Political Philosophy and Ethics discussion
Political Philosophy and Law
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Separation of Religion and Government; Liberty of Conscience and Toleration
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They would know who they are. In any event, I really have no interest in revisiting my legal past or, indeed, any part of my past in writing. I am working on much more interesting things, some of which are addressed in the topics of this Goodreads group.
I gather that you grew up in Alaska. Do you live there now?
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"[Glenn] Beck also played a key role in the political education of his Tea Party admirers. His primary contribution was the tireless promotion of the works and ideas of W. Cleon Skousen, a right-wing extremist whose views were so fanatical he’d been ousted by the John Birch Society and placed under scrutiny by both J. Edgar Hoover’s FBI and the Mormons’ Quorum of Twelve Apostles. A Mormon and former FBI agent himself, Skousen had started developing complex conspiracy theories while serving as police chief of Salt Lake City in the 1950s. The Council on Foreign Relations, the American banking establishment, and the Rockefeller, Ford, and Carnegie foundations, he believed, were all in on 'a paroxysm of world-wide political subversion' to 'push the United States into a collectivist one-world society.' The Rothschilds and Rockefellers were directing a grand conspiracy involving OSHA, the EPA, the fairness doctrine of the Federal Communications Commission, the Social Security Administration, and the United Nations, the unraveling of which became a central mission of his National Center for Constitution Studies. Skousen’s seminal work, The 5,000 Year Leap, proclaimed that the U.S. Constitution was inspired not by the Enlightenment philosophers but by the Old and New testaments and that its divinely inspired authors believed in a minimal, laissez-faire government and a merging of church and state. Another of Skousen’s books, The Making of America, argued that slave owners were the 'worst victims' of the southern slave system, the slaves themselves being full of good cheer.
"Skousen had died in 2006, and his books and ideas had long since been forgotten. But in the aftermath of the financial meltdown, Beck began endorsing his work on air, touting The 5,000 Year Leap as 'essential to understanding why our Founders built this Republic the way they did.' Local Tea Party groups placed bulk orders for their Constitution study groups, sometimes bringing in 'scholars' from the National Center for Constitution Studies to lead the sessions. The center’s curriculum encouraged activists to embrace the view that the 1789 Constitution prohibited not only the institutions and programs of the New Deal and Great Society, but also federal income, corporate, and capital gains taxes, the national park and national forest systems, the separation of church and state on the state level, and the Sixteenth, Seventeenth, and Twenty-Fifth amendments, which provided for the popular election of U.S. senators, direct federal taxes, and clear procedures for replacing a dead or incapacitated president. Such a program would return the United States to the Gilded Age, with the added possibility of state theocracies. Beck wrote the foreword to the new edition of The 5,000 Year Leap, saying it was 'divinely-inspired.' The book soon shot to number 1 on Amazon.com, selling a quarter million copies in the first half of 2009."
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"During the nineteenth, twentieth, and early twenty-first centuries, certain politically active religious movements sought to have the United States declared—officially, if possible, but at least unofficially—a 'Christian nation.' This was an attempt to reverse the church-state separation principles and achievements of such great Founders as Thomas Jefferson and James Madison. Roger Williams, who was more religiously devout than just about anyone living in later centuries, opposed all attempts to call a particular nation 'Christian,' just as he opposed the terms 'Christendom' and 'Christian world.' His arguments included a profound analysis of the importance of separation of church and state as well as a deep religious understanding of what Christianity is."
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"The Bible will not become the state of Tennessee's official book.
"A measure granting this designation to the Bible passed both chambers of the legislature but was vetoed by Gov. Bill Haslam (R). The bill, H.B. 615, would have made Tennessee the first state in the country to make the Bible an official symbol.
"Lawmakers in the state House of Representatives attempted an override but failed on a 43-50 vote. The bill's sponsor, State Rep. Jerry Sexton (R-Bean Station), lamented the failure but said he and his colleagues had 'made history.'
"'There is so much oppression today of Christian beliefs and values it seems it is not the popular thing to do,' Sexton said. 'I stand today to say that I'm a Christian and I'm proud that I am and I'm proud that I live in a country that I have the freedom to do that.'
"In a letter to House Speaker Beth Harwell (R-Nashville), Haslam explained that he vetoed the bill because it violated both state and federal constitutions and 'trivializes' the Bible."
"AU Bulletin," Church & State 69, no. 6 (June 2016): 22.
Alan, like so many of his ilk, Sexton and his colleagues misread the pursuit of equality of various kinds for some kind of attack on Christians and Christianity. At a time of unprecedented growth and dynamism in American Christianity,its a bit precious for him to state that. Christianity is growing, as are other faiths, because many Americans are seeking a spiritual connection that they can't get elsewhere. While I am not part of those seeking it, its obvious to me from my friendships and family that emerging Christian and other faiths have connected with messages of profound simplicity and power. Why they feel so persecuted is a mystery to me and a damming indictment of their own very limited understanding of the growth in the attraction and power of faith.
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Yes, there are essentially two issues, which are not dependent on each other: (1) Is a particular religion, say Christianity, the true religion? and (2) Should a particular religion, say Christianity, be favored by government over other religions and, indeed, over nonreligion? Whatever answer one gives to the first question, it is rather astonishing that many people still believe that government should favor one religion over another or favor religion in general over a belief that reason and/or science is more valid than any religious belief. (Another group of people that is increasing exponentially is the segment of nonbelievers.) Roger Williams addressed the second question hundreds of years ago and concluded that government and religion should be totally separate. He thought that religion was corrupted by any association with government, and he thought that government was corrupted by any association with religion. And this was from someone who truly believed that Christianity, properly understood, was the only true religion, though his particular version of Christianity was substantially different from the views of most of his contemporaries.
