David Barton continues to promote the idea — hand in hand with Bryan Fischer — that the Constitution’s protection of religion was meant by the Founders (and, thus, magically, means today) to apply only to Christians.
To that end, he’s bringing out Joseph Story in this 11 April Wallbuilder’s tale.
This is David Barton with another moment from America’s history. Joseph Story is one of the most important names in American jurisprudence. Not only was he placed on the US Supreme Court by President James Madison, he also founded Harvard Law School and authored numerous legal works on the Constitution.
Barton is correct that Story is a key player in the early jurisprudence of this country. Not a Founder himself, but the next generation out the door, he served under John Marshall on SCOTUS. His Commentaries on the Constitution of the United States (1833) is a cornerstone book on the subject.
That said, it’s still Story’s interpretation. By 1833, the Constitutional Founders were dead or nearly gone. He had known several of them them and served with them, but his writing, respected as it is, remains his writing.
Barton continues:
While today’s revisionists claim that the goal of the First Amendment was absolute religious pluralism, Joseph Story vehemently disagreed.
Wow — let’s see what that “vehemence” consists of.
He declared, “The real object of the First Amendment was not to encourage, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity, but was to exclude all rivalry among Christian denominations.” According to Founder Joseph Story, Christianity, not pluralism, was the goal of the Founding Fathers in the First Amendment for only a Christian nation is tolerant and thus is truly pluralistic.
A number of things here. First, Story’s quote doesn’t quite mean what Barton says it means. To “not encourage, much less to advance” faiths other than Christianity does not mean that Christianity was the goal of the Founders. Nor were the Founders explicitly seeking pluralism — they were seeking to keep government out of the religion biz (to varying degrees, by Founder), and the religion biz out of government.
And Barton’s assertion that “only a Christian nation is tolerant and thus is truly pluralistic” is not only laughable on the historical face of it, it conflicts directly with what Story has to say on the whole subject.
Story discusses the Freedom of Religion clause in Commentaries on the Constitution of the United States, Vol. 1, in sections 1865-1873. His arguments are complex, and I don’t agree with all of his conclusions, but his vision of America — then and today — differs from that of David Barton (and Bryan Fischer) in a number of ways.
§ 1865: Story makes a set of complicated assertions, among them:
[…] Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues ; — these never can be a matter of indifference in any well ordered community.
This is the utilitarian view of religion, carried even by relatively unorthodox Founders such as Adams and Jefferson: religion is useful because it teaches virtue, which is essential to the state. There’s no mention of salvation, though. It’s just that having people concerned with “future state of rewards and punishments” is connected with the “well being of the state.”
I’m not thoroughly convinced, but that’s another debate.
[…] And at all events, it is impossible for those who believe in the truth of Christianity, as a divine revelation, to doubt that it is the especial duty of government to foster, and encourage it among all the citizens and subjects.
Certainly there are some Christians who believe the government should “foster and encourage” Christianity. But that’s hardly universally held in Christianity. Honestly, as a Christian, I don’t want a government agency or policy telling me and others what brand of Christianity is the “approved” kind.
But just when you thought Story was right lined up with Barton and his crew, he concludes the section:
This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one’s conscience.
What? People — even Muslims — have the right of “private judgment in matters of religion”? Not to mention the “freedom of public worship”? Does that mean they get to build mosques? Who is this radical, anyway?
§ 1866: Story trots back to his previous “foster and encourage” point. “The real difficulty lies in ascertaining the limits, to which government may rightfully go in fostering and encouraging religion.” He offers three cases:
- “where a government affords aid to a particular religion, leaving all persons free to adopt any other”
- “where it creates an ecclesiastical establishment for the propagation of the doctrines of a particular sect of that religion, leaving a like freedom to all others”
- “where it creates such an establishment, and excludes all persons, not belonging to it, either wholly, or in part, from any participation in the public honours, trusts, emoluments, privileges, and immunities of the state”
In succeeding sections, it’s clear that Barton believes in #1, has concerns (on a national level especially) for #2, and thinks #3 is historically an awful idea. The problem, to my mind, is that it’s difficult to do #1 without it becoming #2 based on power and populace — and that it’s difficult to keep #2 from de facto sliding into #3.
