- iwpoe
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Re: Church, state and public religion
I'll put my cards on the table: I'm with Plato in thinking that a state is better off as a mild theocracy, even if I don't believe in the God(s) of the city- since it's at least a general endorsement of keeping an eye to the highest things. I think liberalism has been stultifying in that respect. Athenian theocratic pluralism was sufficient if you're worried about liberty.
That said, I'm not particularly convinced that liberty itself is of anything but instrumental good.
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It is precisely “values” that are the powerless and threadbare mask of the objectification of beings, an objectification that has become flat and devoid of background. No one dies for mere values.
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- Timotheos
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Re: Church, state and public religion
Iwpoe: "Protestants clearly wanted to divorce the Church from the state because they were losing in that arena (and must since they can't confine themselves to one sect)."
Be careful here, the original Protestants, the one's that deserve that title at least in my mind, went in quite the opposite of that direction; one of the first things that Luther did to his churches was to remove them from the auspices of the bishops and into the hands of the German princes. And of course, Calvin himself set up a theocracy in Geneva, and his Puritan followers in Britian and the Netherlands tried to follow his example.
It was only after trying that for a few hundred years that the piestic, Quakers, and the broad church members of those churches moved onto the old separation of church and state idea
- Jeremy Taylor
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Re: Church, state and public religion
At the moment I'm slowly trying to write an article on constitutional interpretation, especially in America. As a matter of US constitutional history the OP is correct. The First Amendment was not meant to be interpreted as it has been since the Second World War. It wasn't thought, for example, that it bound the states. Nine of the thirteen states had established Churches, whatever their vitality, and the amendment wasn't held to overthrow these. The final drafting of that amendment was by Fischer Ames. I don't know if I'd call him dew-eyed (he was cantankerous and pessimistic), but he was one of most conservative of the federalists, as well as one of the most eloquent and insightful of the US founding fathers and first generation (to my mind, rivalled only by John Adams and John Randolph of Roanoke). It is certain that he, and the nation that first received the First Amendment, would not have thought it would have outlawed prayers, even specifically Christian prayers, in public schools.
Of course, there is the matter of constitutional interpretation. The conservative arguments tend to assume that the beliefs of those who wrote or first received the constitution are important in interpreting it. Obviously, those who extended the First Amendment and its meaning to get to the current interpretation take a different view. The American founders did not envision a very important role for judicial review. They thought the constitution would be enforced, so to speak, by the structure of the government; that is, the checks and balances and separation of powers would bring different branches and layers of the government into conflict should any try to overstep its bounds. It was in the early nineteenth century that judicial review became important in constitutional interpretation. This has been called the age of the legal or legalistic constitution. The court interpreted the constitution as law (applying it through individual cases in a common law legal system) and tried to rely on the clear and accepted meaning of the text. Judicial review has been retained in the twentieth and twenty-first centuries but after the 20s and 30s and especially with the Warren and Burger courts much of the legal constitution has been abandoned, such as the idea that the meaning of the constitution is that which is plain from the text and understood by the founding generation and that the constitution is law and not just a spring board to invoke the judges private, abstract principles.
The problem is that this puts judicial review in jeopardy: if the judges can interpret the constitution as they please, why give this power to the judiciary? We see this in the current battles over Justice Scalia's seat on the court, where the appointment is seen as plainly political. Surely, something has gone badly wrong when the court has become so polarising and political an institution. If the current meaning of the constitution is to be a matter of politics, then surely the legislature (as for a long time, at least de facto, was the case in Britain), rather than the court, is the best means of determining it.
- ArmandoAlvarez
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Re: Church, state and public religion
iwpoe wrote:
Seems to me that no Christian or Jew would want anything resembling an established religion or even government encouraging religion-in-general
What? The Jews have one presently..... Why would you think in these strictly modernist terms? The state is wandering in error if it isn't Christian...
So the protestants argued... and now Europe is sliding into atheism. Oopse.
England still has an established church. It has had an established church throughout its entire history as a united nation. It hasn't stemmed the tide of atheism at all; it probably encouraged a secularist rebellion.
As to questioning my point on Jews or Christians not wanting an established religion, I probably should have said, "No Jew or Christian should want an established religion" rather than "would want".
Why do I think in modernist terms on this? Because the modernists are right. The entangling of church and state has been corrupting on both the church and the state as long as it has occurred. It is better for society to not have people joining the church simply to get a government job or to get their marriage certified. A state religion only encourages lukewarm, fake Christianity. Better to have the sides marked openly.
