Originalism poisons the "Is the U.S. a Christian Nation?" debate

The debate is here on a website titled "Opposing Views." IMO a better title of the debate would be "Was the U.S. founded as a Christian nation," because that is the main topic of the debate. IMO we would not even be having this big debate were it not for the cockamamie doctrine of "originalism," the notion that court decisions should be controlled by the beliefs of the Founders. Many originalists believe that the Founders beliefs should be controlling even when those beliefs are not expressed, implied, or even suggested in the Constitution. Even if we could agree about the beliefs of the individual Founders, there would still be the problem of which Founders' views to emphasize -- for example, the religion-related views (I use the term "religion-related" because some Founders who supported the establishment clause might have been very religious) of Washington have been conveniently ignored while the religion-related views of Jefferson and Madison have been emphasized. The originalists have never even explained why court decisions should give the Founders' beliefs extra weight, let alone explained why the Founders' beliefs should be controlling. In the area of the establishment clause, originalism has completely destroyed objectivity in the study of the Founders' beliefs about religion and church-state separation -- e.g., as a result of originalism, the Founders have been portrayed as everything from a bunch of bible-pounding holy-rolling fundies to a bunch of godless blasphemous atheists.
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As I have said many times, one of the worst examples of originalism is Judge John E. Jones III's statement in his Dickinson College commencement speech that his Kitzmiller v. Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. Ironically, he gave the speech while standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto in Latin, "religion and learning, the bulwark of liberty."

IMO the history of American colleges and universities is a better indication of the probable religion-related beliefs of the founding generation than are quote mines of individual Founders. The website of the University of Virginia says (boldness added),

The University of Virginia was founded as a secular university, with no religious affiliation or denominational identity. In contrast, Georgia, UNC, South Carolina, Vermont, Blount College (which became the University of Tennessee), and others chartered as state universities had denominational sponsorship.

Chapel attendance was not required of students at the University of Virginia. Other universities, public and private, required their students to attend church services. In fact, Harvard did not do away with the chapel requirement until late in the 19th century.

For Jefferson, the college experience should take place within an "academical village," a place where shared learning infused daily life. Plans were developed for ten Pavilions—stately faculty homes with living quarters upstairs and classrooms downstairs—attached to two rows of student rooms and connected by an inward-facing colonnade.

At the head of the shared lawn would stand the library (not, as in most other colleges and universities of the time, a chapel), . . . .

U.Va. could be exaggerating here because it has an ax to grind -- it wants to give itself an image of being an innovator in higher education. Still, though, I think the above claims about religion's influence in higher education -- particularly at public universities -- are worth checking out. BTW, the University of North Carolina at Chapel Hill was the first public university in the USA and was founded in 1789, the same year in which North Carolina ratified the Bill of Rights, which of course contains the establishment clause. It is noteworthy that the best-known buildings at the Air Force Academy and the US Military Academy at West Point are the chapels -- in fact, the chapel is regarded as a symbol of the Air Force Academy.

I have no general interest in whether the USA is a Christian nation or not, or in whether it was founded as a Christian nation or not. I just don't like to see the establishment clause being misused the way that Darwinists are misusing it.
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Judge Jones' "true religion" missing from Supreme Court precedents

Judge Jones said in a commencement speech at Dickinson College that his Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state. (emphasis added)

However, in establishment clause histories given in two Supreme Court decisions, Everson v. Board of Education (1947) and Engel v. Vitale (1962), Jones' above "true religion" is not mentioned at all, not even as a contributing factor. Everson does mention "true religion," but it is not the kind of "true religion" that Judge Jones described above -- Everson says (page 12) that Madison "eloquently argued that a true religion did not need the support of law."

The hypocritical Judge Jones ignored Supreme Court precedent himself while falsely accusing his critics of ignoring Supreme Court precedent. In a speech at Bennington College, Jones said about media criticisms of his decision,
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What all of them had in common -- all of these criticisms -- was that they omitted to note the role of precedent, how judges work, the Rule of Law. Trial judges carefully find the facts in a case and apply existing precedent as handed down by higher courts -- most notably, in this case, the Supreme Court of the United States. There was simply no attempt [in these media criticisms] to illuminate those issues or educate the public . . . .

