posted
A lot depends on which Reformers one is talking about. Some of the Reformers were nearly as authoritarian as the power structure they were opposing--they just disagreed with it on some issues. At the opposite end of the spectrum you had the "Radical Reformers" such as the Anabaptists, who sometimes ventured all the way out into violent anarchist territory. (Thus the Martin Luther document that urged rulers to "smite, stab, and slay the murdering hordes of peasants.")
But between their own extremists and the authoritarians who were suppressing them, the Radical Reformers didn't make much headway in their view of things until they were "joined" by more secular philosophers--not that those philosophers wanted much to do with them either.
Posts: 1114 | Registered: Mar 2004
| IP: Logged |
posted
I did a little looking. Here's some quotes from Martin Luther.
Echoing St. Paul's Letter to the Romans, chapter 13 and St. Augustine in The City of God:
quote:Even if those in authority are evil or without faith, nevertheless the authority and its power is good and from God.... Therefore, where there is power and where it flourishes, there it is and there it remains because God has ordained it.
quote:God would prefer to suffer the government to exist no matter how evil, rather than allow the rabble to riot, no matter how justified they are in doing so.
quote:A prince should remain a prince no matter how tyrannical he may be.
And, as Mabus has already pointed out:
quote:Therefore, let everyone who can, smite, slay, and stab, secretly or openly, remembering that nothing can be more poisonous, hurtful, or devilish than a rebel. It is just as when one must kill a mad dog; if you do not strike him he will stike you, and a whole land with you.
You do have a point Morbo, but I think Luther's own writing and the authoritarian conduct of Lutheran and Calvinist societies (towards authorities that they wanted to obey) suggests that my description has some validity.
edit: And my basic point was that individualism without humanism doesn't lead to the progressivism and positivism nor the conception of the human being and individual rights as important that characterized the Enlightenment...err ism.
quote: Historical aside: The New England, Pennsylvania, and Maryland were settled for largely religious reasons by Puritans, Quakers, and Catholics. Virginia (the first one settled) and Georgia were clearly commercial enterprises, although Georgia also had some penal objectives as well. The rest of the colonies had a less clear initial impetus.
The Puritans weren't even close to a majority. Principally religious settlers may not have been a majority either.
I was mearly stateing that they were among the very first tini collonys mantained.
Thanks you for the (rather long) post Mr.S I think you had a lot of good points in it.
Posts: 264 | Registered: Apr 2004
| IP: Logged |
posted
It's the principles we internalize and live by that we should be concerned about. References to founding documents/ideals are a powerful thing, but to what end? Surely they matter most in the context of an ongoing debate about our nation's direction and purpose, not just as bugs stuck in amber.
Is the concern over this really just boiling down to a fight over whether America = Christian nation? What does it mean if we call it that? Would that provide a rallying point that isn't already inherent in our laws and government (regardless of first sources)? And would it provide an excuse for exclusions (stop teaching diversity) or for equal coverage (make sure Chanukkah, Kwanzaa and Christmas decorations are either all allowed or none are allowed in public places)?
I'm just not sure why we Americans should care about this issue.
Posts: 22497 | Registered: Sep 2000
| IP: Logged |
posted
Jeez, I wasn't fishing for praise, honest. It's just that I write out the long posts (that one probably took me at least 15 minutes) and then I often have no idea if it's worth the effort or if people just look at how long they are and don't read them. It's nice to hear from time to time that people did read a post and are thinking about.
That's one of the weird things for me. I look forward to long posts full of facts. I like it when people provide a big thing for me to read. It's the short posts where people don't seem to make a stand or provide definitions or support for what they're saying that I'm not all that happy with.
When I write a post here, I feel sort of like I've got to get what I'm trying to say under the wire. When I stop, I've always always have more to say. Like, in this case, I was very disappointed by how poorly and shallowly I went into the role of epistemoloy in the revolution of thought in the Enlightenment, especially in light of Geoff's new thread about values. I think it's cool how things go together, how systems work (I had a number theory thread pretty recently that just didn't get off the ground), so when I talk about stuff, I try to gget into the whole system of the thing. I get jazzed about it and sometimes it's hard for me to see how other people don't get what I think is so cool about.
