I just read James S. Kabala's Church-State Relations in the Early American Republic, 1787-1846 (2013). I recommend it; it recounts lots of interesting details and debates which Kabala presents very effectively. The book's general theme is that the unsettled quality of the relationship between church and state in our own time is not new, but part of an ongoing unsettled history whose roots may be traced to the founding and which persisted thereafter.
Here's a bit from the introduction:
[P]resent-day believers that the United States was founded on Christian principles often claim the Founding Fathers for their cause, while advocates of church-state separation often presume that the issue was a settled matter after the ratification of the First Amendment in 1791. This book will complicate such assumptions by exploring sixty years of contentious debate in American civic culture over the proper role of religion in public life. Between the 1780s and the 1840s, clergymen, legislators, jurists, and pamphleteers argued over whether the government could fund Christian missionaries, whether the government should proclaim fast and Thanksgiving days, whether it was proper for Christians to pledge to vote only for Christian candidates, whether there should be religious restrictions on who could serve in public office or testify in court, whether blasphemy prosecutions were legitimate, whether public schools could offer a religious curriculum, whether state legislatures should open each day's session with prayer and many more such issues. Instances of the government's long-standing entanglement with religion, such as the funding of religiously affiliated schools among the Indian tribes, can seem startling today. In other areas, however, separation between religion and government was more strongly enforced than today. The mail was delivered on Sundays, and a nationwide petition campaign to end this practice caused a strong backlash. Several state legislatures, at least for a time, abolished the position of chaplain and the practice of opening each day's sessions with prayer. In short, debate over the proper relationship between religion and government was as divisive two hundred years ago as it is today and involved people from all denominations, parties and regions.
Kabala's focus is not on the First Amendment but on the more general issue of church state relations. Recognizing "the heavy entanglement of the federal government with religion in this period," he favors the federalism interpretation of well-known episodes such as Andrew Jackson's refusal to proclaim a day of fasting in 1832 and others.
An interesting later chapter entitled "The Limits of Consensus: The Unorthodox in the Court System," deals in part with the issue of whether Christianity was part of the common law (a view consistently denied by Jefferson). One of the final episodes that Kabala recounts involves a Supreme Court case, Vidal v. Girard's Executors (1844), which dealt with a rather eccentric French-born resident of Philadelphia who had become extremely wealthy. The man had been raised a Catholic and had made occasional contributions to Catholic institutions, but his own religious convictions were not clear (apparently, he was a shipping magnate who had given his ships somewhat suspicious names like "Voltaire" and "Rousseau"). He died in 1831 and his will established a school for orphans. But the will also provided that "no ecclesiastic, missionary, or minister, or any sect whatever" should ever set foot in the school because "as there is such a diversity of opinion amongst them, I desire to keep the tender minds of the orphans who are to derive advantage from this bequest free from the excitement which clashing doctrines and sectarian controversy are so apt to produce." Instead, the teachers at the orphanage were to "take pains to instill into the minds of the scholars the purest principles of morality," and these noble ambitions demanded the purging of religion. The will was contested by Girard's relatives (who were represented by Daniel Webster) and eventually the case made its way to the Court. Here is Kabala's description (p.149):
[I]n his oration before the court, [Webster] endorsed the idea that the only true charity was a Christian charity. According to Webster, Girard's school was a school of 'mere, sheer, low, ribald, vulgar deism and infidelity'....Webster cited both blasphemy cases and restrictions on oath-takers as evidence of his claims that Christianity was part of the common law and that the health of society depended upon religious faith. He did, however, take pains to assert that his was a non-sectarian Christianity, 'general, tolerant Christianity, Christianity independent of sects or parties, that Christianity to which the sword and the fagot are unknown.'
Many hailed Webster's oration before the court as a masterpiece....Joseph Story, by now the senior Associate Justice on the court, was less impressed with it. He wrote to his wife that he was
not a little amused with the manner in which...the language of the Scriptures, and the doctrines of Christianity, were brought in to point the argument; and to find the Court engaged in hearing homilies of faith, and expostulations of Christianity.
Story eventually wrote an unanimous opinion for the court upholding Girard's will as valid....He later wrote to James Kent, who despite his hostility toward blasphemers and atheists had written to Story supporting his decision, that Webster's speech had been a mere 'address to the prejudices of the clergy.'
However, Story's opinion, while it upheld Girard's will, was not a repudiation of the idea that Christianity was a part of the common law. Rather, Story explicitly endorsed the belief 'that the Christian religion is a part of the common law of Pennsylvania.' The rest of the decision attempted to enunciate the Protestant non-sectarian consensus as it had developed by 1844, guaranteeing the privileged position of Christianity while preserving the right of polite disagreement from it.