- Jeremy Taylor
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Re: Church, state and public religion
The traditional Christian doctrine is that of the two swords, of Church and State. A Christian, or any traditionally religious person, cannot support secularism or complete separation of Church and State because that is declaring an important aspect of life - politics and society - separate, and run on separate principles, from God and religion. This is an unacceptable duality. It separates both religion from a social and political role, and the state from its proper foundations and support in religion. It might be okay if this group is going to separate itself from society in some way, or has autonomy of some sort from the rest of society, but not in other cases.
Certainly, there are risks in an established Church. But there are risks in all forms of government and all institutions. The Church must maintain its independence. It must not succumb to Erastianism, but that is distinct from just being an established Church.
- iwpoe
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Re: Church, state and public religion
Be careful here, the original Protestants, the one's that deserve that title at least in my mind, went in quite the opposite of that direction; one of the first things that Luther did to his churches was to remove them from the auspices of the bishops and into the hands of the German princes. And of course, Calvin himself set up a theocracy in Geneva, and his Puritan followers in Britian and the Netherlands tried to follow his example.
I suppose that my thought is more that religious toleration and pluralism is a protestant necessity as soon as protestant sects begin to scism internally, which they do rather quickly especially in the English countries. Protestant thought recognizes this schisming as unreconcilable internally (unlike Catholicism, which will permit certain larger differences of interpretation within a core of Orthodoxy), so must either end it with violence or toleration. Luther is still Catholic insofar as he naively assumes that he can simply have the faith of the land by means of establishing a new orthodoxy.
Last edited by iwpoe (4/07/2016 4:39 am)
Fighting to the death "the noonday demon" of Acedia.
My Books
It is precisely “values” that are the powerless and threadbare mask of the objectification of beings, an objectification that has become flat and devoid of background. No one dies for mere values.
~Martin Heidegger
- iwpoe
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Re: Church, state and public religion
At the moment I'm slowly trying to write an article on constitutional interpretation, especially in America. As a matter of US constitutional history the OP is correct. The First Amendment was not meant to be interpreted as it has been since the Second World War. It wasn't thought, for example, that it bound the states. Nine of the thirteen states had established Churches, whatever their vitality, and the amendment wasn't held to overthrow these.
I mean, this never went to court, probably (1) because all the state Churches except one were defunct by the time the bill of rights was ratified in 1791 and (2) because judicial review was rarely exercised in general after its formal esptablisment in 1804.
Was it that it was held to not overthrow these Churches (church, I suppose, since only Conneticut would have had to concern themselves about it) or was it that they were simply left to die on their own without federal interference? In law, not challenged is not the same as not challengeable. After all, even today, many laws that turn out to be unconstitutional are left in effect for some time before being nullified by the court. If they fall out of effect on their own, then the issue is moot, and the court wouldn't rule on it. Since no other state has attempted a Church the issue stands open.
I mean, I want remarks on this matter. The existence of a single state church in Connecticut (particularly given that all these institutions pre-dated the bill of rights) doesn't seem to me to be sufficient evidence of their constitutionality (since it may well just be a case of an unconstitutional practice). It seems odd to think that everything done around the time of the ratification of the bill of rights should be considered constitutional.
There's also the aditional problem of the 14th amendment and incorperation. There are a few other limitations on the first amendment's application (e.g. state restrictions on "malicious" or "scandalous" newspapers) which were thought permissible classically but no longer. Even if it was once thought that, for instance, no national church was permitted but state churches were on the election of those states, this would be easily challgenged on 14th amendment grounds. At that's precisely what has been done on other questions of establishment. See: Everson v. Board of Education, 330 U.S. 1 (1947). Oposition to substantive due process, which I suppose many of you are tacitly presupposing, is of no help in the establishment case, since a strong argument can be made for its incorperation on the basis of the Privileges or Immunities Clause even if your reject modern interpretations of the due process clause as was done by Thomas with respect to the second amendment recently. Though, since the establishment prohibition is enumerated, you're going to have difficulty dismissing substantive due process in that case. Whether you can save school prayer seems to me to be a significatly less important hill to die on, since it's obviously far more important to publicly even fiscally support religious efforts against powerful proponents of vice and irreligion than whether you can give children one more thing to learn badly and forget quickly.
The objection that such-and-such an interpretation didn't apply at the time of founding seems irrelivant since there was no incorperation or 14th amendment at the time of founding. You cannot appeal to the founder's understanding of something when it has been supersceded by subsequent amendment anymore than you can appeal to the 18th amendment or the origional understanding of it after it has been repealed by the 22nd.
In essence, many issues about the origional scope of the bill of rights are now moot, whatever their merit unless they are deemed unchanged by incorperation.
Last edited by iwpoe (4/07/2016 5:38 am)
Fighting to the death "the noonday demon" of Acedia.
