Dispatches from the Creation Wars

Clayton Cramer, in the midst of taking on Jonathan Rowe and Randy Barnett on the matter of judicial activism, paused to address, rather badly, the issue of whether America was “conceived as a Christian nation”. Cramer begins:

Rowe has a very long blog entry trying to debunk the notion that the United States was conceived as a Christian nation. He claims that a book by a guy named David Barton has passed around a lot of incorrect quotes from the Founders, and that someone named Brayton has caught this guy Barton:
Brayton also informs us that there is no evidence that George Washington ever said this: “It is impossible to rightly govern the world without God and the Bible.”

George Washington did say something quite similar, however:

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: 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? And let us with caution indulge the supposition that morality can be maintained without religion. 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.

Strangely, Cramer equates “religion and morality” with “God and the Bible”. Given that there are lots of religions other than Christianity, and lots of ways to reach moral conclusions without religion, this seems rather presumptuously in favor of his own beliefs. Washington always spoke in such broad terms, virtually never referring specifically to Jesus or to Christianity specifically, because he was himself a Deist and because he was a politician who understood that most of his constituents were Christians. He also understood that he presided over a rather combustible coalition of Christians and Deists who had great disagreements between them, so best to use language that could appeal to both. To a man, of course, all of the founders believed that religion provided a necessary control on human behavior, as Washington expresses above, even those who were not religious themselves. Alas, that’s not really the area of dispute I have with Cramer’s post. Cramer further writes:

As for the question of the religious basis of the American republic, look at the documents of the time. State constitutions from this early period included some fairly astonishing language.

He then goes on to quote the following lines of evidence for his supposition that the United States was “conceived as a Christian nation”:

1. The Pennsylvania state constitution (1776), which required an oath of belief in the bible and Christianity as an eligibility test for public office, as well as the fact that it still has a similar test without an oath attached to it, which is of course entirely unenforced and unenforcible.

2. The North Carolina state constitution(1776), which required not only that one be a Christian in order to hold public office, but a Protestant as well.

3. The Maryland state constitution (1776), which required a declaration of belief in the Christian religion in order to hold public office.

4. The Massachusetts state constitution (1780), which declared belief in God to be a necessity and empowered the state legislature to require church attendance and to publicly support specifically Protestant teachers and clergy.

5. Delaware’s requirement that their legislators acknowledge a belief in the inspiration of the bible

6. A Connecticutt declaration of a day of prayer and fasting in 1776 on the occasion of the signing of the Declaration of Independence from England

7. A similar declaration in South Carolina from 1775.

8. Another such declaration from New Hampshire in 1775.

He then finishes:

Now, I understand that perhaps this guy Brayton has caught Barton with some serious mistakes. But Barton’s claim–that the United States was founded on Christian ideas, and was from the beginning a Christian nation–is so easily demonstrated that only a leftist could dispute this with a straight face.

Well, as “this guy Brayton”, I suppose I really ought to respond to this oddly argued diatribe. A couple of obvious points come to mind immediately. The first is that every example he quotes is from before the founding of the United States as a nation, which means it has no bearing whatsoever on whether the United States, which was founded first by the Articles of Confederation and later by the US Constitution, was “conceived as a Christian nation”. The second is that he seems to think that laws that limit public office only to adherents of one religion – an idea that was quite explicitly rejected by the founders when they wrote the Constitution – somehow make the nation more “Christian”. Does he actually regard religious tests for office as a good thing? Would he still regard them as a good thing if the required religion was something other than his own? Somehow I doubt it.

At any rate, let’s talk a bit about this notion of state constitutions and declarations that predate the Constitution somehow establishing that the US was conceived as a Christian nation. The first government of the United States ruled under the Articles of Confederation, which was ratified in 1781. This document contained no provisions that prevented the government from declaring an official religion or requiring religious tests for public office. The US Constitution, however, which was written in 1787, expressly forbid religious tests for office in Article 6:

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Something obviously changed between 1777, when the Continental Congress finished writing the Articles of Confederation, and 1787, when they wrote the Constitution. What was it? Well for one thing, a powerful movement for disestablishment of state churches had begun, fueled largely by events in Virginia in 1785-1786. The Act for Establishing Religious Freedom, written by Jefferson and pushed through by Madison while Jefferson was serving as our ambassador to France, was an enormous victory for the forces of church/state separation, and Madison’s powerful defense of disestablishment and separation, his Memorial and Remonstrance, was widely distributed among the several states thereafter. The first amendment’s religion clauses, which established the principle of separation at the federal level, were modeled directly on the ideas found in that bill. With the passage of the Bill of Rights, the movement to disestablishment grew stronger, and by 1833, all of the original 13 states had done away with their official religious establishments, though some vestiges of that earlier era can still be found in unenforced and unenforcible language in some constitutions.

