November 21, 2004

Religion and politics

Don Herzog, Herzog: "A Christian Nation?": November 21, 2004

Well, right, that's a huge topic -- or, better, a cluster of topics.  I flinch, for instance, every time people champion or condemn "the separation of church and state," because that could mean lots of things, some of them good, some not.  (I teach first amendment and begin the section on the religion clauses with a quick battery of cases designed to show the students that "separation" can't settle anything.  Even though some of the justices have thought it can:  there are inadvertently hilarious moments in the cases, with for instance Frankfurter meeting a challenge to religious teachers coming into Illinois public schools by intoning, "Separation means separation, not something less."  Gee, thanks.)

So here's one topic, or anyway a smaller cluster.  Lots of people on the right complain that this is a Christian nation and liberalism makes us lie and pretend it isn't.  "Christian nation" has to mean more than "a nation in which lots of Christians live."  The smartest version of the argument I know is in Richard John Neuhaus's The Naked Public Square, which has some great vignettes:  the TV cameras went off, he reports, whenever Martin Luther King started talking scripture, and King remarked sadly -- I'm going by memory here -- "they want to know what we're doing, but not why we're doing it; so they'll never really understand what we're doing."

So what would change if we agreed that we are a Christian nation? Well, I'd get jittery:  but why?  I asked a really smart conservative Christian student of mine what would change.  He didn't know.  I asked if the University of Michigan could impose a religion test on hiring faculty, on the theory that we are entrusted with educating the young and a Christian nation doesn't trust diffident Jews and atheists with that task.  He was horrified:  "of course not!"  I asked if only Christians should be permitted to serve on juries.  More horror, this time laced with the suspicion that I was teasing.  I asked if people who could demonstrate regular church attendance or home prayer should be given income tax deductions.  Now he knew I was teasing.

But I wasn't.  I really wanted to know what would change.  The right likes to lampoon the left for its infatuation with identity politics. Now there must be more to "Christian America" than right-wing identity politics.  It seems too skeptical, too derisive, to think that if people weren't bridling under the perception that "liberal elites" sneered at them, we wouldn't face demands for school prayer, creationism, and the like.  So what else is there?

December 22, 2004

a Christian nation?

Don Herzog, Herzog: "A Christian Nation?": December 22, 2004

A while ago I wondered what would change if we publicly affirmed that this is a Christian nation.  My dilemma shapes up this way.  I don't want to believe that the people urging that are doing right-wing identity politics, slinging around vacuous slogans; I assume they want concrete policy change, not feel-good gestures.  But on the other side, I don't want to believe that the people urging that are what I'd style extremists who might think, for instance, that a public university could fire me as a faculty member if I couldn't demonstrate that I was a Christian in good standing.  (If there are people who'd do that, I'd argue against them.  Strenuously.  Not just label them extremists.  But hey I'd do that too.  Any port in a storm.)  So I keep looking around for some position that skirts the horns of that dilemma.

And then I found this language from the 2004 Texas Republican party platform:

Christian Nation – The Republican Party of Texas affirms that the United States of America is a Christian nation, and the public acknowledgement of God is undeniable in our history. Our nation was founded on fundamental Judeo-Christian principles based on the Holy Bible. The Party affirms freedom of religion, and rejects efforts of courts and secular activists who seek to remove and deny such a rich heritage from our public lives.
Free Exercise of Religion – The Party believes all Americans have the right to practice their religious faith free from persecution, intimidation, and violence. While recognizing one’s freedom from religion, this recognition should not limit others’ free expression of their religious beliefs. Our Party pledges to exert its influence to restore the original intent of the First Amendment of the United States Constitution and dispel the myth of the separation of Church and State. We support the right of individuals and state and local governments to display symbols of our faith and heritage. We call on Congress to sanction any country that is guilty of persecuting its citizens because of their religious beliefs.
Religious Institutions – The Party acknowledges that the church is a God–ordained institution with a sphere of authority separate from that of civil government; thus, churches, synagogues and other places of worship, including home Bible study groups, seminaries and similar institutions should not be regulated, controlled, or taxed by any level of civil government, including the Social Security Administration and the Internal Revenue Service. We reclaim freedom of religious expression in public on government property, and freedom from governmental interference.