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Interestingly, that great advocate of freedom of conscience and separation of church and state Roger Williams (ca. 1603-83), who was himself a devout Christian minister, taught that religious liberty could not invalidate secular laws of general applicability that were not designed to discriminate against any particular religious group. As I have written elsewhere:
"[His] Ship of State letter emphasized Roger Williams's recurring theme that government may neither constrain nor restrain individuals regarding matters of conscience. It can neither compel a person to express or practice a religious viewpoint nor prohibit that person from expressing or practicing a particular spiritual viewpoint. However, common laws regarding nonspiritual concerns cannot be disobeyed on the ground that they violate one's conscientious beliefs. Thus, persons may be compelled to assist in the common defense, and they may be compelled to pay taxes to support government. They are properly subject to common criminal and civil laws and orders promoting their common peace and preservation. In a remark apparently directed at his brother's anarchic or antinomian views, Roger Williams emphatically rejected the doctrine that 'there ought to be no Commanders, nor Officers, because all are equal in CHRIST, therefore no Master, nor Officers, no Laws, no Orders, no Corrections nor Punishments . . . .'
"American constitutional law and jurisprudence would later evolve sophisticated legal doctrines regarding conscientious objection to military service and some other religious exceptions to otherwise universally applicable secular laws. These future developments were unknown to Roger Williams. It is difficult to predict how he would have reacted to them. But in the relatively simple and basic political society in which he found himself, he thought that no individual could properly invoke an exception to common civil duties just because that person had a unique religious perspective. Given the military threats from other colonies against the political society he had founded—threats that he correctly perceived to be directed against liberty of conscience itself—Williams exercised his political prudence to insist that no one escape their duties to the secular common good on the ground of religious belief."
Alan E. Johnson, The First American Founder: Roger Williams and Freedom of Conscience (Pittsburgh: Philosophia Publications, 2015), 224-25.
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"The president of Turkey, Recep Tayyip Erdogan, is devoted to a view that emphasizes the right of majority rule over concepts of shared control by institutions within a constitutional system. His views are similar but not identical with the Muslim Brotherhood theory of government which does not recognize freedom of press, individual rights against the state, the separation of powers or a clear division between state and religion.
"His view contrasts sharply with the original vision of Kemal Ataturk and his contemporary disciples to maintain a secular democratic state with checks and balances, rule of law, and protected rights for individuals against the State. The two views admit little space for compromise thus far.
"By their own rhetoric, the coup leaders pointed to corruption and the threat to Turkey’s secularism as reasons for their actions. These are concerns widely shared among elements of the Turkish public, and these sentiments will persist even as the coup itself is rightly condemned as an attack on the principles of democracy."
Ambassador Pearson elaborates how Erdogan has increasingly mobilized religion (Islam) in support of his expanding authoritarian powers, including but not limited to instituting compulsory religious instruction in the public schools. Pearson thus understands the reasons for the coup attempt, but he rejects that attempt as a way to solve the problem. Since Pearson also points out how Erdogan has essentially taken over the media (and presumably is capable of rigging elections), one wonders what the alternative is. In any event, I see a parallel here to what Putin has been doing in Russia (see my comments about Putin here).
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The following is an excerpt from the Opinion of the Court in the important U.S. Supreme Court case of Everson v. Board of Education, 330 U.S. 1, 14-15 (1947):
"The meaning and scope of the First Amendment, preventing establishment of religion or prohibiting the free exercise thereof, in the light of its history and the evils it was designed forever to suppress, have been several times elaborated by the decisions of this Court prior to the application of the First Amendment to the states by the Fourteenth. The broad meaning given the Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual's religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. There is every reason to give the same application and broad interpretation to the 'establishment of religion' clause. The interrelation of these complementary clauses was well summarized in a statement of the Court of Appeals of South Carolina, quoted with approval by this Court in Watson v. Jones 13 Wall. 679, 80 U.S. [679,] 730 [(1871)]:
"'The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority.'
"The 'establishment of religion' clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'"
(Footnotes omitted.)
Nine of the nine Supreme Court justices in Everson essentially agreed with the foregoing principles. They disagreed only on their application. The Opinion of the Court, written by Justice Hugo Black and joined by Chief Justice Vinson and Justices Reed, Douglas, and Murphy, held that a township's reimbursement of bus transportation fees for students attending a Catholic school did not violate the Establishment Clause where students attending a public [governmental] school took the same bus route on the way to school and were also reimbursed. The four dissenters (Justices Rutledge, Frankfurter, Jackson, and Burton) would have held that such governmental reimbursement of bus transportation fees for students attending a Catholic school did violate the Establishment Clause.
The principles set forth in Everson were not particularly controversial at the time that this decision was issued in 1947. Those principles became much more controversial in the late twentieth- and early twenty-first centuries.
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The issue in this U.S. Supreme Court case was whether the town of Greece (a suburb of Rochester, New York) imposed an impermissible establishment of religion, in violation of the Establishment Clause of the First Amendment to the US Constitution, by opening its monthly board meetings with a prayer. The Establishment Clause ("Congress shall make no law respecting the establishment of religion") applies to state and local government by way of the Fourteenth Amendment to the Constitution (see post 115, supra).
The Opinion of the Court was written by Justice Kennedy. Chief Justice Roberts and Justice Alito joined all aspects of that opinion. Justices Scalia and Thomas joined all of the opinion except for Part II-B. Thus, with the exception of Part II-B, Justice Kennedy's opinion spoke for the majority (five of the nine justices) of the Supreme Court.
Justice Alito, joined by Justice Scalia, wrote a separate concurring opinion. Justice Thomas, joined in part by Justice Scalia, wrote a separate opinion concurring in part and concurring in the judgment.
