Welcome, From Susan Jacoby of Mother Jones
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Tue Nov 29, 2005 at 10:39:50 AM EST

author bio
Hello, I'm Susan Jacoby. My most recent book is Freethinkers: A History of American Secularism. I'm also one of the writers represented in Mother Jones' special issue on the religious right. My contribution to that issue, "The Great Debate of our Season," focuses on why the framers made a conscious decision to leave God out of the Constitution. But as I examined the history of the Constitution, I was quickly drawn to our more recent history and Associate Supreme Court Justice Antonin Scalia's dissent on the Ten Commandments cases:
* In his dissent in one of the recent Ten Commandments cases (McCreary County v. the American Civil Liberties Union of Kentucky), Scalia chastised the court majority for ordering the removal of conspicuous displays of the Ten Commandments from courthouses. Scalia made the absurd argument that the Constitution permits "disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists." The Constitution, of course, "permits" no such thing; its only references to religion are prohibitions--of religious tests for public office and of any laws "respecting an establishment of religion, or prohibiting the free exercise thereof."  How ironic it is that right-wing judges like Scalia call themselves "originalists" and then proceed to ignore what the Constitution actually says--or in this instance, does not say.
   

* The Constitution's prohibition (Article 6, Section 3) of any religious test for public office has been used by the religious Right to discourage any questioning of judicial nominees about whether there might be a conflict between their particular form of faith and their secular constitutional obligations. Chief Justice John Roberts, when asked what he would do if the teachings of the Roman Catholic Church conflicted with the law in a particular case, said he would recuse himself. Is that a satisfactory answer? Samuel Alito, a devout Roman Catholic whose confirmation hearings begin in January, has already ruled on abortion cases as a federal appeals court judge. Is it possible for someone who agrees with the anti-abortion teachings of a church that considers its leader infallible on matters of faith and morals--the only mainstream church, by the way, to make such a claim--to approach abortion cases with an open mind? It would of course be improper and unconstitutional to bar members of a particular church from federal judgeships. But it seems to me that it is not a religious test but a secular test to raise the question of whether somone who believes in papal infallibility can be expected to rule fairly on issues in which Vatican teachings contradict American law.



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Welcome, From Susan Jacoby of Mother Jones | 34 comments (34 topical, 0 hidden)
Warping language (none / 0)
...no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States

One of the greatest strengths of the radical right is the ability to take advantage of people's lack of understanding of the English language, and their lack of understanding of historical context.

In the context of their times, the Founders included the above because people did not believe in "the right religion" were locked out of power (or worse) in much of the world.  The founders wanted to prevent that kind of totalitarian government from taking hold here, so they made it explicit:

You can't require people to belong to any particular religion as a condition for holding office.

This is very different from the interpretation the religious right is pushing for:

You can't have any idea whether the candidate will place their religion above the law.

We must fight back on this.  The courts are supposed to be where laws are evaluated for their compliance with the US Constitution, not for their compliance with a judge's religious beliefs. the rule of law is what has made this country the most successful democracy in modern history.  The rule of religion could destroy it.

-----------------------------
Beware of the everyday brutality of the averted gaze.
by mataliandy on Tue Nov 29, 2005 at 12:09:15 PM EST

reply from Susan Jacoby (none / 0)
I hate to say this, but the religious Right is brilliant at distorting language. "No religious test" does not mean that officeholders are entitled to write their particular areligious views into law. It means that people may not be barred from office because they belong, or don't belong, to a particular religion. However, we do have a de facto prohibition against atheists running for office or being appointed judges. And by the way, I believe that every  nominee should be asked whether he  agrees with Antonin Scalia's astonishing contention (in one of the Ten Commandments cases, McCreary County v. ACLU of Kentucky) that the Constitution permits disregard of atheists, polytheists, and believers in an unconcerned deity. Anyone who agrees with this is unfit to serve on a federal court.

by susan jacoby on Tue Nov 29, 2005 at 03:13:47 PM EST
[ Parent ]
How does Scalia (none / 0)
try to justify his comment about the Constitution permitting disregard of atheists, et al? Or does he bother to even give any argument explaining that (absurd) viewpoint? I thought Jefferson specifically included "the infidel" in his list of those protected as minorities by the Constitution (I assume infidel in those days was a word for nonbeliever/atheist).

