Rowe on the Founders and the Ten Commandments

Ed,

I'm not sure it's very useful, in relation to the recent cases, to point out that Adams and Jefferson had views XY&Z of the Ten Commandments as a method of proving something about our Constitution's meaning or history. It may be useful to show that Jefferson and Adams had disagreed with what some folks today are saying. But, Jefferson also had, what would be today, rather unconventional views about the yeoman farmer's ability to save the world, and a central bank.

There is no doubt that Adams and Jefferson were influential in the decisions that ultimately led to the Bill of Rights. But, I think it's important to note that neither had much at all to do with writing the Constitution--Jefferson was in Paris and Adams in London--and immeasurably less to do with the actual drafting of the First Amendment religion clauses than James Madison.

There is no doubt that we are better off with the First Amendment, and without an established church. But the notion that our founders were all united in secularism and opposed to what we now think of as conservative religious Protestantism, because they opposed evangelicalism, ignores several important facts. Primarily, it ignores the fact that evangelicalism didn't really even come around to the US until the rise in Methodism brought about by the Wesleys and George Whitfield during the Second Great Awakening (1790-1830). Before then, almost all religion in the US was pretty uptight, academic, impersonal, and extremely non-individualistic/evangelical. So, for a "founder" to be anything other than non-evangelical, or for them to be "enthusiastic," as they said then, would have been a rather remarkable exception to the religious culture of the time. Regardless, a tremendous number of them--whether they were involved in the actual writing of the Constitution or Bill of Rights or not--disagreed deeply about the meaning of the First Amendment.

In fact, Adams wrote the Massachusetts Constitution and modeled it after Virginia's Declaration of Rights, yet decided that it was good that Massachusetts had an established church--so he left it as it was. This decision reflects the popular reliance on John Locke's "A Letter Concerning Toleration" wherein Locke advocates a-lot of interdenominational tolerance among a limited number of denominations, but no extra-denominational tolerance--of Catholics for example. Several others, who did have quite a-lot to do with the Constitution, including George Washington, affirmatively approved the idea of an established church in their own states.

A big part of what started the movement to have a provision protecting freedom of conscience was Patrick Henry's--probably a hero to many at the time for his effort in advancing the cause of the republic--proposal, in Virginia, for a general assessment to directly support religion. The bill contained provisions for a property tax whereby citizens could send their taxes to the general fund of a specific denomination to be chosen by the citizen. Among its most important supporters were George Washington, Richard Henry Lee, Chief Justice John Marshall, and George Mason. Those who supported the bill worried that, absent an established church, Virginia and our nation would, in rough terms, go to hell in a hand basket due to moral decay.

As Jon said:

"Jefferson was in Paris and Adams in London--and immeasurably less to do with the actual drafting of the First Amendment religion clauses than James Madison."

Thnks for pointing this out. In my arguments with accomodationists, I am quick to point out the majority of the "evidence" that they trot out comes from either Anti-Federalists or from famous Americans who had nothing to do with the Framing.

When arguing, I try to be very cafeful to use as sources, the Framers themselves.

As an accomodationist, I wonder, why it was not until Everson in 1947 that the Supreme Court, for the first time, applied the Establishment Clause to the actions of state and local governments. It seems strange that the framers would have written a clause that demanded a result that was not even allowed to exist until 1947, and which was not used to strike down a law, in violation of that Clause, until McCollum in 1948.

Jonathan Bunch wrote:

I'm not sure it's very useful, in relation to the recent cases, to point out that Adams and Jefferson had views XY&Z of the Ten Commandments as a method of proving something about our Constitution's meaning or history.

I agree with you, and didn't make that argument. Nor did Jon Rowe make it. Jon has been doing a whole series of posts on the complicated religious views of the founders and how they are often oversimplified by those on both sides of the church/state argument and this is just the latest. In his post, he did not make the argument that because Adams and Jefferson rejected the Ten Commandments, therefore either ruling was right or wrong. He was only pointing out that Scalia was leaving out deism or "theistic rationalism", a prominent view among the founders, from his discussion of the forms of monotheism.

There is no doubt that Adams and Jefferson were influential in the decisions that ultimately led to the Bill of Rights. But, I think it's important to note that neither had much at all to do with writing the Constitution--Jefferson was in Paris and Adams in London--and immeasurably less to do with the actual drafting of the First Amendment religion clauses than James Madison.

