What’s Wrong with the World

Paul, I'm grateful for your attention to this and to Pejman's. The thing I would keep front and center is that if I (and Steven Smith and Robert Palmer) am correct that the religion clauses are jurisdictional in nature, then they DO NOT provide a substantive theory of rights for us to draw upon. That is why they are so poorly worded for our task. Surely, they could have been clearer if they meant to define the church-state question. Instead, Pilate-like, they washed their hands of it. So, while you can surely incorporate a prohibition on speech restrictions against the states, it is not nearly so clear the same maneuver can be neatly made with regard to the religion clauses.

I do not deny there may be another way to get there. Maybe a substantive theory can arise in some organic way from the 14th amendment. In other words, if citizens are equal in certain ways then they have to at least have thus and such religious freedom.

Thanks, Hunter. I should have added my own doubts about whether a substantive theory can be discovered in the religion clauses alone. Thus the need to look into what the legislators were thinking and saying. Though even then we will not likely have solid answers.

Only from Washington, DC, does it look reasonable to establish by Court fiat the same legal standard of public morality in Texas as in New York City.

Don't forget about New York City. It looks perfectly reasonable from there, too... assuming prevailing opinion has a chance to dominate, which (today, and for the moment) it does. Of course, if the shoe was on the other foot, and Texas, with whatever force within the Central Government beholden to her will, was attempting to "impose" Texas standards on NYC, well then we'd be sure to be hearing much from them about States' Rights.

Which I suppose is all to say that Federalism, States' Rights, incorporation, etc., all seem to me to be rather secondary questions. We should not forget that States' Rights arguments have been a cudgel of the left as well as the right for most of US history. States' rights arguments are deployed not so much in principle against centralizing forces as they are in practical defense against majorities or majority opinion with which folks happen to disagree. Massachusetts believed in "State's rights" in 1813 about as much as South Carolina did in 1860, which is to say, as a principle not at all.

Paul, this essay of yours reminds me of something I posted on this site almost a year ago: http://whatswrongwiththeworld.net/2009/07/religious_liberty_a_dilemma_1.html. I think that old post is quite germane to the questions you're raising. But I'm not sure whether you'd want me to do a sequel post in response to yours. What do you think?

Best,
Mike

Bad link, Mike.

I don't understand why it's a bad link. I just copied and pasted it from the address bar of the page that came up when I clinked on the link on my author page. I know the page is accessible that way because it stands as I remember it.

It's the period at the end of the sentence, guys. It got grabbed into the URL and makes it a bad link. Just click on the link, go to the end of the URL for the "page not found," and delete the period at the very end, refresh, and the page comes up.

I've been told this quote is the origin of the phrase "wall of separation between church and state":

When they [the Church] have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the Candlestick, etc., and made His Garden a wilderness as it is this day. And that therefore if He will ever please to restore His garden and Paradise again, it must of necessity be walled in peculiarly unto Himself from the world, and all that be saved out of the world are to be transplanted out of the wilderness of the World. ("Mr. Cotton's Letter Lately Printed, Examined and Answered," The Complete Writings of Roger Williams, Volume 1, page 108 (1644))

Paul: It disturbs me how facilely folks dismiss the importance of the federal structure, treating it as some leftover from a bygone era, rather than the integral part of the Constitution that the Framers and Publius so clearly understood it to be.

Steve: We should not forget that States' Rights arguments have been a cudgel of the left as well as the right for most of US history.

Actually, I think that states' rights were NOT as well understood as they might have been, even back in the period of Madison and the Constitutional founding. Looking through the Federalist Papers, it seems to me that Madison sort of fell backwards into the critical notions after he had the Great Compromise forced down his throat, the critical notions being those of shared sovereignty and subsidiarity (no, he didn't use those terms, but that's what they amount to). Shared sovereignty, because the states were, before the federal union, totally sovereign entities, and afterwards they had only given up SOME EXPLICITLY delineated provisions of sovereignty, and had retained all the rest. Subsidiarity, because the federal entity was generated out of shared limited powers of pre-existing and subsisting political entities, which had retained all political powers except those needed for the larger entity to work, keeping for the lower entities all other powers.

These state's rights should have been protected by the states being represented, precisely as sovereign states, in the Congress. This is indeed the validating notion of the Senate, whose members were supposed to be chosen by the states' legislatures. But that constitutional provision was changed in 1913, paving the way for a gradual change in understanding of the states' remaining sovereignty, which paved the way for the 14th amendment's ill-thought progeny. But part of the reason that provision was changed was because it apparently was not recognized to be effective in maintaining state independence for any worthwhile effect.

Which is why I think we need a new check / balance amendment to protect states from the encroachment of the federal power, just as there is a series of checks and balance provisions to protect the 3 arms of the federal power from each other.