Now we don't in this country have what political scientists describe as "responsible party government":  this language is manifestly not a concrete set of policy proposals that the Texas GOP pledges to try to pass in the next session.  Obviously much of it is just exhortation about federal policy, and I assume more generally that all party platforms in this country are some mix of what the activists really believe and what they think will appeal to their members and the broader public, spiced heavily with declarations of victory over vanquished party factions.

I don't suppose that the Texas GOP would adore me or my politics.  And their language isn't boilerplate.  (Here's the only mention of Christianity in the 2004 national party platform:  "America is a working example of religious liberty, home to millions of Christians, Jews, Muslims, and people of many other faiths who live in harmony and contribute to our culture."  Yes, I suppose they could have included atheists and agnostics, but we're a long way from Texas.  I dug up half a dozen other state GOP platforms and none of them whispered a syllable about Christianity.)  But none of this language makes me shudder or grimace or roll my eyes derisively.  I don't support a blanket exclusion of religion from public or government settings.  (Neither does current first amendment doctrine.)  I think it contemptible to teach American history and pretend Christianity has made no difference, though I also think some people overplay or misunderstand the differences it has made.  But that's just business as usual in the liberal arts, where we try carefully to sort out the merits of competing views.  (When Pat Robertson applauds Jefferson for his "eternal enmity against every form of tyranny over the mind of man," I want to say, wait! Jefferson was talking in part about priestcraft.)  I do worry about the state throwing its weight behind one religion, or religion generally, if that looks like carving the community into first- and second-class citizens.  (So does current doctrine.)  And I think the position that all religious institutions must not be taxed or regulated, no matter what, isn't right, but actually most jurisdictions are pretty hands-off.  So maybe under this proposal the Texas GOP would favor doing some things that I'd strenuously oppose; maybe not.  It's too early to tell on the basis of language this abstract.

I guess I'm still looking for some position that skirts the horns of my dilemma.  And though I fear some of you will think I'm facetious, I really don't want to believe all this talk of Christian America is cheap identity politics.  I'd like to find some concrete policy proposals that reasonable people could disagree about.  I'll keep looking.  Meanwhile, call this a lack-of-progress report.

January 11, 2005

a Christian nation? the case of the remarkable Mr. Bartlett

Don Herzog, Herzog: "A Christian Nation?", The Bartlett Files: January 11, 2005

Valiantly continuing my quixotic quest to figure out what's at stake in talk of ours being a Christian nation, I stumbled on the House debate on the constitutional amendment to prohibit gay marriage, 9/30/'04.  Here's a morsel:

Mr. BARTLETT of Maryland.  Mr. Speaker, there seems to be some confusion as to what constitutes marriage.  In the Christian community, and we are a Christian Nation, you can affirm that by going back to our Founding Fathers and their belief in how we started, among Christians, marriage is generally recognized as having started in the Garden of Eden.  You may go back to Genesis to find that and you will note there that God created Adam and Eve.  He did not create Adam and Steve.  A union between other than a man and a woman may be something legally, but it just cannot be a marriage, because marriage through 5,000 years of recorded history has always been a relationship between a man and a woman.

Roscoe G. Bartlett styles himself a "citizen-legislator," but he's now in his sixth term in the House of Representatives, and some might think he's just another professional pol.  (If you have access to Nexis, you can read a 10/10/'04 profile of the representative and his district in the Washington Post.)  Regardless, he is forthright in his declarations that this is a Christian nation -- and his belief that you can justify controversial public policies on that basis.  (He was one of the congressmen embarrassed to learn that he had participated in a ceremony in which the Rev. Sun Myung Moon crowned himself the Messiah, but I don't doubt his claim that he'd no idea that that was going on.)  From a House debate on whether to prohibit faith-based institutions receiving funds from community service block grants from discriminating on religious grounds in employment, 9/5/'03:

Mr. BARTLETT of Maryland.  Mr. Chairman ... our Founding Fathers would be amazed that we were even discussing this.  This Congress, for the first 100 years of our existence, voted money every year to send missionaries to the American Indians.  The Continental Congress bought 20,000 volumes of the Bible, copies of the Bible to distribute to their new citizens.  For the first 200 years the New England Primer taught the alphabet to our students by using Bible text.  In the McGuffrey Reader, the author of that says that he borrowed more from scripture than any other source, and he made no apologies for that.  Our Founding Fathers were devoutly Christian.  They would be amazed that we are even discussing this.  President Adams said that this Constitution was prepared for a Christian Nation which served the purposes of no other.  Mr. Chairman, they would be amazed that we are even discussing this today.

