Do We Need 27 Supreme Court Justices?

Toobin-Supreme-Court

There is nothing in the United States Constitution that says we must have nine Supreme Court justices.  What about 27?  Rutgers University law professor Jacob Russell Hale thinks it might be a good idea.  Here is a taste of his piece at Time:

The battle over court packing is being fought on the wrong terms. Americans of all political stripes should want to see the court expanded, but not to get judicial results more favorable to one party. Instead, we need a bigger court because the current institutional design is badly broken. The right approach isn’t a revival of FDR’s court packing plan, which would have increased the court to 15, or current plans, which call for 11. Instead, the right size is much, much bigger. Three times its current size, or 27, is a good place to start, but it’s quite possible the optimal size is even higher. This needn’t be done as a partisan gambit to stack more liberals on the court. Indeed, the only sensible way to make this change would be to have it phase in gradually, perhaps adding two justices every other year, to prevent any one president and Senate from gaining an unwarranted advantage.

Such a proposal isn’t unconstitutional, nor even that radical. There’s nothing sacred about the number nine, which isn’t found in the constitution and instead comes from an 1869 act of congress. Congress can pass a law changing the court’s size at any time. That contrasts it with other potentially meritorious reform ideas, like term limits, which would require amending the constitution and thus are unlikely to succeed. And countries, with much smaller populations, have much larger high courts. In 1869, when the number nine was chosen, the U.S. was roughly a tenth of its current size, laws and government institutions were far smaller and less complex, and the volume of cases was vastly lower. Supreme Court enlargement only seems radical because we have lost touch with the fundamentals of our living, breathing constitution. The flawed debate over court-packing is an opportunity to reexamine our idea of what a Supreme Court is, and some foundational, and wrong, assumptions.

Read the entire piece here.

Understanding the Supreme Court Decision on Trump’s Travel Ban

Gorsuch Trump

Some nice context here from CNN writer Chris Cilizza.  Here are his “5 takeaways“:

 

  1. “Elections matter. A lot.”
  2. “This is as much Mitch McConnell’s victory as it is Donald Trump’s”
  3. “The President has loads of power”
  4. “The court didn’t take Trump literally”
  5. “The court wanted to make clear it wasn’t endorsing past Trump statements on Muslims.”

See how Cilizza develops these points here.

“Amending America” Exhibit Comes to Lancaster, Pennsylvania

LHO_BuildingFrontSlider

You can see the National Archive’s exhibit “Amending America: The Bill of Rights” at LancasterHistory.org in Lancaster, PA.  Learn more from Jennifer Kopf‘s piece at Lancaster Online.  Here is a taste:

Two years ago, on the 225th anniversary of that Bill of Rights, the National Archives curated an exhibit that explores how those first 10 amendments were composed. “Amending America: The Bill of Rights” then went on a cross-country tour of America that arrives in Lancaster later this week.

When “Amending America” opens at LancasterHistory.org Saturday, it will be the 11th stop on a tour that’s taken the exhibit to the presidential libraries of Gerald Ford and Richard Nixon, the home of Founding Father George Mason, a museum in Dealey Plaza, Dallas, and, most recently, to the Jewish Museum of Maryland in Baltimore.

Using reproduction documents and petitions, political cartoons and interactive stations, the exhibit also will have a feature none of the other stops on the tour has had.

Local curators have assembled a complementary exhibit on President Jame

AmendingAmerica_Web

s Buchanan and Congressman Thaddeus Stevens. Both immensely powerful mid-19th-century politicians and both Lancastrians, Stevens and Buchanan held radically different ideas about what powers were permitted and prohibited by the Constitution.

Robin Sarratt, vice president of LancasterHistory.org, says the timing of the exhibit’s arrival here “is fortuitous.”

“Amending America,” Sarratt says, encourages the process of asking questions, of thinking about what citizenship means, about what the words in the Constitution and Bill of Rights meant in that era — and what they mean today.”

Read the entire article here.

