The Reconstruction of Public Values
Declaration of Independence
Suppose a public school will not allow only a Christian teacher to distribute copies of, and teach from, the Declaration of Independence. Suppose further, in this hypothetical example, the school's asserted rationale is that teaching from the Declaration of Independence and other American historical documents (such as the writings of John Adams) that mention God is promoting the Christian teacher's own private religious beliefs.
This is attributing the private beliefs of the state actor to the words of the historical documents he speaks or otherwise expresses.
By reading the meaning or intent of the reader into the text itself, the document is said to mean whatever the reader wants it to mean. (The postmodern jargon for this is "deconstructionism": the absurd Continental European notion that texts don't mean what their words actually say, but whatever the reader can "deconstruct" them to mean by pouring their own subjective meaning into them.) Thus, theoretically, one can "deconstruct" the Declaration of Independence to say that it is a secular document because the teacher who teaches it is a secularist, or one can "deconstruct" the Declaration to say that it is a religious document because the teacher who teaches it is a Christian.
Actually, when one seeks to objectively discern the meaning of the Declaration of Independence, one realizes this: the Declaration is an instance in which the author sought not to propagate his own private religion, but rather to express the public consensus of the whole nation (the "soul of the continent", as Ezra Stiles put it), drawing upon principles shared in common by America's founding generation. Furthermore, the writings of United States Presidents such as John Adams, and American Colonial statutes and proclamations, for instance, are to be considered as public documents of historical significance to the whole nation.
The Declaration expresses the public values of the American nation--for all times--the principles upon which the United States as a whole was founded. That was the American revolutionaries' own understanding of the document (an understanding which Thomas Jefferson shared, as his May 8, 1825 letter to Henry Lee reveals). This is true regardless of whether a Christian teacher or an atheist teacher teaches the Declaration in history class. Only adherence to a postmodern "deconstructionist" (subjective) viewpoint leads one to think otherwise.
A History Lesson
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." Madison had proposed an amendment that "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." I Annals of Cong. 434. Commenting on a subsequent form of what was to become the First Amendment, he said that "he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." Id., at 730.
McGowan v. Maryland, 366 U.S. 420, 463 n. 1 (1961) (Frankfurter, J., joined by Harlan, J., concurring).
A key word is "worship". The mere mention of God or display of historical documents that mention God does not fall in the category of "worship". To the contrary, it would seem that if a Christian teacher, on account of his beliefs, is not allowed to distribute a historical document that secular teachers are allowed to distribute, that apparently falls in the category of "[t]he civil rights" being "abridged on account of religious belief [....]" Obviously, protection of the free exercise of religion was the aim of the founding generation: that was the purpose of both the Free Exercise and Establishment Clauses.
The concurring United States Supreme Court justices recognized that private opinions are outside the jurisdiction of the Court:
In the present cases the Sunday retail sellers and their employees and customers, in attacking statutes banning various activities on a day which most Christian creeds consecrate, do assert that these statutes have no other purpose. They urge, first, that the legislators' motives were religious. But the private and unformulated influences which may work upon legislation are not open to judicial probing. "The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted." McCray v. United States, 195 U.S. 27, 56. "Inquiry into the hidden motives which may move [a legislature] to exercise a power constitutionally conferred upon it is beyond the competency of courts." Sonzinsky v. United States, 300 U.S. 506, 513-514. [***]
McGowan, at 468-469 (Frankfurter, J., joined by Harlan, J., concurring).
Indeed, "[i]nquiry into the hidden motives" or so-called "pretexts" is a recipe for future persecution.
Legislation of Morality
The Ten Commandments, too, have their civil uses:
These Sunday laws were indisputably works of the English Establishment. Their prefatory language spoke their religious inspiration, [***] exceptions made from time to time were expressly limited to preserve inviolable the hours of the divine service, [***] and in their administration a spirit of inquisitorial piety was evident. [***] But even in this period of religious predominance, notes of a secondary civil purpose could be heard. Apart from the counsel of those who had from the time of the Reformation insisted that the Fourth Commandment itself embodied a precept of social rather than sacramental significance, [***] claims were asserted in the eighteenth century on behalf of Sunday rest, in part, in the service of health and welfare. [***]
McGowan, at 473-475 (Frankfurter, J., joined by Harlan, J., concurring) (footnotes omitted).