Addressing the House in 1/7/'03 to denounce the efforts of Michael Newdow to have the words "under God" removed from the pledge of allegiance, Rep. Bartlett strung together another parade of great American public figures saluting God and Christianity.  I won't vouch for every one of his historical examples; in fact one of them is clearly wrong.  Bartlett revealed to his colleagues,

In 1811, there was a case the People v. Ruggles.  This was a person who had publicly slandered the Bible.  This case got to the Supreme Court and this is what they said:  "You have attacked the Bible. In attacking the Bible, you have attacked Jesus Christ. In attacking Jesus Christ, you have attacked the roots of our Nation.  Whatever strikes at the root of Christianity manifests itself in the dissolving of our civil government."

Well, no, though the same story surfaces on the internet and I suppose elsewhere.  The 1811 case of The People v. Ruggles, 8 Johns. 290, is from the Supreme Court -- of New York.  It affirms a conviction and 3-month prison term for Ruggles's uttering an entirely nasty bit of blasphemy typical of contemporary freethinkers.  It does not say anything like what Bartlett reports.

But it does say this:  "The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right.  Nor are we bound, by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those imposters.  Besides, the offense is crimen malitiae, and the imputation of malice could not be inferred from any invectives upon superstitions equally false and unknown."

"Almost the whole community"?  There's the rub.  It's not clear why the numbers should be decisive here.  Even a scant handful of Muslims, Jews, atheists, agnostics, &c. &c. are entitled to be equal citizens, not second-class citizens tolerated by the first-class members of the community.  Courts and other government bodies should not be decreeing that other religions are false superstitions:  that grotesquely exceeds their competence.  Then too, the numbers today aren't what they were in 1811.  Sensing this, I think, Rep. Bartlett made a curious and crucial concession:

By the way, I would like to note that it might be appropriate in today's environment to use the words Judeo-Christian.  Those words were apparently not used by our Founding Fathers, but I am sure recognizing the origin of all of these beliefs from the Bible, which is clearly Judeo-Christian, that Judeo-Christian might be a better way.  But I am reading the actual words of our Founding Fathers.  Please read Judeo-Christian when they say Christian.

The historian in me wants to point out that the founders might well have balked at Bartlett's easy and now familiar hyphenation.  (Here's Jefferson in the Notes on Virginia:  "Those who labour in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue."  Meaning, in part, that the Jews aren't the chosen people.)  History aside, expanding from "a Christian nation" to "a Judaeo-Christian nation" isn't good enough.  It excludes Muslims.  It excludes atheists and agnostics.  It excludes Buddhists, Hindus, and on and on.

A nation as religiously diverse as ours (quite happily!) is can't afford to define its identity in religious ways.  Domestically, because it threatens to inflame religious conflict, and you don't need to study the civil wars of early modern Europe to realize how threatening that is.  And internationally, because our cause is ill served by identifying ourselves as a (Judaeo-)Christian nation.  That's why it was an awful slip when President Bush referred to the war on terrorism as a "crusade."  That's why it was worse than embarrassing to learn about General Boykin's statements that our enemy is Satan, fighting us because we are, you guessed it, a "Christian nation," and that our God is "real" but Allah is "an idol."  You can be sure that all that inflammatory language still circulates on the Arab street.  You can be sure that the retractions and apologies don't.

So consider another bit of founding fathers' wisdom.  The Tripoli treaty of 1796, a response to piracy committed by Muslims of the Barbary coast, included this assurance:  "As the government of the United States of America is not in any sense founded on the Christian Religion,--as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,--and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries."  (This article was spectacularly botched in the Arabic version and modified in the renegotiated treaty of 1805.  But it was still a first-rate idea.)

Representative Bartlett means well.  But he's playing with dynamite.