For some reason, Cramer seems to want to freeze frame a time period before the passage of the US constitution, which was an enormous sea change in the relationship of state and church in a thousand ways, and pretend that documents from that time show the conception of the constitution more accurately than the constitution itself. And remember, the advocates of establishment greeted the constitution with howls of opposition, calling it a godless document that would bring down the wrath of God upon us all. Clearly, this was a major change from the conceptions of government found in earlier documents, not only around the world but within the states themselves as well. It should also be borne in mind that the legislative overreach of state governments prior to the constitution, all of whom at one point or another had violated the freedom of conscience in ways ranging from despotic to downright barbaric, helped fuel the movement to establish a secular government that would take no position on religious matters. Madison’s own zeal for separation was famously born from his experience of seeing Baptist ministers jailed in his home state of Virginia when they had committed no crime other than to be of a different denomination than the official Anglican church established in that state. And this was by no means unusual prior to the Constitution. In Maryland, for example, denying the trinity subjected one to punishments ranging from forfeiting all of one’s property to imprisonment to having a hole burned in your tongue. Quakers who left Pennsylvania for Massachusetts or New York were subject to imprisonment, as were Puritans in many places and Catholics in most states. This is how they treated their fellow Christians, so imagine the punishment for being a Jew, a Muslim or an unbeliever. The laws waxed and waned, but in many places at many times, they were quite barbaric and were always oppressive of religious minorities. The founding fathers wanted a way out of that and that is why they passed the first amendment and the ban on religious tests for public office. Does Cramer want to return to those days when only those of one religion were allowed to hold public office, vote, or enjoy freedom of thought? Would that make us a more “Christian nation”? Madison argued quite the opposite, that religious establishment were un-Christian and opposed to the “sacred principle of religious liberty”. I think I’ll go with Madison on this one.

Comments

  1. #1 flatlander100
    May 8, 2004

    Very nicely done. I am tired to exhaustion with claims by ministers and politicians with much faith and no history who inform their listeners that “the Pilgrims founded this nation” or that “the Puritans founded this land of freedom….” Nice job, Ed.
    With one small quibble. You wrote: “Something obviously changed between 1777, when the Continental Congress finished writing the Articles of Confederation, and 1787, when they wrote the Constitution. ” The “they” here seems to refer [or could be read to refer] to “the Continental Congress” which of course wrote the Articles of Confederation but did not write the Constitution.
    Some years ago, one of my children came home with a pre-packaged social studies “program” study guide [sixth grade] which informed the children that the Continental Congres wrote the Constitution. American Revolution being the area of my research and publication, I sent the teacher involved a polite note [truly, since when colleagues correct errors of mine, I am grateful, and I presumed she would react in the same way], pointing out that the study guide was in error on this point, that the Constitutional Convention drafted the Constitution, not the Continental Congress.
    What came back was a snippy note informing me that she intended to teach what was in the social studies program materials, and if I had any problem with what was in there, I could take it up with the publisher.
    Excercising what I thought then, and think now, was Herculean restraint, I sent her another polite note pointing out that the matter could be settled by examining any one of the the encyclopedias present in the school library. I suggested the World Book as appropriate for the sixth grade. Back came another note, informing me again, that as far as she was concerned, if it was in the printed study guide, and consistent with the publisher-provided answer key to that study guide, then it was right. And I could take it up with the publisher if I thought otherwise.
    I’ll omit the rest of the tale [which eventually took me to the offices of the State Department of Education]. Merely told that much to indicate why even now I jump on mushiness [however inadvertant] about which body drafted the Constitution. A sore point with me and I make no claim to being as restrained on the point as I should be. Forgive the quibble with your otherwise excellent post.

  2. #2 Ed Brayton
    May 9, 2004

    Ah, the perils of pronouns without antecedents. I was speaking very generally of the founders as a whole, but I should have been much more specific. You are of course correct that the Constitution was not written by the Continental Congress, but by the Constitutional Convention and it’s important to make that distinction as it was not the same group of people. In fact, I believe only 3 men who signed the Articles of Confederation also signed the US Constitution. Thanks for the correction.

