The Intersection of Religion and Statecraft
I have long been intrigued by the issue of so-called church-state separation. There is much irony in the liberal position of near zero-tolerance for the government's -- federal or state -- slightest promotion, even involvement with, the Christian religion. Citing Thomas Jefferson's letter to the Danbury Baptists from whence the phrase "separation of church and state" is supposedly derived, libs say the framers were adamant that the state not show the slightest favoritism toward any religion.
Without discussing the context of that letter or citing earlier constitutional scholars, such as Justice Joseph Story, who wrote that the Constitution had no such separation imperative especially regarding the Christian religion, I think it's instructive to examine the two religion clauses of the First Amendment: the Establishment Clause and the Free Exercise Clause. I believe the thrust of both clauses was/is to promote robust religious liberty. The irony of the liberal position to which I refer is that liberals (on the courts and everywhere else) have expanded the scope of the Establishment Clause to such ridiculous extremes that it often operates as an inhibitor, rather than a guarantor of religious liberties.
So paramount was religious liberty that the drafters of the Bill of Rights made them the very first two clauses of the First Amendment: Congress shall make no law respecting an establishment of religion (the Establishment Clause), or prohibiting the free exercise thereof (the Free Exercise Clause).
Based on historical sources and common sense I believe it's clear that the framers intended the Establishment Clause to prohibit the federal government from establishing a national church or a national religion (and arguably forbidding the federal government from interfering with the states that already had established religions at the time -- which many did). The obvious reason they would forbid the establishment of a national church or religion is that citizens of nations with established churches don't enjoy religious liberty to the fullest extent. So the thrust of that clause was to promote religious liberty. And, the clear (express) purpose of the free exercise clause was to promote religious liberty.
But the courts began to expand the Establishment Clause to prohibit not just the establishment of a national church or religion, but the substantial endorsement of a particular religion. They also expanded its application to the states through the Due Process Clause of the 14th Amendment.
By unduly expanding the Establishment Clause in the name of promoting religious liberty, the courts have often suppressed that very liberty. An example is when a high school valedictory student tries to invoke Jesus Christ in his valedictory speech and the school administration forbids it on the grounds of church state separation. The Establishment Clause is applied not just against the federal government, but the states in this case so that a federally and state funded public school is precluded from permitting a student to exercise his free speech or religion because that would constitute the state and federal government's endorsement of religion and violate the Establishment and Due Process clauses. So not only is the law expanded to reach a mere public school in some county somewhere -- as opposed to the federal government establishing a national church -- but the student's voluntary rights are smothered and his free speech and free exercise rights are strangled.
How can it reasonably be maintained that the federal government (or even the state government) is affirmatively establishing a national church, or even endorsing the Christian religion in the slightest, when it merely permits a student to tell his classmates how Jesus Christ played a central role in his life? I'm assuming here he's not even proselytizing, though I don't think the restriction should apply even if he were. But when the courts forbid a student from such voluntary actions they are effectively negating the Free Exercise clause and free speech guarantees in favor of an absurd distortion of the Establishment Clause. The end result is a suppression of the very liberties both First Amendment religion clauses were crafted to protect.
As usual, though, liberals aren't satisfied even with this extreme expansion of the Establishment Clause. In recent years they have taken the Establishment Clause, at least rhetorically, to further extremes. Now they complain when Christian conservative politicians allow their religious views to guide their policy decisions, as if it is possible, or desirable, to create a Chinese firewall between one's worldview or his moral beliefs and his governance. Every politician's and officeholder's policy views and actions is based to some extent on his moral beliefs.
The oft-repeated line that you can't legislate morality is invoked in favor of muzzling Christians. (Notice that none of these arguments is ever used to hush practitioners of other religions). All laws are based on morality to some degree, from speeding tickets to larceny to taxes to first degree murder. The gradations of murder, from involuntary manslaughter to voluntary manslaughter to second degree to first degree murder are largely based on moral distinctions. Morality informs our civil laws as well, from property rights to contract law. I suspect the original meaning of the phrase "you can't legislate morality" probably meant that you are not going to change hearts and minds merely through legislation. Some of you Goldwater buffs may correct me, but I believe he said something to that effect. But you can't apply his statement too expansively either for we know that criminal law can have an effect on our moral behavior -- but that's another can of worms.
These issues came up in the O'Donnell-Coons debate last night. O'Donnell fell into the PC trap of saying she wouldn't govern according to her "faith," but according to the Constitution. Coons then ranted about which Constitution we were talking about -- the one originally adopted or today's -- revealing his affinity for liberal judicial activism. I try to dissect both candidates' treatment of this subject in my column tonight. I know this post is long -- as usual (I promise to try to shorten some of these) -- but here's the link to the column if you're interested in reading further.
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Jul '10
Re: The Intersection of Religion and Statecraft
Excellent points. Most modern Americans are completely unaware of the context of established national churches (like the Church of England) where the head of state is also the head of the church. This is what the amendment is proscribing not complete elimination of religion from the public forum. It's ironic an amendment trying to protect religious liberty is now used to restrict religious liberty.