To hear these critics tell it, we live in a world where judges make essentially ad hoc determinations. This is really a false world that they tend to propagate, where judges rule according to personal bias, particular whims or political philosophies, or in order to please political benefactors -- or, worse perhaps, respond to the perceived public will at any given time. . . . And that gets into a still larger issue that I think is of somewhat crisis proportions, which I call a crisis in judicial independence. Many judges across the country feel exceedingly threatened by a public, a punditry, and a political establishment that tends to launch ad hominem attacks against individual judges when they disagree with them.

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Originalism under attack

A post on the Balkinization blog has links to abstracts of three scholarly papers attacking the doctrine of originalist interpretation of the Constitution. I am glad to see that originalism is finally under major attack -- I wonder what took so long. Originalism needs to be recognized for what it is, a very pernicious form of judicial activism. Originalists have gone so far as to put words in the mouths of the Founders.

One of the papers has the blunt title, "Originalism is Bunk". Another paper, titled "Originalism's Living Constitutionalism", says,
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Originalists' claims about the unique and exclusive legitimacy of their theory -- that originalism self-evidently represents the correct method of constitutional interpretation founder when one considers that originalists themselves cannot even begin to agree on what their correct approach actually entails. And their claims that originalism has a unique ability to produce determinate and fixed constitutional meaning, and that only originalism properly treats the Constitution as law and properly constrains judges from reading their own values into the Constitution, stumble when one considers the rapid evolution and dizzying array of versions of originalism . . . .A judge committed to the originalist enterprise in fact has significant discretion to choose (consciously or unconsciously) the version of originalism that is most likely to produce results consistent with her own preferences. Originalists might despise the notion of a living constitution, but they have gone a long way towards creating a living constitutionalism of their own, the very existence of which undermines their own rhetorical and normative claims to superiority.

The third paper is titled "Rebooting Originalism".

IMO the poster child of the evils of originalism is Judge Jones' infamous commencement speech at Dickinson College, in which he showed extreme prejudice against the Dover defendants -- regardless of whether or not Intelligent Design is a religious concept -- by saying that his Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Ironically, Judge Jones gave the speech while standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto "religion and learning, the bulwark of liberty" in Latin.

Judge Jones was supposed to be neutral towards organized religions and he was not. By no stretch of the imagination are his above statements neutral towards organized religions.

In interpreting the establishment clause, originalists have portrayed the Founders as being everything from a bunch of blasphemous bible-burning satan worshippers to a bunch of bible-pounding holy-rolling fundies. Also, originalists have been conveniently ignoring the religious views of a very important Founder, George Washington -- see this and this.

The Federalist Society does not officially say that it is originalist but I strongly suspect that it is. It is named for the USA's first political party and the society's logo is a silhouette of James Madison. The question of Chief Justice John Roberts' membership in the society was an issue in his confirmation hearings.

Sometimes a broad non-originalist interpretation of the Constitution is necessary. For example, the Constitution does not generally prohibit states from interfering with interstate commerce, so the courts invented what is called the "dormant" commerce clause. Also, many big issues today were not even on the radar screens of the Founders -- e.g., environmental protection and freedom of speech on the Internet.
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George Washington the forgotten Founder

The Prayer at Valley Forge by Arnold Friberg

* Sung to the tune of Old-Time Religion

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I am generally opposed to the doctrines of "originalism," "original meaning," "original intent," etc., the ideas that the courts' interpretations of the Constitution should be solely based on the thoughts of the Founders (or Framers). However, IMO those who do support these doctrines should at least be whole-hog about it but most -- e.g., Fatheaded Ed Brayton -- are just half-assed about it, conveniently ignoring the views of the "father of his country," George Washington. An article titled "Equal Billing: On Religion, Washington's Views Should be Considered, Too," a book review of a book titled "Under God: George Washington and the Question of Church and State," in the Texas Review of Law & Politics, said,
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"Washington's opinions deserve at least as much attention as those of Jefferson." That is the final sentence, and raison d'etre, of Under God: George Washington and the Question of Church and State, by Tara Ross and Joseph Smith. Ostensibly a compendium of Washington's views on the proper relationship between church and state, Under God aims to correct a perceived historical wrong in the relative weight given by the modern Supreme Court to the views of Washington and Thomas Jefferson in interpreting the Religion Clauses of the United States Constitution.. .. . . .(page 2 of pdf file, page 208 of original document)