Justice Breyer wrote a dissenting opinion. Justice Kagan, joined by Justices, Ginsburg, Breyer, and Sotomayor, wrote an additional dissenting opinion.
The Town of Greece, in upstate New York, had opened its board meetings with a moment of silence for several years. In 1999, the board began inviting a member of the local clergy to give an invocation.
The town followed an informal method for selecting prayer givers, all of whom were unpaid volunteers. A town employee would call the congregations listed in a local directory until she found a minister available for that month’s meeting. The town eventually compiled a list of willing “board chaplains” who had accepted invitations and agreed to return in the future. The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were too.
Greece neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content, in the belief that exercising any degree of control over the prayers would infringe both the free exercise and speech rights of the ministers. The town instead left the guest clergy free to compose their own devotions. The resulting prayers often sounded both civic and religious themes. Some of the ministers spoke in a distinctly Christian idiom; and a minority invoked religious holidays, scripture, or doctrine.
Respondents Susan Galloway and Linda Stephens attended town board meetings to speak about issues of local concern, and they objected that the prayers violated their religious or philosophical views. At one meeting, Galloway admonished board members that she found the prayers “offensive,” “intolerable,” and an affront to a “diverse community.” After respondents complained that Christian themes pervaded the prayers, to the exclusion of citizens who did not share those beliefs, the town invited a Jewish layman and the chairman of the local Baha’i temple to deliver prayers. A Wiccan priestess who had read press reports about the prayer controversy requested, and was granted, an opportunity to give the invocation.
Galloway and Stephens brought suit in the United States District Court for the Western District of New York. They alleged that the town violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers, such as those given “in Jesus’ name.” They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God” and would not associate the government with any one faith or belief.
The District Court granted summary judgment in favor of the Town, but the Second Circuit Court of Appeals reversed. The Supreme Court granted certiorari.
In his Opinion of the Court, Justice Kennedy observed that in Marsh v. Chambers, 463 U. S. 783 (1983), the Supreme Court found no First Amendment violation in the Nebraska Legislature’s practice of opening its sessions with a prayer delivered by a chaplain paid from state funds. The Marsh decision concluded that legislative prayer, while religious in nature, had long been understood as compatible with the Establishment Clause. The Opinion of the Court in Greece v. Galloway ruled that Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.
Justice Kennedy's majority opinion stated that an insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases. Moreover, "once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian." Slip op. at 14 (emphasis added). The court majority strangely did not question its premise that it must allow prayer in the public sphere, apparently because it felt that it had to accept longtime historical practice. Even more strangely, the legal counsel on behalf of the persons challenging the Town of Greece's practice did not question the right of a township board to sponsor religious prayer but rather argued only that any such prayer must be ecumenical and general. The majority opinion rejected that position as amounting to the establishment of a generic, civic religion that, in any event, would be impossible, given the multiplicity of views among religious believers and nonbelievers. As the Court aptly observed, "even seemingly general references to God or the Father might alienate nonbelievers or polytheists." Slip op. at 14. But instead of adopting the obvious solution—forbidding governmental sponsorship of prayer altogether—the opinion tried to square the circle by taking an originalist view of constitutional jurisprudence.
For these and other reasons, the Court majority held that "[t]he town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents." Slip op. at 24.
In a part of his separate concurring opinion not joined by Justice Scalia, Justice Thomas expressed his extreme view that the Fourteenth Amendment does not incorporate the First Amendment Establishment Clause and that state and local governments are accordingly free to establish religion as long as such establishment does not violate the First Amendment Free Exercise Clause (which Thomas acknowledges is incorporated by the Fourteenth Amendment). He had earlier expressed this view in his opinion concurring in the judgment in Elk Grove Unified School District v. Newdow, 542 U.S. 1, 49-51 (2004).
The dissenting opinions accepted the majority's premise that legislative prayer was generally acceptable as a result of its historical heritage. However, the dissenters disagreed with the majority's application of that general principle to the facts of this case.
Justice Kennedy's Opinion of the Court referenced, as a minority view among the Founders, the fact that James Madison, commonly known as the father of both the 1787 Constitution and the First Amendment, opposed the entire notion of legislative chaplains on the ground that such practice violated the Establishment Clause of the First Amendment. Slip op. at 7 (citing Madison's "Detached Memoranda"); cf. Madison, "Detached Memorandum," in James Madison: Writings, ed. Jack N. Rakove (New York: Library of America, 1999), 762-63. After discussing the constitutional infirmities of Congress's use of legislative chaplains, Madison concluded: "Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex ['the law does not concern itself with trifles']: or to class it cum 'maculis quas aut incuria fudit, aut humana parum cavit natura' [translated "I shall not be offended with a few faults, ones that arise either from inadvertence or from the frailty of our nature" (Horace) at EUdict, accessed September 7, 2016]." Madison: Writings, , 763. Madison would not be pleased that, contrary to his wishes, the early Congressional use of legislative chaplains would, indeed, become "legitimate precedent" that will be followed as long as the Court adheres to an "originalist" concept of constitutional jurisprudence, unless the justices eventually decide to give more weight to Madison's view than to those of many of his contemporaries. As always, one problem with originalist jurisprudence is that the Founders were not of one mind regarding many constitutional issues.
The extant governmental records that I have reviewed of seventeenth-century Providence and Rhode Island do not indicate that any public prayer was spoken at the beginning of legislative sessions. Moreover, the common assumptions of the majority and dissenting opinions in Greece v. Galloway are clearly inconsistent with the church-state separation principles espoused by Roger Williams, who was himself a devout Christian minister. See the Roger Williams (ca. 1603-83) and Seventeenth-Century Rhode Island Government topic of this group and my book The First American Founder: Roger Williams and Freedom of Conscience.
