Friday, July 28, 2017

West on the American Founding (3): The Legal Enforcement of Religion?

In 1964, I was a student in Big Spring High School in Big Spring, Texas.  At the beginning of each school day, there was a reading of some Bible verses and a prayer over the public address system.  The next year, this stopped, because the school district chose to follow the decisions of the U.S. Supreme Court in Engel v. Vitale (1962) and Abington v. Schempf (1963), which declared that state sponsored Bible reading and prayer in public schools violate the First Amendment prohibition of any establishment of religion.

According to Tom West, these Supreme Court decisions were contrary to the American founders' belief that state governments should promote religious belief to form the moral and religious character of the citizens in a manner that supported the good order and liberty of American public life, and that one way to do this is to have Bible reading and prayers in public schools. 

West also points out that the no establishment of religion clause of the First Amendment applies only to the national government ("Congress shall make no law . . ."), and not to the states, because the Founders wanted state governments to legally enforce morality and religion.  The fact that the United States Constitution says nothing about the legal enforcement of morality and religion does not mean that the founders thought this was not a proper function of government, because they assumed that this would be a matter for the state governments rather than the national government.  Of course, West recognizes, the founders thought the legislative promotion of religious belief would have to be consistent with the natural right of religious liberty, so that no one would be compelled by government to profess a religious belief contrary to their conscience.

I agree with West that the founders thought religion was important for the moral order of a free society.  I agree that they thought that the best way to promote religion was to secure religious freedom so that families, churches, and other private associations could provide religious instruction, with everyone being free to embrace any religious tradition that respects the liberty of other religious groups.

I disagree, however, with West's claim that the founders thought the coercive enforcement of religious belief by law was a necessary function of government that was consistent with religious liberty.  When I was a high school student in Big Spring, I was a devout fundamentalist Baptist.  But this had nothing to do with the few minutes of Bible reading and prayer at the beginning of the school day.  My religious beliefs came from my daily reading of the Bible early in the morning before I went to school and from my membership in a Baptist church. 

If there is a natural desire for religious understanding rooted in our evolved human nature, then we can expect that in a free society religious belief will arise spontaneously in the natural and voluntary associations of society without any need for governmental enforcement.  That is what the founders wanted to happen.  But West seems to believe that the founders would have been distressed by the possibility that religious belief must disappear if it is not legally enforced by government through means such as state-sponsored Bible reading and prayer in the public schools.

West identifies eight ways in which American governments have supported religion (208-212).  Oddly, most of these means of supporting religion turn out to be remarkably weak, and many were rejected during the founding period.  In fact, West even admits that many of them were contrary to what the founders wanted.  As he says, "some means of support were already contentious in the founding and were mostly abandoned soon afterwards" (208).

First, taxpayer funding of particular Christian denominations was common in the American colonies.  But West admits that after 1776 only four New England states--Vermont, New Hampshire, Massachusetts, and Connecticut--continued to do this.  By 1833, even these four states had rejected this policy.  Doesn't this contradict West's argument for how the founders wanted state governments to promote religion?

Second, churches in most states were exempt from property taxes, and this has continued up to the present.

Third, West notes that many state governments supported teaching "a sort of generic Protestantism" in the public schools through prayers, Bible reading, and religious themes in some of the instruction.  This is what the Supreme Court overturned in the early 1960s.

West is silent, however, about the evidence that there was very little religious instruction in the public schools in the 19th century, evidence that is surveyed by R. Laurence Moore (2000).  When Horace Mann became the first secretary of the Massachusetts Board of Education in 1837, he complained about the "alarming deficiency of moral and religious instruction" in the schools.  In 1846, the General Assembly of the Presbyterian Church issued a report lamenting that "the common school system is rapidly assuming not a mere negative, but a pointedly anti-Christian character."  After the Civil War, many states had legislation that explicitly limited Bible reading in the public schools to no more than five minutes at the beginning of the school day as a "morning form" exercise.  So religious instruction was not an important part of the regular school day.  That was my experience at Big Spring High School.  There was no religious instruction in the school at all.  The Bible reading and prayer at the beginning of the day was nothing more than a ceremonial exercise that lasted no more than a few minutes.

Fourth, West thinks that state laws for punishing blasphemy promoted religious belief.  He weakens his argument, however, by agreeing with historian Mark McGarvie that these laws "were generally ignored as anachronisms of an earlier age."  The anti-blasphemy laws were almost never enforced.

Nevertheless, West observes that there were "a few reported cases" of people being punished legally for blasphemy.  He doesn't tell his readers how many cases there were.  He is silent about the report of one historian that he could identify no fewer than 20 blasphemy cases in the first half of the 19th century, which is less than one blasphemy case per state in 50 years.  Chris Beneke (2015) reports this in an article that West quotes favorably, but he does not mention this.