Edited on Oct 14, 2010 at 6:34pmSep '10
Re: The Intersection of Religion and Statecraft
I wish the word "Erastianism" would enter the public sphere. I suppose the reason it is so hard to explain to people is that the general public nowadays has such a weak grasp of history.
Re: The Intersection of Religion and Statecraft
The misuse and abuse of the Establishment Clause has long been a source of personal frustration. Liberals really have used it to stifle free speech and the free practice of religion. David -- is this a lost war? What can be done to reverse course here?
Sep '10
Re: The Intersection of Religion and Statecraft
What you are saying is lost on the average American who has grown used to the Liberal-speak definition of the separation of church and state.
The founders were religious people who believed in God and His importance in their lives but who had the wisdom to see that no single religion should dominate the country.
I hadn't thought of the alternative (i.e. a state religion) as a suppression of rights, but you are right, that is the ultimate end result.
However, I'm not sure that the protection of freedom of religion defined in the Bill of Rights were created to promote religious liberty as much as it is just a natural by-product.
In any case, getting public perception changed on this issue is definitely an uphill battle.
May '10
Re: The Intersection of Religion and Statecraft
In this video, it is stated and shown that:
If the Founders (Jefferson, no less) deemed it appropriate to do such things, then clearly "establishment" was not equated with promotion. The Constitution forbids forced religious devotion, but not religious endorsement, nor legislation based on religious values.
Government is essentially a practice of ethics. Philosophers/theologians guide us on morals (general social values). Politicians and judges apply those general principles to specific circumstances... ideally only when and where we ask them to, leaving most ethical action to private and individual practice. Religion and government work hand-in-hand. Basically, religion helps to define and sustain our culture, and government protects and enacts our cultural values.
Jul '10
Re: The Intersection of Religion and Statecraft
This is all a classic case of "modern" sensibilities attempting to overwhelm the clear and obvious meaning of the Constitution.
Starting in roughly, 1962, the governing elite decided that they had a new insight into the Establishment Clause. Only the historical illiteracy of the populace could allow such a thing. The Establishment Clause was actually a defensive maneuver - making sure the new Federal Government could not implement an American Equivalent of the C of E. The truly radical part was the Free Exercise Clause. That was the truly American piece.
And yet the Courts have somehow turned all that on its head. Now the Establishment Clause provides carte blanche for eviscerating the role of religion of public life, while the Free Exercise clause is rendered irrelevant (unless it permits animal sacrifice in prison).
These things are so contraposed to the clear original intent that they must lead one to conclude that it is all part of a purpose.
May '10
Re: The Intersection of Religion and Statecraft
As I said in my discussion of this with Andrea on Facebook, a truly secular government that attempts to be theologically agnostic ends up being culturally agnostic, and thus fails to serve the cultural group it was made to serve.
Separation of "church and state" is not the same as separation of religion and government. Only the institutions, the formal hierarchies, must be separate. Both America and freedom prospered for centuries without secularism.
May '10
Re: The Intersection of Religion and Statecraft
If the latter is true, then this is a juridical defect. The Constitution should prohibit the state governments from using tax dollars to support the activities of religious institutions. Whether it does or not is another question.
This is a limited government issue. A properly limited government does not use tax dollars to finance religious institutions or professional religiosity.
May '10
Re: The Intersection of Religion and Statecraft
Aaron Miller: In this video, it is stated and shown that:
If these claims are true, then they are blemishes on both the Congress in question (whatever number it was) and Jefferson. By what right does Jefferson use tax dollars, money taken by force, to finance the endeavours of missionaries for the purpose of promoting religion? That's a glaring violation of the Establishment clause.
Edited on Oct 14, 2010 at 8:30pmMay '10
Re: The Intersection of Religion and Statecraft
How so? Are you saying that the unwillingness to promote or possess religious beliefs by government officials leads to the unwillingness to pursue or protect important cultural values by those same officials? I disagree.
Oct '10
Re: The Intersection of Religion and Statecraft
Michael Labeit: “By what right does Jefferson use tax dollars … to finance … missionaries …That's a glaring violation of the Establishment clause.” That’s the point! Apparently it was not a violation of the clause for people actually there writing the clauses! Only subsequently was this deemed so. Which means we’ve changed the meaning of the clause!
May '10
Re: The Intersection of Religion and Statecraft
HVT,
Then I argue that the Constitution should be interpreted as prohibiting such conduct. Why should we oppose subsidies for the poor or the rich but endorse subsidies for the religious? If originalism commits us to such redistributive schemes, then it should be abandoned.
Oct '10
Re: The Intersection of Religion and Statecraft
David: Great summary of the greatest fun-house-mirror issue of the age.
Quibble: "All laws are based on morality to some degree.” You can remove “to some degree.” Simple test: Imagine a law. Now remove from it any/all morality (distinction between right/wrong). Q: What’s left? A: Nothing! No matter how trivial or profound, all laws codify a distinction between good/bad (acceptable/unacceptable, if you prefer). If not, it isn’t “law” in any meaningful sense. It’s tautological, really, which is why “you can’t legislate morality” is literally nonsensical. The exact opposite is true: you can’t legislate anything without morality.