On the other hand, I love Sandra Day O'Connor's comments in that same case:

Allowing the government to be a potential mouthpiece for competing religious ideas risks the sort of division" that the Constitution sought to avoid, O'Connor said. "Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?"

Why, indeed?

by Karen on Tue Nov 29, 2005 at 06:44:36 PM EST
[ Parent ]

I was surprised that so few... (none / 0)
Seemed to read the concern inherent in O'Connor's question - yes, she could have shouted this through a megaphone. But clear logic is supposed to - and certainly for a US Supreme Court Justice - render such approaches unecessary. I noticed the statement and wrote it up at the time for what I thought it was, but I'd rather have seen it as a front line story on the 7 O'Clock news, as :

"O'Connor scolds proponents of theocracy, questions desirability, track record of theocratic rule."

by Bruce Wilson on Tue Nov 29, 2005 at 06:57:06 PM EST
[ Parent ]

Exactly ... (none / 0)
that comment should have been shouted from the rooftops! While I didn't always agree with Justice O'Connor, she will certainly be sorely missed. Especially given the troubling views of her proposed replacement.

by Karen on Tue Nov 29, 2005 at 08:20:44 PM EST
[ Parent ]





I Hope I'm Not Breaking With The Intended Tone (none / 0)
of this site with my first comment, but...

I've long thought that what Scalia typifies is a belief in original invention--that is, his own.

by Paul Rosenberg on Tue Nov 29, 2005 at 12:42:01 PM EST

seems like a perfectly civil comment to me (none / 0)
To borrow from Richard Nixon, "Let me be perfectly clear" ... we are not opposed to the expression of opinion around here.

by Frederick Clarkson on Tue Nov 29, 2005 at 02:12:33 PM EST
[ Parent ]
I Just Want To Start Off On The Right...Er-Correct (none / 0)
Foot

Since I know I have a double helping of the smart-ass gene.

by Paul Rosenberg on Tue Nov 29, 2005 at 02:23:24 PM EST
[ Parent ]




Evangelicals and Freethinkers (none / 0)
Ms. Jacoby, In your article you talk about a coalition of evangelicals and freethinkers who worked together to guarantee the separation of church and state in Virginia.
Do you think there is hope that a similar coalition could regroup today or are evangelicals too smitten now by their access to the state to worry about the religious freedom of others?

by Carlos on Tue Nov 29, 2005 at 01:03:00 PM EST
I ventured into this area... (none / 0)
Over on Richard Reynold's discussion thread : but as strategic counsel, in other words, to recommend the spirited defense of religious liberty as a powerful strategy unto itself, a noble patriotic pursuit that is, quite legitmately and probably more so than the defense of any of our freedoms, the most fitting of occasions on which to wrap one's self and efforts in the flag.

* Send up the fireworks now, please. I'll sing the Star Spangled banner even if my voice cracks on the high notes. It's the spirit that counts. *

by Bruce Wilson on Tue Nov 29, 2005 at 06:47:57 PM EST
[ Parent ]



Emphasis on the framers (none / 0)
I loved your article in MoJo -- many in the Christian Right would like us to believe that the framers of the Constitution conceived this nation as a Christian one, despite the lack of references to God in the Constitution.  When those arguments come up, it's very important to be able to refute them, and you've given us some great tools for that.

However, do you think it's possible to concentrate too heavily on what the framers intended?  Our founding fathers, after all, lived in completely different times, and some (certainly not all!) of the motivations for their opposition to church-state mingling are not as relevant today.  One could make the argument that, in today's world, some of the framers who believed in church-state separation would have different views.

Do you think that it's possible to persuade people of the importance of separation using arguments based on the intent of the framers, or should these arguments only be used in response to (misguided) assertions that the framers had a Christian nation in mind?  

At a more fundamental level, a lot of people seem to want to view the framers as some kind of Christian superheroes who intended to create a Christian nation, and those beliefs seem to be very deep.  Have you had success in using rational arguments such as those you lay out in your article to convince those people that their heroes had something else in mind altogether?

by gurple on Tue Nov 29, 2005 at 01:15:09 PM EST

Original Intent Irresolvable (none / 0)
Gurple is touching on a problem that I think some in the Religious Right are consciously using to their advantage -- there's no way to definitively resolve the question of original intent.

