Friday, June 18, 2021

What Oath (if any) did Jacob Henry take in 1809?

Check out this new article by Seth Tillman entitled, "What Oath (if any) did Jacob Henry take in 1809?: The Problem of Conceptual Confusion between State Religious Tests and Religious Test Oaths."

This is from the abstract:

The story of Jacob Henry is one which has been told and retold. It has been long celebrated, as a triumph of light over darkness, and of the progress of then-emerging American religious tolerance over older traditions of parochialism and intolerance. Our story starts with Article 32 of the 1776 North Carolina Constitution. That provision imposed a religious test:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

Article 32’s religious test extended to four categories of persons. It extended to atheists—those “who . . . deny the being of God.” It extended to non-Protestants—those “who . . . deny . . . the truth of the Protestant religion.” It extended to non-Christians—those “who . . . deny . . . the divine authority either of the Old or New Testaments.” Lastly, it extended to an amorphous category of persons—those “who . . . hold religious principles incompatible with the freedom and safety of the State.” A person falling into any of these four categories was not “capable of holding any office or place of trust or profit in the civil department within this State.” The meaning and scope of Article 32’s language has been a matter of continuing debate.

In 1809, Jacob Henry was elected to a second, consecutive annual term in the House of Commons, ie, North Carolina’s lower legislative house, as one of two members for Carteret County. According to the standard narrative, Henry was Jewish. Legislative elections were held during August 1809. The returning officers reported those persons who had been duly elected, that is, the members-elect. On November 20, 1809, the House of Commons convened in Raleigh, North Carolina, and the members-elect qualified by taking their oaths. On December 5, 1809, Hugh C. Mills, one of two members for Rockingham County, put forward a motion to declare Henry’s seat vacant based (at least in part) on Article 32 of the 1776 North Carolina Constitution. The next day, on December 6, 1809, Henry gave an impassioned speech in his own defense before the full House. Many ascribe the authorship of Henry’s speech, in whole or in part, to Judge Taylor, a Republican. Henry’s speech made no express reference to his being Jewish, and his speech did not use the words “Jewish,” “Judaism,” or “Jews.” Afterwards, Mills attempted to introduce evidence to support his allegations. But his efforts to do so were immediately thwarted by William Gaston, the single member for the town of New Bern.

Gaston argued that introducing evidence was premature at this stage. In other words, Gaston argued that Mills’s charges were insufficient as a matter of law, and so the introduction of evidence was not necessary. Gaston further argued that if the House determined that an investigation of the facts were necessary, then proceedings should be directed to a select committee or the committee of the whole. Additionally, Gaston made the argument that Article 32 reached only “offices,” not members of the legislature—and so it had no application to Jacob Henry. Gaston’s lengthy speech was followed by extensive debate among more than a few members of the Commons. Subsequently, the matter was redirected to the House’s Committee of the Whole, which heard testimony from witnesses. The committee recommended that the House reject the motion, and the House voted in favor of the committee’s recommendation. Henry kept his seat. Some reports indicate that the Commons voted unanimously to reject Mills’s motion.

The Jacob Henry literature has been primarily concerned with two questions. First, why did the members of the North Carolina House of Commons on December 6, 1809 vote against Mills’s motion to vacate Henry’s seat? That is, what motivated the members—in the sense of politics, partisanship, and personalities—to vote as they did? Likewise, what constitutional or other legal or policy rationales (if any) did the members put forward to explain their votes? A surprising number of very different views have been put forward. Second, what did Henry’s victory against purported religious intolerance mean to his contemporaries and later generations?

This Article addresses a different set of (albeit related) questions. The focus of this Article is not on what happened on December 5 and 6, 1809 and why the members of the North Carolina House of Commons voted as they did. Instead, the focus of this Article is on what happened on November 20, 1809—in other words, what legislative oath (if any) did Jacob Henry actually take? Second, how have later historians and legal commentators described and distorted our understanding of the events of November 20, 1809? And, third, why did the December 6, 1809 debate on the motion veer so far from any substantial discussion of the actual underlying events of November 20, 1809? Admittedly, this third question cannot be answered with clarity.

Saturday, June 5, 2021

Reopening Muslim Minds: A Return to Reason, Freedom, and Tolerance

This isn't entirely related to the American Founding and religion; though readers will relate to the language and terminology used here. From the article:

Mustafa Akyol, in his excellent new book Reopening Muslim Minds: A Return to Reason, Freedom, and Tolerance (St. Martin’s Press, 2021), speaks into this context. Having the privilege of meeting Akyol two years ago at a lecture he gave here in New England, I immediately felt a kinship with him by way of his work toward greater integration of faith and reason among Muslims, paralleling my own among Christians. We also connected over our mutual desire for better Muslim-Christian relations. In his newest book, Akyol states his intention to work toward an Islamic enlightenment that draws on Muslim tradition rather than Western values. For instance, while the initial centuries of Islam were intellectually diverse and vibrant, this was eventually replaced with a focus on jurisprudence or a legal culture, on dos and don’ts. (p. 12) Meanwhile, theistic rationalism, seeking harmony between faith and reason was surpassed by fideism, where faith does not need rational justification. (p. 25) Akyol summarizes, “The puzzle is this: When God tells us to ‘do this,’ or ‘don’t do this,’ does He educate us about objective values in the world that we could also understand on our own? Or, does He merely give us bare commandments whose very value comes from nothing but God’s own authority?” (p. 30) While the Mutazilites took the view that faith was largely compatible with free will and believed all humans have a natural ethical compass, the Asharites argued in favor of a more pre-deterministic view of the world, with which they eventually won the debate. Akyol offers helpful suggestions for Muslims to recover the integrated view of faith and reason.