§ 1867: Story suggests “there will probably be found few persons in this, or any other Christian country, who would deliberately contend, that it was unreasonable, or unjust to foster and encourage the Christian religion generally, as a matter of sound policy, as well as of revealed truth.” He notes that all states (except Rhode Island) had pre-Revolution, and many of them post-, “support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines.”
Story does actually echo Barton about Christianity being tolerant.
Indeed, in a republic, there would seem to be a peculiar propriety in viewing the Christian religion, as the great basis, on which it must rest for its support and permanence, if it be, what it has ever been deemed by its truest friends to be, the religion of liberty. Montesquieu has remarked, that the Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the gospel is incompatible with the despotic rage, with which a prince punishes his subjects, and exercises himself in cruelty.
I would certainly accept that Christianity, as recommended in the Gospels, would not lend itself to despotism or cruelty. To suggest that such has been the case of ostensibly Christian nations (particularly in Europe in the centuries prior to the Revolution) would seem more than a bit blind, however.
I’ll elide over Montesqueiu’s anti-Catholic and anti-Southern European notes, but Story goes on to note the Massachusetts Bill of Rights which falls under #2 above — it suggests that “to promote their happiness and to secure the good order and preservation of their government” that the legislature be able to compel towns to “make suitable provision at their own expense for the institution of the public worship of God, and for the support and maintenance of public protestant teachers of piety, religion, and morality.” Only after that does the that document prohibit “any superiority of one sect over another” and secure “to all citizens the free exercise of religion.”
§ 1868: This gets into the meat of Barton’s argument.
Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.
I’d guess that’s probably right, at least among the populace. We’ve noted a number of cases where that was not so open-and-shut a case among the actual Founders.
But, then, again, we’re talking about encourage of Christianity so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. That’s back to our utilitarian argument — Christianity as a set of public, civil virtues to keep society on track, and not something to be allowed to interfere with those who disagree with it as a matter of conscience and worship.
§ 1869: An interesting speculation:
It yet remains a problem to be solved in human affairs, whether any free government can be permanent, where the public worship of God, and the support of religion, constitute no part of the policy or duty of the state in any assignable shape. The future experience of Christendom, and chiefly of the American states, must settle this problem, as yet new in the history of the world, abundant, as it has been, in experiments in the theory of government.
Story leaves open the possibility of a non-sectarian, non-religious government. Indeed, he expects to see it tried out. And he addresses it, properly, as a social/civic question, of “human affairs,” not as a matter of personal salvation.
§ 1870: I suspect Barton, and Fischer especially, and the rest of their One True Way (and Muslims Are Evil) ilk, would disagree “vehemently” with Story on this:
But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires. It has been truly said, that “religion, or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence.” […] The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority, without a criminal disobedience of the precepts of natural, as well as of revealed religion.
So all those folks who think particular religions and sects are so unacceptable, so un-American or anti-God, that those who adhere to them by their conscience and worship ought to be rendered second class citizens (to whom certain rights to not apply) or should be forced to denounce their faith, or flee the country — you just got bitch-slapped by Joseph Story.
§1871: Which brings us to the snipped that Barton provides in the tale above:
The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.
One of the longstanding conflicts over the idea of a Christian nation that was not effectively “a national ecclesiastical establishment,” is that it’s deucedly difficult to identify what such a thing would look like. As in §1869’s experiment, there were not many cases (with the possible exception of the Netherlands) where European states did not have established churches.
Within this nation, after the Revolution, even after the states disestablished their respective churches, a variety of sectarian debate still ensued while “encouraging and promoting Christianity.” Were Catholics part of the Christian mix? Or Quakers? When the Ten Commandments were to be listed, who got to vote on the precise ordering of them, as different Christian denominations believed different things. If we talk about Jesus at Christmas, did we also teach about the Virgin Birth? Was Baptism for infants, or for adults? Was public preaching of “good works” off-limits? Was political talk of war Christian, especially in the face of Christian pacifism vs theories of “just war”?