Obviously true. But then Madison was easily the staunchest separationist of all the founding fathers. His view of the requirements of separation were more draconian than Jefferson's, and far more so than Adams'. Even, I would argue, more draconian than today's separationists as he argued that even the provision of military chaplains was a violation of the first amendment.

There is no doubt that we are better off with the First Amendment, and without an established church. But the notion that our founders were all united in secularism and opposed to what we now think of as conservative religious Protestantism, because they opposed evangelicalism, ignores several important facts.

I agree with this completely. But then, no one here has made such an argument. I've written extensively on this subject and never made an argument anything like this. I think both sides of this debate oversimplify things enormously. And I've written that accomodationism is a perfectly respectable originalist position because it was embraced by a sizable portion of the men who framed the first amendment. Strict separation also is a perfectly respectable originalist position because it was embraced by the most important framer of them all, Madison, and more or less by Jefferson (though he was not as staunch as Madison in this regard), Paine and a few others. In the case of interpreting the first amendment's religion clauses, there were two clear sides in how to interpret it among the founders (there was a third, as well, those with theocratic tendencies, but they were consistently on the losing end and therefore may be dismissed in this regard). To a large extent, either of those alternatives can make a good argument for being the originalist position.

A big part of what started the movement to have a provision protecting freedom of conscience was Patrick Henry's--probably a hero to many at the time for his effort in advancing the cause of the republic--proposal, in Virginia, for a general assessment to directly support religion. The bill contained provisions for a property tax whereby citizens could send their taxes to the general fund of a specific denomination to be chosen by the citizen. Among its most important supporters were George Washington, Richard Henry Lee, Chief Justice John Marshall, and George Mason. Those who supported the bill worried that, absent an established church, Virginia and our nation would, in rough terms, go to hell in a hand basket due to moral decay.

I would argue that the more significant development was the reaction to Henry's bill. Madison, in response to Henry's bill, reintroduced Jefferson's Act for Establishing Religious Freedom, which would completely disestablish Virginia's official church and outlaw the use of state tax money to support any church. He wrote his famous Memorial and Remonstrance Against Religious Establishments in 1785 and his arguments won the day. Jefferson's act was passed, Henry's bill was rejected, Virginia's state church was disestablished and this became a model for the other states. Madison's Memorial and Remonstrance was widely published and distributed around the country and became very influential and one by one, the states eliminated their official churches, the last in 1833. I have argued in several essays that this was a key turning point in the battle for true religious freedom in our founding period.
Those who argued that things would go to hell in a handbasket without an established church were simply wrong, as were those - and there were many - who objected to the new Constitution because it contained no declarations of religious piety, no language expressing thanks to God, and contained a ban on religious tests. There were many voices around the nation that predicted that the new Constitution would bring down the wrath of God upon our nation because it did not establish an officially Christian nation. They were all wrong and Madison was right - there is no religious freedom in the presence of religious establishments and both religion and government are kept more pure when they remain separate.

Jonathan Bunch wrote:

As an accomodationist, I wonder, why it was not until Everson in 1947 that the Supreme Court, for the first time, applied the Establishment Clause to the actions of state and local governments. It seems strange that the framers would have written a clause that demanded a result that was not even allowed to exist until 1947, and which was not used to strike down a law, in violation of that Clause, until McCollum in 1948.

Because as originally written, the first amendment did not apply to state and local governments at all. Only with the passage of the 14th amendment was any of the bill of rights applied to state and local governments. Madison wanted the first amendment to apply to the states as well as the federal government, but his proposal was rejected. It took the passage of the 14th amendment to make the bill of rights applicable to the states. For that question, we must look not to the framers of the first amendment, but to the framers of the 14th, for support. And as I've written here, on In the Agora, and in radio interviews in the past, the historical record is very clear that the framers of the 14th amendment intended to apply the first 8 amendments to govern state actions thereafter.

It is often amazing to me that so many care what the founding fathers thought. They were men. Just like the rest of us. No more likely to be correct in their religious views than anyone else.

I think time has proven that a seperation has done the USA quite well and that evidence alone should merit some consideration when considering the founders thoughts. n essense giving sway to the founders leads to an argument from authority and may not be all that revelant to modern day life.

