Random Flotsam and Trash

B

rian Fischer has wrongly “contended for years that the First Amendment, as given by the Founders, provides religious liberty protections for Christianity only” in defiance of the plain meaning of the no-establishment clause. He does admit that “[m]ost attorney types … think it covers any and all religions you can name.” It never seems to occur to him that there just might be a reason for this—that maybe he’s a clueless idiot, rather than that everybody else is wrong. I’m not totally unsympathetic; in my experience there are occasions when the consensus opinion is clearly in error. History books record massacres by Native American groups that never happened, for example, or that George Washington added the words “so help me God” to his presidential oath—which likewise never happened. When I was a kid we were taught that the Reconstruction governments in the conquered states after the Civil War were irredeemably corrupt, as ex-slaves, white trash, and carpetbaggers were allowed to vote and were even elected to state and federal office—but fortunately the Redeemers came along to restore the natural balance, sweep all this scum out and purify the political process. In later years I learned that a fellow named Dunning was largely responsible for this bizarre mishmash, and that a lot of his evidence was made up. More stuff that never happened. Gone With the Wind and Birth of a Nation live to carry on his demented views, however.

So, anyway, I’m not a big fan of present consensus as absolute truth. “What is this absolute truth thing?” the Moon asked in one of Dan O’Neill’s comic strips. “It’s a five-to-four decision by the Supreme Court,” the Sun replied. Exactly. Today’s absolute truth may well be tomorrow’s phlogiston. But still, if the consensus of people who actually know what they’re talking about is against you it at least behooves you to consider whether maybe, just maybe, they have a point. At the very least your evidence ought to be of the rock-solid variety, and not just random flotsam and trash flung from passing vessels picked up in the course of casual beachcombing.

Fischer’s evidence, sad to say, is distinctly on the flotsam side. His strongest item is the (alleged) opinion of the apparently backward school friends of his childhood who thought that “religion” meant “Christianity” in blissful ignorance that such beliefs as Judaism and Islam and Taoism existed. “Superstitions equally false and unknown” Justice James Kent once called them, when explaining why blasphemy laws could not apply to non-Christian religions. I suppose Kent’s snide dismissal of the beliefs of the majority of mankind might add to the weight in the scales on the side of Fischer’s notion, except that Kent was under no delusion that there were no religions but Christianity—he merely felt an unexamined contempt for them, compared to “the religion professed by almost the whole community”. (Not that he had a high opinion of Christianity; in private he is said to have put “vulgar superstition” and “the Christian religion” on the same level.) And he wasn’t writing about the First Amendment of the Federal Constitution, but New York State’s much weaker guarantee of religious freedom in its now-forgotten state constitution of 1777.

Yeah, Kent’s hypocritical embrace of a Christianity he despised may count for something I suppose, but I’m damned if I know what. Evidence of the confusion of people charged with enforcing the law in a novel situation, maybe, one where church and state were no longer united, as Bishop Warburton had proclaimed to be the ideal relationship, but separated. Disestablished, in the jargon of the time. The first congress had voted for disestablishment (at least at the federal level), but there were antidisestablishmentarians about, and they had tradition on their side—a tradition that stretched back to priest-kings of Sumer and the pharaohs of Egypt, who were gods themselves. The emperors of Rome were gods too, and the European kings ruled by divine right, sanctified by the authority of God’s personal representative on earth.

This unholy alliance had deep roots—in fact, religion was simply one aspect of state in Assyria and Babylon, the fraud part of the force and fraud that are the glue that holds society together. “[T]he first beginning of religion was only to keep men in awe” as Christopher Marlowe used to say, if the informer who kept tabs on him is to be believed. Exactly. Without a supernatural sanction what on earth was to keep human beings from lying, cheating, stealing, murdering, and engaging in other decidedly uncivil behavior? This was George Washington’s point in his Farewell Address when he asked rhetorically “Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? … Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” In other words, educated men with a natural bent for it might be moral on their own, but the common folk needed “the sense of religious obligation” to keep them in line. A half century later Congressman James Meacham was still playing the same old tune: “Laws will not have permanence or power without the sanction of religious sentiment—without a firm belief that there is a Power above us that will reward our virtues and punish our vices.”