The one case that West highlights is People v. Ruggles, a 1811 New York Supreme Court case with a famous opinion written by James Kent, which is often quoted by those who want to make the argument that America was intended by the founders to be a "Christian nation."  Kent upheld the defendant's conviction for blasphemy in saying "Jesus Christ was a bastard, and his mother must be a whore."  Such words were surely uttered with a "wicked and malicious disposition" to be publicly offensive, Kent wrote, and "not in a serious discussion upon any controverted point in religion."

"The free, equal, and undisturbed, enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured," Kent insisted, "but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right."  So, for example, Kent indicated Tom Paine's attack on Biblical Christianity in The Age of Reason should be protected as a "decent discussion."  And, in fact, the publication of Paine's book in America was not punished as blasphemy.

Kent also indicated that blasphemy against Islam should not be punished, because Muhammed was obviously an "impostor."

In reporting this case, West does not tell his reader that Mr. Ruggles' punishment for blasphemy was remarkably light--three months in prison and a $500 fine.  According to the Mosaic law (Leviticus 24:16) adopted in Massachusetts and other American colonies, blasphemy was a capital crime.  West is very clear in declaring that the natural right to religious liberty does not include the right of religious believers to kill infidels, because "religious liberty must be exercised without harming others" (33).  West often appeals to this libertarian principle of "no harm" as part of the founders' understanding (33-35, 140, 148-53). 

Should we say that a New Testament Christianity that enforces the Mosaic law of the Old Testament violates natural rights?  If so, we would have to accept the argument of Roger Williams that the New Testament demands an absolute separation of church and state, and thus a rejection of Old Testament theocracy, but this would contradict West's argument for the legal enforcement of religious belief.

Jefferson is famous for declaring: "it does me no injury for my neighbor to say there are twenty gods or no god.  It neither picks my pocket nor breaks my leg."  But West says that "almost every leading founder" disagreed with this claim.  In fact, even Jefferson himself contradicted it in asking, "Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?"  If too many of my neighbors say "there is no god," West asserts, the liberties of the people will have no "firm basis," and thus my atheist neighbors will have done me a great injury (205).

Well, then, why wasn't Mr. Ruggles executed?  And why were there no more than 20 cases of people tried for blasphemy over 50 years in America?  Why didn't the founders continue the colonial tradition of legally enforcing the Mosaic law with capital punishment for blasphemy and infidelity?

West does not mention that in one of John Adams' letters to Jefferson (January 23, 1825), Adams said that he hoped that all the state laws against blasphemy would be repealed, and only then would religious liberty be secure.

The fifth means for legally enforcing religion is to have a religious test for public office.  All of the state constitutions except for Virginia and New York had such tests.  West quotes the oath that members of the Pennsylvania state legislature had to take: "I do believe in one God, the creator and governor of the universe, the rewarder of the good and punisher of the wicked, and I do acknowledge the scriptures of the Old and New Testament to be given by divine inspiration."

West explains: "The argument for religious tests was the same as for other forms of government support: that religion supports morality" (210).  He then quotes from a speaker at the Massachusetts ratifying convention who condemned the "no religious test" clause of the U.S. Constitution: no religious tests "would admit deists, atheists, etc., into the general government; and, people being apt to imitate the examples of the court, these principles would be disseminated, and, of course, a corruption of morals ensue."

West identifies religious tests as part of the "founders' consensus."  But if this is so, why did the founders at the Constitutional Convention vote unanimously and without any controversy for "no religious tests" in the Constitution?  And why did all of the states with religious tests abolish them during the founding period, thus following the example of the national constitution?

To explain this, West says that Chris Beneke "rightly notes" that in "founding America . . . libertarian principles . . . repeatedly triumphed over local prejudices and discriminatory laws."

So now it seems that the "founding consensus" is based on "libertarian principles" dictating that the legal enforcement of religious belief is not necessary to avoid a corruption of morals.  But this contradicts West's argument for the legal enforcement of religion as essential to the "founding consensus."

West does not mention the most revealing evidence that most of the founders were not Christians, which comes from a notorious episode in the Constitutional Convention of 1787 in Philadelphia. On June 28th, the delegates appeared to be deadlocked in their debates because of the opposing interests of large States and small States. Benjamin Franklin rose to propose that the Convention invite some local minister to attend and offer daily prayers to invoke the aid of God. "If a sparrow cannot fall to the ground without God's notice, is it probable that an empire without his aid?" According to a popular legend, the Convention accepted Franklin's proposal, and from the moment that they had these prayers, the deadlock was broken by God's providential intervention. This story has been repeated by many American ministers as evidence that the American Constitution was divinely inspired. 