All of the opinions about original intent are just that --opinions.  Some opinions are more informed and have more evidence than other opinions, but in the end, they are still opinions.  Public opininion follows whoevers opinion seems most authoritative to public opinion makers.

The only way to definitively resolve the issue of original intent is to ask the founding fathers themselves -- and that is impossible, they're dead.

That is one of the reasons why philosophers like Paul Ricouer spoke about the "autonomy of the text."  Ultimately, the definitive interpretation of any text like the Constitution whose authors are dead cannot be determined by appealing to the intentions of the authors.  Understanding the text of any such document depends entirely on the language of the text itself as interpreted by its readers.


by Mainstream Baptist on Tue Nov 29, 2005 at 03:19:27 PM EST
[ Parent ]

Original intentions (none / 0)
I certainly agree that one cannot interpret the Constitution by appealing to the original intent of the authors. But looking only at the text is not adequate either. For example, Antonin Scalia says he believes that the Constitution can only mean exactly what it meant in 1787 (except, of course, with regard to the Constitution's omission of God). Therefore, the death penalty is constitutional in his universe because the death penalty was not considered "cruel and unusual" 200 years ago. But of course, the death penalty was considered 'usual" punishment for horse thieving in the 18th century (and beyond). Are we therefor to apply capital punishment to car thieves today? Surely the framers, who believed in progress (mistakenly or not) would not have been surprised by changes over time in definitions of "cruel and unusual."  

by susan jacoby on Tue Nov 29, 2005 at 04:24:26 PM EST
[ Parent ]
The role of the interpreter (none / 0)
The "autonomy of the text" does not limit interpretation, instead it acknowledges the role of the interpreter in discovering meaning.

Modern interpreters would understand "cruel and unusual" differently than 18th century interpreters.  That is a good example of how "original intent" is not determinative.

by Mainstream Baptist on Tue Nov 29, 2005 at 04:57:40 PM EST
[ Parent ]

I'm not so deeply steeped in this subject...... (none / 0)
( though I need to work on that ! ) but isn't there specific language in the Constitution acknowledging that interpretations of the document will - or at least may - change over time ?

It's not as if the framers were unaware of cultural and historical change, and it seems to me that they would have been seriously remiss in not addressing that : after all, they were all too conscious of the ravages of war which had followed the split of the church and which, in turn, were born out of - at least in part - arguments over, well, textual interpretation.

Is so little known in this area ?

by Bruce Wilson on Tue Nov 29, 2005 at 07:10:33 PM EST
[ Parent ]






Carlos -- coalition of evangelicals and freethinke (none / 0)
I actually think there is a real possibility of a coalition that includes freethinkers and people of liberal religion (evangelical Christians, many kinds of Jews, liberal Roman Catholics, etc.). One of the things the religious Right has done brilliantly is to hijack the word "religion" as well as to demonize the word "secularism." Freethinkers need to join with people of faith who believe in the separation of church and state--and there are huge numbers of these people in America.  

by susan jacoby on Tue Nov 29, 2005 at 03:01:56 PM EST
One such organization (none / 0)
Americans United for Separation of Church and State:

http://www.au.org/

They're working hard to build a coalition of faithful and freethinkers.

-----------------------------
Beware of the everyday brutality of the averted gaze.
by mataliandy on Tue Nov 29, 2005 at 03:07:11 PM EST
[ Parent ]


Re: Coalition (none / 0)
Thanks for the response. I am happy you see a possibility for a stronger coalition between freethinkers and people of faith. I can understand why you only mentioned people of liberal religion, but it is interesting to note that in the not so distant past major conservative denominations like the Southern Baptist Convention were strong defenders of chuch and state separation through their support of organizations like the Baptist Joint Committee for Religious Liberty.

by Carlos on Tue Nov 29, 2005 at 03:22:03 PM EST
[ Parent ]
additional strong church state separationists (none / 0)
are Seventh Day Adventists and Christian Scientists.

by Frederick Clarkson on Tue Nov 29, 2005 at 04:14:36 PM EST
[ Parent ]

Southern Baptist Convention (none / 0)
To say that the Southern Baptist Convention was long a staunch defender of the separation of church and state is an error. Conservative Protestants like the southern Baptists were defenders of the separation of church and state only when they feared Roman Catholic power. The reason why southern Baptists were disproportionately represented when John Kennedy made his famous speech to the Houston ministers in 1960 was because conservative southern Protestants were strongly anti-Catholic at the time and greatly feared Vatican interference in American affairs. Conservative Protestant demominations are now the most active groups in attempts to breach the wall between separation of church and state. There is no place in the world of the Southern Baptist convention for liberal Baptists like Jimmy Carter and Bill Moyers.  

by susan jacoby on Tue Nov 29, 2005 at 04:18:29 PM EST
[ Parent ]
Not quite right (none / 0)
Susan's comments that "Southern Baptists were defenders of the separation of church and state only when they feared Roman Catholic power."
is not quite right.

