Author Archives: ddrakeman

Things I Haven’t Figured Out — Part 3: Where’d the Framers Go?

Over the last couple of years, I’ve had the chance to talk about my church-state book at a few law schools.  At least twice, a distinguished Con Law professor responded along the lines of, “Sure, that may be what the establishment clause meant to the people who adopted it, but that’s not what we mean by ‘original meaning.’”

Around many law schools these days, “original meaning” has nothing to do with the people we often call the Framers.  Rather, the core of modern originalism is the search for “objective public meaning” – that is, what an average or reasonable person at the time would have understood the text to mean.  Some even point to a hypothetical ratifier with full knowledge of all the circumstances (essentially, in my view, a time-traveling law professor).

So what happened to the Framers?  Basically, they’ve been expelled along with all forms of “intentionalism,” now known as the Old Originalism of the “undertheorized” past.  Too many Framers for one intent, it seems.  And, besides, as Justice Scalia often points out, it’s often easy to find some Framer whose policy choices are the same as yours, thus allowing too much results-driven analysis.

These are good criticisms.  Just look at how the Supreme Court latched onto Madison and Jefferson to build its wall of separation jurisprudence without considering what anyone else might have thought.

What I find perplexing is that people believe that the hunt for objective public meaning avoids these problems.  Let’s look, for example, at the system of town-based taxes for Protestant ministers that existed in New England at the time of the Constitution.  The Massachusetts courts called it an “establishment,” whereas the New Hampshire courts said that the same system definitely was not an establishment.

 So, when we look at the First Amendment, which is the objective public meaning of “establishment,” the MA version or the NH version?  There are two perfectly good choices that happen to be inconsistent with each other.  Wouldn’t it be useful to know what the actual people who adopted and ratified the establishment clause thought it meant?

 Well, I think so.  But it’s not what “we mean by original meaning,” say the experts. 

 Hey, wait a minute.  How does the objective public meaning crowd get away with saying, “that’s not what we mean”?

 Don Drakeman

 P.S. This brings my guest blogging month to an end.  I want to thank Mark and Mark for running an outstanding religion and law forum, and for giving me a chance to share my often idiosyncratic views.  I also want to thank those who commented on my posts, either at the site or in separate emails.  It’s been great to be part of the broader intellectual community interested in religion and law. Henceforth, I will certainly be a devoted follower of the forum.

 

Things I Haven’t Figured Out — Part 2: Establishment Clause Heavy Lifting

Every time a church-state issue pops up – school vouchers or prayer, the Pledge, you name it – everyone runs to the establishment clause to see what the answer is.  And I’m wondering why we’re asking that clause to do so much work.

You’ll think the answer is obvious.  That’s where the Constitution’s governing statement about religion and government is found.  Just look at all those Supreme Court cases.

And you’re right.  The Supreme Court has, for the last 60 years or so, created its church-state jurisprudence around the first few words of the First Amendment.  But it didn’t have to be that way.  And, in fact, it most often wasn’t that way for 160 years before that.

Try this as a thought experiment.  Suppose, just for the sake of argument, that all the establishment clause did when it was adopted was say that there would be no national “Church of the United States.”  (I’ve devoted 1500 footnotes to saying just that in Church, State, and Original Intent, but you don’t have to agree with me.  This is just an experiment.)  In that case, the establishment clause per se wouldn’t have much, or anything, to say about all our hot-button church-state issues.

It seems to me that there could be interesting questions of delegated powers for federal church-state issues (see the Affordable Care Act litigation), and a chance to mull over equal protection issues for state ones (and perhaps federal ones if you favor reverse incorporation).  How about those largely ignored privileges and immunities, and the last couple of provisions in the Bill of Rights?  You can no doubt think of others.

I’m not proposing an answer here – just suggesting that, as a diversion from the inevitable less-filling/tastes-great debates between the strict separationists and their establishment clause foes, it might be intellectually freeing (and, at least in my view, more historically accurate) to think about church-state issues without all those layers of establishment clause doctrine.

Don Drakeman

Things I Haven’t Figured Out — Part 1: Delayed Reactions

Patrick Dineen has an excellent article, “Cities of Man on a Hill” in the inaugural issue of an important new journal, American Political Thought.  His take on the various types of American exceptionalism is definitely worth reading.  But, for today’s purpose, it provides a chance to think briefly about John Winthrop’s iconic sermon that gave us the oft-quoted concept of a “city on a hill.”

 A couple of years ago, the Witherspoon Institute sponsored a church-state seminar, and we were reading Winthrop’s “Modell of Christian Charitie.”  Called the greatest sermon of the millennium by Harvard’s University Preacher, it is one of the most anthologized works of American literature.  All of us who went to school in the U.S. undoubtedly had to read it, and we learned that Winthrop delivered it on the Arabella, the ship bringing the early Puritans to the New World.