Nor was the Fourth Commandment the only one of the Ten Commandments that legitimizes United States law:
Innumerable civil regulations enforce conduct which harmonizes with religious canons. State prohibitions of murder, theft and adultery reinforce commands of the decalogue. Nor do such regulations, in their coincidence with tenets of faith, always support equally the beliefs of all religious sects: witness the civil laws forbidding usury and enforcing monogamy. Because these laws serve ends which are within the appropriate scope of secular state interest, they may be enforced against those whose religious beliefs do not proscribe, and even sanction, the activity which the law condemns. Reynolds v. United States, 98 U. S. 145; Davis v. Beason, 133 U. S. 333; Cleveland v. United States, 329 U. S. 14.
Id., at 462.
In accord was the majority opinion of the McGowan Court:
This Court has considered the happenings surrounding the Virginia General Assembly's enactment of "An act for establishing religious freedom," 12 Hening's Statutes of Virginia 84, written by Thomas Jefferson and sponsored by James Madison, as best reflecting the long and intensive struggle for religious freedom in America, as particularly relevant in the search for the First Amendment's meaning. [***] In 1776, nine years before the bill's passage, Madison co-authored Virginia's Declaration of Rights which provided, inter alia, that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience ...." 9 Hening's Statutes of Virginia 109, 111-112. Virginia had had Sunday legislation since early in the seventeenth century [....] [***] The Sunday labor prohibitions remained; apparently, they were not believed to be inconsistent with the newly enacted Declaration of Rights. Madison had sought also to have the Declaration expressly condemn the existing Virginia establishment. [***] In this same year, Madison presented to Virginia legislators "A Bill for Punishing ... Sabbath Breakers" [....] [***] This became law the following year and remained during the time that Madison fought for the First Amendment in the Congress. It was the law of Virginia, and similar laws were in force in other States, when Madison stated at the Virginia ratification convention:
"Happily for the states, they enjoy the utmost freedom of religion .... Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment. I believe it to be so in the other states .... I can appeal to my uniform conduct on this subject, that I have warmly supported religious freedom. " (16) [n. 16: 3 Elliot's Debates (2d ed. 1836) 330.]
In 1799, Virginia pronounced "An act for establishing religious freedom" as "a true exposition of the principles of the bill of rights and constitution," and repealed all subsequently enacted legislation deemed inconsistent with it. 2 Shepherd, Statutes at Large of Virginia, 149. Virginia's statute banning Sunday labor stood. [***]
In Reynolds v. United States, 98 U. S. 145, the Court relied heavily on the history of the Virginia bill. That case concerned a Mormon's attack on a statute making bigamy a crime. The Court said:
"In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that 'all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,' the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, 'it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth.' 12 Hening's Stat. 691. From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all of this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life." Id., at 165.
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[***] Here, a brief overview of the First Amendment's background proves helpful. The First Amendment states that "Congress shall make no law respecting an establishment of religion ...." U. S. Const., Amend. I. The Amendment was proposed by James Madison on June 8, 1789, in the House of Representatives. It then read, in part:
"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." (Emphasis added.) I Annals of Congress 434.
We are told that Madison added the word "national" to meet the scruples of States which then had an established church. 1 Stokes, Church and State in the United States, 541. After being referred to committee, it was considered by the House, on August 15, 1789, acting as a Committee of the Whole. Some assistance in determining the scope of the Amendment's proscription of establishment may be found in that debate.
In its report to the House, the committee, to which the subject of amendments to the Constitution had been submitted, recommended the insertion of the language, "no religion shall be established by law." I Annals of Congress 729. Mr. Gerry "said it would read better if it was, that no religious doctrine shall be established by law." Id., at 730. Mr. Madison "said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience .... He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform." Id., at 730-731.
The Amendment, as it passed the House of Representatives nine days later, read, in part:
"Congress shall make no law establishing religion ...." Records of the United States Senate, 1A-C2 (U. S. Nat. Archives).
It passed the Senate on September 9, 1789, reading, in part:
"Congress shall make no law establishing articles of faith, or a mode of worship ...." Ibid.
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However, [...] the "Establishment" Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. Davis v. Beason, 133 U. S. 333; Reynolds v. United States, supra. The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue.