Tony, I fully agree, and I don't think it is too strong to say that state power was considered by the founders to be a fourth leg on the, now famouse, tripartate division of power. I haven't read enough of the Federalist to know for sure, but even if it wasn't well articulated, it might only have been a case of the 800 lb gorilla in the room; viz., state power was such an obvious given that it required little comment (in 1788).

My basic point was, rather elliptically, people want good government, or at least what they deem to be good government. And when is any branch of government willing to offer them what they want, they'll come up with any theory, plausible or not, to justify that branch, even against the interests or legitimate powers of other branches, exercising that good.

"Can a community that is prevented from binding its members on matters of public morality still be said to be self-governing?"

Of course it can. The very notion of self-governance in our tradition has been about teasing out the proper limits of government. If some Christians (or Muslims) are scandalized by our evolving concepts on the limits of public morality, they are free to make their case and the majority is free to reject it.

"Only from Washington, DC, does it look reasonable to establish by Court fiat the same legal standard of public morality in Texas as in New York City."

Looks reasonable from here too and I can see the Pacific Ocean. Here we are communicating with each other from all points in this nation in fractions of a second and you want to pretend that local standards are a proper basis on which to make Just what laws? What is this "public morality" anyway (IYO) (Texas? Austin or Lubbock?).

As for state sovereignty. It doesn't seem like a good idea to idealize a concept that was the result of compromises that were necessary in order to create a viable nation. The whole concept was a fail which is why we have the 13th, 14th, and 15th Amendments. The 1787 Constitution was a remarkable document for its time which has persevered because the Founders were wise enough to provide ambiguous areas in which those who followed would be able to perform saving constructions. Their foresight was remarkable. We dishonor them by treating their work as revealed scripture.

We trace our roots to England. Continental concepts like subsidiarity should hardly be controlling.

"...state power was such an obvious given that it required little comment (in 1788)."

From Mr. Madison's notes on the ability of the national government being able to invalidate certain state laws.,

"Mr. MADISON, considered the negative on the laws of the States as essential to the efficacy & security of the Genl. Govt. The necessity of a general Govt. proceeds from the propensity of the States to pursue their particular interests in opposition to the general interest. This propensity will continue to disturb the system, unless effectually controuled. Nothing short of a negative on their laws will controul it. They can [FN14] pass laws which will accomplish their injurious objects before they can be repealed by the Genl. Legislre. or be [FN15] set aside by the National Tribunals. Confidence can not be put in the State Tribunals as guardians of the National authority and interests. In all the States these are more or less dependt. on the Legislatures. In Georgia they are appointed annually by the Legislature. In R. Island the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature who would be [FN16] willing instruments of the wicked & arbitrary plans of their masters. A power of negativing the improper laws of the States is at once the most mild & certain means of preserving the harmony of the system. Its utility is sufficiently displayed in the British System. Nothing could maintain the harmony & subordination of the various parts of the empire, but the prerogative by which the Crown, stifles in the birth every Act of every part tending to discord or encroachment. It is true the prerogative is sometimes misapplied thro' ignorance or a partiality to one particular part of ye. empire; but we have not the same reason to fear such misapplications in our System. As to the sending all laws up to the Natl. Legisl: that might be rendered unnecessary by some emanation of the power into the States, so far at least, as to give a temporary effect to laws of immediate necessity."

We should also reflect on the nature of state sovereignty. Prior to 1776 the states were, regardless of their experiences in self-governance, colonies; the Crown was sovereign. State sovereignty arose along with concepts of national sovereignty. The former proved a failure; we should move on.

Al, I can't quite understand your instinct to close peremptorily all the hardest questions.

Now I don't know a lot about many things, but I know enough political philosophy to say that "Can a community that is prevented from binding its members on matters of public morality still be said to be self-governing?" -- that is this a very hard question. The answer is anything but obvious.

Let's say that an ideal republic in the liberal tradition -- Rousseau's ideal, say -- appeared before us, committed to the sort of of morals enforcement that today's liberal recoils from. Let's say, for simplicity's sake, that the popular desire for this enforcement is a true instance of the General Will applied to this matter. That is, we have before us much more than a technical majority. A big majority is behind the legislation and even most of the opponents are content to acquiesce in it. Let us even say, citing an American admirer of Rousseau, that the morals legislation has concurrent majority status.

Can you see the problem yet, al? Or are your instincts still to answer me like a child.

Would you say, al, that ancient Sparta was or was not a self-governing society, that is, was she a republic in plain definition? Surely we can all agree that Sparta enforced some very peculiar rules vis-a-vis sexual courtship and coupling? Being such a reckless conservative, I do not hesitate to say that Sparta's sexual code was insane. But even you must realize it was quite peculiar indeed.

Was Sparta self-governing?