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This is the second of two seminars on U.S. church-state law from the seventeenth century to the present. The first session occurred on July 13, 2016, and, as a result of a one-hour time limitation, concluded before reaching the 1787 Constitutional Convention. The course materials for the first session are posted here. The present course materials substantially expand the earlier course materials for the period 1787 to the present.
This is a Continuing Legal Education (CLE) seminar. Attorneys licensed in Pennsylvania will receive a one-hour CLE credit (substantive) for attendance. All attendees must be preregistered.
Alan E. Johnson
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Fast-forward to the twenty-first century. During the past 10-15 years, a favorite conspiracy theory has been that Muslims are trying to promote the use of "Sharia law" in US courtrooms and elsewhere. Again, per Wikipedia, "A ban on sharia law is legislation that would ban the application or implementation of Islamic law (sharia) in courts in any jurisdiction. In the United States, various states have 'banned Sharia law', or passed some kind of ballot measure that 'prohibits the states courts from considering foreign, international or religious law.' As of 2014 these include Alabama, Arizona, Kansas, Louisiana, North Carolina, South Dakota and Tennessee." Such a ban has also been proposed in other states, and perhaps some have been added to this list since 2014. As an aside, let me say that in more than three decades of litigation experience in the state and federal courts of Ohio and Pennsylvania (ending with my 2012 retirement from the practice of law), I never once heard of Sharia law being promoted by anyone and certainly not by the many state and federal judges before whom I litigated cases. However, I did see witnesses being required to swear to a Christian oath as a precondition of testifying, and I am aware of the practice of citing Christian or Jewish scripture in judicial opinions. But the Sharia law ban is a solution in search of a nonexistent problem.
It is especially ironic that the very cultural forces behind the prohibition of Sharia law are the same people who proclaim that this is a "Christian nation," that the Ten Commandments are part of our fundamental law, and who otherwise wish to mix church and state. This shows that these people are not opposed to the merger of state and church as such. Rather, they wish to see the merger of American government and Christianity at the expense of Islam and any other religion not within the Judeo-Christian faith communities. In other words, we should go back to the seventeenth century theocracies in New England and elsewhere. In my book The First American Founder: Roger Williams and Freedom of Conscience, I discussed the history of the conflict between the New England theocrats and Roger Williams, a deeply Protestant minister who nevertheless advocated, in speech and in writing, the absolute separation of church and state and complete freedom of conscience. The more things change, the more they stay the same.
In an article "Will the Real Theocrats Please Stand Up?", historian Bruce T. Gourley elaborates on some of the foregoing themes.
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It is amazing how pervasively religion still mixes and mingles with government. And conservatives have the gall to complain about religion being removed from the "public square!" It's obscene.
As a non-practicing Roman Catholic, I don't have much a leg to stand on vis the on going religious debate in this country. As a student of American history though I do have a sense of the centrality of religion and faith in our political development. Deism did roam wide and far among the Founders, with Jefferson's very clear statements regarding the Creator defining for most of our history how we look and feel about religion in our political culture. Alan's very significant work in this area has been an essential part of my own education and thinking about it, with Roger Williams' beliefs being the core of this nation's attitudes. Notwithstanding Williams, it seems that religion, and more specifically faith via the two Awakenings was an important part of our nation's conception of itself. One only has to read Lincoln's Second Inaugural to see firsthand the centrality of faith to his conception of America. I agree that the demonization of Islam and the irrational focus on Sharia Law is a stain on our culture and politics, and ultimately a complete waste of time. The unique conception of the US as an entity based on a concept of liberty and freedom has, some have argued, its origins in New Testament notions of individual will. While I am still not totally convinced of the thesis, there is nothing in my study of Islam or any other major religious tradition that counteracts my feeling that western liberalism and democratic traditions are traced from Athens , Rome and the development of Christian notions of individuality. I am still in the process of thinking this through, but thought I would share my thoughts in this area. I welcome your thoughts, reactions and perspectives.
During the discussions of the French and American Constitutions, the prevalent topic was the separation of religion and State – incidentally, that had been the recurring topic for 3 centuries, when nobility and priesthood had privileges unacceptable to the emerging bourgeoisie: The privileged classes were tax exempt and had a series of perks: right to levy certain taxes, Honorary privileges, prerogatives, monopoly of judicial court jobs and management positions in the army, Navy and the Administration.These concepts have changed the course of mankind ever since - imagine what it would be like if the world had the assistance of the clergy and the nobility to manage taxes nowadays.
After almost 3 centuries, humanity finds itself facing demands that we place on a new perspective: the separation of politics from economics, blocking the access of politicians and bureaucrats to the resources raised by taxes. Utopia or dream? Imagine the difficulties to separate politics from religion for nearly three centuries and the impact of it on the course of humanity.
Cheerrrss, Ron Carneiro
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Charles, a few days ago I posted in an online University of Chicago Alumni course a comment that included the following remarks:
At the June 11, 1776 session of the Second Continental Congress, the following committee was appointed to prepare a declaration of independence: Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert Livingston. (Library of Congress, Journals of the Continental Congress, 1774-1789, vol. 5, ed. Worthington Chauncey Ford [Washington, D.C.: Government Printing Office, 1906], 431.) Jefferson initially drafted the Declaration of Independence. The other members of the committee and, later, the entire Congress revised Jefferson's draft into the form in which it was published on July 4, 1776. Jefferson's original draft read in relevant part as follows:
"We hold these Truths to be self-evident; that all Men are created equal and independent; that from that equal Creation they derive Rights inherent and unalienable; among which are the Preservation of Life, and Liberty, and the Pursuit of Happiness . . . ." (Julian P. Boyd, The Declaration of Independence: The Evolution of the Text, rev. ed., ed. Gerard W. Gewalt [Washington, D.C.: Library of Congress, 1999], 60 [Document IV], 67 [Document V] [bold emphasis added]. Note: Jefferson had initially written "sacred & undeniable" instead of "self-evident," and it is not clear whether Jefferson or another committee member changed this language to "self-evident." Ibid., 26-27.)