In consequence the whole business of detaching the church from the state was fraught with peril. Justice James Kent was concerned that “actions which go to vilify [the] gospels … are inconsistent with the reverence due to the administration of an oath and … tend to lessen, in the public mind, its religious sanction.” Scottish clergyman Edward Irving found the concept of dividing religion from government idiotic:

They talk like fools, and enemies of their country, who talk as if it were not the duty of the government of a country to intermeddle with religion: I say that the government which will stand neutral between Christ’s Gospel and the Papal Apostacy, or the Mohammedan imposture, or the Unitarian abomination, or other forms of anti-Christian doctrine, is essentially an Atheistical government, which hath cast off allegiance to Christ, “the Prince of the kings of the earth,” and to God who ruleth over the nations, to give them to his Son in full inheritance: and that king or government which affecteth such indifference, much more those which shew a preference to the unbelievers, will soon be cut off in the frown of God, and consumed in the hotness of his wrath.

So between keeping men in awe and averting God’s wrath there was plenty of room for panic. Needless panic, from the vantage of the twenty-first century, but you see—they didn’t know that. There were certain universals in human society—slavery, classes, the subordination of women, religious establishment—and meddling with any of them might well be the path to perdition. It’s what they were used to. It’s what they knew. These were the things that made society as they knew it run. Meddle with them and who knew what would happen—dogs giving birth to mastodons, maybe, or horses slitting the throats of their owners. Unnatural prodigies, anyway, Shakespearean in their proportions. Biblical, even.

And yet, the American Founders somehow managed to move past this. James Meacham, looking back on the progress of religious liberty, was impressed by the rapidity of the change. “[T]here can be no union of church and State,” he wrote. “The sentiment of the whole body of American Christians is against a union with the State. A great change has been wrought in this respect.” According to his somewhat oversimplified version of events up till the time of the Revolution “every colony did sustain religion in some form.” With some hyperbole he asserted, “Had the people, during the Revolution, had a suspicion of any attempt to war against Christianity, that Revolution would have been strangled in its cradle.” (As nobody was suggesting any sort of “war against Christianity”—the issue was the constitutionality of chaplains—this is a bit over the top.) And as he moved forward in time he asserted:

At the time of the adoption of the constitution and the amendments, the universal sentiment was that Christianity should be encouraged—not any one sect. Any attempt to level and discard all religion, would have been viewed with universal indignation. The object was not to substitute Judaism, or Mahomedanism, or infidelity, but to prevent rivalry among sects to the exclusion of others.

Against this he contrasted his own time—the late 1850s—by pointing out that “now there is not a single State that, as a State, supports the gospel.” All denominations of Christians “have had their existence in the voluntary system, and wish it to continue.” Nobody wants to go back to the old days before the separation of church and state; no, “Every tie is sundered; and there is no wish on either side to have the bond renewed.” This was “a very great change to be made in so short a period—greater than, we believe, was ever before made in ecclesiastical affairs in sixty-five years, without a revolution or some great convulsion.”

Now Meacham is making a point, specifically that chaplains are permissible because of the general acceptance “that the ecclesiastical and civil powers have been, and should continue to be, entirely divorced from each other”. There clearly were Americans who did not feel that way; B. F. Morris would soon be producing his untidy compendium The Christian Life and Character of the Civil Institutions of the United States, and the National Reform Association proposing changes to the Constitution to restrict religious freedom to certain Christians. Meacham’s championing the idea of government-supported chaplains was itself, despite his efforts to show the contrary, a breach in the division between the ecclesiastical and civil powers.

Nor is the idyllic picture Meacham painted of unity at the time the constitution and the bill of rights were enacted well-supported. People who naively quote this passage as evidence never seem to consider how James Meacham, who wasn’t even born at the time, could possibly know that “the universal sentiment was that Christianity should be encouraged—not any one sect.” Examination of the debates of the time show a much more complex picture. What was Meacham’s source?

Similarities in wording strongly suggest that his source was Joseph Story’s Commentaries on the Constitution of the United States. Consider these passages:

Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.

The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age.

The words in bold here are strikingly similar to the Meacham passage.

