- iwpoe
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Re: Church, state and public religion
ArmandoAlvarez wrote:
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.
Interestingly while Thomas rejects substantive due process, he seems to reject Slaughter-House and derives the incorporation of the second amendment from the Privileges or Immunities Clause. I'm interested how much of incorporation he'd preserve on the back of that sort of argument.
Last edited by iwpoe (4/07/2016 7:53 am)
Fighting to the death "the noonday demon" of Acedia.
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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.
~Martin Heidegger
- Jeremy Taylor
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Re: Church, state and public religion
Armando,
It is certainly true that Rep.Bingham intended the Fourteenth Amendment to incorporate the first Eight Amendments. But most versions of Originalism and Textualism are not very concerned with the intentions of lawmakers in this sense. They look instead first to the plain meaning of the text and then to the original public understandings of that text. They wish to get away from judges trying to understand the wishes of lawmakers (albeit many non-Textualist/non-Originalist judges often try to discern original intent at a higher level of generality than we are referring to), or purposivism as it is sometimes called. Whatever Bingham's wishes, he doesn't seem to have expressed them clearly in the Amendment itself, and it cannot be shown that the privileges and immunities clause was generally understood at the time to express them. It mostly has been and should remain a dead letter, from a Textualist postion, precisely because what it meant to the public of the time, if it meant anything definite, is not recoverable.
You are certainly correct about the highly dubious nature of substantive due process.
- ArmandoAlvarez
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Re: Church, state and public religion
Jeremy, I don't know much about it, but would the textualists also oppose, for example, citing to the Federalist Papers regarding interpreting the original constitution and bill of rights? Because it seems the logic of "don't cite to the wishes of the lawmakers, just look at the wording" would also apply there. Isn't there also a rule of textual interpretation that you assume that a wording wasn't meant to be extraneous if it's included? It seems like pretending an entire clause doesn't exist would go against that. Maybe it would have been a tiny bit clearer if they had said, "No state shall violate the rights of U.S. citizens" but I think the privileges and immunities clause would be considered quite clear had not the Slaughterhouse cases dropped the ball immediately.
Getting back to the establishment of religion, it seems to me people are arguing for different things, since "established religion" covers a broad range of things. You can have an established church like Henry VIII had, with banning free exercise, the king appointing the bishops, and declaring himself head of the church, and at the other end of the spectrum, you can have an established religion like Denmark, where the Lutheran Church of Denmark receives state support and the royal family must be members, but otherwise politicians avoid references to God. You have countries like Argentina, where the Catholic Church isn't officially established, but is the only church that receives state support.
DanielCC and Mysterious Brony seem to be arguing for something weaker, such as acknowledging that the truths about God one knows through natural reason are the basis for morality and a well-functioning state.
I think the history of established religion is all but uniformly bad. When the established church is vigorous, you have the abuses of the Middle Ages and Renaissance: kings appointing bishops; popes making war on Christians for conquest; noble families getting their children appointed bishops, abbesses and abbots for the sake of gaining influence; men becoming clerics just for the sake of having a steady job; persecution of dissenters; and kings and emperors trying to force (often wrong) resolutions to doctrinal disputes. When the established religion is weak you get meaningless symbolism that isn't bringing anyone closer to God or the truth. Established churches haven't prevented Scandinavia or England from being highly secularized. The establishment of the church of England does result in resentment from other religions-as a Catholic, I wouldn't want my taxes funding a schismatic church with a queen as the head of the church and with parliament having veto power over forms of worship.
What sort of establishment are those of you who are speaking in favor of it arguing for? Nobody here seems to be arguing for preventing free exercise. If Congress were to pass a resolution saying that the morality of the state depended on God, what good would it do? It seems to me it would be about as useful as your typical legislature picking a state bird, or Congress voting that bourbon is the national spirit (which didn't exactly boost bourbon sales).
Last edited by ArmandoAlvarez (4/07/2016 6:42 pm)
- Jeremy Taylor
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Re: Church, state and public religion
Most Textualists and Originalists would only make use of sources like the Federalist Papers to clarify how terms and phrases were generally understood at the time. They would not wish to rely heavily on original intent of lawmakers for several reasons. Firstly, it is not the job of judges to be amateur historians, and this gets too close for that. Secondly, original intent can become a thorny issue. Whose intent and how do we find it? Thirdly, Textualists and Originalists wish to get away from the pitfulls of purposivism, where judges try to ferret out what they think was true purpose of a clause or law. What Originalists and Textualists are looking for is clear and public meaning to anchor the law in and restrain judicial action.