After revisions from the committee and from the Congress, the final version of Jefferson's foregoing language read:
"We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness . . . ." (Ibid., 98 [Document X].)
Accordingly, Jefferson originally wrote that "all Men are created equal and independent . . . ." (emphasis added). In a May 8, 1825 letter to Henry Lee, Jefferson wrote: "Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, [the Declaration of Independence] was intended to be an expression of the American mind . . . . All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c." (Thomas Jefferson: Writings, ed. Merrill D. Peterson [New York: Library of America, 1984], 1501 [emphasis added].) In an August 30, 1823 letter to James Madison, Jefferson wrote, "whether I had gathered my ideas [for the Declaration of Independence] from reading or reflection I do not know. I know only that I turned to neither book or pamphlet while writing it." (The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776-1826, ed. James Morton Smith, 3 vols. [New York: W. W. Norton, 1995], 3:1876.)
John Locke wrote in section 4 of his Second Treatise of Government that men in the state of nature were in "a State of Perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the Will of any other Man." They were in a "State also of Equality , wherein all the Power and Jurisdiction is reciprocal, no one having more than another: there being nothing more evident, than that Creatures of the same species and rank promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal one amongst another without Subordination or Subjection . . . ." (John Locke, Two Treatises of Government, rev. ed., ed. Peter Laslett [New York: Mentor, 1965], 309 [italics in the original, bold emphasis added].) In section 6, Locke added: "The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." (Ibid., 311 [italics in the original, bold emphasis added].)
Accordingly, it seems probable that the assertion in Jefferson's draft of the Declaration that "all Men are created equal and independent; that from that equal Creation they derive Rights inherent and unalienable; among which are the Preservation of Life, and Liberty, and the Pursuit of Happiness" (emphasis added) derives from Locke's similar statements in sections 4 and 6 of the Second Treatise. The subsequent revisions of Jefferson's draft somewhat obscured this provenance by, for example, substituting "endowed by their Creator " (emphasis added) for Jefferson's "from that equal Creation" (emphasis added).
In other words, the original idea, per Locke and Jefferson, was that "creatures of the same species" (Locke) were equal with respect to fundamental human rights, including (as itemized by Jefferson) life, liberty, and the pursuit of happiness. This implies that women, as well as men, being creatures of the same species, possessed these fundamental rights. And, indeed, as Abraham Lincoln later recognized, this radical statement implied that even slaves possessed these natural rights, notwithstanding the fact that Jefferson himself was a slaveholder. (Lincoln, Fifth Lincoln-Douglas debate, October 7, 1858, in Abraham Lincoln: Speeches and Writings, 1832-1858, ed. Don E. Fehrenbacher [New York: Library of America, 1989], 702.) In an April 6, 1859 letter to Henry L. Pierce and others, Lincoln wrote: "All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men [human beings] and at all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyrany and oppression." (Abraham Lincoln: Speeches and Writings, 1859-1865, ed. Don E. Fehrenbacher [New York: Library of America, 1989], 19 [spelling and punctuation as in the original].)
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Ron, as I have previously indicated, I don't think that separation of church and state, on the one hand, and separation of politicians and governmental bureaucrats from economics, on the other, are analogous concepts. They involve much different considerations and a much different history.
Thanks Alan - basic necessity to split economics from politics is:• Economics is a science in which all agents are regulated by the inexorable, impersonal and uncontrollable laws of supply and demand, if there is no market manipulation;
• Politics is an art in which the protagonists decide according to the questionable, circumstantial and personalist human will.
These are separate universes, following different rules. Growing market regulation was necessary because opportunities are not offered to all, for nutrition, health and education. These 3 sectors, under the current rules, do not operate by themselves. The government needs to pump resources to keep them operating.
That´s a central problem we´re facing today - in USA, EU, Latin America, Asian countries and all over the world. Something must be proposed to harmonize and stabilize social system. Cherrrsss. Ron
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• Economics is a science in which all agents are regulated by the inexorable, impersonal and uncontrollable laws of supply and dem..."
We've discussed these issues in other topics, and I request that you use those topics for any further discussions of economic issues, especially Government and the Economy; Property Rights, The Philosophy of Capitalism, and Classical Liberalism, Libertarianism, and Anarchocapitalism; Objectivism. The present topic is limited to issues relating to separation of church and state and freedom of conscience. Any further discussions of economic issues in the present Separation of Church and State thread will be deleted.
You´re right. Excuse me for the wrong door. I´ll post there. Ron
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The present discussion utilizes standard legal—as distinguished from scholarly—citation rules.
The facts of the case are summarized in the Court's syllabus (which is not, however, part of the Opinion of the Court and which has no independent precedential effect):
"The Trinity Lutheran Church Child Learning Center is a Missouri preschool and daycare center. Originally established as a nonprofit organization, the Center later merged with Trinity Lutheran Church and now operates under its auspices on church property. Among the facilities at the Center is a playground, which has a coarse pea gravel surface beneath much of the play equipment. In 2012, the Center sought to replace a large portion of the pea gravel with a pour-in-place rubber surface by participating in Missouri’s Scrap Tire Program. The program, run by the State’s Department of Natural Resources, offers reimbursement grants to qualifying nonprofit organizations that install playground surfaces made from recycled tires. The Department had a strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity. Pursuant to that policy, the Department denied the Center’s application. In a letter rejecting that application, the Department explained that under Article I, Section 7 of the Missouri Constitution, the Department could not provide financial assistance directly to a church. The Department ultimately awarded 14 grants as part of the 2012 program. Although the Center ranked fifth out of the 44 applicants, it did not receive a grant because it is a church."
