Clause to apply to state and local governments, see Professor Kurt Lash's classic article here. You can also read a blog post that summarizes Lash's research here. It concludes:

If one takes an originalist approach to Fourteenth Amendment incorporation, the principle of non-establishment as a privilege or immunity of citizens of the United States emerged at the time of Reconstruction and was entrenched through the adoption of the Fourteenth Amendment.

Though the entire article and post are worth reading, I'm going to focus on the very interesting discussion of blasphemy laws in Lash's longer article. But first a quotation from Walter Berns' "Making Patriots" that I've oft-cited:

Liberty of conscience was widely accepted at the time of the Founding, but this did not prevent some jurists and legislatures from insisting, at least for a while (and given our principles it could be only for a while), that Christianity was part of the law, meaning the common law. So it had been in England, and so, it was assumed by some (but not Jefferson), it would continue to be in America. 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].”  

But if the “rights and privileges” contained in the various state charters or constitutions included the right of liberty of conscience, and if, in turn, this right required, in Madison’s words, “a perfect separation between ecclesiastical and civil matters,” what did it mean to say that Christianity was part of the common law? Very little, as it turned out; and it turned out as it had to turn out. Consider, for example, the case of blasphemy in America…. pp. 32-33.

Lash's article treats us to an analysis of the four classic known blasphemy prosecutions in post-founding America. (Starting on page 18/1101). A few points: Blasphemy was a "common law" crime and the prosecutions took place at the state level.  The four different prosecutions involve different states, different judges and different times. As Berns notes above, the common law exists at a level where a state statute can trump it. Though, judges back then looked up to the brooding omnipresence in the sky to "find" common law principles.

The first two prosecutions have dicta that could support "Christian nationalist" claims. They act as though it's presumed Christianity will be the religion of the state and the only religion about which the law would be concerned. It's with the second two cases where the judges start to turn blasphemy into an offense akin to a secular breach of the peace.

And in fact, Delaware v. Chandler, decided in 1837, has dicta that blatantly contradicts the Christian nation thesis. The case notes:

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.

And:

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,...

DAVID UPHAM on Everson/The Religion Clause

Professor David Upham makes the case for overturning Everson at the Law & Liberty site here. In this piece he is more clear on how he feels about the Establishment Clause applying against the states than the Free Exercise Clause. Yes, before the 14th Amendment the entire Bill of Rights including the Free Speech and Free Exercise Clauses applied to the federal government only.

But he writes:

To my knowledge, the sole exception to the Permoli legal consensus, from 1875 to 1925, can be found in dicta made only by Justice John Harlan and only in his last decade on the Supreme Court (1900-1911).  So, for instance, in Maxwell v. Dow, Harlan objected to the majority’s anti-incorporation conclusion with an argument ad absurdum, that the logical result would be that Utah could establish the Mormon Church.[2]

So I noted in the comments:

There is one point of view that says religion is left to the states and the 14th Amendment didn’t incorporate any of the bill of rights. If this is true states would be permitted to infringe on the free exercise rights. What conservative jurists presently support this position? State Blaine Amendments, even though they discriminate against religion would be perfectly constitutional. 

There is another point of view that says individual rights are what was intended to be incorporated. Free exercise clearly relates to an individual right. Establishment would only incorporate to the extent you can demonstrate it relates to such. Clarence Thomas has endorsed this point of view. But he doesn’t see what beyond the FEC incorporates. Akhil Amar suggests there are some “equality” rights that the FEC (which is more of a “liberty” right) doesn’t capture.

To which Upham replied:

... Nonestablishment is not a privilege or immunity of citizenship under the 14th Amendment. No one said it was, and for good reason–it did not fit the definition of the terms, as understood by that generation. Conversely, many mentioned other rights in the bill of rights–and for good reason–they did fit the general definition. 

State Blaine amendments, as I understand them, are not inconsistent with the original understanding. They are, I think, unjust and imprudent, but not unconstitutional–in part because their very existence, passed often by the same folks who adopted the 14th Amendment, is strong evidence that they were not inconsistent with the 14th Amendment. Did anyone–in any of the states–protest such measures as contrary to the 14th Amendment? 

To which I then replied:

Kurt Lash has suggested that the last state establishment ended in 1833 — well before the 14th Amendment — one could argue the right to be free from a religious establishment is included in the P or I Clause. 

And again, Prof. Amar has suggested, rightly in my opinion, it’s liberty and equality interests that drive the First Amendment and the entire BOR generally. 

If Utah did have the Mormon Church as a state establishment or Maryland the Roman Catholic Church, is that consistent with a state treating its citizens as equals without regard to religious creed[?] 