Some of these were very important questions, and caused quite a bit of conflict. Christian denominations politically fought over such things, until around the Civil War era and beyond. At which point, many sects realized they could work more efficiently in a non- or inter-denominational fashion — and so agreed to, largely, let a lot of those differences fall by the wayside for the greater good.
Indeed, it’s that very sanding down of sharp denominational differences which made mainline Protestantism (with extensions to Catholicism and Judaism) so relatively welcoming to increasing numbers of new faith traditions in the 60s-70s … but also led to their decline in the 80s-90s vs. the more dynamic and profoundly sectarian evangelicals. The same evangelicals that Barton and Fischer would consider Real Christians™.
And that’s the problem. If your “ceremonial theism” is generic enough to be welcoming to nearly all, it’s of limited inspiration or, actually, of limited religious value. If it’s sectarian enough to have some meat on it, it starts infringing on that privacy of conscience and worship.
It’s difficult to be an overtly Christian nation without have a de facto establishment. And don’t think for a moment that’s not what Fischer and Barton and their ilk actually want.
Story continues, about the banning of a national establishment:
It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. The history of the parent country had afforded the most solemn warnings and melancholy instructions on this head; and even New England, the land of the persecuted puritans, as well as other colonies, where the Church of England had maintained its superiority, would furnish out a chapter, as full of the darkest bigotry and intolerance, as any, which could be found to disgrace the pages of foreign annals. Apostacy, heresy, and nonconformity had been standard crimes for public appeals, to kindle the flames of persecution, and apologize for the most atrocious triumphs over innocence and virtue.
Story seems to believe that not establishing a formal national church would avoid the dangers that religious persecution and “the subversion of the rights of conscience in matters of religion” that Christianity has long suffered (and imposed).
§ 1872: Story gets all snarky on William Blackstone, the renowned English jurist, who defended the establishment of the Church of England despite the oppression that caused on dissenters and Catholics. Interestingly enough, Blackstone’s language follows that of privileges-not-rights from Barton and Fischer about non-Christians in America:
For nonconformity to the worship of the church, there is much more to be pleaded than for the former, (that is, reviling the ordinances of the church,) being a matter of private conscience, to the scruples of which our present laws have shown a very just, and Christian indulgence. For undoubtedly all persecution and oppression of weak consciences, on the score of religious persuasions, are highly unjustifiable upon every principle of natural reason, civil liberty, or sound religion. But care must be taken not to carry this indulgence into such extremes, as may endanger the national church. There is always a difference to be made between toleration and establishment.
Which sounds a lot like the difference Bryan Fischer draws between “the religious liberty we extend out of courtesy” vs. “protecting the free exercise of Christianity”
The result that Story describes sounds a lot like what Barton and Fischer have in mind:
Let it be remembered, that at the very moment, when the learned commentator was penning these cold remarks, the laws of England merely tolerated protestant dissenters in their public worship upon certain conditions, at once irritating and degrading; that the test and corporation acts excluded them from public and corporate offices, both of trust and profit; that the learned commentator avows, that the object of the test and corporation acts was to exclude them from office, in common with Turks, Jews, heretics, papists, and other sectaries; that to deny the Trinity, however conscientiously disbelieved, was a public offence, punishable by fine and imprisonment; and that, in the rear of all these disabilities and grievances, came the long list of acts against papists, by which they were reduced to a state of political and religious slavery, and cut off from some of the dearest privileges of mankind.
§ 1873: As a result of that very history, and the divisions among the states of different majority denominations, that the US government was prevented from establishing a national church:
It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject.
[…] But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests.
Story grants promotion and control of religion to the states — though I don’t understand how it is that the states are more likely to not abuse their citizens, religiously, than a national government. It’s moot at any rate, as the 14th Amendment extended all US rights (and governmental restrictions) to the states as well.
Regardless of Story’s faith in the states, or in the role of government to promote Christianity as some sort of civic code, it’s worth noting his closing on the discussion of the Freedom of Religion in the Bill of Rights. It’s a stirring goal, that
the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.
I don’t expect to hear David Barton preaching about that belief of Joseph Story’s any time soon.