My Books
It is precisely “values” that are the powerless and threadbare mask of the objectification of beings, an objectification that has become flat and devoid of background. No one dies for mere values.
~Martin Heidegger
- Jeremy Taylor
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Re: Church, state and public religion
I mean, this never went to court, probably (1) because all the state Churches except one were defunct by the time the bill of rights was ratified in 1791 and (2) because judicial review was rarely exercised in general after its formal esptablisment in 1804.
Was it that it was held to not overthrow these Churches (church, I suppose, since only Conneticut would have had to concern themselves about it) or was it that they were simply left to die on their own without federal interference? In law, not challenged is not the same as not challengeable. After all, even today, many laws that turn out to be unconstitutional are left in effect for some time before being nullified by the court. If they fall out of effect on their own, then the issue is moot, and the court wouldn't rule on it. Since no other state has attempted a Church the issue stands open.
I mean, I want remarks on this matter. The existence of a single state church in Connecticut (particularly given that all these institutions pre-dated the bill of rights) doesn't seem to me to be sufficient evidence of their constitutionality (since it may well just be a case of an unconstitutional practice). It seems odd to think that everything done around the time of the ratification of the bill of rights should be considered constitutional.
Surely, the question is whether the First Amendment was intended to ban established state churches at the state level? To put the question the other way around, and ask whether it permitted them, seems to me to reverse the correct onus. I don't think there is a lot of evidence that those who wrote it and, perhaps more importantly, the original public who received it, saw it as forbidding established churches at the state level.
When you say turn out to be unconstitutional, this is one of those indefensible uses of the passive voice that veils important assumptions. Many things have turned out to be unconstitutional in this sense, because judges seem to have decided they conflict with their own private ideals of what the law or constitution should mean. Now, constitutional interpretation is a vexed issue. But it is undoubtedly true that SCOTUS has often, in the last eighty years or so, held to an idea of what the constitution means that seems to have only passing reliance on the actual text or original meaning.
There's also the aditional problem of the 14th amendment and incorperation. There are a few other limitations on the first amendment's application (e.g. state restrictions on "malicious" or "scandalous" newspapers) which were thought permissible classically but no longer. Even if it was once thought that, for instance, no national church was permitted but state churches were on the election of those states, this would be easily challgenged on 14th amendment grounds. At that's precisely what has been done on other questions of establishment. See: Everson v. Board of Education, 330 U.S. 1 (1947). Oposition to substantive due process, which I suppose many of you are tacitly presupposing, is of no help in the establishment case, since a strong argument can be made for its incorperation on the basis of the Privileges or Immunities Clause even if your reject modern interpretations of the due process clause as was done by Thomas with respect to the second amendment recently. Though, since the establishment prohibition is enumerated, you're going to have difficulty dismissing substantive due process in that case. Whether you can save school prayer seems to me to be a significatly less important hill to die on, since it's obviously far more important to publicly even fiscally support religious efforts against powerful proponents of vice and irreligion than whether you can give children one more thing to learn badly and forget quickly.
The objection that such-and-such an interpretation didn't apply at the time of founding seems irrelivant since there was no incorperation or 14th amendment at the time of founding. You cannot appeal to the founder's understanding of something when it has been supersceded by subsequent amendment anymore than you can appeal to the 18th amendment or the origional understanding of it after it has been repealed by the 22nd.
In essence, many issues about the origional scope of the bill of rights are now moot, whatever their merit unless they are deemed unchanged by incorperation.
It certainly is an open question whether the Fourteenth Amendment does not change the nature of the original constitution quite drastically. However, it must be noted that incorporation is itself a controversial doctrine. The Fourteenth Amendment explicitly incorporates only parts of the Bill of Rights (which don't include the Establishment Clause or, if memory serves, any of the First Amendment). The incorporation of much of the rest of the Bill of Rights was affected by the court largely from the 1920s onwards, generally in a quite questionable fashion (at least to anyone of Originalist or Textualist sympathies). Now, there is the issue of precedent of course. Many Originalists (such as Bork and Scalia) think incorporation was bad jurisprudence, but they wouldn't overturn much of it because it has become so long settled, and so much legal, political, and social infrastructure has been built on it, that overturning it would be too harsh medicine (they would try and limit some of its effects though). Other Originalists (such as Justice Thomas) have signalled they'd overthrow much incorporation, because it has little basis in the constitution.
These are all very complex issues, of course. There are issues of interpretation, precedent, the rule of law, and so on. My point in the post you quoted was really just to talk about how the First Amendment was originally understood. What its meaning is and should be today is a more complex question.