Posts: 10177 | Registered: Apr 2001
| IP: Logged |
posted
Oh, and Jay (and likeminded people), I'd be interested in what you have to say in response to my post.
Posts: 10177 | Registered: Apr 2001
| IP: Logged |
posted
I just wanted to chime in in support of Squickster. He has laid out rather neatly the real philosophical underpinnings of American political, legal and social institutions as set up by the Founding Fathers. Additionally, he has conceded that our moral system (such as it is, ahem) owes much to Christianity. Very well thought-out analysis, Squicky.
Posts: 5663 | Registered: Jun 2000
| IP: Logged |
posted
I like to do that too, Squicky....the trouble for me usually is remembering everything I want to say, and where I found it. Memory is a funny thing, and mine is particularly unreliable, especially when it comes to When and Where I read something.
The result is most often that I end up making a much shorter post that points out a single apparent flaw in someone's argument, having forgotten, or not been able to justify, the rest of what I wanted to say.
Addit: Also, posts look longer in the message box than they do spread out all over the page.
posted
Well, I like what you said on the Enlightenment. I don’t for a second think that our nation wasn’t founded on Christian principles. And to claim that Bush lies when he says so, just shows extreme bias and hatred. To narrow it down drastically the reformation and enlightenment were just how we got away from the state run Catholic Church. I really like what constitutional scholar and First Amendment specialist, Daniel Dreisbach, writes: The U. S. Constitution’s lack of a Christian designation had little to do with a radical secular agenda. Indeed, it had little to do with religion at all. The Constitution was silent on the subject of God and religion because there was a consensus that, despite the framer’s personal beliefs, religion was a matter best left to the individual citizens and their respective state governments (and most states in the founding era retained some form of religious establishment). The Constitution, in short, can be fairly characterized as “godless” or secular only insofar as it deferred to the states on all matters regarding religion and devotion to God.
I truly believe that if the founding fathers would have known that “separation of church and state” would be abused and falsely accepted as in the constitution, they would have put something in to prevent the atheist take over of our government. Here they were trying to make it so that each state could decide. That way Utah could be a Mormon state, South Carolina a Baptist state, California could be the Humanist state, and everyone else whatever their citizens decided or changed to with time. But of course this hasn’t been the case and the current system is very biased against religion and very pro atheist and humanism. Both of which should be considered types of religions. They might not believe in a God, but it is still a belief and that in itself makes it a religion.
Posts: 2845 | Registered: Oct 2003
| IP: Logged |
posted
Jay, that doesn't make any sense, as I read it. Lots of things have beliefs, but aren't religions. Atheism is a lack of belief...how can that be a religion itself?
The framers were fairly clear that most of them believed in a God, but they didn't merely neglect to mention religion...they went out of the way to make sure that there would be no formal religion of the nation. That way everyone would be free to worship as they wish, as long as it didn't bear any sign of formal sanction from the government.
Posts: 15082 | Registered: Jul 2001
| IP: Logged |
posted
The founding fathers did not put anything in the Constitution to limit state involvement with religion.
The people who drafted, approved, and ratified the 14th Amendment did that. Even back then, there was serious discussion that the P&I clause of the 14th would apply the entire Bill of Rights to the states. Judicial decisions precluded that possibility, so it was done with the due process clause.
Edit: Really, the only limitations put on states in the original Constitution plus Bill of Rights was to keep them from interfering with Federal powers or discriminating against citizens of other states. There's also a guarantee that each state will have a Republican form of government. The rest was pretty much left up to them.
posted
Jay, Please don't take offense, I was just trying to be funny. Our polical views are an such opposite ends of the spectrum that I would be flattered if you called me a "Commie Pinko".
Posts: 12591 | Registered: Jan 2000
| IP: Logged |
quote:Really, the only limitations put on states in the original Constitution plus Bill of Rights was to keep them from interfering with Federal powers or discriminating against citizens of other states.