February 01, 2005

blue-state legislation for a Christian nation

Don Herzog, Herzog: "A Christian Nation?": February 1, 2005

Legislatures don't usually bother combing through the books to repeal obsolete laws.  You'll be tickled to know that Massachusetts, which has come a long way since its forbiddingly stern Puritan past, still has this statute on the books (ALM GL ch. 272, § 36):

Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.

The statute dates to the seventeenth century.  My home state of Michigan has an abbreviated version of the same statute on the books (MCL § 750.102).  Courts routinely upheld such statutes in the early 1800s and commentators didn't politely pretend they were defending "Judaeo-Christian" values.  Here's Charles Elliott, Professor of Biblical Literature and Exegesis at Chicago's Presbyterian Theological Seminar in his 1867 book on The Sabbath:

    But it may be asked, would not the Jew be denied equality of rights by legislation protecting the Christian Sabbath and ignoring the Jewish?  The answer is:  We are not a Jewish, but a Christian nation; therefore, our legislation must be conformed to the institutions and spirit of Christianity.  This is absolutely necessary from the nature of the case.  A Christian nation cannot, without the greatest wrong to itself, ignore Christianity, or place it on a level with Judaism, Mohammedanism, and infidelity.  Christianity is the salt of the earth the great conservative principle of all that is good and holy in the world; and the Sabbath is the great conservator of Christianity.

But the Massachusetts statute is quite hopeless today, on free speech and establishment grounds alike.  Anybody wish we could still have such legal actions?  At least one other Western country does.

Great Britain's Blasphemy Act of 1697, 9 Will. III c. 35, attaches legal disabilities to anyone who

shal by writing printing teaching or advised speaking deny any one of the Persons in the Holy Trinity to be God or shal assert or maintain there are more Gods than One or shal deny the Christian Religion to be true or the Holy Scriptures of the Old and New Testament to be of Divine Authority....

Repeat offenders earn more legal disabilities and a three-year prison term.  The Act was repealed in 1967, but the common law of seditious blasphemy lives splendidly on.  An 1838 decision limited its scope to attacks on the Church of England.  (Here's a quick history.)  So had Salman Rushdie written a Satanic Verses bashing the 39 Articles, he could have found himself prosecuted.  Should a free society content itself with saying, "yeah, but we don't issue fatwas"?  The law permits private actors to prosecute and was last successfully deployed in the 1977 case against (somehow I knew it would come to this; didn't you?) The Gay News and its editor for running a poem depicting the love of a gay centurion for Jesus on the cross.  And right now some viewers up in arms over the BBC's broadcast of Jerry Springer The Opera would like to use it again.  Said the director of Christian Voice, "If Jerry Springer The Opera isn't blasphemous then nothing in Britain is sacred."

Tony Blair's government has been tinkering with reforming the common law with a statute prohibiting incitement to religious hatred.  The measure enjoys broad support.  I wonder if it would open Rushdie to prosecution for the actual version of The Satanic Verses.  But I suppose it would pair nicely with the country's Race Relations Act of 1976, which dictates in part that

A person commits an offence if —
(a) he publishes or distributes written matter which is threatening, abusive or insulting; or
(b) he uses in any public place or at any meeting words which are threatening, abusive or insulting, in a case where, having regard to all the circumstances, hatred is likely to be stirred up against any racial group in Great Britain by the matter or words in question.

That act too would be blatantly unconstitutional here for several reasons.  Still, you've got to hand it to the Brits.  They know what a Christian nation is.  They have an established church extensively connected with the government at the highest levels, with for instance 26 bishops still entitled to sit in the House of Lords, and a common law of seditious blasphemy.  They know what it means to enforce civility, too.  Us?  We have quaint and obsolete statutes and disputes about Christmas in public schools.  We don't even revere Massachusett's proud history:  I don't know anyone longing for the restoration of bloody-minded Puritan rule.  Ah, secularism.  Nostalgia isn't what it used to be.

February 18, 2005

atheists need not apply

Don Herzog, Herzog: "A Christian Nation?": February 18, 2005

Should a Christian nation impose a religious test for holding public office?  It's the ultimate in ecumenical or latitudinarian generosity:  just require officeholders to declare their belief in God.  Then you could confidently invoke the label Judaeo-Christian, without the fumbling I've noted before.  Hell, you could admit Muslims and others, too.  (Okay, so Buddhists would have a grievance.  Boy it's hard for a Christian nation to please all the other religions.  But let that go for now.)