- ArmandoAlvarez
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Re: Church, state and public religion
It certainly is an open question whether the Fourteenth Amendment does not change the nature of the original constitution quite drastically. However, it must be noted that incorporation is itself a controversial doctrine. The Fourteenth Amendment explicitly incorporates only parts of the Bill of Rights (which don't include the Establishment Clause or, if memory serves, any of the First Amendment). The incorporation of much of the rest of the Bill of Rights was affected by the court largely from the 1920s onwards, generally in a quite questionable fashion (at least to anyone of Originalist or Textualist sympathies). Now, there is the issue of precedent of course. Many Originalists (such as Bork and Scalia) think incorporation was bad jurisprudence, but they wouldn't overturn much of it because it has become so long settled, and so much legal, political, and social infrastructure has been built on it, that overturning it would be too harsh medicine (they would try and limit some of its effects though). Other Originalists (such as Justice Thomas) have signalled they'd overthrow much incorporation, because it has little basis in the constitution.
The Fourteenth Amendment says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
In the Slaughter-House cases shortly after the 14th Amendment was written, the Supreme Court held that the privileges and immunities clause ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States") was basically dead letter. To my mind, this was wrong. The principle author of the 14th Amendment said regarding the privileges and immunities clause:
I hope the gentleman now knows why I changed the form of the amendment of February, 1866. Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.
But the Supreme Court has never reversed the Slaughter-House cases. Later, the doctrine of incorporation was based on the due process clause: " nor shall any State deprive any person of life, liberty, or property, without due process of law." This makes sense for protections like the fifth and sixth amendment ("procedural due process") but doesn't make sense for things like the first amendment ("substantive due process" which is almost a contradiction in terms.)
To my mind, the dubious use of the incorporation doctrine under the due process clause is mostly no-harm-no-foul because the Fourteenth Amendment was intended to incorporate the protections of the Bill of Rights against the states, it's just that the Supreme Court is citing the wrong section of the Fourteenth Amendment.
That being said, having a state established church doesn't seem to me to be violating "the privileges and immunities of citizens of the U.S." or denying a person life, liberty or property without due process, so while I would say the right to free exercise was intended to be incorporated against the states, I would question whether the establishment clause was.
- iwpoe
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Re: Church, state and public religion
England still has an established church. It has had an established church throughout its entire history as a united nation. It hasn't stemmed the tide of atheism at all; it probably encouraged a secularist rebellion.
The second problem is excessive toleration and pluralism. Lack of an established church prevents central religious authority that might hold faith together and toleration and pluralism neuter any central authority de facto or de jure that might exist.
As to questioning my point on Jews or Christians not wanting an established religion, I probably should have said, "No Jew or Christian should want an established religion" rather than "would want".
My retort would be quite similar: The Middle Ages are a Christian triumph and it's very hard for me to see what a devout Jew should dislike about Israel (apart from its excess secularism).
Why do I think in modernist terms on this? Because the modernists are right. The entangling of church and state has been corrupting on both the church and the state as long as it has occurred.
This is the wrong sort of purity. Also, it's quite hard to see how, if any faith is to be true, faith could corrupt the state. This amounts to a presupposition of, as Taylor says, "an unacceptable duality."
In any case, my short description glosses over what would have to ultimately be a more nuanced interaction. You can admit of the Church certain spiritual powers, and the state certain temporal ones. There was long in Christianity a recognition of two realms but not their strict separation.
It is better for society to not have people joining the church simply to get a government job or to get their marriage certified. A state religion only encourages lukewarm, fake Christianity. Better to have the sides marked openly.
What, are we all pentecostals here? Religious exercise simply is not to be equated with enthusiasm. There is something unfortunate about a man who has a weak heart in his duties but he is not performing them falsely. That's as if to say that a man who pays his debts while secretly morose and disagreeing with the debt isn't paying his debt.
To oppose enthusiastic Christianity to fake Christianity also poses an internal spiritual danger- for instead of the more traditional ideas of strong and weak faith, or practicing and lapsed, or etc, you now have true and fake Christians. So, as a man changes in his life and sometimes weakens in his convictions he is not allowed to avail himself of being a Christian, but must now simply be opposed the Christianity unless he can manage to rise himself to the enthusiasm of his childhood or of his most vain Christian peers who'd parade every mission trip, gift of the spirit, ave maria, etc as so many peacock feathers.
Now, he doesn't just "attend on Easter and Christmas", but he says of himself that he is non-religious and teaches his children to be so also.
Last edited by iwpoe (4/07/2016 8:25 am)
Fighting to the death "the noonday demon" of Acedia.
My Books
It is precisely “values” that are the powerless and threadbare mask of the objectification of beings, an objectification that has become flat and devoid of background. No one dies for mere values.
~Martin Heidegger