The syllabus also summarized the procedural history of the case:
"Trinity Lutheran sued in Federal District Court, alleging that the Department’s failure to approve its application violated the Free Exercise Clause of the First Amendment. The District Court dismissed the suit. The Free Exercise Clause, the court stated, prohibits the government from outlawing or restricting the exercise of a religious practice, but it generally does not prohibit withholding an affirmative benefit on account of religion. The District Court likened the case before it to Locke v. Davey, 540 U. S. 712, where this Court upheld against a free exercise challenge a State’s decision not to fund degrees in devotional theology as part of a scholarship program. The District Court held that the Free Exercise Clause did not require the State to make funds available under the Scrap Tire Program to Trinity Lutheran. A divided panel of the Eighth Circuit affirmed. The fact that the State could award a scrap tire grant to Trinity Lutheran without running afoul of the Establishment Clause of the Federal Constitution, the court ruled, did not mean that the Free Exercise Clause compelled the State to disregard the broader antiestablishment principle reflected in its own Constitution."
The Supreme Court thereafter granted Trinity Lutheran's petition for a writ of certiorari. Chief Justice Roberts's Opinion of the Court held that the Missouri Department of Natural Resources violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.
As background, the first sentence of the First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion [Establishment Clause], or prohibiting the free exercise thereof [Free Exercise Clause]." During the twentieth century the Supreme Court held that both the Establishment Clause and the Free Exercise Clause apply to state and local governments.
The provision of the Missouri Constitution at issue in this case, Article I, Section 7, provides as follows:
"That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship." Opinion of the Court at 2-3.
"Today, thirty-eight States have a counterpart to Missouri’s Article I, §7. The provisions, as a general matter, date back to or before these States’ original Constitutions." Sotomayor, J., dissenting opinion, at 18-19 (footnotes omitted).
The Opinion of the Court held (albeit somewhat implicitly) that these state constitutional provisions of Missouri and thirty-eight other states violated the Free Exercise Clause of the First Amendment to the U.S. Constitution. It is quite ironic that the conservative faction of the Court (joined, however, by Justice Kagan and joined in the result by Justice Breyer) so cavalierly disregarded states' rights in this case that it implicitly invoked the Supremacy Clause of the U.S. Constitution to effectively overrule long-established constitutional provisions of thirty-nine states. (Note: The Supremacy Clause of the U.S. Constitution is contained in Article VI thereof and reads as follows: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.")
An adequate analysis of the various opinions in this case would require a very lengthy essay, which is beyond the scope of this comment. Interested persons can read the opinions themselves (linked above). Suffice it to say that the Opinion of the Court held that Missouri violated the Free Exercise Clause of the U.S. Constitution by refusing to allow Trinity Lutheran Church an opportunity to obtain governmental funds to resurface the playground of its preschool and daycare center. Justice Sotomayor (joined by Justice Ginsburg) filed a twenty-seven page dissenting opinion, which included an excellent discussion of the history of Supreme Court Establishment Clause and Free Exercise Clause jurisprudence.
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Any parallels between activities in Russia and the US need to be treated with skepticism. The historical development of the Orthodox Church in medieval Russia and its relationship, even leadership of the political structure of the Russian state at various times in its history cannot be compared in any way to the American experience. Russia has had a quasi state religion for nearly 1000 years which explains, more than anything else the current efforts by Putin to appropriate the Church for his political interests. While the Evangelical and conservative Christian community in this country have a political agenda and desires for a mor active role in public affairs, their successes have been less than startling given the hot air expended on their behalf by Republicans. Whatever relationship there may be between Trump and Russia is a financial/political one founded on Trumps capital needs since the 1980's. I suspect that Putin never even heard of Trump until well into this century. The sooner we recognize that Russia is NOT a western power and is truly Eastern culturally and politically the better we will be at understanding their agenda, priorities and operating principles. Y
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As detailed and documented in my book on Roger Williams, especially Chapter 2 and Appendix B, we have also had a long history of theocratic/Erastian practices and American "exceptionalism" going back to the seventeenth-century New England colonies (other than Rhode Island) and the seventeenth-century Erastian systems in Virginia and other southern colonies, and, further, to the Puritan and English theologico-political exceptionalism in English history. Although the First Amendment to the US Constitution (ratified 1791) did not permit an official national theocratic or Erastian system, there were many laws at both the state and federal levels during the nineteenth and even twentieth centuries that privileged Protestantism at the expense of other religions, not to mention nonreligion. (See the books on this subject cited earlier in this thread.) American "Manifest Destiny" imperialism (against Native Americans, Mexico, Cuba, and other Latin American countries) was much the same as British "White Man's burden" imperialism in Africa and Asia. Both were religiously tinged with a strong prejudice in favor of Protestantism. The anti-Catholic laws and practices in nineteenth- and twentieth-century America are well documented. It took the presidency of John F. Kennedy and the Supreme Court's decision in Roe v. Wade to cause some Protestants to merge, politically (not religiously), with Roman Catholics against abortion and homosexuality, and that merger is very much a recent practice. When JFK campaigned for the presidency, there was a still very strong opposition to him based solely on his Catholic religion.