  3. #3 Timothy Sandefur
    May 10, 2004

    One correction. The United States was not “founded first by the Articles of Confederation and later by the US Constitution.” It was founded first by the Declaration of Independence.

  4. #4 Ed Brayton
    May 10, 2004

    One correction. The United States was not “founded first by the Articles of Confederation and later by the US Constitution.” It was founded first by the Declaration of Independence.

    Boy, you guys are picky! What I intended to say here is what I DID say a few sentences later, which is that the first US government ruled under the Articles of Confederation. The Declaration, while a wonderful document that you and I both agree should be used to interpret the constitution, did not actually provide a framework of government and that’s really all I intended to say, that Cramer’s quotes are all from before the actual governmental documents were written.

  5. #5 Timothy Sandefur
    May 10, 2004

    Sorry. Wasn’t my intention to be picky. It’s just that many conservatives try hard to downplay the fact that the Declaration is (as Madison called it) the “fundamental act of union of these states,” and hence is constitutional law. They don’t like it because of the Declaration’s natural rights philosophy, which consistent conservatives like Bork are bright enough to see is antagonistic to their political desires. So I take every opportunity to emphasize this point.

    Incidentally, the Declaration goes pretty far in the direction of providing a framework of government, although obviously it doesn’t organize American sovereignty and delegate the powers the way the A of C or the Constitution did.

  6. #6 Jon Rowe
    May 10, 2004

    Still, as I’ve mentioned in a recent blogpost, that the Declaration founded this nation, cuts AGAINST Cramer’s argument. One of the most vital specific inalienable natural “liberty” rights referred to (even if not by name, it is implicit) in the Declaration is that of “conscience.” If the Declaration is the organic law of the US, this simply means that those Establishments contained in those state constitutions conflicted with the organic law of the Declaration every bit as much as the “legal” institution of slavery conflicted with the Declaration’s organic law.

  7. #7 Ed Brayton
    May 11, 2004

    Sorry. Wasn’t my intention to be picky. It’s just that many conservatives try hard to downplay the fact that the Declaration is (as Madison called it) the “fundamental act of union of these states,” and hence is constitutional law. They don’t like it because of the Declaration’s natural rights philosophy, which consistent conservatives like Bork are bright enough to see is antagonistic to their political desires. So I take every opportunity to emphasize this point.

    And of course I agree with you, not so much because I think the Declaration actually has the force of law, but because I think it provides the definitive context with which to determine intent. Because the Declaration lays out the aim of all government, to secure and protect the natural rights that we are endowed with, it is crucial to interpret constitutional law within that framework.

  8. #8 Donn Day
    May 11, 2004

    Ed,

    There are two major weaknesses with your argument opposing Clayton Cramer. First, even if we grant your premise that something drastically changed between 1777 and 1787 (i.e. the movement for disestablishment led by Madison), one only need to look at how little Madison’s (and Jefferson’s) views impacted the States (not at all). As John Witte, Jr., of Emory University School of Law, notes:

    “For the first century and a half of the republic, it was Adams’ style of argument about religious liberty more than Jefferson’s that dominated the nation–even, ironically, in nineteenth-century Virginia. Before 1940, principal governance of the American experiment lay with the states, not with the federal government. [This is way the State Constitutions that Cramer lists are relevant] The First Amendment applied, by its terms, only to “Congress.” Its provisions were rarely invoked and only lightly enforced by the federal courts. Most questions of religious liberty were left to the states to resolve, each in accordance with its own state constitution.

    “The dominant pattern was that states sought to balance the general freedom of all private religions with the general patronage of one common public religion–increasingly relying on the frontier as a release valve for the tensions between this private religious freedom and public religious patronage.”

    Second, again granting that something changed in those ten years (which is speculative at best), it was due to the influence of Christians, not secularists (as you seem to imply when you wrote “the advocates of establishment greeted the constitution with howls of opposition, calling it a godless document that would bring down the wrath of God upon us all.”)

    As Michael W. McConnell, Professor of Law at the University of Chicago, notes:

    “The struggle for addition of protections for religious freedom in the Constitution was led by evangelical Protestants. Once proposed by the First Congress, the First Amendment met with easy and widespread approval, not because the majority believed in religious freedom as a matter of principle – most did not – but because the sheer number of religious denominations made each feel vulnerable to the combined efforts of the others.”