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[***] To say that the States cannot prescribe Sunday as a day of rest [...] solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State.
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[***] In an 1834 case involving a contract calling for delivery on Sunday, the Maryland Court of Appeals remarked that "Ours is a christian community, and a day set apart as the day of rest, is the day consecrated by the resurrection of our Saviour, and embraces the twenty-four hours next ensuing the midnight of Saturday." Kilgour v. Miles, 6 Gill and Johnson 268, 274. This language was cited with approval in Judefind v. State, 78 Md. 510, 514, 28 A. 405, 406 (1894). It was also stated there:
"It is undoubtedly true that rest from secular employment on Sunday does have a tendency to foster and encourage the Christian religion--of all sects and denominations that observe that day--as rest from work and ordinary occupation enables many to engage in public worship who probably would not otherwise do so. But it would scarcely be asked of a Court, in what professes to be a Christian land, to declare a law unconstitutional because it requires rest from bodily labor on Sunday, (except works of necessity and charity,) and thereby promotes the cause of Christianity. If the Christian religion is, incidentally or otherwise, benefited or fostered by having this day of rest, as it undoubtedly is, there is all the more reason for the enforcement of laws that help to preserve it. Whilst Courts have generally sustained Sunday laws as 'civil regulations,' their decisions will have no less weight if they are shown to be in accordance with divine law as well as human." Id., at 515-516, 28 A., at 407.
But it should be noted that, throughout the Judefind decision, the Maryland court specifically rejected the contention that the laws interfered with religious liberty [....]
McGowan v. Maryland, at 437-442, 445-447 (Warren, C.J., delivering the opinion of the Court) (some citations and footnotes omitted; one footnote incorporated into text).
The long history of morality legislation (based on the Ten Commandments) in first England, then the United States, reveals that whatever the private beliefs of legislators, merely basing a law on the Bible that works to the good of the general welfare is a constitutional endeavor. The mere mention or display of the Name of God, or Biblical wording, does not negate a law's benefit for the entire citizenry.
Actually, it can be said that Stone v. Graham's wording ("... it is not a permissible state objective...") runs counter to, and is refuted by, the prior reasoning of McGowan v. Maryland regarding the general welfare. Stone's ruling represents "hostility to the public welfare" (quote is from the McGowan Court) because to "venerate and obey" the Ten Commandments actually serves the welfare of the public. (Schoolchildren following the principles of the Ten Commandments are likely to manifest behavior in accordance with many civil laws.)
And saying that the United States is a Christian government is saying no more than what was said in Judefind.
Judges should take judicial notice of the historical fact that the Ten Commandments undergird the formulation of American positive laws, jurisprudence, and constitutional republican government. And judges (such as the Honorable Roy Moore of Alabama) and the Honorable James DeWeese of Ohio) who stand up for the Almighty should be applauded.
Judges who display the Ten Commandments are not acting in their private capacity to serve their own private beliefs. Rather, they are acting in a public capacity, fulfilling the work of their office--part of which may include the option to educate the public about legal history and philosophy (which necessarily involves a discussion of morality (the transcendent, Divine moral law) presupposing, enlightening, and undergirding jurisprudence). It is for public education that the Ten Commandments are displayed. Tamely letting the moral law be removed from the public square effectively weakens the influence of Divine precepts on public morality and the good of society, individually and as a whole. That's because the Decalogue's precepts constitute the highest good for humanity. Therefore, to follow the Divine moral rules is to seek the highest common (as well as individual) good. (Of course, the will of God is in accord with His nature or personality, expressed in the Decalogue and indeed throughout the Bible.)
A judge may think that by standing up for the Decalogue's public display, he is upholding the key essential pillar of good government, and thus is doing society as a whole a good service--a point distinct from his own religious liberty as a private individual. (See further discussion about this below in the context of The People v. Ruggles (1811).)
The public official's private beliefs are irrelevant. Thus, examining his private beliefs is a misguided endeavor. Theoretically, even an atheist can determine, on the basis of historical research, that constitutional republican government stands on the foundation pillar of the Ten Commandments, and he can decide to display the Decalogue for that reason. Obviously, he is not intending to enforce or establish his private beliefs, which deny the existence of the Author of those Commandments. An atheist may not even like any of them, and yet may acknowledge their historical contribution.