Saul Cornell on the “Mythic Second Amendment”

CornellFordham University’s Saul Cornell, the author of A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control, explains the myth that the Second Amendment relates to the history of the American frontier.  Here is a taste of his piece, “Bearing Arms vs. Hunting Bears: The Persistence of a Mythic Second Amendment in Contemporary Constitutional Culture“:

The myth of the frontier is one of the most enduring in American history; it has been commodified and used to market everything from cigarettes to cars, and has been central to firearms sales for more than a century. It is a little shocking that the same myths used to sell cigarettes played a pivotal role in two federal appeals court decisions: Moore v. Madigan and Peruta v. San Diego. Both cases evoked “the familiar image” of an armed “eighteenth-century frontiersman . . . ‘obtain[ing] supplies from the nearest trading post.” Contrary to this mythic view of the American past, the bulk of the nation’s population in the eighteenth century was clustered along the coast, not the frontier. Nor is there any evidence that members of the Founding era such as George Mason or James Madison were thinking about the plight of the tiny percentage of the American people who lived on the frontier when they discussed the right to keep and bear arms in the Virginia Ratification Convention. The debates in the First Congress certainly do not afford much evidence that this was a major concern. Given the realities of American society at this point in the nation’s history, such concerns would have been odd. In 1790, the mean population center of the United States, a standard measure of population distribution, was situated somewhere between Baltimore and Philadelphia, not western Kentucky, northern Maine, or the Ohio valley.

Frontier mythology has shaped another aspect of the current debate over firearms policy and the law. In response to the horrorific shooting at Sandy Hook Elementary School, the NRA’s Wayne LaPierre warned that the “the only thing that stops a bad guy with a gun is a good guy with a gun.”Setting aside the policy debates and statistics about the utility of armed self-defense, particularly in active-shooter scenarios such as schools, the suggestion that giving a guy a gun turns him into an effective agent of law enforcment, it itself part of a set of myths about regenerative violence dating back to colonial America. The leading historian of this mythology, Richard Slotkin, has charted how this motif has been constantly re-invented in American popular culture over the long arc of American history. David Crockett has morphed into Jason Bourne, and most recently the iconic image of a gun-toting hero is more likely to fight off alien invaders or the hordes of the zombie apocolypse than the marginalized others of earlier mythic tales of violence and redemption.

Read the entire piece at The Panorama.

Did Ted Cruz Forget About His *Harvard Journal of Law and Public Policy* Article that Addressed Presidential Pardons?

Cruz and Trump debateRead it here.

And then watch this:

Here is Jeet Heer at The New Republic:

On Monday morning, President Donald Trump tweeted, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” Later that day, Haley Byrd of The Weekly Standard asked Senator Ted Cruz if he agreed with Trump that presidents could pardon themselves. Cruz paused for 18 excruciating seconds and then said, “That is not a constitutional issue I have studied, so I will withhold judgement at this point.”

Cruz was being forgetful. As legal scholars on Twitter pointed out, in 2015 Cruz authored an article titled “The Obama Administration’s Unprecedented Lawlessness” for The Harvard Journal of Law and Public Policy. In that article, Cruz wrote extensively about the powers of presidential pardon, arguing for a limited view of presidential authority.

Footnote 79 is especially relevant to current debates. “The pardon power was not seen as suspension or dispensation,” Cruz argued. “The pardon power carries a scope specifically limited to crimes already committed. The pardon may not apply to acts that have not yet been committed, because it would function as a personal waiver, the impermissible dispensation of the laws.” It is hard to square these words with Trump’s expansive view of presidential power.

Allen Guelzo on Why History Shows Impeachment May be a Bad Idea

Andrew_Johnson_impeachment_trial

Abraham Lincoln and Civil War scholar Allen Guelzo reminds us what happened when Andrew Johnson was impeached.  The subtitle of his recent Wall Street Journal piece is “Many members of Congress in 1868 hoped to remove a president they merely disliked.  It didn’t go well.”  Here is a taste:

If the Democrats win the House in November, they’ll come under pressure to impeach President Trump. Even if Robert Mueller fails to turn up some astounding surprise, many Democrats want to impeach Mr. Trump because they simply don’t like him. Since the Constitution specifies that a president can be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors,” such a move would mean Democrats consider being disliked by the House majority to be a disqualifying crime.