    I deal with some of these issues in an article here http://home.infostations.net/quietsun/athart7.htm

  9. #9 Ed Brayton
    May 12, 2004

    Donn Day writes:

    There are two major weaknesses with your argument opposing Clayton Cramer. First, even if we grant your premise that something drastically changed between 1777 and 1787 (i.e. the movement for disestablishment led by Madison), one only need to look at how little Madison’s (and Jefferson’s) views impacted the States (not at all). As John Witte, Jr., of Emory University School of Law, notes:

    “For the first century and a half of the republic, it was Adams’ style of argument about religious liberty more than Jefferson’s that dominated the nation–even, ironically, in nineteenth-century Virginia. Before 1940, principal governance of the American experiment lay with the states, not with the federal government. [This is way the State Constitutions that Cramer lists are relevant] The First Amendment applied, by its terms, only to “Congress.” Its provisions were rarely invoked and only lightly enforced by the federal courts. Most questions of religious liberty were left to the states to resolve, each in accordance with its own state constitution.

    I don’t think this in any way constitutes a weakness in my response to Cramer because it doesn’t address the issue that Cramer and I were discussing. What was at issue was not whether the issue of church and state was dealt with at the state or federal level. Of course it’s true that the first amendment, until the passage of the 14th amendment, applied only to the federal government. I never said otherwise. But that doesn’t make what the states did prior to the passage of the constitution relevant to the question of whether the US, as a whole, was “conceived as a Christian Nation” (and I am assuming here that Cramer means a de jure Christian Nation”, not merely one in which Christianity is the dominant religion).

    My position is one that is easily documented. Prior to the writing of the Constitution, nearly every state had church establishments. Those establishments comprised primarily of three things – religious tests for public office (sometimes limited to confessions of Christianity, sometimes as specific as having to belong to a particular sect), taxes that went to support an official church or a multiplicitly of churches within the same religious tradition, and in some cases criminal penalties for belonging to or supporting any other religion than the official one. I assume this is an uncontroversial statement, as it should be.

    The first state to do away with all three of those aspects of establishment was Virginia (Rhode Island had briefly done away with some of them earlier, as had New York, as I understand it) with the passage of Jefferson’s Act for Establishing Religious Freedom. That document was the basis for the first amendment, which of course only applied to the federal government at the time, as Witte correctly notes (as did I), though I also noted that Madison urged that it be applied to the states immediately during the debate on the amendment. But my position is that the passage of the Virginia act and the first amendment marked a major change in our conceptions of church and state, certainly a major historical break from prior conceptions anywhere in the West with the possible exception of the Netherlands at the time. And I further argue that this started a trend that forever changed the relationship of church and state, and began immediately to trickle down to the state level, as each state began to follow this example. Again, I thought this was an uncontroversial statement. Does anyone really believe that’s not the case?

    Let me quote from Robert Baugh from the University of Alabama Law School:

    State religious establishments were present, but controversial, around the time of the drafting of the Constitution. At the time of the adoption of the First Amendment, Virginia, Delaware, New Jersey, New York, North Carolina, Pennsylvania, and Rhode Island had enacted policies opposing the establishment of state religions. However, the following states continued to have some form of government-established religions: Connecticut, Georgia, Maryland, Massachusetts, New Hampshire, and South Carolina.

    The best known example of the debate over state-established religions had previously occurred in Virginia. Prior to passing the Virginia Declaration of Rights in 1776, Virginia levied a compulsory tax on its citizens to support the Anglican church. This compulsory tax was abolished for non-members of the Church in 1776 and for members in 1779. But, in 1784, the General Assembly considered a bill authored by Patrick Henry that would have required citizens to pay an annual tax in support of the Christian religion. James Madison led the opposition to the proposed tax and wrote his famous Memorial and Remonstrance Against Religious Assessments, condemning the tax as an abuse of power and a violation of religious liberty. The tax measure was subsequently defeated and, in 1786, the enactment of Thomas Jefferson’s Bill for Establishing Religious Freedom effectively ended the Anglican establishment in Virginia.

    Other states followed the lead of Virginia and, by 1793, Delaware, South Carolina, Georgia, and Vermont had removed religious tests from their constitutions. The United States Constitution explicitly for bade religious test oaths as a prerequisite for holding federal office. See U.S. Const . art. VI, which provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States”. These test oaths had been common throughout the states prior to 1787. By the middle of the nineteenth century, the last state-supported religion had vanished. All state church establishments ended well prior to the passage of the Four teenth Amend ment. Connecticut disestab lished in 1818 and New Hampshire in 1819, Massachusetts was the last to disestablish in 1833.