Trump and his religious right allies want to restore the time when American "greatness" was deemed equivalent to governmental favoritism of Christianity, especially Protestantism. Trump has ushered in a kind of Russian mystical version of these doctrines, which combines religious discrimination and church-state establishment with authoritarianism. This is (in addition to Trump's financial ties, if any, to Russia) why Trump and Company have such admiration for the likes of Putin and Erdogan. It is precisely that kind of system that Trump and his followers would like to install in the US. The first step is to get rid of the Johnson Amendment (LBJ's prepresidential law that churches lose their tax exempt status if they support political candidates from the pulpit). Look at how Putin has politicized the Russian Orthodox Church (see my review of Masha Gessen's book on Pussy Riot here); this is exactly what Trump wants to do in this country. Another example: Trump's threats to use military force against Venezuela are precisely a throwback to the "gunboat diplomacy" of the turn of the twentieth century. Teddy Roosevelt would be proud of this appropriation of his imperialistic legacy (though I believe TR later repented of his youthful imperialism, and, additionally, Trump's attempts to destroy a habitable environment are the polar opposite of TR's views).
I second Alan. I would just add, "Keep your eye on SCOTUS."This year there is Masterpiece Cakeshop vs. Colorado Civil Rights Commission. In the name of free exercise of religion, the cakeshop refuses to make cakes for gay couples. One context for this case is the civil rights legislation of the 1960s. One argument against that legislation was that "big" government couldn't tell a family-owned business (restaurants, motels, etc.) that it has to serve anyone who comes in the door, even black people. As I recall someone named Lester Maddox became the poster child for that argument. That 1960s legislation put an end to that kind of discrimination. But note this cakeshop case shows how discrimination could come back in the name of the free exercise of religion.
I'll offer another example in a follow-up post.
Here is my follow-up--A recent important free exercise case was the 2014 Hobby Lobby case. That case said a corporation could act in the name of the free exercise of religion--a corporation, not a person. Furthermore, the case said that a corporation, in the name of free exercise, could refuse to do what a law says an employer must do for an employee.
That case could be a baby step toward things unimaginable today.
I once heard Lawrence Tribe say that while Citizens United is a problem, the real danger is that the Roberts court could inch its way back toward the Lochner era. Lochner was a 1905 case that ruled that in the name of freedom of contract, the government could do nothing to interfere with the relation between employer and employee. That would mean that things like minimum wage laws, social security, etc. would be unconstitutional. That Lochner era thinking is what Roosevelt was fighting against when he came up with his court-packing scheme. Today, I think Justice Thomas would be ready to go back to Lochner in a New York minute. SCOTUS precedent means nothing to Thomas.
The scary thing about Hobby Lobby is that it uses free exercise of religion to put a limit on governing of the employer-employee relationship. This particular limit is just a baby step, but it does point in a dangerous direction. It shows how the free exercise clause could be deployed in a conservative revolution of staggering proportions.
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So this is my first and perhaps most dispositive argument against Hobby Lobby. Another argument has to do with the fact that they have 21,000 employees instead of just family members who share their religious beliefs. But I don't even find a need to go there in the Hobby Lobby scenario.
As for the gay wedding cake case, I have a somewhat different analysis. I agree that the baker should be required to make regular bakery products for any customer regardless of race, religion, sexual preference, and so forth. This is the lesson from the 1964 Civil Rights Act and its progeny. But the precise issue in this case is whether a baker should be required to design a unique and personalized cake to celebrate a same-sex marriage, when the baker has religious beliefs against such unions. I am assuming (perhaps incorrectly as I haven't read the lower court decisions) that the corporate form is not an issue here as it is in my analysis of the Hobby Lobby case. The First Amendment to the U.S. Constitution has a number of components. One is that government cannot compel an individual (again, disregarding any corporate issue) to utter speech the individual does not want to utter. The baker is here being compelled, in violation of his religious beliefs, to utter speech (in the form of a designed celebratory wedding cake) with which the baker religiously disapproves. Of course, the baker could close the business, but the law doesn't require this extreme alternative under these circumstances. This case is accordingly distinguishable from the 1964 Civil Rights Act scenario. Of course, some lunch counter owners probably claimed that serving African Americans violated their religious beliefs. But no court would take that argument seriously. In contrast, the wedding cake scenario presents the issue rather starkly. Therefore, I think it is probable that the Supreme Court will end up with a narrow holding specifically invoking the compelled speech prohibition of the First Amendment.
I think that Robert has a strong argument regarding the focus on SCOTUS. Trump is, I believe, essentially irrelevant to the development of any long term threats to religious freedom in the USA. Whoever was the Republican candidate for President was going to nominate conservative justices for the Court. That's why the choice of HRC as its candidate was the Democrat's primary responsibility for the threat to the Court. Trumpf is devoid of ideology and principles except to win and be loved. ...he has as much connection and commitment to the religious right as I do to the Boston Red Sox. The cause of religious freedom and separation of church and state will require more work by the Dems to demonstrate their commitment and interest in the lives of all Americans and not just particular groups. In the meantime, the real battle for freedom will occur when Kennedy retires, Ginsberg departs or any other centrist/left leaning justice retires and dies. It's a fantasy to think that Trumpf will be impeached before he has a chance to nominate at least one more justice. Somehow I doubt that his buddy from NYC, Schumer will have much of a deal to make. But then a year is long time in politics especially these days.
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Good analysis. I'm hoping against hope that Ginsburg and Kennedy will remain on the Court until either the Dems get a majority in the Senate in the 2018 election (which is unlikely, given the Senate lineup for 2018) or Trump is defeated in 2020 (I can't believe he will be elected again, though I certainly failed to predict his election in 2016). As for impeachment, nothing will happen before the 2018 midterms (absent a colossal error by Trump that significantly alienates congressional Republicans) and probably before the end of his term in January 2021. If it weren't for foreign policy, I would say we're better off with Trump than with Pence. However, Trump's wars of words with Kim un Jong, on the one hand, and Iran, on the other, may escalate into a hot war with either or both of them. And, needless to say, Trump will not feel obligated to get a declaration of war from Congress, nor would there necessarily be time for that in any event.