Alas, the federal constitution rules out such oaths in Article VI, cl. 3:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

But we have dual citizenship:  you're a citizen of your state and a citizen of the nation.  So does federalism leave room for your state to impose religious tests?  Some states rule out such policies.  Since 1859 that's two years before it was even a state   § 7 of the bill of rights of Kansas's constitution has said this:

The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship.  No religious test or property qualification shall be required for any office of public trust, nor for any vote at any elections, nor shall any person be incompetent to testify on account of religious belief.

West Virginia's constitution (Article III,  § 15)  takes a similar line:

No man shall be compelled to frequent or support any religious worship, place or ministry whatsoever; nor shall any man be enforced, restrained, molested or burthened, in his body or goods, or otherwise suffer, on account of his religious opinions or belief, but all men shall be free to profess, and by argument, to maintain their opinions in matters of religion; and the same shall, in no wise, affect, diminish or enlarge their civil capacities; and the legislature shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this State, to levy on themselves, or others, any tax for the erection or repair of any house for public worship, or for the support of any church or ministry, but it shall be left free for every person to select his religious instructor, and to make for his support, such private contracts as he shall please.

I don't suppose anyone imagines that Kansas or West Virginia are bastions of bigoted atheism or secular humanism.  That would be nonsensical.  So what are they up to?

Their constitutions follow the classic liberal recipe:  make the state blind to the religions, or lack of religions, of its citizens, and you do two fabulous things.  One:  you promote equality of citizenship.  No, not by levelling or homogenizing.  Not for the first time on this blog, I note that liberal equality has nothing to do with the right's frequent scarecrow objections about envy, resentment, and the like. Instead, equality here means ignoring irrelevant facts — and it was a fabulous historical accomplishment, where "fabulous" means both magical and excellent, to pull that off.  Everyone used to take it for granted that of course your religious identity was politically salient, of course it was the business of the state to worry about such matters.  Two:  by getting the clumsy and coercive paw of the state out of the matter, you leave religion free to flourish.  I'm happy to hazard the historical generalization that countries with religious toleration and states that refuse to tinker with establishing churches have more vibrant religious communities than countries without such benign policies.  And I'm happy to count the modern USA as Exhibit One.  So hip hip hurray for Kansas and West Virginia!

But then there's Arkansas.  And South Carolina.  And no doubt others, too.

Article 19, § 1 of Arkansas's constitution provides:

No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court.

In 1961, the Supreme Court unanimously struck down a similar provision of Maryland's constitution.  That action was brought by a man appointed as notary public who was refused his commission when he refused to declare his belief in God.  Decades later, two citizens of Arkansas, not elected or appointed to public office, challenged their state's provision.  But the 8th Circuit ruled (Flora v. White, 692 F. 2d 53 [1982]) that they didn't have standing.  That was probably the wrong call on the standing issue:  federal law does extend standing to taxpayers when there are dignitary harms under the establishment clause.  But even so the court dropped a footnote agreeing that the state constitutional language probably couldn't be squared with the Supreme Court's ruling in the Maryland case.  As indeed it can't.  There's no doubt that the Arkansas provision is unconstitutional.

So I'm surprised that no one with a better claim to standing has challenged the Arkansas provision since then.  But Arkansas isn't alone in having its constitution festooned with such a blatantly unconstitutional religious test.  Article VI,  § 2 of South Carolina's constitution says this:

No person who denies the existence of the Supreme Being shall hold any office under this Constitution.

For citizens who might have dozed off during that part, Article XVII,  § 4 says:

No person who denies the existence of a Supreme Being shall hold any office under this Constitution.

I'll leave the more theologically minded to puzzle over the difference between the indefinite and definite articles.  Both clauses were struck down by a state court in 1997 (Silverman v. Campbell, 326 S.C. 208).  Both remain on the books.

Does it matter that some state constitutions still have such language?  You bet.  Imagine how we'd react if Alabama's constitution still said what it said in 1819:

The General Assembly shall have no power to pass laws for the emancipation of slaves, without the consent of their owners, or without paying their owners, previous to such emancipation, a full equivalent in money for the slaves so emancipated.