Sunday, April 14, 2013
That is the question Professor Dan Crane asks in a new post over at the Center for Law and Religion Forum. He offers three interesting responses (and by interesting, I mean interesting). Here's a bit from the first:
First, Jesus would likely have faulted both sides of the debate for an excessively materialist perspective. On one side, we hear that marriage is about procreation and child rearing. On the other, that it’s about love and companionship. But Jesus did not understand marriage primarily in terms of its temporal or material effects. For Jesus, marriage was a spiritual representation of divine relationships. According to Jesus, God created man and woman—male and female—in the image of God, mirroring the unity and diversity within the Godhead. Jesus and later apostolic writers referred to Jesus as a bridegroom and the Church as his bride. Jesus explained that in Heaven people would not be married to one another, since they would be in perfect union with God. Thus, the ultimate good of marriage was not that it served immediate material needs but that it celebrated the eternal nature of God.
This understanding of marriage has precious little purchase in the contemporary, hyper-materialist world. Even those who recognize marriage’s “spiritual” component usually mean that psychosomatically—marriage feeds long-term emotional and pyschological needs. We’ve lost any sense of human institutions as good because of their correspondence to divinity. Across the ideological spectrum, we’ve given in to Richard Posner’s wish of “unmasking and challenging the Platonic, traditionalist, and theological vestiges in Enlightenment thinking.” It’s safe to say that Jesus would have had a different take.
In chapter 6 of The Tragedy of Religious Freedom, I discuss Cass Sunstein's work on judicial
minimalism and focus on a particular variation--Burkean minimalism. The method that I adopt for resolution of various religious liberty disputes draws on Burkean minimalism in several respects, but also departs from it in significant ways. My differences with Professor Sunstein are summed up in the aphorism, "Less Burkeanism, More Burke," and the discussion in that chapter considers the ways in which Sunstein's views about minimalism--which are pragmatically grounded--differ from my own--which are grounded in the reality of the complexity of political affairs, the conflict of human aspirations, and the irreducibility of human interests to any overarching theory. The method that I describe and defend is motivated, in part, by these complications.
Notwithstanding my admiration for judicial minimalism--and, indeed, for minimalism as a general
guiding ethic of political life--I am not the first to suppose that Sunstein's attachment to it was always less than entirely secure. It was, as he himself acknowledged, strategic and instrumental. This is why I am somewhat disappointed, but not very surprised, to see that Sunstein has recently published Simpler: The Future of Government. Of course, the book is not about the judiciary; it describes Sunstein's time at the head of OIRA. Its overall claims seem to rest on the assertion that government has become simpler during the last four years, that it will or ought to become simpler still, and that this is a wonderful thing. I have not read the book, and will of course defer to Professor Sunstein on the question whether the government has issued fewer regulations as a numerical matter. Government during the last four years does not seem so very much simpler to me than it was before, but I'm prepared to be persuaded otherwise. But apart from these descriptive issues, I have the distinct feeling that I will resist in particularly strong terms the normative claim--which seems to be made in the book--that the simplification of government is for the best. Indeed, it seems to me that a true minimalist would press just the opposite point: we are complex, and we need a government that can account for, and accommodate, that complexity. We don't need simpler; we need more complicated.
Tuesday, April 9, 2013
Mike Helfand passes along a notice for a very interesting looking conference entitled, "International Legal Theory Interest Group Symposium: The Rise of Non-State Law." Proceed here to view the symposium in full,to be held on May 2 in Washington, D.C. Here is the description:
Trends in legal philosophy, international law, transnational law, law & religion, and political science all point towards the increasing role played by non-state law in both public and private ordering. Numerous organizations, institutions, associations and groups have emerged alongside the nation-state, each purporting to provide their members with rules and norms to govern their conduct and organize their affairs. Indeed, questions regarding non-state law have moved to the forefront of recent debates over legal pluralism and transnational justice, forcing scholars and practitioners to consider the new and multifaceted mechanisms ways in which we govern ourselves. This International Legal Theory Interest Group Symposium will explore this Rise of Non-State Law by bringing together experts on international law, transnational law, legal theory and political philosophy to consider the growing impact of law that derives from outside the nation-state.
The symposium is co-sponsored by the American Society of International Law and Pepperdine Law School. Michael's own work also treats some of these subjects and is well worth your consideration.