Actually, that matter was heavily contested prior to the 14th amendment with some legal scholars arguing that the Bill of Rights regulated state governments and some supporting your view. Contension on this issue was one of reasons for the Civil War. It is rather unfair to make statements on the constitution as if they are well established, when in fact they are highly controversial.
Its amazing how lawyers can get away with this when scientist are called on the table for it even an overwhelming consensus exists.
[ February 15, 2005, 11:14 PM: Message edited by: The Rabbit ]
Posts: 12591 | Registered: Jan 2000
| IP: Logged |
quote:Here they were trying to make it so that each state could decide. That way Utah could be a Mormon state, South Carolina a Baptist state, California could be the Humanist state, and everyone else whatever their citizens decided or changed to with time.
This is just scarey.
When you say Utah could be a Mormon State, then anyone not Mormon would be what--second class citizen? slave? pogrom? exiled? If that were the case there would be no Mormons because they were founded in a Protestant state, and were forced to move west by violent people who claimed to be protecting their own religion.
Why is it better to have individual state-churches than one big state-church? Do you think the nation could last if South Carolina was Southern Baptist and North Carolina was Jewish?
What we have is a nation where INDIVIDUALS decide on what they believe, and not have it forced upon them by the state or the federal government.
Posts: 11895 | Registered: Apr 2002
| IP: Logged |
quote:Actually, that matter was heavily contested prior to the 14th amendment with some legal scholars arguing that the Bill of Rights regulated state governments and some supporting your view. Contension on this issue was one of reasons for the Civil War. It is rather unfair to make statements on the constitution as if they are well established, when in fact they are highly controversial.
It's amazing how someone would declare a topic to be controversial and post an opinion without any evidence. Link?
quote:The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Many people today find this to be an incredible fact. The fact is, prior to incorporation, discussed below, the Bill of Rights did not apply to the states. This is, however, quite in line with what the Constitution was originally designed to be: a framework for the federal government. In other words, though the federal government was banned from violating the freedom of the press, states were free to regulate the press. For the most part, this was not an issue, because the state constitutions all had bills of rights, and many of the rights protected by the states mirrored those in the federal Bill, and many went further than the federal Bill.
This point is best illustrated by one of the amendments that Madison proposed in his initial speech:
Fifthly, That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:
No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.
This clause, seemingly innocuous to us today, was rejected by the Senate in its final draft of the Bill, and the concept that any part of the Bill of Rights would apply to the states was still 100 years away. Several cases that came before the Supreme Court in the 19th century attempted to have the Court establish that the Bill should apply to the states, to no avail:
In Barron v. Baltimore (32 U.S. 243 [1833]), the Court ruled that the Takings Clause of the 5th Amendment did not apply to the City of Baltimore and the State of Maryland by extension. Succinctly, the Court wrote: "...the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states."
In Pervear v. Massachusetts (72 U.S. 475 [1866]), the Court was asked to rule on fines imposed upon a liquor dealer by the state. Pervear was licensed by the United States under the current internal revenue code to keep and sell liquor. He was fined and sentenced to three months of hard labor for not maintaining a state license for his liquor business. Part to the defense attempted to invoke the 8th Amendment's Excessive Fines and Cruel and Unusual Punishment clauses. The Court, again quite succinctly, said: "Of this proposition it is enough to say that the article of the Constitution relied upon in support of it does not apply to State but to National legislation."
Note what this says:
1. They considered and rejected a specific clause that would apply to the states.
2. In two cases, the Court simply rejected the idea out of hand.
quote:The legislative history of the Bill of Rights confirms that its framers and ratifiers did so rely. Various state conventions endorsed amendments limiting the new central government, some phrased in general language, others using words explicitly targeted at the central government-"Congress," the "United States," and so on. [30] Yet no one ever suggested that the general language, simply because of its juxtaposition with other clauses worded differently, would limit state governments as well. When Madison distilled these endorsements into his own list of proposed limitations, he suggested that most of these limitations be inserted in Article I, Section 9. Following the rule of construction implicit in that Article, he used general language and explicit references to Congress indiscriminately. [31] The proposed location of these clauses made it clear that, however worded, they applied only against the federal government. But the first Congress eventually decided to put these amendments at the end of the original Constitution. There is no evidence that this change was anything but aesthetic. Nevertheless, the change had the unhappy effect of blurring the implicit rule of construction at work, creating an interpretive trap for the unwary, which Marshall gracefully avoided by keeping his eyes on Section 9.