These kinds of questions as opposed to original expectation of the constitution’s applied text are what drives the new originalism.

And finally Upham:

Lash rightly and easily points out that nonestablishment can be an individual right and not exclusively a federalism provision. But it cannot satisfy the full test of being fundamental to the United States–whether that test is Corfield’s or the similar tests announced in various formal interpretations of the proposed Amendment–that it be foundational to the American Republic since 1776. 

Those tests, and that failure, I think adequately explain why no one seemed capable of saying that the Fourteenth Amendment incorporated the Religion Clauses, even when the silence was deafening. that is to say–the original meaning explains fairly clearly the originally expected NON-application. 

As for equality before the law: the establishment of republicanism, as presupposed by our entire Constitution, does not make monarchists second-class citizens of our Republic. So too the establishment of Mormonism or Roman Catholicism–which would be highly unlikely, imprudent and even un-American, in my opinion, would not, absent a suppression of liberty or an imposition of special taxes or burdens–reduce non-Mormons or non-Catholics to second-class citizenship in Utah and New Mexico, respectively. 

I gave him the last word in the comments over there, but  let me take a final word here. One of the difficulties in constitutional interpretation is that the text of the Constitution doesn't specify a formula or a "test" for interpreting it.

I'm certainly skeptical of Upham's application of his aforementioned "tests." What does "foundational to the American Republic since 1776" mean? That we freeze everything in 1776? What about 1789 or 91 or 1868? Is Upham arguing that what the 14th Amendment incorporates has to relate back to 1776?

This isn't what Akhil Amar argues. Rather he argues it's an 1868 understanding or lens of the Bill of Rights that were ratified in 1791 (not 1776). But 1868, not the late 18th Century is the more centrally determinative time. And if that's the case, given the state establishments were gone by 1868 one could argue, after Lash, that it's foundational to the American Republic since 1868 that American citizens have a right not to live under a state established church.

I'm also skeptical that the state level establishment of Mormonism, Roman Catholicism or a fundamentalist sect of the Baptist religion can be done without making other members into second class citizens on account of their religion.

Presidents Day Weekend is the Most Worthless Holiday Weekend of the Year

I hate Presidents Day.  

Don't get me wrong. I don't mind holidays. Getting an extra day off work is great. But I like my holidays to mean something. The root words, after all, behind "holiday" are "holy day." Granted, we live now in a largely secular culture, so the adjective "holy" may seem off-putting to some. But the important point is that our holidays should mean something. They should stand for something. They should call our attention as American citizens to something worthwhile - something worth remembering, celebrating, and/or honoring. 

That is not really the case with "Presidents Day." Now, of course, this isn't the official name of the holiday. The United States government recognizes the third Monday of February by its legal name: George Washington's Birthday Observed. But legal technicalities are trumped by public discourse and popular consciousness. Most Americans know the holiday as "Presidents Day." And that is therefore effectively what they celebrate.

Informed readers of course are aware that "Presidents Day" evolved from two developments: 

1) the Monday Holidays Act, which moved several holidays (including Washington's Birthday) to Monday to create 3-day weekends

2) the desire of many Americans to honor Abraham Lincoln

These factors are responsible for Washington's Birthday holiday now being known as "Presidents' Day." But the effect has gone beyond the intent. The effect is that Americans now hear "Presidents" and not the names of Washington or Lincoln. They hear and say "Presidents Day," not "Washington-Lincoln Day." 

The effect of that is to essentially celebrate all our Presidents. Even if many graphic artists put Washington's face and Lincoln's face next to the words "Presidents Day," it merely serves to propagate the notion that Lincoln and Washington are kind of the "first and second among equals" rather than being the exclusive focus of the holiday. 

Most Americans of course don't reflect on the meaning behind any of the holidays. They just enjoy the extra day off. And businesses enjoy making extra money through sales and promotions. So even having this discussion is somewhat academic. 

Nevertheless, I can't let a "Presidents Day Weekend" go by without saying something about it. The very name "Presidents Day" showcases the vague and shallow identity that has befallen a holiday that was once quite intentional, meaningful, and worthwhile.

Rather than honor the man who made the United States possible, we now - in effect - celebrate the legacies of all our "presidents," including such notables as Martin Van Buren, William Henry Harrison, John Tyler, Millard Fillmore, Franklin Pierce, James Buchanan, Andrew Johnson, and Warren G. Harding.