That is precisely what many members of Congress thought 150 years ago this week, at the conclusion of the first impeachment of a sitting president, Andrew Johnson. The 17th president’s impeachment offers the important lesson that although the mechanism for impeachment is easy, the subsequent process of trial, conviction and removal from office is not. A failure at that stage of the process covers everybody with embarrassment—impeachers and impeached alike.

 

Read the rest here.

Guelzo seems to be preparing for the Democrats to take the House.  It is definitely a possibility.

The Founding Fathers and Foreign Meddling in American Elections

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Were the founders worried about foreign meddling in American elections?

Yes.

Check out Jeanne Abrams‘s piece at History News Service.  Abrams teaches at the University of Denver and her book First Ladies of the Republic was featured in a March 2018 Author’s Corner at The Way of Improvement Leads Home.

Here is a taste:

In 1787, the new United States Constitution was being debated in Philadelphia, and both Jefferson and Adams followed developments closely from afar. In an oft- quoted letter written by Adams to Jefferson on December 6, 1787, Adams referred to the “Project of the new Constitution,” and the various objections both men had to the evolving document. Adams famously declared “You are afraid of the one – I, of the few.” Jefferson detested the institution of monarchy and was concerned that the installation of a powerful executive would overturn the principles of the American Revolution and create a quasi-monarchy. Adams, on the other hand, feared the creation of an elite aristocracy in the form of senators. Because of his concern about such a possible oligarchy, Adams therefore maintained “I would have given more power to the President and less to the Senate,” and he advocated for a strong executive.

What is more surprising, and for the most part overlooked, about Adams’s letter is his discussion of the potential danger of foreign meddling in American elections, a subject that is especially timely today. “You are apprehensive of foreign Interference, Intrigue, and Influence,” Adams wrote. “So am I, – But, as often as Elections happen, the danger of foreign Influence recurs.” To counteract that danger, Adams maintained that the less frequently elections occurred, “the danger of foreign influence will be less.” Of course, Adams’s view did not prevail and regular elections and the peaceful transfer of power are still regarded as hallmarks of American democracy.

Read the entire piece here.

How Trump Undermines Democracy

Framers CoupMichael Klarman is the Kirkland & Ellis Professor at Harvard Law School and the author of The Framers’ Coup: The Making of the United States Constitution. (See our Author’s Corners interview with Klarman here).

Check out his piece at Process: “Trump, Democracy, and the Constitution.”

Here is a taste:

At the Philadelphia Convention of 1787, Elbridge Gerry, a delegate from Massachusetts, warned against too much democracy. The people, he stated, were “the dupes of pretended patriots” and were “daily misled into the most baneful measures and opinions by the false reports circulated by designing men.” Two hundred and thirty years later, Gerry’s concerns—which most of the framers shared—were vindicated: the American people elected a president who disdains basic tenets of democracy.

Democracy depends on norms, some written into the Constitution, others implicit in it. Donald Trump regularly disparages or repudiates at least ten of these norms: (1) an independent judiciary; (2) the freedom of the press; (3) the presence and function of independent actors within government; (4) the peaceful resolution of political disputes rather than the encouragement of violence; (5) the acknowledgment of the legitimacy of election results and recognition of the sanctity of the right to vote; (6) a refusal to threaten legal prosecution against political opponents; (7) the condemnation of brutal foreign dictators; (8) a respect for transparency within government; (9) a sharp separation between the private and public interests of governmental officials; and (10) at least a minimal commitment to the truth. These norms are essential to American democracy, yet Trump routinely violates them.

Read the rest here.   I discuss some similar ideas in my forthcoming Believe Me: The Evangelical Road to Donald Trump.

Read the rest here.

What is Treason?

trump

On Monday, Donald Trump said that the Democrats who refused to applaud during his State of the Union address were committing treason.  Yesterday the Pittsburgh Tribune ran an article on Trump’s remarks that quotes University of California-Davis law professor Carlton F.W. Larson, who is writing a book about treason and the American Revolution.

