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.