Jefferson, of course, coined the phrase "separation of church and state" in his oft-quoted 1802 Letter to the Danbury Baptists. This phrase has seared itself into the public consciousness as the dominant metaphor for the meaning of the Religion Clauses of the First Amendment, in no small part because the Supreme Court has so frequently employed it in rendering Religion Clause decisions. In the body of their book, Mrs. Ross and Mr. Smith show that Washington would have rejected this metaphor. To the contrary, he believed it important "for government to accommodate and even to encourage the practice of religion, albeit in ways that were typically non-denominational and tolerant of religious minorities." The authors further suggest that Washington's views were closer to the American mainstream than were Jefferson's -- before, during, and after the framing of the Constitution and the enactment of the Bill of Rights -- and thus are a better guide to ascertaining the original meaning of the First Amendment . . . . (pages 2-3 of pdf file, pages 208-209 of the original document)

. . . After reading Under God, one cannot dispute that the views of Washington deserve greater consideration than they have heretofore received as Religion Clause litigation and legal scholarship. Do the views of Washington deserve greater consideration than the views of Jefferson, as Mrs. Ross and Mr. Smith suggest, or of Madison, who at times appeared to be as ardent a separationist as Jefferson? That, of course, depends: first, on the extent to which one embraces originalism as an interpretive philosophy(emphasis added); second, on the extent to [which] Washington was representative of the views of the framers, or of the common understanding of what the Religion Clauses meant in 1789. On the latter question, Mrs. Ross and Mr. Smith offer reasons to believe that Washington was closer to the American center than was Jefferson, but the former question is beyond the scope of their project and a matter of sharp disagreement among current members of the Supreme Court. Suffice it to say, the life of Washington presents an alternative vision to that of a "high and impregnable" wall of separation between church and state. (page 15 of pdf file, page 221 of original document)

This book Under God: George Washington and the Question of Church and State illustrates the folly of the "original intent" doctrine. That stupid judge John E. Jones III showed extreme prejudice against the defendants in Kitzmiller v. Dover -- regardless of whether or not Intelligent Design is a religious concept -- by saying in a Dickinson College commencement speech that his decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Ironically, he gave the speech while standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto "religion and learning, the bulwark of liberty" in Latin.

What if some judge(s) came along with the arguable notion that the USA was founded as a Christian nation and that the only purpose of the establishment clause was to prevent individual Christian sects from being established as official state religions? We could then end up with a ruling that, say, non-sectarian school prayer is constitutional.

IMO the best interpretation of the establishment clause is Justice O'Connor's "endorsement test" and she didn't need to use the "original intent" doctrine to attempt to support the test. Here is her statement of the endorsement test, from her concurring opinion in Lynch v. Donnelly, 465 U.S. 668, 687-688:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. E.g., Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. See generally Abington School District v. Schempp, 374 U.S. 203 (1963).

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Jefferson violated the Establishment Clause

The biggest reason for the big controversy over the Founders' policies concerning religion is, of course, originalism, the ridiculous principle that the courts' interpretations of the Constitution should be governed by the policies of the Founders or what is thought to be the policies of the Founders. Originalists with agendas concerning the establishment clause have portrayed the Founders as everything from a bunch of bible-pounding holy rolling fundies to a bunch of godless blasphemous atheists.

Among the Founders, Thomas Jefferson is the one who is most closely associated with the establishment clause, even though he was not present at the Constitutional Convention that adopted the clause. It is believed that his letter to the Danbury Baptists coined the term "separation of church and state." Yet the following story of his treaty with the Kaskaskia Indians shows that even Jefferson himself was not simon-pure in his support of his principle of separation of church and state.

In arguments about the Founders' policies, often there is not even agreement as to the objective facts. In the case of a treaty made with the Kaskaskia Indians, at least there is agreement as to the objective facts. Chris Rodda wrote on Talk to Action,
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During his presidency, Thomas Jefferson signed over forty treaties with various Indian nations. The treaty with the Kaskaskia is the only one that contained anything whatsoever having to do with religion. No other Indian treaty signed by Jefferson, including the others listed by Mansfield, contained any mention of religion.
The following is the third article from the 1803 treaty with the Kaskaskia.

And whereas the greater part of the said tribe have been baptized and received into the Catholic Church, to which they are much attached, the United States will give annually, for seven years, one hundred dollars toward the support of a priest of that religion, who will engage to perform for said tribe the duties of his office, and also to instruct as many of their children as possible, in the rudiments of literature, and the United States will further give the sum of three hundred dollars, to assist the said tribe in the erection of a church.(1)

. . . . . The problem with using this provision as evidence that Jefferson approved of using government funds to promote religion . . . . is that it was in a treaty with a sovereign nation. Unless a treaty provision threatened the rights or interests of Americans, there was no constitutional reason not to allow it, even if that same provision would be unconstitutional in a law made by Congress.