Here is Larson’s definition of treason:

For starters, treason is the only crime defined in the U.S. Constitution. And it specifically makes it a crime to adhere to or give comfort to the enemies of the United States.

Discussion of the topic has been around for some time. And by that, we mean a long, long time.

The New York Times reported in “Treason Against the United States” — an article published in 1861:

• Section 110, Article III, of the U.S. Constitution:

“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open Court. The Congress shall have power to declare the punishment of treason.”

• The U.S. Congress in 1790 enacted that:

“If any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States, or elsewhere, and shall be thereof convicted on confession in open Court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and SHALL SUFFER DEATH; and that if any person or persons, having knowledge of the commission of any of the treasons aforesaid, shall conceal, and not, as soon as may be, disclose and make known the same to the President of the United States, or some one of the Judges thereof, or to the President or Governor of a particular State, or some one of the Judges or Justices thereof, such person or persons, on conviction, shall be adjudged guilty of misprision of treason, and shall be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars.”

• James Madison, founding father and former U.S. president, said:

“The Constitution confines the crime of treason to two species; First, the levying of war against the United States; and Secondly, adhering to their enemies, giving them aid and comfort.”

John Mitchell and Philip Weigel–two of the so-called “whiskey rebels” of 1791–were the first people convicted of treason in the United States.

Read the entire Tribune-Review piece here.

Does the Separation of Powers Allow the President to Deliver a Face-to-Face Message to Congress?

Wilson SOU

Today this sounds like a silly question, but there was a time in American history when something like a State of the Union Address was unthinkable.  Karen Tumulty explains in her recent piece at The Washington Post.  A taste:

When President Trump steps into the well of the House on Tuesday to give his first formal State of the Union address, he will be performing one of the most familiar presidential rituals.

But for nearly half the nation’s history, the idea of a president personally delivering a speech on Congress’s turf was considered an act so presumptuous as to be nearly unthinkable.

The president who broke the mold — and introduced the kind of speech that modern Americans expect to hear each year — was Woodrow Wilson.

Wilson tested out the idea barely a month after his 1913 inauguration, when he traveled to Capitol Hill to give a speech on tariffs.

“Washington is amazed,” The Washington Post pronounced in a headline, over a story that noted no president since John Adams had done such a thing.

“Disbelief was expressed in congressional circles when the report that the President would read his message in person to the Congress was first circulated,” The Post reported, but assured its readers that such spectacles were “not to become a habit.”

Read the rest here.

Christian Nationalists Making the Usual Mistakes About American History

Perkins

Tony Perkins, the president of the Family Research Council, was not very happy with Paul Rosenberg and Frederick Clarkson’s recent Salon article on Religious Freedom Day.  He writes:

When Americans celebrate Religious Freedom Day tomorrow, not everyone will be happy about it. Liberals are already blasting the tradition that honors the 1786 signing of one of the most influential documents in American history: the Virginia Statute of Religious Freedom. Now, more than 230 years into the tradition that sparked a revolution, the Left is ready to recast history.

In Salon, hardly the bastion of conservative thought, Paul Rosenberg tries to persuade readers that freedom is the oppression, insisting that when Christians talk about religious liberty, it’s really just code for “theocratic supremacism of their own religious beliefs inscribed in government.” Taking aim at FRC in particular, Rosenberg points to Frederick Clarkson, who insists that our Church Ministries team has been “empowered to advance a dangerous suite of theocratic and persecutory policies” (while producing absolutely zero evidence to the effect). Instead, he talks suspiciously about our Culture Impact Teams (CITs), our network of on-the-ground activists in churches across America. Operating under the authority of the church’s leadership, CITs serve as the command center for a church’s efforts to engage the culture.

Then he starts to play fast and loose with the Constitution.  He quotes Rosenberg: “I think if we got serious about taking Jefferson and Madison’s foundational ideas of religious equality under the law into the 21stcentury, Christian nationalism would crumble.”  And then Perkins adds: “Our own Constitution closes with the words, ‘In the year of our Lord, 1787.’ That’s a reference to Jesus! The signers not only embraced Christianity, they anchored our most important document in it.”