GH wrote:

It is often amazing to me that so many care what the founding fathers thought. They were men. Just like the rest of us. No more likely to be correct in their religious views than anyone else.

I don't think anyone is arguing about the founders' religious views themselves, certainly not to support an argument on whether those views are correct on religious questions.

I think time has proven that a seperation has done the USA quite well and that evidence alone should merit some consideration when considering the founders thoughts.

Accomodationists would argue that for most of our history their position held sway - government could endorse religious positions by issuing proclamations and so forth as long as they were not binding or coercive - and it did indeed serve the nation well. I would argue that as we have become a less homogenous society, with more diversity in religious views, and as society has "shrunk" due to technology, the separationist position has been strengthened and Madison's views have been vindicated and have come to hold sway for good reason. But accomodationism can find plenty of historical support to be able to make the same argument you're making.

Ed wrote:

[T]he historical record is very clear that the framers of the 14th amendment intended to apply the first 8 amendments to govern state actions thereafter.

Regardless of what the framers wanted, there is no question that significant parts of the 5th, and the 7th, Amendments still do not apply to states. So, regardless of what the framers wanted, there are several clauses of the Constitution, as interpreted by the US Supreme Court, that do not serve as a restraint on states.

Moreover, if the record were truly clear as to the intent of the framers of the 14th, I don't think law professors would spend so much time explaining selective incorporation, or related doctrines. Nor would there be so many law school classes or law review articles dedicated to the argument over which clauses to incorporate and which ones not to--and whether the 1st should be incorporated at all. Obviously the First Amendment is incorporated (by Everson), and it's plausible that it was intended to be that way. But that does not lead to the conclusion that the method by which it has been applied to states is the correct one--i.e. that the result in McCollum was demanded by the 1st Amendment--or that Everson was even correct.

Jonathan Bunch wrote:

Regardless of what the framers wanted, there is no question that significant parts of the 5th, and the 7th, Amendments still do not apply to states. So, regardless of what the framers wanted, there are several clauses of the Constitution, as interpreted by the US Supreme Court, that do not serve as a restraint on states.

Certainly true that the courts have only selectively incorporated the bill of rights against the states. But then the courts pretty much immediately screwed up the 14th amendment with the Slaughterhouse ruling and it's still making a mess of our 14th amendment jurisprudence. Regardless, my argument was about the original intent and understanding of the 14th, not necessarily what the courts have done with it.

Moreover, if the record were truly clear as to the intent of the framers of the 14th, I don't think law professors would spend so much time explaining selective incorporation, or related doctrines. Nor would there be so many law school classes or law review articles dedicated to the argument over which clauses to incorporate and which ones not to--and whether the 1st should be incorporated at all.

Certainly there is some controversy over this, but I maintain that the historical record is pretty clear with regard to the original intent and understanding of the 14th amendment. I've written extensively about this, both here and at Agora, and cited a great deal of historical documentation to support that position. As far as the first amendment is concerned, I think there is pretty much universal consensus that it was intended to and should be incorporated against the states. I think one can make a coherent, but unconvincing, argument that the Establishment Clause itself should not be incorporated because it does not establish a positive right as the other clauses do.
But I think that view, while coherent, is mistaken and contrary to the historical record. Clarence Thomas is alone, as far as I can tell, among judges in taking that position and I find Hamburger's work in that regard singularly unconvincing. I still intend to post a much longer essay on the subject of Thomas' views on the establishment clause and incorporation. It's about 2/3 of the way finished, but I've been busy with other things and have not taken the time to complete it. When I do, it will be posted both her and at Agora and I'll look forward to hearing your views on the subject.
It's pretty much a purely academic argument, of course. The establishment clause as applied to the states is pretty much settled law. But hell, so are the Slaughterhouse cases and I still rant about those. One can of course argue that even if the establishment clause is incorporated, the result in McCollum was incorrect - or for that matter, the result in virtually every case since then that involves state or local church/state issues. The question of incorporation is separate from the question of how to best interpret the establishment clause. And on that question, I think accomodationism has a much stronger argument to make. As I said above, I think accomodationism - and yes, that's a broad term encompassing a wide range of views - is a perfectly respectable position from an originalist standpoint.
Those who argue that accomodationism is a clear violation of the first amendment and contrary to the original intent of the founding fathers are playing fast and loose with the facts and ignoring the views of a sizable portion of the founders, including some of the most significant. By the same token, those who make the same argument about the strict separation position are equally guilty of oversimplification and of not recognizing the distinct differences of opinion that existed among the founders. The problem is that we tend to speak of "the founders" as though they were a monolithic group of one mind on all the great issues, and nothing could be further from the truth. That is especially true on church/state issues. And it does no good for those on either side to pretend that the founders, as a group, were all on their side.