 What I found amazing, when I looked in to it, was that Winthrop’s sermon has had enduring effects on presidents and preachers, but it doesn’t appear to have moved his listeners.  Winthrop’s most recent biographer tells us that, despite the Puritans’ penchant for leaving an impressively abundant documentary record, “not a single individual recorded in a letter, diary, or other source having heard Winthrop deliver the sermon.”  In fact, early Puritan historians, including one who sailed on the Arabella with Winthrop, never mentioned the sermon.  (See Francis Bremer, John Winthrop: America’s Forgotten Founding Father (2005).)

 I’m not sure what that tells us other than, perhaps, it takes a while to find out what will stand the test of time, much as Roger Williams’ religious liberty writings were virtually unheard of in America until they were discovered a century later and used to great effect by Isaac Backus and other Baptists.

 One final thought: at the end of Winthrop’s sermon, he talks about a covenant (i.e., essentially a contract) between the Massachusetts Bay Company and God.  What do you think the terms were?

Don Drakeman

Things I Thought I Knew — Part 3: The Antifederalists and Religion

In the last few decades, the Antifederalists have surged, partially because they look like the patron saints of small government, and, for our purposes, because they have been held up as recognizing the importance of religion for the health of a republic.

 “[M]any Antifederalists,” according to Herbert Storing, “were concerned with the maintenance of religious conviction as a support of republican government.” And he should know. Storing was not only the dean of Antifederalist scholars, he created a 7 volume canon called (perhaps over-optimistically), The Complete Antifederalist.  Since Storing’s book is all about the constitutional debates, it’s hard not to assume that he meant that they were looking for ways for the federal government to support religion.

But, what I found perplexing, when I looked into it, is that even he has trouble documenting his statement about “many Antifederalists.” In all 7 volumes, he only has one Antifederalist, Charles Turner of Massachusetts,” talk about the importance of “Christian piety and morals” to the country.  Storing bolsters this statement with a letter by another Massachusetts writer who wasn’t an Antifederalist, and a Virginia writer who wasn’t talking about the Constitution.

 To be sure, many Antifederalists did think religion was important to republican government; they shared that belief with many Federalists. The point is that very few Feds or Antifeds thought it was a federal issue.  At the state level, there had been – and would continue to be – battles over just how much the government needed religion. But what is most impressive about looking for religion in Storing’s Complete Antifederalist is that it’s rarely there – just an occasional comment about protecting religious freedom, and a few statements both for and against a religious test for public office. 

 In short, the Antifederalists – in their discussions of the federal Constitution – really didn’t have much to say about religion.  If they had thought it was an issue, they probably would have had a lot to say.  But it wasn’t, and they didn’t. So anyone who wants to enlist them in a push for more recognition of the importance of religion at the national level must first remember what is abundantly clear from Storing’s collection — that the Antifederalists didn’t want a “national” (a word they hated) government to have power over anything.

Don Drakeman

Things I Thought I Knew — Part 2: The Simple Cobbler from Connecticut

American statesman Roger Sherman is best known to us for not being very well known.  We find him mostly in collections of works by “Forgotten Framers.”  Or, for those of us raised in the era of the Broadway play and film, 1776,  he is “just a simple cobbler from Connecticut,” whose intellect isn’t up to helping draft the Declaration of Independence.

Mark David Hall’s excellent new book, Roger Sherman and the Creation of the American Republic (2012), shows us what we’ve been missing by focusing too much attention on the more famous founders.  Hardly just a simple merchant, Sherman was smart, articulate and thoughtful, and he was a deeply religious and intellectually engaged Calvinist in the New England tradition. Sherman’s Reformed Protestant faith was not only important to him, but, thanks to Sherman and his New England colleagues, it ended up contributing as much to American nation-building as the much more commonly credited Enlightenment.

Meanwhile, the original “simple cobbler” from New England is always worth revisiting.  Nathaniel Ward was a Puritan minister who wrote, under a pseudonym, a satiric 1646 essay titled, “The Simple Cobbler of Aggawam in America.”  The Simple Cobbler sets out a New England view of religious toleration not long after Roger Williams was banished, as follows:   “Antinomians, Anabaptists, and other Enthusiasts shall have free Liberty to keep away from us, and such as will come to be gone as fast as they can, the sooner the better.”