OK.  I have written about this before.  First, the Constitution says “year of our Lord.”  It does not say anything about Jesus.  Second, this phrase hardly serves as an “anchor” of the Constitution.  Third, “In the year of our Lord” was a standard eighteenth-century way of referencing the date.  We need to be careful about giving it too much theological meeting.  Fourth, it is worth noting that an appeal to God does tell us something about the eighteenth-century world that the founders inhabited.  We don’t sign documents like this today.  Fifth, because the phrase “In the year of our Lord” is boilerplate, it was probably not added until after the delegates had left Philadelphia.  Sixth, the minutes of the Constitutional Convention reveal that there was no discussion about the phrase “In the year of our Lord.”  In other words, NO ONE said anything like: “Let’s end the document with the phrase ‘In the year of our Lord’ because it will send a message to everyone that we are creating a Christian nation.”

Perkins is correct when he says that Jefferson included the writing of the Virginia Statue of Religious Freedom on his tombstone.  Jefferson was a champion of religious freedom.  He believed that everyone had the right to worship God freely without government interference.  Jefferson did not comment on whether or not it was appropriate to have a Ten Commandments display in a courthouse or a prayer before a football game.  It is very difficult to appeal to his writings (or the writings of James Madison) to argue for or against such things.

Perkins writes: “Before President Trump, Jefferson would barely recognize his country.”  Really?  Jefferson lived in a different era, but he would certainly be able to spot Christian nationalists like Perkins.  He did battle against them in his own day (Christian Federalists) and would probably do battle with them today.  Jefferson regularly slammed pious New Englanders and their Christian political establishments.  He worried that they were trying to create a Christian nation, not a nation informed by religious liberty.

I have mixed feelings about this whole religious liberty debate:

  1. When Christian Right evangelicals talk about religious liberty they use this idea in a negative way–to protect themselves and their views.  In other words, they are rarely interested in articulating a positive view of religious liberty that defends the right of all people to worship freely.
  2. There are real religious liberty issues at stake in our country right now.  Will Christian institutions who uphold traditional views of marriage, for example, remain in a position to receive government funds or maintain a tax-exempt status?  I wrote about this yesterday.

On the one hand, people like Rosenberg and Clarkson need to offer a vision of religious liberty that protects the rights of churches, Christian schools, and other Christian institutions to practice their faith in the way they see fit, even in areas of sexual politics.  Frankly, I think Hillary Clinton’s failure to defend religious liberty in this way may have, among other things, cost her the election in 2016.

On the other hand, Christian Right activists like Perkins need to stop manipulating history.  When it comes to Jefferson, Perkins could probably learn a great deal from what David Barton went through when he published The Jefferson Lies.  In the end, if Perkins believes in liberty then he cannot, at the same time, defend the idea that the government should privilege one form of religious belief over another.

 

Quotes of the Day

Alexander_Hamilton_James_Madison

Federalist 57The aim of every political Constitution is or ought to be first to obtain for rulers, men who possess most wisdom to discern, and most virtue to pursue the common good of the society, and in the next place, to take the most effectual precautions for keeping them virtuous, whist they continue to hold their public trust.

Federalist 68Talents for low intrigue, and the  little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of the President of the United States.”  It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.

The Problem of the 1780s

ArticlesOver at The Nation, historian Richard Kreitner interviews Seattle University Law Professor George William Van Cleave about his new book We Have Not a Government: The Articles of Confederation and the Road to the Constitution.   I hope to read Van Cleave’s book at some point since I don’t think I have ever read a book-length treatment of the Articles of Confederation.

Here is a taste of the interview:

RK: The overarching problem of the 1780s, as you write, was “stalemate government.” Why were things so blocked up?

GWVC: There are two basic reasons. First, the structure of the Confederation itself. The government designed by the Articles of Confederation made it easy for relatively small groups of people—especially individual states or sections of the country—to block any change. There was a requirement for every single state to agree to alter the powers of the Confederation. At least nine states needed to support any significant fiscal or military legislation. Any section could say, “We’re opposed to this, so it’s not gonna happen.” This happened repeatedly throughout the period I’m writing about.