Unlike state ratifying conventions, Madison believed that additional restrictions in favor of liberty should also be placed on state governments and said [Page 1201] so on the floor of the House; [32] but even more important for our purposes, he proposed a constitutional amendment that used explicit language to communicate this idea-the very same explicit language that John Marshall seemed to be asking for in Barron: "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." [33] Moments earlier, Madison had proposed that the following general language be inserted into Section 9: " N or shall the full and equal rights of conscience be in any manner, or on any pretext, infringed ... and the freedom of the press ... shall be inviolable." [34] Had this general wording, taken alone or in juxtaposition with references to Congress in nearby clauses, been understood to apply to states, Madison's "No state shall" proposal would have been horribly repetitive, eligible for inclusion in the department of redundancy department. [35] What's more, in limiting its list of rights that "No State shall" abridge to press, conscience, and juries, Madison's wording clearly suggested under the principle of expressio unius that states could do other things prohibited by the general language of his proposed Section 9 insert. That general language, for example, prohibited both establishment of religion and infringement of conscience. Madison's "No State shall" list included the latter but pointedly omitted the former, thus implying that states would continue to be free to establish churches. But if so, we are again driven to the obvious rule of construction that the general language about establishment-like all general language-applied only to the federal government.
Still further corroboration comes from Madison's speeches on the House floor. Whereas he candidly admitted that his proto-Tenth Amendment "may be considered as superfluous" and "unnecessary," he described his "No State shall" proposal, in very different language: "[T]his [is] the most valuable amendment in the whole list" [36]-valuable because it added something obviously not implicit elsewhere in general language. Yet he also noted that even this most valuable amendment would bind states only to "those particular rights" [37] listed in the "No State shall" clause, once again making clear that merely general language would not limit states. [38] [Page 1202]
So far, so good for Marshall's opinion. But what makes Barron's holding compelling is neither its technical parsing of Article I, nor its use of lawyerly rules of construction, nor even the narrow legislative history of the Bill of Rights in Congress. Rather, it is what Marshall near the end of his opinion called the "universally understood" historical background of the Bill of Rights. [39] In state convention after state convention in 1787- 88, Anti-Federalists voiced loud concerns about a new, distant, aristocratic, central government that was being called into existence. [40] Many ultimately voted for the Constitution only because Federalists like Madison promised to consider a Bill of Rights soon after ratification. Madison of course kept his word, and knew that if he had not, states' rightists might have called a second constitutional convention to repudiate the basic structure of the Constitution he had labored so hard to build. [41] In short, without the good will of many moderate Anti-Federalists, prospects for the new Constitution looked bleak in 1787-88; and a Bill of Rights was the explicit price of that good will. But the Bill of Rights that Anti-Federalists sought was a Bill to limit the federal government-not just for the sake of individual liberty, but also to serve the cause of states' rights. [42] Madison and his fellow Federalists could hardly have placated their critics, or won over their skeptics, by sneaking massive new restrictions on states into apparently innocuous general language. Nor would Anti-Federalists in Congress or in states have knowingly allowed such a trojan horse though the gates. Madison did openly advocate a small number of additional restrictions on states-clearly labeled as such in a package wrapped in the words "No State shall"-but even that modest proposal was too much for a Senate jealously guarding states' rights.
Barron's holding thus kept faith with both the letter and the spirit of the original Bill of Rights. We should not be surprised, then, that the decision in Barron was unanimous, or that the Court repeatedly and unanimously reaffirmed [Page 1203] Barron's rule over the next thirty-three years in cases involving the First, Fourth, Fifth, Seventh, and Eighth Amendments. [43]
The most important point from this one is that the original construction of the bill of rights was as a change to the text of Article I, Section 9, which explicitly applies to Congress. The move to the end was aesthetic, not substantive.