What if Athens had enforced its will from without to break up and abrogate that code -- not just its written legislation, but all the unwritten cultural and even religious sentiment that has accrued around it?

Would Sparta still be self-governing?

If your point is that some community, say Boise, isn't truly self-governing because it is constrained in imposing the will of a mere majority in many areas because of the Constitutions of Idaho and the United States I would agree and ask what's the problem? The whole point of forming a nation and having a constitution was to eliminate the pronlems and weaknesses inherent in localism. Those notions have evolved in the direction of greater national control and more freedom. I think that's a feature. The more private the area of concern, the more majority concerns become irrelevant.

"A big majority is behind the legislation and even most of the opponents are content to acquiesce in it."

You have just described the national mood between Perez and Loving. Majorities can be wrong, that is the whole point of putting limits on them.

What would you have us be doing that, in your view, we are unable to do?

Oh no, I'm not even talking specifics. I'm talking about a problem that transcends the accident of particulars.

Nor am I talking about localism. No doubt you are aware that for folks like Rousseau and Montesquieu self-government was an impossibility for large diverse populations. But leave that aside.

Majorities can unquestionably be wrong, but we are not talking about mere majorities; we are talking about the governing will of the people themselves, organized and active. The General Will.

What can justly thwart its designs? Can its designs even be thwarted?

My guess is that the Founders gave a nod to what the States were doing, which was establishing religious freedom and even giving preference in some cases to Christianity. Please don't make me march through an entire series of state constitutions for examples, of which there are plenty. The idea that religion has to be folded within a set of amendments established under force of bayonet and within jurisdictions regarded as illegal & no longer members of the Union, is at the least, strange, as if religion might, may, receive it's liberty primarily, or solely, from this source and not from both intent and precedent.

The stupidity of a preceding post I won't even dare touch for fear of pollution.

If you wish to gauge the poverty of the secular argument, and you can skip England as an example, where oaths affirming the Articles were required through much of the 19th century, [I wonder if that was "traced"], the reliance, the fixation, on a phrase taken from a man who was abroad at the time of the Convention, the "wall of Separation" thing, written to two Methodists in Massachusetts, a Congregationalist state, might help one focus. BTW,Congregationalism was the official state religion well into the 1800's, received subsidies from that state, as called for in a constitution written by John Adams. After all, the 1st Amend. said "Congress shall make no law,omitting the states.
I might add the 9th and 10th Amendments for consideration but I realize that's for old fuddie duddies, busy as we are as a nation creating jobs & whatnot.

What can justly thwart its designs? Can its designs even be thwarted?

Paul, isn't that going a bit far, though? I mean, as to the second, yes, obviously, the designs of the general will at one level of power _can_ be thwarted by those with power at another level, greater power, etc. We've seen many examples thereof. As for the justice of it, doesn't that have to be decided a) in terms of the constituting document of the country and whether the thwarting was done consistently with that document, according to the appropriate rules of the law, and b) in terms of the particulars of the general will in question?

Lydia -- yes, the great liberals go more than a bit far in their theories; Rousseau most prominently among them.

But Al refuses to see these matters as problems. "Can a community that is prevented from binding its members on matters of public morality still be said to be self-governing?"

Of course it can.

Still so obvious, al?

I take it that Al thinks that the localism inherent in state sovereignty, and the very concept of subsidiarity, are nonsensical and that America is right to push away from these ideas, that the 200 year movement away from state identity is entirely a good thing. State sovereignty arose along with concepts of national sovereignty. The former proved a failure; we should move on.

If so, then he understands things exactly backwards from the writers of the constitution. But then he says The 1787 Constitution was a remarkable document for its time which has persevered because the Founders were wise enough to provide ambiguous areas in which those who followed would be able to perform saving constructions. Their foresight was remarkable.

Well, dang it, which is it: these men were endowed with remarkable foresight, or they were benighted in not just tolerating state sovereignty, but founding their arguments for a new government, not national but federal, around that concept? Or, were they so stupid that they managed to form an astoundingly successful government without even understanding why it could work?

Sorry, it won't fadge. If they were remarkable in their foresight, then they understood what they were doing, and their own arguments for it.

Benjamin Franklin's speech before the final draft:

I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said "I don't know how it happens, Sister but I meet with no body but myself, that's always in the right — Il n'y a que moi qui a toujours raison."

In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity. Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administred.

On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.

I don't see how Franklin's plea for unity and discretion counters the dilemma noted by Tony. Indeed, I'm even inclined to say that Franklin's dilation here embraces precisely that sort of consensus-based self-government (where even the dissenters or skeptics are carried along in acquiescence) that gets laid out in greater detail in The Federalist.