And a Christian can like the entire Bible fervently, and yet not be infringing on anyone's religious liberty by displaying it in public for the purpose of either acknowledging the foundational role the Bible played in the formation of the United States constitutional republican government, or to honor the accomplishments of someone who believed in and revered Biblical truth.
In 1807, former United States President (and co-editor of the Declaration of Independence) John Adams wrote to his friend Dr. Benjamin Rush:
The Bible contains the most profound Philosophy, the most perfect Morality, and the most refined Policy that ever was conceived upon earth. It is the most Republican Book in the World, and therefore I will still revere it. [***] [...] [A]nd without national Morality a Republican Government cannot be maintained.
([Alexander Biddle, ed.,] Old Family Letters (J.B. Lippincott, 1892, pp. 127-128.)
Adams was saying, the United States' republican form of government is based on the Bible.
Republican Principles
God's principles are not absent from the United States' founding documents, the first of which was the Declaration of Independence (July 4, 1776), into which was distilled the founders' political philosophy of natural law (the non-secular version of natural rights). Besides the reference to the "laws of nature and of nature's God", the Declaration of Independence declares: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness--That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed [....]" (emphasis added). The notion of justice, in the sense of natural justice derived from moral law principles, is written in the Declaration and reaffirmed in the Constitution. Also, the Declaration acknowledged the sovereignty of Divine Law when it "appeal[ed] to the Supreme Judge of the world for the rectitude of our intentions [....]". This is saying: God determines the meaning of right and wrong, and human laws are to be judged according to His definitions. His word is truth. This is history; this is what the Founders really believed, and what they founded this nation upon. Further acknowledgment was made in the Declaration's concluding sentence: "And for the support of this declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor."
That the universal, immutable, transcendent Divine natural law (inherent in the Declaration of Independence) was the foundation for American laws and jurisprudence was the theme of Chief Justice of the Connecticut Superior Court Jesse Root (1736-1822), The Origin of Government and Laws in Connecticut (1798). A Princeton College graduate of 1756 (during the era when Governor Jonathan Belcher (1682-1757) was ex officio president of the college's board of trustees), Root viewed the moral law accessible to reason (natural law) and expressed by revelation (the Bible) to be the "Magna Charta" of America, the basis of American constitutions. Identifying civil rights as natural rights, he considered the moral law to provide the basis and authority for civil and religious freedoms. The moral law is not just a philosophy, Root thought; it is knowledge (hence the meaning of the word "self-evident" in the Declaration of Independence). In other words, it is truth. All legislators, judges, and people should adhere to its principles. If the judges pursued natural justice in all their decisions, then there would be no need for courts of chancery (equity courts), as in the colonial system. American courts should adhere to the principles of American independence, and not seek to imitate the different principles of foreign courts. From the very beginning of colonial times, Americans had formed their own unique "common law" based on the Bible. This Colonial American common law was distinct from and independent of English common law, since the colonials formed their own customs and judicial rulings that varied somewhat from those in England. The colonies had their own constitutions, which embodied rights granted to them by God, not the King of England. American common law was derived from these good and just, already-established constitutions. Thus, Root located America's Christian constitutionalism in America's own distinctive colonial era. (Origins for American constitutionalism can be glimpsed in the administrations of one American-born colonial governor; see About Governor Jonathan Belcher.) The nation's constitutional principles did not begin with the United States Constitution or even the American Revolution: The Declaration of Independence merely expressed in written form the principles inherent in colonial constitutions. And the colonies had already nurtured Christian principles since their very beginnings.
This thesis essentially moots the debate about the content of the English common law. United States Supreme Court Justice Joseph Story (1779-1845), in Discourse Pronounced Upon the Inauguration of the Author, as Dane Professor of Law in Harvard University, August 25th, 1829, declared that the common law had always been based on Christianity, and was subject to its moral precepts. Christian principles were also the source of American rights. (The common law therefore observes Christian holidays.)
Certainly, the principles of the Declaration of Independence (which vary not with politics) are consistently in line with the natural law, or Christian, jurisprudence expressed by John Adams, Jesse Root, Joseph Story, Chief Justice of the New York Supreme Court James Kent (1763-1847), and many other Early Americans. It truly was the American consensus, the "soul of the continent" (in the words of Ezra Stiles), the "expression of the American mind" (in the words of Jefferson, used in his letter to Lee), rather than representing the private opinions of any one person.