It wouldn't be good enough to shrug and say, "well, anyway, it's not enforceable any more."  Nor could you try the threadbare defense of the Confederate flag:  "it stands for Southern pride and tradition, not racism or slavery."  And don't bother pointing out that most people have no clue what their state constitutions say.  That's true, but hardly decisive.  We'd want the Alabama language off the books, pronto.

So too Arkansas, South Carolina, and whatever other states echo them should get rid of their unconstitutional disqualification of atheists.  The state shouldn't be in the business of stamping unbelievers as second-class citizens.  And no one should flirt with the idea that if the state repeals these religious tests, it's taking a stand against religion.  What?  You think there are no churches, no synagogues, no mosques, in Kansas and West Virginia?  Or are you going to tell me with a straight face that without a constitutional seal of approval, they'll wither and die?  Do you think I've done religion any damage by publicizing the dirty little secret of what those state constitutions say?

Sorry, but I won't buy shares in the Brooklyn Bridge, either.

March 15, 2005

Justice Scalia's blooper

Don Herzog, Herzog: "A Christian Nation?": March 15, 2005

I finally got around to reading the oral argument in Van Orden v. Perry.  That's the challenge to the Texas legislature's display of the ten commandments on the grounds of the State Capitol.  (The display in question is a 6' by 3' slab of pink granite, which you can glimpse here.)  Spare a moment, please, for unabashed celebration of equality under the law in this country:  whatever you make of the merits, Van Orden is homeless and his license to practice law has been suspended, but there he and his cause are, before the high court of the land.  The Supreme Court heard the case on March 2.  From an exchange between Justice Scalia and the lawyer arguing that the display violates the establishment clause:

JUSTICE SCALIA:  You know, I think probably 90 percent of the American people believe in the Ten Commandments, and I'll bet you that 85 percent of them couldn't tell you what the ten are.

The joke doesn't surprise me:  Justice Scalia is frequently witty.  But what followed is startling.

But first, let's back up.  (These professors! always fussing over context.)  Where does government get its legitimacy?  Medieval Christian writers argued that the authority of the state descends from God.  Modern theorists replaced that view with the claim that political authority ascends from the people.  Thus the consent of the governed and social contract theory.  You can see the transition in John Locke's Two Treatises of Government.  Locke explains that when the government is oppressive,

the sufferers ... having no appeal on earth to right them, they are left to the only remedy in such cases, an appeal to heaven.

Before democracy, ordinary men and women were humble subjects, not proud citizens.  Medieval theorists had asked what subjects could do if they were ruled by a harsh tyrant.  They couldn't vote the scoundrel out of office.  The theorists' answer was the appeal to heaven:  they should pray and repent for their sins, and God would mercifully lift the scourge.  Locke subverts their language, because he clearly means that the people should take to the battlefield.  Yes, you can say he imagines that providence will award the victory to the deserving.  But Locke's predecessors would have been appalled to see their language used to license civil war.

This wasn't just the nattering on of spacey theorists, either.  It was real politics.  In 1609, James I instructed his first parliament that

The state of monarchy is the supremest thing upon earth:  For Kings are not only God's lieutenants upon earth, and sit upon God's throne, but even by God himself they are called Gods.

In 1624, James referred in passing to "Christ, in whose throne I sit in this part of the earth."  His son, Charles I, ran into increasing conflict with Parliament over taxation and, later, control of the militia.  So he turned to the glorious old tradition to build public support.  Archbishop Laud's canons of 1640 directed English ministers to instruct the faithful, four times a year, that

The most high and sacred order of kings is of divine right, being the ordinance of God himself, founded in the prime laws of nature, and clearly established by express texts both of the Old and New Testaments.

Civil war broke out in 1642, and in 1649 Charles I was put on trial for his life.  The Puritan radicals insisted he had violated his contract with the people.  An imperious Charles bluntly rejected any such contract, refused to plead, and sniffed disdainfully that he was accountable only to God.  They killed him anyway.  Locke wrote the Treatises in part to urge a similar insurrection against James II, even though they weren't published until after the Glorious Revolution.

News flash, or, dubious blast from the past:  like the medieval theorists, like the Stuart monarchs, Justice Scalia doesn't believe that political authority ascends from the people.  Here's what follows his joke.