I first heard this story as a child when it was part of a sermon at the First Baptist Church of Wills Point, Texas.  But years later, as a college student in a class at the University of Dallas on the American Founding, I was shocked when I looked at James Madison's notes for the Convention as edited by Max Farrand in the Yale University Press edition (particularly 1:450-52, 3:470-73, 3:499, 3:531), and I saw that this story was false. Franklin did make a motion for daily prayer at the Convention, which was seconded by Roger Sherman.  But the response was silence.  Finally, Alexander Hamilton offered a quip about how they did not need "foreign aid." The motion was dropped without a vote.

This is not the action of good Christians. It is the action of men who respected religious belief, but who did not believe that God would answer their prayers and intervene to promote their political success. Since the meetings of the Convention were kept secret, they were not concerned about public appearances. If the meetings had been open to the public, they surely would have felt compelled to accept Franklin's motion.

West might say that this only confirms his claim that the founders support for religion was based not on their belief that religion was true but on their belief that it was useful for supporting morality, because while a few human beings are enlightened enough to see the rational argument for morality, the great multitude of human beings lack such rationality, and for them morality must be based on religious faith, regardless of whether that faith is true (see 198-203). 

But if West is right about this, why did the founders decide that there was no need for religious tests for those in public offices?  Did they assume that those in public offices would be the enlightened few who did not need religious belief to support their moral character?  Or did their "libertarian principles" lead them to believe that public officeholders would have their moral character shaped by American society in ways that did not require any legal enforcement of religious belief?  After all, even though there are no legally enforced religious tests for public office in America, there is an informal social expectation that officeholders will not publicly identify themselves as atheists.

The sixth means of enforcing religion mentioned by West is the support for chaplains in legislatures and the military and the use of government buildings for religious activity.

The seventh means is Sunday closing laws.  Oddly, however, West is silent about the intense controversy in the 19th century over the federal law mandating delivery of the mail on Sundays.  From 1775 to 1912, mail was delivered seven days a week.  For Christians, this was a violation of the Sabbath.

The final means of enforcing religion noted by West is official proclamations and ceremonies with religious themes, such as national days of prayer and thanksgiving.

As one looks over West's list of eight means of legally enforcing religion, one has to notice how remarkably weak they are, and how the "libertarian principles" of the founders "repeatedly triumphed over local prejudices and discriminatory laws."

West often appeals to the libertarian "harm principle"--that the government should punish individuals only for conduct that harms others (33-35, 140, 148-53, 234).  For example, he notes that while the state laws regulating sex were strict during the founding period, they were hardly ever enforced except when the violations were "open and notorious."  "Conduct that is not harmful if kept private could safely be ignored."  The strict enforcement of these laws punishing victimless crimes began at the end of the 19th century through the influence of "moralistic Progressivism," which was contrary to the founding (233-34).

One can also see in the state laws concerning religion a fundamental contradiction that is clearly conveyed in the Delaware Constitution of 1792: "Although it is the duty of all men frequently to assemble together for the public worship of the Author of the universe, and piety and morality, on which the prosperity of communities depends, are thereby promoted; yet no man shall be compelled to attend any religious worship, [or] to contribute to the erection or support of [any church]."

On the one hand, the state needs the piety and morality promoted by religious activity; on the other hand, the state cannot compel that religious activity without violating religious liberty.

There are only two ways to escape this contradiction.  The theocratic way is to legally establish a religion and thus give up religious liberty, which is what the colonial governments like Massachusetts did before the Revolution.  The libertarian way is to erect a "wall of separation" between church and state, as Roger Williams called it, which is what Williams did in Rhode Island.  In some previous posts (here and here), I have argued that Williams was correct, and that his Christian libertarianism was rooted in New Testament Christianity.

When Williams was forced to leave the Massachusetts Bay Colony in 1637 and move with his followers to Providence, they established a new government by signing this agreement: "We whose names are hereunder, desirous to inhabit in the town of Providence, do promise to subject ourselves in active and passive obedience to all orders or agreements as shall be made for the public good of the body in an orderly way, by the major consent of present inhabitants, masters of families, incorporated together in a Towne fellowship, and others whom they shall admit unto them only in civil things." 

Since the town meeting was limited to "civil things" as opposed to "spiritual things," this was the first expression in the new world of the absolute separation of church and state.

The state of Virginia followed the libertarian path of Williams.  Section 16 of the Bill of Rights in the 1776 Constitution guaranteed "free exercise of religion," asserting that "the duty which we owe to our creator, can be directed only by reason and conviction, not by force or violence."  The Virginia Statute for Religious Freedom, adopted in January 1786, stipulated that "our civil rights have no dependence on our religious opinions" and guaranteed that "all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities." No Virginian would be required to "frequent or support any religious worship, place, or ministry whatsoever."

West tries to argue that this Virginian separation of church and state, as promoted by Jefferson and Madison, was not typical for the American founders.  But West has to admit that the historical movement in the states after 1787 was toward the "libertarian principles" of Williams, Jefferson, and Madison.

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