Don Drakeman

 

Things I Thought I Knew — Part 1: Supreme Court Facts

When I was teaching an undergraduate research class on the Constitution, I would sometimes give the students this assignment:  Find a Supreme Court opinion making a constitutional argument that relies on a factual statement.  Then go do the research and see if the facts that are necessary to the argument are accurately stated.  At the outset, I thought the Court’s batting average would be pretty high, but that wasn’t necessarily the case.

Take, for example, the Everson case where Justice Rutledge read the establishment clause in light of James Madison’s Memorial and Remonstrance because of Madison’s “authorship” of the religion clauses and the fact that the First Amendment was the “direct culmination” of the struggle for religious freedom in Virginia.

Does the documentary record support Rutledge’s factual claims about the religion clauses?  The answer, at least in my view, is somewhere between “no” and “not really.”  But this isn’t just an academic research exercise or a chance to say, “Gotcha.”  It’s a question about what makes a persuasive constitutional argument.

This what-are-the-real-facts issue might seem to be narrowly focused on originalist arguments, since they need to cite the historical record showing the Constitution’s original meaning (whether they are “Old” Originalist arguments focused on the framers or “New” Originalist ones about the “public meaning” of the text).  But even non-originalist justices sometimes rely on economics, sociology, psychology and other academic fields.  In those cases, we can ask whether the justices are fairly representing the state of scholarship, or are they engaging in a bit of “law office social science.”

So what if the Court is wrong, or if, perhaps, it over-interprets a bit?  That’s a deeper question, but I tend to side with the distinguished Princeton professor, Edward Corwin, who said (in 1951) in connection with the Supreme Court’s landmark church-state cases, “the Court has the right to make history [but] it has no right to make it up.

Don Drakeman

Getting Out of Our Grooves — Part 3: Where Does Religious Liberty Come From?

The canonical view of American religious liberty was set out in Justice Hugo Black’s opinion in the Everson case (1947):  A “large proportion” of the “early settlers of this country . . . came from Europe to escape the bondage of laws which compelled them to support and attend government favored churches.”  Religious persecution “shocked the freedom-loving colonials into a feeling of abhorrence,” a feeling, he noted “which found expression in the First Amendment.”  Ultimately, the leadership for our national commitment to religious liberty came from Virginia, since Jefferson’s Bill for Establishing Religion Freedom and the First Amendment “had the same objective and were intended to provide the same protection . . . .”

This classic statement of the Jeffersonian origins of the religion clauses basically says that “ideas have consequences.”  And it’s hard to disagree with that principle in the abstract.  But it is also worth looking at some more pragmatic concerns that led Revolutionary America to embrace a greater level of religious freedom.  As discussed in my earlier blog, religious liberty, in addition to being a good idea, can be a useful strategy for governments seeking to expand or consolidate their power.

Scholars have suggested, for example, that the War itself may have had a beneficial trickle down effect on religious liberty.  Most recently, John Ragosta’s Wellspring of Liberty (2010) shows how Virginia’s dissenters, particularly the Baptists and Presbyterians, negotiated for greater religious liberty from the Anglican-dominated state in return for their support of the war effort.

Meanwhile, Charles Hanson’s Necessary Virtue: The Pragmatic Origins of Religious Liberty in New England (1998) shows how events in Massachusetts, where anti-Catholicism had been ingrained for a very long time, led to a “wartime accommodation” of Catholic France.  Hanson’s story touches in part on the oldest endowed university lecture in America, Harvard’s Dudleian Lecture.  Donor Dudley’s carefully drawn will required that, at least once every four years, the distinguished lecturer would be required to address the following topic:  “The detecting and convicting and exposing the idolatry of the Romish Church, their tyranny, usurpations, damnable heresies, fatal errors, abominable superstitions, and other crying wickedness in their high places.”

And so, while New Englanders had blasted the 1774 Quebec Act guarantying Canadian Catholics the “free exercise of religion,” the colonists’ formal alliance with Catholic France in 1788 led to wartime “accommodations,” including far milder Dudleian Lectures during the war years.  Old prejudices tend to die hard, however, and Harvard didn’t look seriously at changing the anti-Catholic focus of the lectures until the end of the 19th century, a move that we may choose to applaud for its liberalness or to criticize for its violation of the principle of upholding donor intent in charitable giving.

Don Drakeman

Getting Out of Our Grooves — Part II: Islam and Secularization?

We tend to think of countries such as Pakistan as quintessentially religious states.  As Humeira Iqtidar, of Kings College London, writes in her fascinating new book, Secularizing Islamists? (2011), the “increasing prominence of Islamists in Pakistani political space, especially over the last two decades, has crystallized a particular reading of Pakistan past and present . . . . Pakistan, Islam and fundamentalism – the conflation of the three has become an inescapable focus of media portrayals . . . . “

To provide a fuller picture, Professor Iqtidar spent a great deal of time in the relevant communities and had the rare opportunity to interview members of competing activist Islamist groups.  Her description of their competition for members, for power, and for the ability to define correct Islamic practices is remarkably interesting.