And Archbigot Fischer does in fact cite Story as evidence for his strange notions. In this rare instance he actually represents a source correctly, observing:

It's hard to get much clearer than that. The word “countenance” means “to accept, support, or approve of (something), to extend approval or toleration to.” So the purpose of the First Amendment was most decidedly NOT to “approve, support, (or) accept” any “religion” other than Christianity, including Islam and Satanism.

According to Joseph Story, anyway. This is not, however, to say that Story was under any delusion that the word “religion” meant Christianity—that’s Fischer’s peculiar construction—rather, he felt that the Constitution left the matter of encouragement of Christianity elsewhere. As far as the Constitution was concerned “the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.”

But just where did Story get the idea that “the universal, sentiment in America was, that Christianity ought to receive encouragement from the state”? Not, obviously, from direct observation; he himself was a child at the time he was writing about. I wouldn’t absolutely rule out the possibility that he had some memory of the debates going on among the adults of that time—I mean, I can recall something of the reactions of my parents and friends to the launch of Sputnik—but he could hardly have known much more than the views of a very small circle, rather than the universal sentiment he speaks of.

But Story didn’t base his claim on direct knowledge. No, in the best tradition of true scholarship Story cited his source. And that, as it turns out, is both good and bad. It’s good, in that we can check up on him, see what he had in front of him to conjure with. But it’s bad, really bad, in that his source doesn’t back him up at all. Indeed, it would be hard to get further from a source than Story did.

He gives his source for the first passage as “See 2 Lloyd’s Deb. 195,196.” And for the second we have “2 Lloyd’s Deb. 195.” These arcane hieroglyphs turn out not to be at all tricky to decode: Lloyd’s Deb is nothing more than Thomas Lloyd’s notes on the congressional debates, and we are supposed to pick up volume 2 and turn to pages 195–196. And when we do we find ourselves in the middle of the 15 August 1789 debate over the adoption of what would become the first amendment to the American Constitution.

I’ve written about that particular day’s debate before, as it is interesting to see these early congressmen at work crafting one of the foundation stones of the American republic, but there is nothing in the text to substantiate Story’s claim. Not one of the speakers is reported to have said a word about the government supporting or encouraging Christianity. The closest we get is Benjamin Huntington’s expressed hope that the amendment could be designed “to secure the rights of conscience” for the religious, but still discriminate against “those who professed no religion at all.” As no one else seconded his desire, and no attempt was made to incorporate this discrimination into the proposed amendment, it seems fairly safe to say that this did not represent the sentiment of the body as a whole.

Possibly Story has confused their concern that the amendment “not be hurtful to the cause of religion” with a desire “that Christianity ought to receive encouragement from the state,” although the two concepts are poles apart. There is a huge difference between “not be[ing] hurtful” and “receiv[ing] encouragement;” the first is passive and the second active, for one thing. And, as I’ve pointed out above, “religion’ is not the same thing as “Christianity” and Story is perfectly aware of it. Unlike the Archbigot.

And as for Story’s claim that the “real object of the amendment was … to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment” without tolerating “Mohametanism, or Judaism, or infidelity” the closest thing we get is James Madison’s observation that “the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform” and that its purpose was to keep congress from making “laws of such a nature as might infringe the rights of conscience, or establish a national religion”. And nowhere does he mention “Mohametanism,” Judaism, infidelity, or for that matter Christianity. The distinction that Story wants to make is entirely absent from his stated source.

Story’s motive for misrepresenting his source is fairly obvious. Indeed, he’s quite open about it. As a Christian, he is convinced that “it is impossible for those who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster and encourage it among all the citizens and subjects”. He therefore feels obliged to come up with some rationale, however inane, for allowing the government to do what the Constitution has expressly forbidden. Story’s solution, of course—based on his religion, and not his knowledge of jurisprudence—is to conclude that the framers meant for the states to impose Christianity upon their residents. As there’s no way of getting that from the preserved record, Story simply lies about it—and hopes that nobody will check up on him.

That such a transparent fraud will only impose on the gullible probably didn’t concern him. And apparently he was right not to be concerned—as long as there are credulous people like James Meacham and Brian Fischer around.