However, the Constitution considers treaties to be laws and Congress has a hand in establishing treaties -- the Constitution defines treaties as part of the supreme law of the land and they must be approved by two-thirds of the Senators who are present. Article VI of the Constitution says,

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.

Article II, Section 2 says,

He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur;

And the Establishment Clause of the First Amendment says,

Congress shall make no law respecting an establishment of religion,

The quibblers are now going to argue that Congress does not actually "make" treaties but only advises the President about them and gives consent to them, but that is a nitpicking and hairsplitting argument. By the same token, it can be argued that Congress does not "make" laws in general but just "consents" to various bills and amendments to bills that are introduced by members of Congress. Also, members of Congress not only advise the President about treaties but have even participated in negotiating treaties with sovereign nations -- see this.

Rodda said,

Jefferson, who had a great deal of confidence in the ability of the American people to understand the Constitution, no doubt assumed that the people understood the treaty making process, and would not perceive these provisions as unconstitutional. In fact, in the first draft of his 1803 annual message, he described the Kaskaskia treaty in detail, including the provisions for the church and the priest. But, Secretary of State James Madison, when he read Jefferson's draft, wasn't quite so confident that the people would understand this. Madison advised Jefferson to limit his description of the treaty to the large land acquisition and omit the details of the religious provisions, which in the final speech became "other articles of their choice."

In other words, the Kaskaskia treaty's religious provisions were of such questionable constitutionality that Jefferson -- accepting the advice of Madison -- hypocritically decided to not mention them explicitly in his speech, even though the public in those days was probably not particularly uptight about establishment clause violations! Also, it seems odd that there is any historical record of the speech's first draft and Madison's advice -- it seems that they would have been secret.

Furthermore, not only did the treaty mention religion, but the treaty used federal funds to promote religion! What does Rodda think it takes to violate the establishment clause? If a mere one-minute statement about intelligent design in a public-school classroom is sufficient to violate the establishment clause, then what about this treaty?

Also, Rodda did not disagree with the following argument from Robert L. Cord's 1982 book Separation of Church and State: Historical Fact and Current Fiction:

Lest it be argued to the contrary, if Jefferson had thought the "Kaskaskia Priest-Church Treaty Provision" was unconstitutional, he could have followed other alternatives. An unspecified lump sum of money could have been put into the Kaskaskia treaty together with another provision for an annual unspecified stipend with which the Indians could have built their church and paid their priest. Such unspecified sums and annual stipends were not uncommon and were provided for in at least two other Indian treaties made during the Jefferson Administration -- one with the Wyandots and other tribes, proclaimed April 24, 1806, and another with the Cherokee nation, proclaimed May 23, 1807.

Rodda alleges errors in historical facts about other treaties but none of those alleged errors affect my above analysis of the Kaskaskia Indian treaty.

As Fatheaded Ed Brayton would say, Rodda's article is full of batshit wingnuttery. The fundies are correct about the Kaskaskia Indian treaty. This story of the Kaskaskia treaty helps show the folly of originalism. IMO, when we interpret the Constitution, we should consider the Founders' ideas but we should not blindly follow their ideas or what we think or wish are their ideas.

Rodda's article is discussed on Ed "it-is-obvious-that-everyone-agrees-with-me-so-why-do-I-need-a-policy-against-arbitrary-censorship-of-comments?" Brayton's blog.
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The mother of all quote mines

One of the worst things about originalism -- the notion that our interpretations of the Constitution should be based solely on the beliefs and intentions of the Founders -- is that it has created an incentive for the distortion and fabrication of history. The following quote mine, from an article in Talk2Action, is a particularly good example of originalism-inspired misrepresentation of history:

I'll be writing much more over the next few weeks about the numerous instances of Christian nationalist revisionism found in Ten Tortured Words, but will end for now with a striking example of Stephen Mansfield's own brand of word torturing, in the form of the following Madison "quote," found on page 146.

Religion is the basis and foundation of government. -- JAMES MADISON

Where does this quote come from? Well, according to Mansfield's note, Madison's Memorial and Remonstrance Against Religious Assessments. Here is the untortured paragraph from that document, with the words assembled by Mansfield to create his quote in bold.