Speaking of James Kent, he was one of America's most famous and distinguished jurists, the author of Commentaries on American Law (1826-1830). (He was mentioned, approvingly, in a John Wingate Thornton (1860) endnote appended to Ezra Stiles' The United States Elevated to Glory and Honor). In 1811, New York Chief Justice Kent decided a famous case, The People v. Ruggles (8 Johns 225), in which he demonstrated that Christianity was the essential key pillar of good government (i.e., Government the Pillar of the Earth, and God the pillar of government, as Benjamin Colman said in 1730, and which was also the belief of Governor Jonathan Belcher). Christianity was to be encouraged for secular reasons, as a matter of public policy. Weakening the influence of Christianity caused a corresponding decline in public morality. In affirming the conviction of a defendant who was convicted of essentially attacking the Christian religion, Kent specifically stated that this issue was entirely separate from any matter of state establishment of religion; rather, in denigrating Christianity, the defendant was really impairing the general welfare by downgrading the key essential element necessary for the maintenance of that welfare. (This is a concept which the United States has unfortunately forgotten in the 21st century.) Therefore, the basis of Kent's decision (to promote the general welfare) was akin to the rationale underlying the McGowan decision, which was also to promote the general welfare (a goal spelled out in the Preamble to the United States Constitution ("...promote the general welfare...").) (Kent even mentioned Sunday laws--the subject at issue in McGowan.) Furthermore, Kent noted that the civilized nations of 19th century Europe, and lawgivers and jurists all the way back to ancient times, built the morality of their laws upon religion. (Kent rejected the idea that Americans should look to uncivilized cultures, or to other, non-Christian religions, for political and legal guidance.)
Kent stressed that his decision in no way impinged upon religious liberty for all. Equal freedom of religious expression was one thing, but to malign the Christian religion of the majority, was to abuse that freedom. Kent repeatedly emphasized that governments should consider religious principles in matters pertaining to public morality and social welfare, and that this was something totally different from the concept of establishing a religion. He embraced toleration under the constitution, but in his view, toleration did not give one a license to attack the Christian foundation of public morality (such a construction was to turn religious liberty on its head). Religious liberty, he said, meant freedom from oppression--freedom from test oaths and other hindrances to free and equal religious practice and expression. Religious toleration did not encompass the deliberate, immoral undermining of civil society through weakening the influence of Christian principles.
The United States Constitution's First Amendment religion clauses were designed to work together harmoniously to secure religious liberty. Though certainly Christians face worse persecution in other countries (totalitarian and autocratic societies), such totalitarian societies typically begin their persecution by expunging Christianity from the public square. Then, things escalate from there until even private belief is suppressed.
The Privatization of Public Honor
For instance: May a Christian never be publicly honored for doing some service to mankind if the monument indicates that his private beliefs are Christian, or includes a symbol representing his private Christian beliefs? To deny public honor to Christians would in effect be the privatization of public honor (relegating their beliefs to only the private arena). But publicly honoring a Christian person is a far cry from trying to make people worship in a certain way. (On the issue of government scrutiny of private beliefs, see this critique of the Lemon test.)
Privatization of public honor might eventually lead to unequal treatment, in the sense that philanthropy awards, for instance, might be allowed to indicate any number of traits and factors motivating or relating to the philanthropist--except for Christian ones.
If Christians are never honored for their Christianity's sake in the public square, then the public will never know if an esteemed honoree acted on Christian principles--thus effectively denying such honorees the opportunity to reveal the reasons and principles behind their actions.
Confusion of private opinion with public religious establishment--this flows from the culture of relativism fostered by postmodern deconstructionism: reading one's own subjective meaning into every text. And, hypothetically, a postmodern deconstructionist can "deconstruct" any text, no matter how objectively obvious the actual words of the text may be. The result can be chaos, with meanings of the same text shifting according to the subjective thoughts and feelings of the observer.
Postmodern deconstructionism is a 20th-century leftist literary theory, associated with primarily French thinkers. It has nothing to do with the First Amendment, or with the founding of the United States. And Americans should have nothing to do with deconstructing our public values in the 21st century. We should reconstruct them instead.
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