Anti-Catholic prejudice no more explains away the historical support for church/state separation among Southern Baptists than anti-Catholic prejudice explains secularist and femininist support for choice in reproductive health.  Support for liberty of conscience for all persons -- even for atheists -- dates back to the seventeenth century among Baptists.

Many who are still associated with the Southern Baptist convention reject the current accommodationist stance of national SBC leadership -- particularly in Texas and Virginia.  Many strict church-state separationists have left the SBC, but not all of them.

by Mainstream Baptist on Tue Nov 29, 2005 at 05:16:00 PM EST
[ Parent ]

Southern Baptists (none / 0)
There is not the slightest evidence during the past thirty years that there is anything left of the old-fashioned evangelical support for church-state separation in the Southern Baptist Convention. The Convention has been one of the strongest supporters of faith-based initiatives funded with government money and is strongly in favor of tax vouchers for religious schools. To underscore my point about the historic relationship between anti-Catholicism and conservative Baptist support for church-state separation, the southern Baptists were against all government support for religious schools when the only significant religious school system was run by the Roman Catholic Church. The rapproachment between the most conservative elements in the Roman Catholic hierarchy and the most conservative elements in southern Protestantism is one of the great threats to separation of church and state today. A southern Baptist who supports separation of church and state is as rare a figure at a meeting of the Southern Baptist Convention as an openly gay cardinal is at a conclave to elect a pope.  

by susan jacoby on Tue Nov 29, 2005 at 05:38:41 PM EST
[ Parent ]
True since 1979 for the national SBC organization (none / 0)
The fundamentalist takeover of the national SBC organization began in 1979.  The shift you describe has happened since that time.

National SBC leadership on this issue is monolithic.  The rank and file are mostly sheep following their leader.  Those few who attend national SBC meetings and support church/state separation remain silent.

State SBC conventions are independent and autonomous from the national SBC convention.  The Texas and the Virginia Conventions are controlled by moderate and Mainstream Baptists.  They continue to strongly support church/state separation.

Here's a link to the statement on Religious Liberty on the Baptist General Convention of Texas website.

by Mainstream Baptist on Tue Nov 29, 2005 at 06:28:16 PM EST
[ Parent ]

Baptists, again (none / 0)
You're right about local differences, but I can't help but wonder why southern Baptists who dissent from the policies of the Southern Baptist Convention don't bite the bullet and call themselves something else. How about "Libertarian Baptists" or "Free Baptists." The fact is, it's the powerful Convention that wields political clout, and is arguably the most important national voice of the Christian Right. Especially since the core of the Baptist philosophy since the beginning has been non-hierarchical religion, and a personal relationship with God, I don't see why Baptists of your views would want to be identified in any way with Richard Land's bullies.

by susan jacoby on Wed Nov 30, 2005 at 08:10:51 AM EST
[ Parent ]
Ignorance and Inertia (none / 0)
Most Southern Baptists sitting in their pews know little about the fundamentalist takeover of the SBC.

Very few know who Richard Land is.

In their minds, all the national convention does is handle logistics for missionaries.  They think their financial support for the SBC is supporting missionaries.

As long as they are happy with what goes on in their own local church, they couldn't care less about what goes on elsewhere.

I've been working full-time for seven years trying to inform Southern Baptists about the takeover and light a fire under them to do something about it.