JUSTICE SCALIA:  And when somebody goes by that monument, I don't think they're studying each one of the commandments.  It's a symbol of the fact that government comes derives its authority from God.  And that is, it seems to me, an appropriate symbol to be on State grounds.
MR. CHEMERINSKY:  I disagree, Your Honor.  For the State to put that symbol between its State Capitol and the State Supreme Court is to convey a profound religious message....
JUSTICE SCALIA:  It is a profound religious message, but it's a profound religious message believed in by the vast majority of the American people, just as belief in monotheism is shared by a vast majority of the American people.  And our traditions show that there is nothing wrong with the government reflecting that.  I mean, we're a tolerant society religiously, but just as the majority has to be tolerant of minority views in matters of religion, it seems to me the minority has to be tolerant of the majority's ability to express its belief that government comes from God, which is what this is about.

There are different claims here.  Justice Scalia appeals to "our traditions."  He urges that the "vast majority" may "express its belief that government comes from God."  (This blatantly implausible claim about what the vast majority believes reminds us why the law is reluctant to let judges take judicial notice of facts not on the record.)  But — it bears repetition — he asserts in his own voice "that government comes — derives its authority from God."  That, he tells us, is a "fact."

It may be a fact, though it won't astonish you to learn that I rather doubt it.  But it is emphatically not the premise of our Constitution, which of course opens:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Yes, yes, the Declaration of Independence opens differently:

When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Not even that language, though, means that government comes from God.  At most, it means a morality underwritten by God permits the colonies to split away from the British empire and declare independence.  But they will then be establishing their own government.  Then too, Justice Scalia might have remembered Justice Marshall's imperative:

we must never forget that it is a constitution we are expounding.

There's a lot to say about what's right and wrong with the Court's current establishment clause jurisprudence, on which everything hangs on whether the government is endorsing religion.  But there's no room in constitutional law for Justice Scalia's claim that political authority descends from God.  He may believe it off the bench, and you may believe it too if you like.  But our constitution and our constitutional law do not proceed on those terms.  Sorry, but you win no points by observing that it's long been conventional for the preamble to have no legal force.  Unless, that is, you can show me that the Declaration's opening does have legal force, and unless you can wring out of it some drips and drops of the descending theory of legitimacy.  (Good luck.)  And unless you can explain why the constitution vigorously rejects religious tests for holding public office.

And sorry, I'm not feeling paranoid or hysterical about this.  I am not cowering under my chair waiting for the theocrats to whip me along to church, burn me at the stake, or put me in the pillory.  Nor am I forecasting that after a few appointments from President Bush, the Court will rule democratic decision-making a blasphemous mistake and replace it with the will of God even if the president has already volunteered his view that you need a "relationship with the Lord" to serve in the White House.

But I also think that the language we use in politics and law is crucial.  It would be good if all of us — left and right, secular and religious — could agree that Justice Scalia, whose work on and off the bench I much admire, pulled a blooper.

May 05, 2005

blast from the past (one)

Don Herzog, Herzog: "A Christian Nation?": May 5, 2005

Edmund Burke, Speech on a Bill for the Relief of Protestant Dissenters, 3/17/1773:

The most horrid and cruel blow that can be offered to civil society is through atheism.  Do not promote diversity; when you have it, bear it; have as many sorts of religion as you find in your country; there is a reasonable worship in them all.  The others, the infidels, are outlaws of the constitution, not of this country, but of the human race.  They are never, never to be supported, never to be tolerated.  Under the systematic attacks of these people, I see some of the props of good government already begin to fall; I see propagated principles which will not leave to religion even a toleration.  I see myself sinking every day under the attacks of these wretched people.  How shall I arm myself against them?

Burke continues,

By uniting all those in affection, who are united in the belief of the great principles of the Godhead that made and sustains the world.  They who hold revelation give double assurance to their country.  Even the man who does not hold revelation, yet who wishes that it were proved to him, who observes a pious silence with regard to it, such a man, though not a Christian, is governed by religious principles.  Let him be tolerated in this country.  Let it be but a serious religion, natural or revealed, take what you can get.  Cherish, blow up the slightest spark:  one day it may be a pure and holy flame.  By this proceeding you form an alliance offensive and defensive against those great ministers of darkness in the world who are endeavoring to shake all the works of God established in order and beauty.