    Furthermore, it is important to note that Jefferson and Madison each recognized that the passage of the Virginia bill and the first amendment were merely the beginning of a long process of persuasion to convince the states to honor this new conception of church and state, as Garry Wills has noted:

    Jefferson goes on to argue that a Bill of Rights is one more brace added to the structural supports of the Constitution, and that later ages will live up to its standard because “our young people are eductated in republicanism.” Accordingly, Madison argued for the amendments in Congress on the grounds that “they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community.

    So Madison advanced his disestablishment clause not as a final and optimal piece of legislation, but as a move in the right direction, a base from which to vindicate the argument against any political infringing of God’s sphere. The later history of the doctrine of separation, which makes conservatives lament progressive moves to separate church and state, is just what he and Jefferson were hoping for. And, in fact, the states with established churches did approximate the federal norm in time, even going beyond it in explicit denial of funds for some religious purposes…So far have the states come in realizing Madison’s vision. And this is not a matter of federal court decisions but of the states’ own constitutions. The ideal of disestablishment had its seeds in the kind of separation John Winthrop administered, to protect the separate congregations of Massachusetts. The federal Constitution spelled out a more thorough doctrine of separation, and the states have adopted that model.

    So I guess I’m just not sure why you allege that Witte’s statement is a major weakness in my argument, or even that it engages my argument at all. The lack of engagement could be due to poor phrasing on my part, or a false reading on your part. I’ll presume that I should have expressed it better.

    Second, again granting that something changed in those ten years (which is speculative at best), it was due to the influence of Christians, not secularists (as you seem to imply when you wrote “the advocates of establishment greeted the constitution with howls of opposition, calling it a godless document that would bring down the wrath of God upon us all.”)

    First, I don’t think it is at all speculative to say that the Virginia bill and the first amendment represented a sea change in our conceptions of church and state and that they did start a trend that led to disestablishment in the states, in fulfillment of the Jefferson and Madison vision of separation. I think the evidence is squarely in favor of that position, as cited above.

    Second, I think you’re reading something into my words that simply isn’t there. I did not say, or imply, that this change in our ideas about the relationship between church and state was due to the influence of “secularists”. The word “secularists” probably requires some definition. If you mean “non-christians”, then I would say that the doctrine of separation was advocated and spread because of the influence of both non-Christians (like Jefferson and Paine, for example) and devout Christians. I have argued many times that this issue is too often framed as Christians vs non-Christians, as we can see in the fact that so many Christian Nation apologists pull quotes from various founders that endorse the truth of Christianity as an argument against separation. But the reality is that some of the staunchest supporters of separation were devout Christians, folks like John Leland and Isaac Backus. I would say that the doctrine of separation took hold because of a mixture of support from within and without Christianity.

    If by “secularists” you mean atheists or agnostics, then I flatly deny having implied any such thing. There were none of either among the founders. Even the most strongly critical of Christianity, like Jefferson and Paine, they both still fervently believed in a Creator, though obviously quite a different one from mainstream Christians do.

    Personally, I would define secularism as a belief in strict separation of church and state. One need not deny the truth of Christianity, and indeed one can believe passionately in its truth, in order to believe that the government should be strictly secular in its statements and actions and should avoid taking any position on the truth or falsehood of religious beliefs entirely. Teddy Roosevelt, for example, argued strongly against putting “In God We Trust” on the money, not because he didn’t trust in God but because he saw this as a cheapening of our invocations of God, a profane association of the holy and the financial. Madison himself, the strictest separationist of all, often argued for separation on the basis of religious principle. He regarded freedom of conscience as a sacred principle. And Jefferson, of course, believed that our personal freedom was endowed by our Creator and that man had no right to shackle the minds that God himself had created free.

    So if you mean that I was implying that church/state separation was the result of the actions of non-religious people, then no I wasn’t implying that at all.

    By the way, you have quite a nice webpage. I noticed on part of it that you say you used to have a channel on dalnet called #bible_debate2. I was one of the owners of the original #bible-debate on dalnet, but boy that’s going back a lot of years. It’s entirely possible that we knew each other at some point in the distant past on dalnet. I was there under the nickname StCynic for many years, but long ago stepped away from such debates, as you did.

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