The Privileges and Immunities Clause is ignored because it is not known what it meant to those who first received it. It begs the question to assume they thought that the privileges and immunities of a US citizen meant what is covered by the first eight amendments. It hadn't up to this time, not at a state level. The intentions of one legislator, albeit the main author of a clause or law, is not that important. It isn't as if this legislator is the one who, alone, turns his drafting into law or an amendment. This has to be done by the congress and, in the case of constitutional amendments, the states.
On establishdd Churches, I'm confused? You think the Middle Ages was a bad time for Christianity? Only the early Church, which was in a peculiar situation, seems to have been a better time for Christianity, to my mind, especially when it comes to the early Middle Ages. This was a time when Kings regularly became monks, when the divine was felt ever-present in the lives of men.
There are abuses in all forms of government and in all institutions. It is important not to take the abuses of one form of institution, ignore that of another, and not properly assess what is good and bad in each. Secularism declares that the state and its foundation are separate from religion, that man's social and political ends are separate from his ultimate ones. This is anatheama to the traditional believer of any religion and to the Tory. It is true that established churches haven't been able to halt the rise of irreligion, but it would be hard to see them as causes of that irreligion in any general sense.
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Re: Church, state and public religion
Ugh, for some reason the combox froze when I was writing that last post so I couldn't finish it. And the site still won't let me edit it or even copy the text.
- iwpoe
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Re: Church, state and public religion
This might seem a little strange, but if you give me a screenshot of all text in the highest resolution you can send me, then I have software that will easily process that into text again. You can take a screenshot of a frozen window.
Last edited by iwpoe (4/07/2016 7:16 pm)
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
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Re: Church, state and public religion
Not to worry. I restarted my computer and it seems to have sorted out the problem.
- iwpoe
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Re: Church, state and public religion
I'm willing to argue for the prevention of free exercise, yes. I'm a platonist, not a Christian, however I think that most people most of the time need a fully religious framework- Plato would have called it a mythos, but the modern connotation of the word myth is inadequate -in which to approach the divine, and I think that the major monotheistic faiths as well as late paganism (which was influenced by platonism) sufficient frameworks for that purpose. Having free exercise, especially in the background of religions of Orthodoxy, amounts to de facto state skepticism about whatever Orthodox faith is present. In Greco-Roman paganism, you had a related problem, but not the difficulties of Orthodoxy. There what happened was so many gods were continually being brought in that the whole framework seems in flux and cannot inspire reverence and anything permanent without intellectual correction.
I would be willing to limit proselytizing by law.
Last edited by iwpoe (4/07/2016 8:38 pm)
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
- DanielCC
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Re: Church, state and public religion
What sort of establishment are those of you who are speaking in favor of it arguing for? Nobody here seems to be arguing for preventing free exercise. If Congress were to pass a resolution saying that the morality of the state depended on God, what good would it do? It seems to me it would be about as useful as your typical legislature picking a state bird, or Congress voting that bourbon is the national spirit (which didn't exactly boost bourbon sales).
What good would it do? It would rationally justify the existence of the state and the rule of law. I would have thought this obvious, the implied point being that without something like this the state has no justification for imposing its strictures on us. Most people at least appear to work under the assumption that positive law is representative of some fundamental moral principles.
'Practically' the State endorsement would also go a long way to removing the general populous from error.
EDIT: Also 'useful' to what? Unless we have a prior established moral system we cannot even decide what to aim for.
Last edited by DanielCC (4/07/2016 7:57 pm)
- Mysterious Brony
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Re: Church, state and public religion
@DanielCC
I think, from a classical theist a la Aquinas, moral deism is no good because moral deism ends up denying many crucial A-T metaphysical fundamentals. (In those days, the Newtonian metaphysical picture was prevalent and I think this is one of the reasons why Locke argued that God was the ultimate ground of morality or rights.) However, could a classical theist argue that metaphysical moral deism is a useful fiction as a practical political philosophy out of respect of other religions?
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