As you can see, Burke was pretty damned jittery before the French Revolution — and that revolution didn't exactly calm him down.  From his Thoughts on French Affairs, 12/1791:

Of all men, the most dangerous is a warm, hot-headed, zealous atheist.  This sort of man aims at dominion, and his means are the words he always has in his mouth, — "L'égalité naturelle des hommes, et la souveraineté du peuple."

There's a nutshell presentation of the view of the great conservative theorist.  Atheism is a threat to social order, and atheism gets wrapped up with dangerous talk of natural equality and popular sovereignty.  The great liberal John Locke took a similar view in his Letter concerning Toleration (first published in English in 1689):

those are not at all to be tolerated who deny the being of a God.

Locke thought atheists couldn't be counted on to be moral, keep their promises, and be upstanding members of society.  Why?  Because of his wacky theory of moral motivation.  Locke thought we maximize pleasure, and what keeps us in line on earth is the threat of divine punishment and the promise of heaven.

By Burke's day, though, liberals had made their peace with unbelief.  Here's Thomas Jefferson's Notes on Virginia from 1781-82:

it does me no injury for my neighbour to say there are twenty gods, or no god.  It neither picks my pocket nor breaks my leg.

Was Jefferson whistling in the dark, ignoring the grave hazards of atheism?  Nope.  Here's a French settler in America, writing low-key ethnography of the natives in 1782.  From J. Hector St. John de Crèvecoeur's Letters from an American Farmer:

Let us suppose you and I to be travelling; we observe that in this house, to the right, lives a Catholic, who prays to God as he has been taught, and believes in transubstantiation; he works and raises wheat, he has a large family of children, all hale and robust; his belief, his prayers offend nobody.   About one mile farther on the same road, his next neighbour may be a good honest plodding German Lutheran, who addresses himself to the same God, the God of all, agreeably to the modes he has been educated in, and believes in consubstantiation; by so doing he scandalises nobody; he also works in his fields, embellishes the earth, clears swamps, etc.  What has the world to do with his Lutheran principles?  He persecutes nobody, and nobody persecutes him, he visits his neighbours, and his neighbours visit him.  Next to him lives a seceder, the most enthusiastic of all sectaries; his zeal is hot and fiery, but separated as he is from others of the same complexion, he has no congregation of his own to resort to, where he might cabal and mingle religious pride with worldly obstinacy.  He likewise raises good crops, his house is handsomely painted, his orchard is one of the fairest in the neighbourhood.  How does it concern the welfare of the country, or of the province at large, what this man's religious sentiments are, or really whether he has any at all?  He is a good farmer, he is a sober, peaceable, good citizen:  William Penn himself would not wish for more.  This is the visible character, the invisible one is only guessed at, and is nobody's business.

So much for Locke's fantasies about atheists as unreliable citizens.  So much for Burke's strident denunciations, too.  Many Europeans were terrified of the violent assaults on Christianity mounted by the French revolutionaries.  But Crèvecoeur's America is not the least bit anticlerical or antireligious.  The devout and the atheist make good neighbors and good citizens — as long as they agree to keep their beliefs about religion private.  Toleration here is selective blindness.  It hooks up with equality under the law:  the state ignores our religious attachments.  And it governs how we interact in one social setting after another.  Just for instance, I'm about to grade a mountain of torts exams.  I don't know and I don't care what my students think about religion.  That doesn't mean that religion doesn't matter.  It means it's irrelevant in the classroom.  So too when the University of Michigan, a public university, hired me, they paid no attention to my religious convictions at all.  And here I am, teaching political theory and law to those impressionable youth....

Champions of ours being a Christian nation seem to need some history lessons.  Maybe I'll provide some in the coming weeks, even if I do shrink from blood and gore.  Meanwhile, I am fiercely proud to count myself a loyal citizen of Crèvecoeur's America.  And I'm ashamed of any who would rally today to Burke's repulsively intolerant sentiments.  I'm astonished by their ignorance, their failure to grasp that the decision to treat religion as if it's private is the not-so-secret recipe for America's fabulous record of peaceful pluralism.  Ashamed, astonished, angry too, and no, not much consoled by those gracious enough to grant atheists like me uneasy standing as second-class citizens.