By George Thomas (with a response from Steve Farrell)
A review of Freedom for the Thought That We Hate: A Biography of the First Amendment, by Anthony Lewis and Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, by Martha Nussbaum
The First Amendment was not, of course, “first” among the amendments put before the states in 1789 for ratification. It was the third of twelve, the first two of which went unratified. Tellingly, in James Madison’s initial proposal, the amendments would have been inserted amid the various clauses of the body of the Constitution, reflecting and reinforcing its central logic but not altering its substance.
For Madison, the First Amendment did not protect anything that was not already protected by the Constitution: the injunction for Congress to “make no law” was a reminder of the limits of governmental power. And yet what became the First Amendment, insofar as it points us to the origins of modern constitutionalism, might properly be labeled “first.”
Attempts to negotiate the “theological-political problem” are at the heart of modern constitutionalism and inform the American constitutional order. Central to negotiating this problem was to cast individual conscience—in a manner that implicated both speech and religion—as beyond the proper care of civil authority.
These two books, in different tones and shades, examine some of the central ideas that underlie the First Amendment. Let me initially note, without dwelling on it, that both books (particularly Anthony Lewis’s) engage in silly asides about “original meaning” that bespeak ignorance of the range of originalist thought, which runs far beyond the efforts of Judge Robert Bork. Indeed, Judge Bork’s version of originalism has much more in common with Lewis’s heroes—the famous duo of Justices Oliver Wendell Holmes and Louis Brandeis—than it does with James Madison.
Center for Moral Liberalism responds: Interesting review. I’m not sure that we have a clear understanding of just how radical Roger Williams was … e.g., any association with the state, or with anyone that affiliated with the state was “evil,” – thus come the extreme Williams went to of only praying with his wife, that is, because the rest of the world which was not fully separated was unclean. Nor, that on the other hand that Williams backed away from this position in later life and swung the other way, one friendly author says, in the opposite extreme. Williams served a purpose, but his extremes may have been intolerant in their own way, and quite impractical to life as it is. There can be no complete separation between the state and men of faith, for man is a moral creature on the one hand, and on the other, any attempt to prohibit the religious and/or moral viewpoint from the public debate, or the schools, or the courts, or the legislatures, translates only to this: the Judeo-Christian viewpoint will be out, any others that coincide with the leftist political revolution will be in, for all arguments are morally and religiously based whether or not men admit it, or even realize it.
The only thing that really matters is resisting the establishment of a state church, which is impossible in this day and age anyway.
Thomas’ criticism of the Texas Republican Party platform’s proclamation that America is a “Christian nation,” as “foolish” is troublesome. He may find some historical evidence that refutes this claim, especially in the revisionist textbooks of our time. But the original accounts will side more with the Texans on this issue, with a few notable exceptions, like a Jefferson – but which Jefferson, and in which context?
If it was meant that we were a “Christian Nation’ in the European sense, the answer from Jefferson, and most of the founders would almost be universal against that idea. But if in the sense that our laws and our rights and our traditions and attitudes were out of the Judeo-Christian background and ethic, and/or are sustained by the Judeo-Christian ethic, why then the discussion would swing nearly universally the other way. Jefferson for one rejected European Christianity, not just for its corruption, but for its departure from Christianity and its moral codes, or in other words that it did not inspire men to live moral lives, and this too, that it withheld freedom to read the Bible from its readers where they might learn what Christ taught on morality and other fundamental issues. Even Paine in his Age of Reason is one with Jefferson on this point.
Though there certainly were pockets of that sort of Christianity in the United States, as a nation we did not in those vital ways fit the European definition of a Christian nation – but again, let’s not be too hasty to generalize: for it was the Christian Reformation in Europe that moved the world in the right direction and in the view of many, reached its Zenith in the United States … and we can look back to many a Christian thinker and Christian influence and say, “Yes,” America is Christian, and human liberty has its ultimate roots in that movement. Was there are great thinker on the subject of liberty in Europe that didn’t refer back to the Old and New Testaments to lay the foundation for their arguments?
Again, one could have looked at Madison’s view and note that he defended his position as a “defense of Christianity.’ In that sense, in his strong defense of making it illegal to impose taxes to the support of religious groups, he was defending what some would call (this writer included) a law inspired by a true understanding of Christian teachings, rather than a corrupt one. It might in that sense be termed yet another improvement in the law inspired by the Protestant Reformation and freedom to read the Bible for the common man … for Christ never commanded men to feed the poor (for instance) by force of law, he rather used moral persuasion.
Missing from this discussion also is the vital role freedom of religion was to play right along with freedom of speech in providing a greater chance of the people being moral and thus possessed of the sort of public virtue necessary to the survival and prosperity of a free state. Noted was that some (including Jefferson I might add) believed freedom of speech was vital to the greater likelihood of political truth prospering (along with scientific, and every other sort of truth including religious) – though the reviewer downplayed this purpose of the first amendment as seemingly trivial or off the mark. But how so? Freedom of religion had a role here in providing the higher law foundation and greater conviction in the hearts of many to uphold and maintain good law and civic virtue … and this as a check on the tendency of democratic societies to move away from a respect of the law, and truth, and authority (DeToqueville makes a good discussion out of this).
Didn’t Jefferson appeal to such a foundation in the Declaration of Independence when he sited the authority of the “Laws of Nature, and of Nature’s God”?
Surely, we should understand that Jefferson was appealing to both reason and revelation in this phrase. A personal letter of his explains that this is exactly so, and was to him in the right order, first comes reason, then the higher understanding or confirmation. Of the latter, he wasn’t one to personally rely upon that communication as a separate process from reason, for like many thinkers of the time, he defined reason as being an endowment from Deity and God’s primary tool for communicating his mind and will to men. Nevertheless, by this phrase he acknowledged the possibility of the latter, and understood and utilized the generally held position of Holy Writ as a Higher confirmation by God through his prophets in writing of truths discoverable via reason, as being an eternal law or right, thus more thoroughly fixing it in the minds of many.
One remembers Washington’s question in his Farewell Address about what were the value of oaths if morality lacked religious foundations. It was a good and valid question. He was not alone in this viewpoint, and one cannot honestly approach original intent by isolating on this or that founder while ignoring others like Washington. Some would even go so far as to claim, as one ISI writer recently did, that there were a great many key founding fathers who were much more Christian in their outlook in the so-called “key founders” we have been led to believe were key.
His claim is that modern historians have ignored this group for two reasons: 1. Their own prejudice on the matter. 2. Some founders have been favored more than others because their writings survived.
And the result: those who are defined as “THE key founders” may not have been respected as such in their day, and may be far less representative than we think – despite the fact that they themselves do operate on most matters of law and philosophy from a Judeo-Christian viewpoint.
Steve Farrell is President of the Center for Moral Liberalism, one of the original pundits at Silver Eddy Award Winner, NewsMax.com, and author of the inspirational novel, “Dark Rose.”