The other significant reason is that from the beginning the Union had been a pretty loose alliance, so people felt relatively free about saying they just didn’t feel like going along with a particular policy. New York is a great example. New York City had one of the major ports in the United States, and the import taxes were very profitable for the state, which didn’t have to raise other kinds of taxes. But the rest of the states wanted to pass a federal import tax, which would have forced New York to give up its own. That was anathema for New York’s political leaders, who thought about how they could block such a tax every time they got out of bed. But, under the Articles of Confederation, there was no way for Congress to impose sanctions on New York for holding out, even if all the other states wanted to go forward. The result was stalemate.

Read the rest here.

 

Still More on John Kelly’s Civil War Comments

Compromise

In addition to my analysis of Kelly’s remarks and Carole Emberton’s Washington Post op-ed, I also want to call your attention to Jennifer Schuessler’s New York Times piece on this controversy.  It is a nice overview of the various compromises that took place from the drafting of the Constitution in 1787 to the outbreak of Civil War in 1861.  She quotes David Blight, Manisha Sinha, and David Waldstreicher.

Read it here.

The Real History of the Second Amendment

CornellIn an earlier post I recommended Fordham University historian Saul Cornell‘s book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.  It is the best historical account of the Second Amendment that I have read.  I was again reminded of why I admire Cornell’s book when I read his recent piece at The Baffler titled “Gun Anarchy and the Unfree State.”

Here is a taste:

To begin reckoning with this challenge, it’s worth pausing to consider the entire wording of the Second Amendment. Contrary to what the NRA would have us believe, the amendment does not even mention guns, but instead proclaims, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Thus, the Second Amendment, in contrast to the First Amendment, contains a preamble; an introductory clause affirming the necessity of a well-regulated militia. This arcane Latinate construction so dear to the Founding generation was an ablative absolute. Translated into modern parlance, the amendment would read something like this: “Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

Also, note what the aim of a citizen’s militia is: achieving the security of a free state. In other words, the Second Amendment not only ties the right to keep and bear arms to a particular means, but it states a clear purpose. What, then, is entailed in promoting the security of said “free state”? To begin with, we should clearly stipulate that the individual right of self defense—the one closest to the heart of modern Americans—denoted something very different from a free state’s maintenance. Americans esteemed this right, but did not have much to worry about when it came to safeguarding it. Indeed, the right was such a fixture of Anglo-American law that John Adams used it as the basis for his defense of the British troops charged with murdering civilians in the Boston Massacre. An American jury empaneled to hear that case found Adams’s argument entirely persuasive and exonerated six of the eight soldiers.

So a free state’s security was something other than procuring the self-defense of a society’s individual members. It was, rather, a collective enterprise: In the eighteenth century, the security of a free state was accomplished by a well-regulated militia—a local institution, composed of citizen soldiers. And as the wording of the amendment makes plain, that militia was subject to extensive regulation by government. Indeed, militia statutes were typically the longest laws on the books in early America. So the logical question that one ought to ask—one that seldom gets raised in the contentious modern debate over the role of guns in contemporary American society—is this: How do we maintain and promote the security of a free state when we no longer live in small rural communities and depend on well-regulated militias? How can one enjoy liberty in a society awash in guns?

This is, at bottom, a historical question—one that’s largely anathema to the NRA and other advocates of expansive gun rights. Many gun-rights advocates fail to understand the actual historical background of the Second Amendment because our debates over gun ownership typically revolve instead around a potent set of myths that cloud our historical understanding. Chief among these myths is the iconic image of the “good guy with a gun,” eagerly manufactured and marketed by American popular culture. From the dime novels of the nineteenth century to Hollywood westerns and more recent figures such as Jason Bourne, a powerful entertainment folklore has infused the gun-rights narrative.  

Read the entire piece here.