The aphorism exists to make the point that mere legislation cannot induce correct moral choices. True! We pass laws precisely because people do not make correct moral choices! If they did, we wouldn’t need laws in the first place. Key: a subjective moral context is required for the concept of ‘correctness.’
Like all aphorisms, this one encompasses a basic truth in a linguistically ‘catchy’ way. It’s useful but either trivial or misleading in application. That for some it is a profound rejoinder only tells you about the persons (mis)using it.
Re: The Intersection of Religion and Statecraft
David, thanks for the thoughtful post -- and thanks especially for delivering all of that background information. It was really helpful to me -- I'm often fuzzy on some of those pesky constitutional phrases.
What always astonishes me, though, is that whenever I wade into the contemporaneous writings of the Founders, I'm reminded of just how explicitly religious they were. Kind of overwhelming so. It's impossible to imagine any of them looking at contemporary American culture, thinking about school prayer, and concluding that Americans need to be vigilant about the intersection of church and state. If anything, I think they'd be appalled at how secular we've become.
May '10
Re: The Intersection of Religion and Statecraft
The law is informed by morality with regard to the use of force. Ethicists looking to formulate proper laws ask the question "what actions should be legally prohibited, i.e., responded to with force for the purpose of prohibition?" Since this concerns the use of force and the use of force concerns what one should do, the law therefore is certainly grounded in morality, for the primary moral question is "what should I do?"
May '10
Re: The Intersection of Religion and Statecraft
Michael Labeit
By what right does Jefferson use tax dollars, money taken by force, to finance the endeavours of missionaries for the purpose of promoting religion?
Generally, I would agree that this would be a misappropriation of federal taxdollars, though not unconstitutional.
However, there is a scenario in which it might be acceptable: diplomacy. If religion offers a strong foundation for government (John Adams: "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."), then promoting religion would be equivalent to our promotion of capitalism and democracy in nations like Iraq and Afghanistan. In other words, it could be a means of strengthening national security and building strong national alliances.
Without knowing the details, Jefferson's promotion of Christianity among native tribes seems to fit this strategy.
The Establishment clause was created mainly in response to European models in which the state did not merely promote a religion but persecuted and interfered with other religions.
While a person could be a politician and a minister by turns without conflict, such a feat would require exceptional discipline. So I wouldn't welcome a return to that particular practice.
Edited on Oct 14, 2010 at 9:29pmOct '10
Re: The Intersection of Religion and Statecraft
A not-unreasonable view (although I disagree) but the question at hand is one of historical accuracy and textual meaning, not a present day normative assessment.
Nevertheless, since you brought it up: “subsidies” for rich or poor is a completely different category from “subsidies for the religious.” Societies are founded on something and if every generation does not sustain that something then that society dies or (the same thing existentially) becomes something different. If our ‘founding something’ was subsidizing the poor or rich then sustaining subsides to them would be essential for society to continue. But if we are instead founded on an endowment from a Creator consisting of “unalienable rights” (for which, to “secure” them, we have Government—I read this somewhere), then societal survival dictates that we sustain whence came this unusual idea around which society is based. I think what you’d define as subsidizing the religious, I’d call sustaining the greatest society ever devised by man.
May '10
Re: The Intersection of Religion and Statecraft
If above conditional proposition is true, then the "then" half (or consequent) is true if the "if" half (or antecedent) is true. Yet is it true that "religion offers strong foundation for government?" The truth of "promoting religion" is contingent upon religion being a "strong foundation." I argue that its a bad foundation rather than a strong one. For example, religion has proven be the foundation for tyranny in Iran, being the philosophical ground upon which a theocracy has been established.
Edited on Oct 14, 2010 at 10:24pmMay '10
Re: The Intersection of Religion and Statecraft
HVTs
A not-unreasonable view (although I disagree) but the question at hand is one of historical accuracy and textual meaning, not a present day normative assessment.
The issue of interpretation, I believe, is the pressing issue here, since it concerns how we should apply the various clauses of the Constitution. The originalist method of adhering to the literal meaning of the founders as offered in the text is but one proposed method of interpretation. I disagree with this method and would rather have the text construed to limit government in ways which harmonize with a laissez-faire, capitalist economy. (I think legal arguments are the lousiest arguments with which to defend limited government, from an intellectual level. Economic and moral arguments are infinitely more satisfying. Existentially however, legal arguments are the most effective we have).
Mr. Limbaugh is lamenting the method of interpretation employed by contemporary liberals and implies his preference for originalism by appealing to the probable opinions of the Founders. So interpretation is central here.
Jul '10
Re: The Intersection of Religion and Statecraft
I consider myself a Christian, though I've never attended chuch services.
Is it just me,or does anyone else here feel a bit -queasy - when poltical candidates like George W. Bush or Sarah Palin tout their religious convictions as a reason to vote for them?