I strongly agree with your concluding paragraph.

If you have a chance to read any of Carl Esbeck's law review articles I highly recommend them--he was a professor of mine. You're likely to disagree with him on several issues, from what I can tell. But he is considered, among folks in the academy at least, one of the top two or three scholars re the history of the First Amendment's religion clauses.

Jonathan-
I'm not familiar with Carl Esbeck, but I'll keep an eye out for him. On church/state issues, I think there is a range of plausible, respectible opinions. The theocratic, "Christian Nation" position of someone like Patrick Henry is clearly ruled out; they lost all the arguments, to the point where they ended up railing against the new Constitution. The accomodationist position of Washington and Adams, where the government is allowed to make declaratory proclamations as long as they aren't coercive or binding, is clearly within the bounds of plausible interpretations, as is the strict separation position of Madison (though he goes further than even I would go) or somewhat less strict position of Jefferson.
I would argue that in today's far more heterogenuous society, and in a world that has shrunk down dramatically, we are better off following Madison's basic stance of just keeping the government out of the matter entirely. Leave the matter of religion entirely to the individual and keep the government neutral if at all possible. At the very least, I hope we can agree that the government has no business composing official prayers and forcing students to say them. But there are some gray areas, and things like the Ten Commandments displays clearly fall within the gray.

I'm don't exactly know where to post this, but the fact that Spain has just allowed for same-sex marriage is astounding. Canada was expected. But Spain is astounding. It is a thorough redipution of the Roman Catholic Church.

raj,

I am not astounded. I think the Roman Catholic Church is so out of touch with the rank and file Catholic, that at best, the average Catholic cannot even be bothered to give lip service to what they teach and preach.

(I am nominally Catholic)

John, I sincerely do not want to be misunderstood. And I am sure that you are not misunderstanding me, but I just want to clarify.

I live in the Boston area. And I distinguish between the RCC hierarchy and the laity. The RCC hierarchy apparently does, too. In the last few years the laity in Boston formed an organization "Voice of the Faithful" in reaction to the priest sex abuse scandals, which was immediately ignored by the hierarchy. A big f@uk you. That told me a lot about what the RCC hierarchy thinks about the laity. And the laity has responded by disastrous reductions in donations. Not just to the churches, but also to Catholic Charities, a semi-secular charity operation that is sponsored by the RCC. The last part is the sadest. But there are other avenues for charity donations, and I suspect, but cannot prove, that people are giving there.

I grew up in a protestant tradition (American Baptist) in Cincinnati that was mildly suspicious of Catholics (something I never understood, since some of my best friends--in the 1960s--were Catholics). But I was a kid then, and so, what did I know?

raj,

I too, live in the Boston area (Salem), so I am well aware of the "Voice of the Fathful". I too, make a distinction between the hierachy and the laity.

Most people I know are Catholic, and I know no one who pays any attention to the church's teachings in matters of SSM, birth control, etc.

If they do agree, and some do, it is not because the Church said so.

Ed Brayton at June 29, 2005 01:42 PM

Because as originally written, the first amendment did not apply to state and local governments at all.

I'd put it a bit differently. The 1st amendment (actually, the 1st-8th amendments) were not viewed as being limitations on the powers of state or local governments. Slight difference. Not entirely clear whether the difference means very much.

I agree with you regarding incorporation, but you do believe that you have a problem in regards what the 14th amendment meant in regards the 2d amendment. I don't want to spend a lot of time on this, but the introductory clause of the 2d amendment, relating to the militia, has always cast doubt on what rights ("limitations on state power") that amendment was supposed to convey. Particularly when one considers the "militia" provisions in Article 1 of the US constitution.

Kentucky congressmen are angry about the commandments ruling and are sponsoring an amendment to allow religious symbols on public property, including courthouses and schools. It's called ironically the "Religious Freedom Amendment". No non-christian symbols, of course.