Were there people with contrary opinions to that expressed in Barron's? Of course. But I said "the only limitations put on states in the original Constitution plus Bill of Rights was to keep them from interfering with Federal powers or discriminating against citizens of other states." This issue was never close, despite dicta in a few cases prior to 1933. There was no development of doctrine over several cases; it sprang forth whole cloth based on the intent of the drafters of the Bill of Rights.
The existence of debate on the subject does not mean the Constitution ever limited State actions. To say it did, you would need to point to an instance where it did so, outside the exceptions I included in the original statement. It should also be noted that the contrary position was argued largely from
And of course, in the context of the discussion at hand, it is ABSOLUTELY clear that the right in question did not apply to the states. The First's clear applicability only to Federal actions is the only scrap of justification available for applying the others to the states. Of course, remembering they were originally meant as revisions to Article I, Section 9 makes it clear why this justification must fail. "What's more, the framers' reference to "Congress" in the First Amendment had nothing to do with the Barron issue; rather, it was probably an expression of the strong states' rights view that, unlike the areas addressed by later amendments, the First encompassed domains where Congress lacked enumerated power under Article I, Section 8."
It's important to note, too, that the opposition focused mainly on a natural rights theory:
quote:As modern day legal positivists, we tend to view the Bill as creating or conferring legal rights. But the congressional resolution accompanying the Bill explicitly described some of its provisions as "declaratory." [63] To a nineteenth-century believer in natural rights, the Bill was not simply an enactment of We the People as the Sovereign Legislature bringing new legal rights into existence, but a declaratory judgment by We the People as the Sovereign High Court that certain natural or fundamental rights already existed. [64] Under this view, the [Page 1207]
First Amendment was not merely an interpretation of the positive law code of the original Constitution, declaring that Congress lacked Article I, Section 8 enumerated power to regulate religion or suppress speech; the Amendment was also a declaration that certain fundamental "rights" and "freedoms"-of assembly, petition, speech, press, and religious exercise-preexisted the Constitution. Why else, it might be asked, did the Amendment speak of "the" freedom of speech, implying a preexisting entitlement? [65] The Ninth and Tenth Amendments did more than make explicit rules of construction for interpreting the Constitution as a positive law code; they also declared that certain "rights" and "powers" were retained by "the people" and "reserved" to them in contradistinction to "states."
Technically speaking, perhaps the Bill did not bind state governments of its own legislative force. But under the strong declaratory view, the result was virtually the same. An honest state court would be bound-though the precise nature of the obligation, legal or moral, was somewhat fuzzy-to respect "declarations" of the High Court of We the People that certain "rights" and "freedoms" existed. [66] Unlike Rawle's expressio unius argument, demolished by Barron, this was an argument that states might be constrained even by the First Amendment-at least, by those clauses of the First Amendment that spoke of "rights" or "freedoms." (The establishment clause most distinctly did not.)
In other words, the Bill of Rights was seen by this faction as an expression of inherent rights that already exists, and those inherent rights are what would bind the states.
quote:Its amazing how lawyers can get away with this when scientist are called on the table for it even an overwhelming consensus exists.
Apparently I didn't get away with it, since you called me on the table for it. Of course, even though your claim that there was a debate wasn't wrong, your use of that to disprove my point was wrong. Just like a scientist arguing that the acceleration of gravity is 100 feet per second per second doesn't change the actual results of an experiment, a few academics arguing about the law doesn't change either what the framers intended nor what their actual effects were.
posted
I believe (although I don't have time to look it up this morning) that at the time of the ratification of the Constitution (and for quite a while after) some of the states had established state churches.
Posts: 40 | Registered: Aug 2002
| IP: Logged |
Printer-friendly view of this topic
![[Smile]](smile.gif)
![[Wink]](wink.gif)