In the end, Professor Iqtidar argues that “Islamists are facilitating secularization at a social level even as they oppose secularism as an official policy.”  This is not, she is quick to note, a “strict demarcation of the public realm from the private . . . .”  Rather, the “Islamist insistence on the internal coherence of religious practice, its appropriateness to tackle the challenges of modern life, as well as competition among Islamist groups have led to a broad . . . thinking through of the role of religion in contemporary Muslim life . . . .  Religious practice can no longer be a matter of communal following of norms; it has been changed into a largely individualized decision that must be justified internally, that is, within a subject, and externally, to others around the subject.”

Finally, for those of us who periodically chafe at how some social scientists have superimposed Western European philosophical assumptions and religious categories on not necessarily matching American phenomena, I wanted to stand up and cheer while I was reading Professor Iqtidar’s comments about “universalist claims in social scientific analysis.”  In particular, she writes, “Within much of academic literature secularism continues to have immensely positive normative associations intertwined with a continued assumption of universal application.”  Until quite recently, social science theories “conflated diagnosis with prescription, description with projection.  This becomes particularly problematic in studying societies that are markedly different from the contexts in which there concepts took initial shape.”  No kidding.

Don Drakeman

Getting Out of Our Grooves — Part I: Where Does Religious Freedom Come From?

Locke’s famous “Letter Concerning Toleration” urged us to “get out of our grooves and study the rest of the globe.”  In particular, he pointed to Turkey where the “Sultan governs in peace twenty million people of different religions . . . .”

Karen Barkey of Columbia University has given us a chance to get out of our church-state grooves with many terrific insights into the crucial role of religious toleration in the Ottoman Empire.  Her wonderful book is Empire of Difference: The Ottomans in Comparative Perspective (2008).  What’s most interesting, at least from my point of view, is how Ottoman rulers pursued toleration as a policy to the extent that it had political, economic, strategic and other benefits for the rulers.

We often see issues of religious toleration/freedom as essentially intellectual or philosophical matters, something that governments should provide simply because it’s the right thing to do.  Professor Barkey, a sociologist and historian, shows clearly how Ottoman “toleration is neither equality nor a modern form of ‘multiculturalism’ in the imperial setting.  Rather, it is a means of rule, of extending, consolidating, and enforcing state power.”

It’s a fascinating book not just about religion, but also about how empires establish and sustain themselves over time and extended geographical areas.  And, though I don’t want to stretch the analogy too far to an empire built on raiding and booty, for those of us who have spent considerable amounts of time in the “real world,” there are a lot of issues common to running an international company and maintaining a sprawling empire. (Even the most imperial CEO, however, is unlikely to have the full range of enforcement mechanisms available to the sultans.)

Don Drakeman

Things That Aren’t on Enough Church-State Syllabi: Part III — Federally Funded Evangelism

Colonel Johnson of my last post was not only center stage for the country’s first big law and religion debate, he was also in the middle of the most amazing non-event in American church-state history.  Running short of cash, Johnson turned his Kentucky property into the site of one of the many federally-funded boarding schools where young Native American boys would be “Christianized” and “civilized.”  Every presidential administration from George Washington until the 20th century had some sort of effort to “civilize” the Indians, with James Madison helping to launch the school project. 

Johnson partnered with the Baptist General Convention for Missionary Purposes, since the schools were invariably run by missionary organizations.  At one point, the War Department complained that the Kentucky Colonel’s school wasn’t properly recognizing the Sabbath.  After becoming famous for his reports decrying any federal cognizance of religion – especially relating to the Sabbath – what did he do?  He wrote to the Baptist minister running the school to complain about the apologies he had to make in Washington.  Johnson promised that these “irregularities” had been corrected, and the War Department would get the full Christianizing benefits it was paying for.

 Isn’t it remarkable that this civilization process endured for a century without any church-state controversy?  Even President Grant, famous for his speech about keeping church and state “forever separate,” awarded control of part of the federal Indian agency to the Society of Friends, saying, “If you can make Quakers out of the Indians it will take the fight out of them.”

Church-state issues didn’t arise until late in the 19th century, when Catholic schools ended up with the lion’s share of the $3.8 million annual budget.  Only then did all the previous Protestant beneficiaries decide to call for an end to funding “sectarian” schools.  An interesting account is in R. Pierce Beaver, Church, State and the American Indians (1966).

 It seems to me that we simply can’t talk about 20th century school-aid cases without paying attention to this remarkable history.

 Don Drakeman