Category Archives: Donald L. Drakeman

Drakeman, “Why We Need the Humanities”

Congratulations to CLR Board member (and CLR Forum contributor) Don 9781137497468Drakeman, whose new book, Why We Need the Humanities: Life Science, Law and the Common Good (Palgrave Macmillan) appeared last month. Here’s a description:

This lively book explains why we need the humanities. It shows how society has long relied on humanities scholarship to address important public policy issues. Donald Drakeman, an entrepreneur and educator, builds a compelling case for the practical importance of the humanities in helping governments make decisions about controversial issues affecting our lives in fields as diverse as healthcare and civil liberties.

Bold, compelling, and accessibly written, Why We Need the Humanities sets out a fascinating case for the importance of humanities research in the modern world.

Don has already written a major book on originalism, Church, State and Original Intentwhich has drawn admiration from scholars across the world. His new work addresses a subject that could not be more timely. In fact, Don previewed the book in a post on CLR Forum a couple of months ago — which is to say, CLR Forum fans saw it here first. Now, go out and by it!

The Value of the Humanities and Heterodoxy

Readers of the CLR Forum see every day how scholarship in the humanities and social sciences directly affects the laws and policies that govern our lives. That important perspective is not shared widely enough. On that score, two items of interest appeared last week.

First, TIME reported that “[m]ore than two dozen Japanese universities … will reduce or altogether eliminate their academic programs in the humanities and social sciences, following a dictum from Tokyo to focus on disciplines that ‘better meet society’s needs.'”

In tough times, policymakers tend to think of the academic disciplines outside the sciences as a luxury good, easily abandoned in favor of more practical pursuits. But, in fact, really good scholarship across the humanities and social sciences is necessary to help us try to figure out what kind of society we want to be, and what it will take for us to figure out how to work together to get there.

One reason for society’s lack of enthusiasm for the humanities and social sciences is that it tends to be politically monotonal. The best recent studies suggest that less than 5% of academics in these fields at research universities have right-of-center social and political views. Not surprisingly, this can lead to scholarship that downplays, misunderstands, or simply overlooks views widely held among the public and policymakers.

The Heterodox Academy, recently reported in The American Interest, looks like a very important effort to bring more balance into academic scholarship. A politically diverse group of scholars is setting out to bring a greater degree of viewpoint diversity to scholarship, especially in the social sciences. This effort should not only make scholarship more useful, but it will make it more intellectually invigorating, as well.

For what it’s worth, I have much more to say on these topics in a book coming out in just a few weeks called, Why We Need the Humanities.

How the Supreme Court Found the Wall

Many Americans know that the Supreme Court has stated that the Framers intended the Establishment Clause “to erect ‘a wall of separation between Church and State.'” A smaller number know that the Court was quoting a letter from President Thomas Jefferson to Baptists in Danbury, Connecticut–a bit of bad history, since Jefferson’s  idiosyncratic views did not fairly reflect the consensus on church-state relations at the time of the Framing. A still smaller number know that the metaphor of the wall goes back even further, to Roger Williams, who adapted it from the Book of Isaiah.

But hardly anyone knows the very interesting story that historian and sometime CLR Forum guest Don Drakeman (Church, State, and Original Intent) tells in a recent paper. In “Why Do We Think the American Framers Wanted to Separate Church and State?,” delivered at Oxford’s Rothmere American Institute last month, Don explains that Chief Justice Morrison Waite (above) first used the metaphor in Reynolds v United States (1878), a case involving a ban on polygamy. According to Drakeman, Waite came upon the metaphor more or less by accident. Waite happened to live next door to the eminent American historian George Bancroft, for whom Jefferson was a hero. Waite consulted Bancroft about the case, and Bancroft advised that, if Waite wanted to know the Framers’ views on establishment, he should consult Jefferson:

The Chief Justice then went to the library and skimmed through the index to Jefferson’s collected works. There, he discovered an 1802 letter, in which Jefferson said that the First Amendment built a “wall of separation between church and state.” This statement had been buried for nearly 80 years until Chief Justice Waite unearthed it and cemented it into the foundations of church-state jurisprudence. Bancroft, by the way, got a thank-you note, but no visible credit for creating the Jeffersonian First Amendment.

So much for good originalism. Indeed, so much for ex parte communications about a pending lawsuit! But there it is. Don’s essay is a delight. Check it out here.

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