Re: the death of federalism, this is rather interesting:

http://www.frontporchrepublic.com/2010/06/the-day-ok-two-days-when-american-federalism-died/

"State sovereignty arose along with concepts of national sovereignty. The former proved a failure; we should move on."

The question is why did it prove a failure? Was it a failure of design or a failure due to circumstance? Was its failure caused by forces indifferent or malignant? The naked fact of its failure proves exactly nothing as to its value or lack thereof.

Re Franklin; as many of the same people, either in State conventions or in Congress, weighed and approved a Bill of Rights, it would seem that unanimity was an unfinished product, as it always must be. But Franklin's point is clear enough, given the escalation of power and the debates thereof, from the Articles of Confederation to what some saw as a threatening monolith.
Interesting, the 2nd para; "there is no form of government but what may be a blessing"etc.
An Aristotelian neutrality?
His comments on religion, doubtless a two pronged criticism of dogmatism, both religious and political. All the more reason for the deliberate and exquisite treatment of power, a document run through with that potential curse being disbursed as much as the human mind could convey and still have a viable operating form, the states having leeway in both spheres.

"What would you have us be doing that, in your view, we are unable to do?"

I'll take al's bait, as I think Paul's original post stated the problem eloquently: "Can a community that is prevented from binding its members on matters of public morality still be said to be self-governing?"

So to answer the question, I would have communities with large Christian majorities that wish to have their children pray to Christ in school allow them to pray. Obviously, this law wouldn't force students who didn't want to pray to go along with a prayer, but it also wouldn't allow them to have an absolute veto over public expressions of piety, because their feeling might get hurt or they might be teased at school, or some such excuse that the ACLU used to sue to get rid of school prayer.

Even more radical, but related to ideas Paul was exploring in an earlier post, I would allow a self-governing majority to say that certain religious practices are fundamentally at odds with sound public morality and must be outlawed -- in other words, no more mosques or Islamic imams allowed in our community and the practice of Islam would be confined to individual homes where it would be limited in scope and power.

Even more radical, but related to ideas Paul was exploring in an earlier post, I would allow a self-governing majority to say that certain religious practices are fundamentally at odds with sound public morality and must be outlawed -- in other words, no more mosques or Islamic imams allowed in our community and the practice of Islam would be confined to individual homes where it would be limited in scope and power.

There's no general principle that you could use to proscribe the public practice of Islam that would not also apply to practically every other non-Christian religion. You say "certain religious practices are fundamentally at odds with sound public morality" but by targeting Islam as a whole what you're really saying is that certain religions are fundamentally at odds with sound public morality. To have a general principle then, you'd need to define what characteristics you'd need to exclude Islam and include, say, Judaism.

Most likely, jihadist rhetoric or something would be invoked here as a reasonable distinction. But there's a problem, namely that Islam as a whole isn't monolithically pro-Jihad. Yes, I know some people think it is, but let's assume for the moment that every Muslim isn't dedicated to the destruction of America. Your prohibition would then have to discriminate between non-jihadi Islam and jihadi Islam, while missing Christian Reconstruction and other marginal movements in other religions you probably don't care about.

Long story short: in order to not make the untenable assumption that all of Islam is aimed at the violent overthrow of the US, our prohibition of certain subversive religious practices can't include the prohibition of Islam as a whole.

There's no general principle that you could use to proscribe the public practice of Islam that would not also apply to practically every other non-Christian religion. You say "certain religious practices are fundamentally at odds with sound public morality" but by targeting Islam as a whole what you're really saying is that certain religions are fundamentally at odds with sound public morality.

This is why Publius was generally so dismissive of what he called "parchment barriers" against the deliberate will of the people. This is, indeed, why self-government presents us with insoluble problems. The organized and active supermajority will in a republic -- what can realistically thwart it?

That said, it is possible to make and maintain important distinctions in our law. My view is that jihad, dhimma and shariah can all be subsumed under existing sedition statutes. In other words, some minor adjustments in 18 USC 2385 to take cognizance of the specific crime of jihad-sedition, might do the trick.

that the 200 year movement away from state identity is entirely a good thing.

What I find rather interesting about this assertion is that there is something borderline solipsistic about the way that each region views America. Each region of the United States is roughly about as unique as the constituent English-speaking nations of the United Kingdom. The only difference is that the UK is generally open-eyed about the fact that the Scottish, English, Welsh and Northern Irish are not interchangeable, but four nations living within the same country.

Our problem is that we tend to view America entirely through the lens of our home region. Once you get beyond that and see how different each region is, you begin to realize that eventually the federal structure will cause a civil war if it grows too monolithic. People like Al, who blithely dismiss the diversity of the United States as a minor challenge to a unified government, will be the ones to bring us to that precipice when it happens.

To even assert that we should model our national governing structure on England, a country as small and monolithic as a few New England states combined, is just plain stupid.