Looking farther down the road, I recently heard a prediction that in the coming decades, 70% of the population will be in 15 states and 30% will be in 35 states. Translated: 30% will have 70 senators, 70% will have 30 senators.
This imbalance will also impact the electoral college, where every state gets two electors for their two senators.
This state of affairs could make it possible for a minority of white, religious people to run the country.
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Translated: 30% will have 70 sena..."
Hence my work in progress on the Electoral College. I'm writing it as we speak. It should be completed by the end of the year. For further information, see the Electoral College topic in this group.
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Do you recall where you saw that prediction? I might want to cite it in my book.
Thanks.
Alan
Alan, I heard it on "Fresh Air." Terry Gross was interviewing Norman Ornstein and E. J. Dionne about their new book, ONE NATION AFTER TRUMP. One of their claims is that the US government is no longer representative of American demographics. They illustrated with the prediction, so it may be in the book. In any case, it is in the transcript of the program which is online. The program was Sept 19th. The prediction is near the end of the interview.
Your book sounds timely, Terry Gross should interview you.
Bob
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I heard it on "Fresh Air." Terry Gross was interviewing Norman Ornstein and E. J. Dionne about their new book, ONE NATION AFTER TRUMP. One of their claims is that the US government is no lo..."
Thanks, Bob. I just downloaded the book on Kindle. The notes in the Kindle edition are hyperlinked and it has real page numbers, so I'll be able to cite it, if appropriate. I've read one or more other books by Ornstein and Mann, and here they're teaming up with Dionne. It should be good. Ornstein is, I guess, right of center, but he is so rational in his approach to things that I'm surprised that the American Enterprise Institute didn't fire him long ago. Alan
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The transcript of the NPR interview is here. The discussion you referenced is on pages 13-14 of the transcript. Unfortunately, they give no source for the statistics. I've looked/searched for this in the Kindle book but so far have not found it. That said, I've begun reading the book, and so far it is quite good. The opening paragraphs say exactly what I (and I am sure many others) have thought during the last many months:
"American democracy was never supposed to give the nation a president like Donald Trump.
"We have had more or less ideological presidents and more or less competent presidents. We have had presidents who divided the country and presidents whose opponents saw them as a danger to everything they believed in. But we have never had a president who aroused such grave and widespread doubts about his commitment to the institutions of self-government, to the norms democracy requires, to the legitimacy of opposition in a free republic, and to the need for basic knowledge about major policy questions and about how government works. We have never had a president who daily raises profound questions about his basic competence and his psychological capacity to take on the most powerful and challenging political office in the world. We have never had a president who spoke more warmly of dictators than of democratic allies, and whose victory came with the assistance of a foreign power that meddled in our election.
"We have, in short, never had a president who, from his first day in office, plainly showed that he had no business being president."
E. J. Dionne, Jr., Norman J. Ornstein, and Thomas E. Mann, One Nation After Trump: A Guide for the Perplexed, the Disillusioned, the Desperate, and the Not-Yet Deported (New York: St. Martin's Press, 2017), 1-2 (italics in the original).
The book discusses, among many other topics, the Electoral College. From what I've seen so far, I think it's likely that I will cite this book in my own in-depth book on the Electoral College.
(minor edits on 9/27/2017)
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In message 137, Robert wrote:Today, I think Justice Thomas would be ready to go back to Lochner in a New York minute
I don't necessarily disagree with this, but I was curious to find if Thomas himself had commented in print on Lochner v. New York
I didn't find that, but did find this denunuciation of Jeffery Toobin, who has a special place in his heart for that Originalist Justice:
http://reason.com/blog/2016/10/26/the...
I also suppose this discussion will heat up once the Supremes weigh in on Masterpiece Cakeshop vs. Colorado Civil Rights CommissionFWIW, I think Masterpiece had other good reasons (than "religious freedom") to not make that cake - in fact I believe the proprietor claimed a very-narrow locus-of-exclusion - the message implied by the cake. On NPR he stated he would be happy to transact with that fellow in most other ways.
The fellow (one of the prospective grooms) invoked his "feelings" during that radio piece - I trust his attorney did not use that as part of his legal argument.
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FWIW, I think Masterpiece had other good reasons (than "religiou..."
The case may turn on the constitutional issue of whether the "message implied by the cake," in your words, constitutes compelled speech in violation of the First Amendment. Consider whether a baker should be compelled to provide a tailor-made cake for a Ku Klux Klan meeting. It may (or may not) be the same principle, and I'm sure the Supreme Court's opinion(s) will discuss this issue in depth. I am not sufficiently immersed in the facts of this case to offer an opinion on it--or on its outcome.
As for Governor Palin, the contrast pre- and post-McCain campaign is striking.
On Friday's Real Time (HBO), Bill Maher recently replayed some choice Palin-ism's while Trump stood by maintained a stone face.
Although all the excerpts were very short snippets that were out of context (befitting the attention span for Maher's studio audience), the phrases did not parse. This, anyway, is not new. One of the Governor's rival (a very intelligent man whose butt she kicked in an August Primary) used to complain that her spoken expression did not parse (this was 2007-08). Not all of that was sour grapes.
What is new is that her role has changed. Wielding Alaska's strong-governor veto pen and role-in-general is decidedly different than whipping up a narrowly-drawn self-selecting crowd at far-flung American speaking platforms.
What has also changed is that she has succumbed to the muse of fame - unlike the sort of chastening criticism that is part and parcel with any political executive's job.
As for legal tales, there would be little need to name names, eh?