The Bible and the Constitution

reading-the-bible-with-the-founding-fathersIn a recent article at The Hill, American University political scientist Daniel Dreisbach reminds us that the Bible was important in the framing of the United States Constitution. (See his visit to the Author’s Corner here).  I appreciate Dreisbach’s work.  Many friends who take a more secular approach to the ideological origins of the Constitution have asked me what I think about Dreisbach’s views on the Bible and the founding.  Frankly, I think his book Reading the Bible with the Founding Fathers is excellent for what it does, namely showing that the Bible should not be neglected as a source of inspiration and ideas for many of the founding fathers.   In his interview with me about the book, Dreisbach wrote:

I contend that the Bible had a significant, yet often overlooked, influence on the political thought and discourse of the American founding and, therefore, it should be studied alongside other influences on the founding generation, such as British constitutionalism, Enlightenment liberalism, and classical and civic republicanism.  The book examines the extensive and diverse uses of the Bible in the political discourse of the founding era, combining careful historical research, elementary political theory, and biblical interpretation.

I imagine that Dreisbach has no problem with the idea that the Bible was one of many sources that informed the thinking of the founding fathers.

Here is a taste of Dreisbach’s piece at The Hill: “Liberty under law was always rooted in biblical principles.”

Legal commentators have pointed to additional examples of the Bible’s influence on specific constitutional provisions, including provisions on cruel and unusual punishment, the number of witnesses required in cases of treason, affirmation in the alternative to an oath, and corruption of blood.

Although the delegates to the Constitutional Convention in 1787 readily conceded that the document they wrote was imperfect, there was a consensus that it was the best that could be framed under the circumstances. And some, such as Benjamin Rush, “believed the hand of God was employed in this work,” just as surely as “God had divided the Red Sea to give a passage to the children of Israel.”

Even the skeptic Benjamin Franklin, while disclaiming that the Convention’s work was “divinely inspired,” remarked that he could not conceive such a momentous achievement as framing “the new federal constitution” without it “being in some degree influenced, guided, and governed by that omnipotent, omnipresent and beneficent Ruler.”

Commentators today may disagree that the Constitution was a product of Divine Providence or that it contains elements informed by Christianity, but the Bible was undisputedly among the intellectual sources that influenced the founders. Acknowledging the Bible’s often-neglected contributions to the founding project enriches our understanding of the nation’s great constitutional experiment in republican self-government and liberty under law.

As I argued in Was America Founded as a Christian Nation?: A Historical Introduction, the Bible was important to the founding generation.  I was particularly interested in how the Bible was used, but Driesbach’s work goes much deeper and reveals just how much the eighteenth-century was saturated with biblical ideas.  Of course how that history is used today raises a very different set of issues and questions.  This is part of the reason I wrote a followup to Was America Founded as a Christian Nation? titled Why Study History?

Alabama Republicans May Have Just Sent a Christian Nationalist to the Senate

Judge_Roy_MooreIf Judge Roy Moore is able to defeat his Democratic opponent in December, his ticket to the United States Senate will be punched.  Last night Moore defeated Luther Strange in an Alabama special election to fill Jeff Sessions’s old Senate seat.  The election has been getting a lot of attention because Donald Trump backed Strange, the GOP “establishment” backed Strange, and most of Trump’s supporters in Alabama supported Moore.  But let’s also remember that Moore believes that the United States was founded as, and continues to be, a Christian nation.

Moore made national headlines in 2001 when he was removed from his position as the Chief Justice of the Alabama Supreme Court because he refused to take down a monument of the Ten Commandments.  Moore was elected to Alabama’s highest court again in 2013, but was suspended in 2016 when he told probate judges under his authority to continue to enforce the state ban on same-sex marriage.  He resigned in April 2017 and soon after started his Senate campaign.

In August 2017, VOX reporter Jeff Stein interviewed Moore about his God and country beliefs.  Here is a taste of that interview:

Jeff Stein:

…Where should the limits be between religion and public life if you could?

Roy Moore:

You have to understand what religion is — the duties you owe to the creator.

And then it starts there first. You have to understand it was the duty of the government under the First Amendment, according to Joseph Story who was there for 37 years and wrote the stories on the Constitution.

It was the duty to foster religion and foster Christianity. He said at the time of the adoption of the Constitution that “it was the general, if not the universal, sentiment in America that Christianity ought to be favored by the State so far as was not incompatible with the private rights of conscience.”

Read the entire interview and Stein’s accompanying article here.