But remember... George Washington's legacy extends beyond his accomplishments as President of the United States. Washington was a hero of the French and Indian War, an influential leader in Colonial America, the commander-in-chief of the Continental Army in the American Revolution, the president of the Constitutional Convention, and then the President of the United States. There's a reason most historians recognize him as "the indispensable man." Without Washington, it's hard to imagine the United States even getting off the ground. 

You of course may celebrate "Presidents Day Weekend" as you wish, but as for me... I will remember and be grateful for the man who made the United States of America possible. And the man who made all the other Presidents possible. 

It's ironic that George Washington must  now share his holiday with the other 44 Presidents, but without Washington, none of the other 44 men ever would have been President in the first place. 

Happy George Washington Birthday Weekend!

Blessings to all. 

‘Washington “God letter” is up for sale’

     

Courtesy Raab Collection

The Raab Collection, a Pennsylvania-based curator of historical documents and other artifacts, has announced the proposed sale of a letter penned by George Washington in which the future president invokes the blessings of deity upon the U.S. Constitution.

The letter had been in the private collection of Paul Richards. According to the Raab Collection, this September 7, 1788 correspondence to Richard Peters, speaker of the Pennsylvania General Assembly, is the first letter in which Washington thanks God for victory in the Revolution and passage of the U.S. Constitution.

The purchase price is $140,000.

Continued resistance to the Constitution was fomenting still at the time Washington communicated his thoughts to Speaker Peters. “It would seem from the public Gazettes that the Minority in your State are preparing for another attack of the–now–adopted Government; how formidable it may be; I know not. But that Providence which has hitherto smiled on the honest endeavors of the well meaning part of the People of this Country will not, I trust, withdraw its support from them at this crisis,” Washington writes.

The three-page missive primarily addresses farming topics, but concludes abruptly with the above mention of the current political concerns. See the complete text here.

“Mount Vernon notes that Washington’s use of the term ‘Providence’ to mean ‘Divine Providence,’ and the organization states thusly his theological beliefs: ‘It is clear that he believed in a Creator God of some manner, and seemingly one that was also active in the universe. This God had three main traits; he was wise, inscrutable, and irresistible. Washington referred to this God by many names, but most often by the name of ‘Providence,’” the Raab website reports.
     

John Adams and the Trinity: Why should we care?

Much is made in some quarters that John Adams was a "unitarian" Christian, in other words, he didn't believe Jesus was God. This is true. In a letter to Jefferson praising a British parliamentarian's defense of the rights of the "Antitrinitarians," he wrote

Had you and I been forty days with Moses on Mount Sinai and admitted to behold, the divine Shekinah, and there told that one was three and three, one: we might not have had courage to deny it, but we could not have believed it. The thunders and lightenings and earthqu[ak]es and the transcendant splendors and glories, might have overwhelmed us with terror and amazement: but we could not have believed the doctrine.

But why the "unitarian controversy" matters much to some people, I don't know. Samuel Adams, John's cousin and his virtual co-leader in the early days of the American Revolution, was a Trinitarian, and John and Sam's political theology differed not at all---whether you believed Jesus is God or not didn't make any difference.

The other thing about John Adams' unitarianism is that it was expressed in private letters like these, after he left public life. As a public man, as president, what did America know of John Adams' "unitarianism"? 

The answer is, little or nothing.

President John Adams' 1798 thanksgiving proclamation explicitly recognizes God the Father, Jesus the Redeemer and the Holy Spirit:

"I have therefore thought fit to recommend, and I do hereby recommend, that Wednesday, the 9th day of May next, be observed throughout the United States as a day of solemn humiliation, fasting, and prayer; that the citizens of these States, abstaining on that day from their customary worldly occupations, offer their devout addresses to the Father of Mercies agreeably to those forms or methods which they have severally adopted as the most suitable and becoming; that all religious congregations do, with the deepest humility, acknowledge before God the manifold sins and transgressions with which we are justly chargeable as individuals and as a nation, beseeching Him at the same time, of His infinite grace, through the Redeemer of the World, freely to remit all our offenses, and to incline us by His Holy Spirit to that sincere repentance and reformation which may afford us reason to hope for his inestimable favor and heavenly benediction..."

Bold face mine. As we see, the Father is in there, Jesus is still the "Redeemer," and the existence of the Holy Spirit is acknowledged, not denied.  The Trinitarian formulation.

Most people, whether in 1798 or in 2019, would read President Adams' proclamation as explicitly "Christian," explicitly in harmony with Christian orthodoxy. What John Adams believed in private is of some interest, but it is of little importance. These days, we use the term "Judeo-Christian" specifically to dispose of the question of whether Jesus is God or not anyway. And as we see here, in public, President John Adams comes off as more Christian than that minimum, not less.