15. Because finally, "the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience" is held by the same tenure with all his other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consider the "Declaration of those rights which pertain to the good people of Virginia, as the basis and foundation of government," it is enumerated with equal solemnity, or rather studied emphasis.

Of course, the fundies are not the only ones who distort and fabricate history to promote their originalist agenda. Here is the example that I have oft-quoted from the infamous Dickinson College commencement speech of Judge Jones:

. . . .we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry."* At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things," to secure their idea of religious freedom by barring any alliance between church and state."*

As I hope that you can see, these precepts and beliefs, grounded in my liberal arts education, guide me each day as a federal trial judge.

*Quotations from The Founding Fathers and the Place of Religion in America by Frank Lambert (Princeton University Press, 2003).

A lot of Judge Jones worshipers have told me that I misinterpreted the above quotation -- they just can't accept the fact that their hero would say something so stupid. He was clearly biased against the Dover defendants. I think that Judge Jones himself realized that his Dickinson College speech went over like a lead balloon -- so far as I know, he never repeated that "true religion" stuff.

BTW, though Judge Jones said that his notion about the "true religion" of the Founders was learned in his undergraduate days, he was actually quoting from a book that was published long after he graduated.

Originalism sucks.
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Originalism sucks

There is a lot of discussion of originalism going on at the Balkinization blog. Here are my thoughts about orginalism:

(1) A lot of people dive headfirst into applying what they believe to be the beliefs of the Founders without first considering whether we should even be following those beliefs in the first place.

(2) There is no consensus about the beliefs of the Founders, and current views about those beliefs are often severely distorted by bias. For example, the Founders are viewed as everything from a bunch of bible-pounding holy rolling fundies to a bunch of godless blasphemous atheists. In one of the worst examples of originalism, Judge John E. Jones III said in a Dickinson College commencement speech that his decision in the Kitzmiller v. Dover intelligent design case was influenced by his notion that the Founders believed that organized religions are not "true" religions.

(3) The Founders were not monolithic in their beliefs.

(4) After a span of two centuries, it is difficult to discern the beliefs of the Founders, particularly the lesser-known Founders.

(5) The Founders would not have been happy living under all of our principles, so why should we be happy living under all of theirs?

(6) The Founders made mistakes and omissions. For example, the Founders failed to write the Constitution in a way that would have prevented the Civil War. The courts had to add an imaginary "dormant" comment clause -- i.e., a general prohibition on state interference with interstate commerce -- because such a clause was not contained in the Constitution.

(7) Many issues today were not even on the radar screens of the Founders, e.g., environmental problems and freedom of expression on the Internet.

(8) It is argued that originalist interpretations can be overridden by amendment of the Constitution, but amending the Constitution is extremely difficult. There has been no significant amendment of the Constitution since the 1971 amendment which lowered the voting age to 18.

I am certainly interested in knowing the opinions of the Founders, but IMO we should not be bound by those opinions and those opinions should be taken with a grain of salt. It has been said that originalism can be a form of judicial activism, and I agree. IMO the overemphasis on orginalism is going to lead to a backlash against the Founders.

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Even Ed Brayton finds fault with Judge Jones' "true religion" speech

I and others have severely condemned the following statement made by Judge John E. Jones III in a commencement speech at Dickinson College:

. . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

In two posts and their associated comments, here and here, Ed "It's my way or the highway" Brayton conceded the following points contradicting Jones' preceding statement:

(1) The first sentence in Jones' statement above is "too broad" -- a gross understatement.

(2) In regard to the second sentence above, the religious beliefs of a given Founder are not an indicator of whether or not he supported the establishment clause.

Regarding the first point above, Ed favorably cited a recent book about the religious beliefs of the Founders. In regard to the second point, Ed said,

. . . . .whether a given founding father was a Christian or not doesn't tell us anything about his position on separation of church and state.

Also, I think that all of this worship of the founding fathers is going to create a backlash against them. We should certainly pay attention to their ideas, as we should pay attention to all reasonable ideas, but for various reasons we should not blindly follow the Founders' ideas. "Originalism" is itself a kind of "judicial activism."

I am not out of the woods yet in regard to computer problems. I was able to partially fix an old computer by using a restorer CD from my latest computer, but the restoration left me stuck with the very coarse obsolete CGA graphics (640X480 pixels or something like that -- the resolution control is disabled), so my display is of course very poor. However, at least I can now with difficulty make posts and comments on my blog.

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