Michael Gerson on Dianne Feinstein’s “ignorance of religion itself”

Dianne+Feinstein+Senate+Judiciary+Committee+zsjEg92T4Itl

Washington Post commentator Michael Gerson has joined the list of Dianne Feinstein critics.  In case you are not up to speed, Feinstein appears to have shown anti-Catholic bias in her recent questioning of federal court nominee Amy Coney Barrett.  She may have also violated Article VI of the U.S. Constitution.

We have posted on this case here and here and here and here.

Gerson writes:

Where to start? How about with the fact that Feinstein’s line of questioning was itself a violation of the Constitution? Here is constitutional scholar and Princeton University President Christopher Eisgruber: “By prohibiting religious tests, the Constitution makes it impermissible to deny any person a national, state or local office on the basis of their religious convictions or lack thereof. Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs. I believe, more specifically, that the questions directed to professor Barrett about her faith were not consistent with the principle set forth in the Constitution’s ‘no religious test’ clause.”

How about Feinstein’s indifference to the sordid history of anti-Catholic bias? “Feinstein leapt past 20th-century suspicions of Catholic allegiances,” legal scholar John Inazu told me, “to 19th-century bigotry toward Catholic identity: Who you are as a Catholic is ‘of concern.’ ”

How about Feinstein’s ignorance of religion itself? In defending her animus, she called particular attention to Barrett’s statement that Christians should be “building the kingdom of God.” That would be the kingdom that Jesus insisted is “not of this world,” much to the confusion of 1st-century politicians. It is a description of transformed hearts, not a prescription for theocracy.

Read the entire piece here.

Noah Feldman Calls Diane Feinstein’s Anti-Catholic Questions an “Outrage”

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Noah Feldman, Harvard law professor and Director of the Julius-Rabinowitz Program on Jewish and Israeli Law, is the latest to criticize Dianne Feinstein for her questioning of Trump appellate court nominee Amy Coney Barrett.  He joins Princeton president Christopher Eisgruber and Notre Dame president John Jenkins.

Here is a taste of Feldman’s piece at Bloomberg:

Senator Dianne Feinstein owes a public apology to judicial nominee Amy Coney Barrett — and an explanation to all Americans who condemn religious bias. During Barrett’s confirmation hearings last week before the Senate Judiciary Committee, Feinstein, the California Democrat, insinuated an anti-Catholic stereotype that goes back at least 150 years in the U.S. — that Catholics are unable to separate church and state because they place their religious allegiances before their oath to the Constitution.

If a Catholic senator had asked a Jewish nominee whether she would put Israel before the U.S., or if a white senator had asked a black nominee if she could be an objective judge given her background, liberals would be screaming bloody murder. Feinstein’s line of questioning, which was taken up by other committee Democrats, is no less an expression of prejudice.

The thrust of Feinstein’s questioning was that, as a believing Catholic, Barrett couldn’t be trusted to apply the Constitution and laws objectively should she be confirmed to the 7th Circuit Court of Appeals. Feinstein repeatedly used a term with a long history as a dog whistle for anti-Catholicism in America: dogma. “The dogma lives loudly within you,” Feinstein asserted. She went on: “Dogma and law are two different things. I think whatever a religion is, it has its own dogma. The law is totally different.”

And the senator topped it off with a classic form of bias: the irrefutable imputation. “Why is it that so many of us on this side have this very uncomfortable feeling?” she asked.

The word “dogma” that Feinstein deployed is specifically connected to the Protestant critique of Catholicism, and to its particularly nasty American version. A dogma is an article of faith laid down by an authority. One of the classic Protestant polemical attacks on Catholicism was the allegation that Catholics are obligated to believe what the church teaches them is incontrovertibly true, whereas Protestants are called on to form their own beliefs on the basis of individual faith and judgment.

Read the entire piece here.

I think this is less a case of Feinstein trying to deliberately practice anti-Catholicism and more a sign that she is clueless on these matters.  This is sad coming from a Stanford history major.  Having said, Feinstein does not seem to have learned her lessons well at Stanford, as evidenced by this exchange with Eric Foner.