I deal with their inertia and lethargy on a daily basis.

by Mainstream Baptist on Wed Nov 30, 2005 at 09:19:46 AM EST
[ Parent ]

Well, I believe that will change.... (none / 0)
Of course, belief may not be enough, but I'd say this site - and your contributions to it - amount to works, or at least the beginning of works.

by Bruce Wilson on Wed Nov 30, 2005 at 08:00:18 PM EST
[ Parent ]









On relevance of framers to church-state today (none / 0)
This is an excellent point from "gurgle." The reason it's important to set the record straight about the founders is that so much of the Christian Right's pitch is based on complete historical falsehood. We'd be in a worse mess than we are today if the founders had indeed intended to found a Christian nation and had actually written God, or Jesus, into the Constitution. Of course, there are more powerful arguments for separation of church and state than the fact that the founders established our government on that basis. Look around at Islamic states, and the combination of religious and tribal warfare in the Balkans during the last 15 years, at the trouble the state of Israel is in because the ultra-Orthodox minority has power over family law. When has union of church and state meant anything but bad things for any country? That the founders saw that in the 18th century, and created the first secular government in the world, just shows they were ahead of their time on that issue. Too bad they weren't as far ahead of their time on slavery! (I too detest "founder worship.")

by susan jacoby on Tue Nov 29, 2005 at 03:07:47 PM EST

Noah Feldman's Book (none / 0)
I was wondering what anybody here thought about Noah  Feldman's new book, "Divided by God: America's Church-State Problem--and What We Should Do About It" and how his ideas could add to or subtract from Susan Jacoby's understanding of our church-state dilemma.

by Carlos on Tue Nov 29, 2005 at 04:00:44 PM EST
Noah Feldman's book (none / 0)
Feldman's basic argument is that while there should be no public tax support for religion, there should be more religion in the public square. Well, I'm with him on the first point. But not on the second--not, at least, in those parts of the public square financed with my tax money. That means no teaching of so-called intelligent design in public school science classes, no prayers for the home team before public high school football games (something that ought to offend religious people too, as praying for your team to win somehow strikes a wrong note), and yes, no Christmas carols in public schools.  When I was growing up, no one ever gave a thought to how the minority of Jewish kids felt when the class struck up "Away in the Manger." And since Christmas carols assault us in every public space and on every radio station, 24 hours a day, it hardly seems necessary to have them in school as well.

Also, isn't it funny how religion in public institutions tends to lead to pressure for more public money for religion? Americans, as has often been noted, are the most religious people in the world. Why does religion need more space than it already has?

by susan jacoby on Tue Nov 29, 2005 at 06:17:10 PM EST
[ Parent ]

I was interested to discover.... (none / 0)
That as of around '76 ( 1776 that is ) less then one in 7 attended church in New England, and that south of New England less than 1 in 15 were churchgoers, and that prior to '76 church attendance had been decliining for about a decade and a half despite revival periods.

Now, Americans were largely Christian then, surely - but what sort of Christians were they, or what sort of Christianity did they practice ?  Well - it would seem - a more private sort than today, or maybe simply rooted more in community apart from church and organized expressions of faith.
 

by Bruce Wilson on Tue Nov 29, 2005 at 07:25:09 PM EST
[ Parent ]

reply from Susan Jacoby (none / 0)
Christianity was more private in the 18th century, though that was partly due to the sheer size of America. In the South, in particular, regular churchgoing was geographically impossible. The success of the evangelical movement during the Second Great Awakening was, in large measure, due to the fact that evangelical preachers were mobile, and brought their religion to the people. Also, the early evangelicals were the antithesis of today's megachurch congregations. The basic tenet of evangelical Christianity was that religion is a personal matter between an individual and his or her God.  This is why 18th-century evangelicals were strong supporters of the separation of church and state; they regarded entanglement between religion and government as an insult to God, not government. And they joined with freethinkers--who were much more concerned about religious interference with government--to separate church and state legally.

by susan jacoby on Wed Nov 30, 2005 at 08:06:26 AM EST
[ Parent ]
We have a bit of that (none / 0)
type of evangelical anarchy today on the web. People are discussing faith as never before, independent of hierarchies and social systems. God willing the bloggers will undercut and emasculate the big media evangelists one of these days.

by moses freeman on Wed Nov 30, 2005 at 08:16:34 AM EST
[ Parent ]

Thank you for that.... (none / 0)
I hadn't considered the geographic factor.

This part of your reply is striking to me - for the issues of religious authority and free will, and the historical break elements of American Christianity seem to be undergoing as they seem to drift even towards a repudiation of the reformation implicit in the interposing of clergy and doctrine between this traditional unmediated individual-God relationship you refer to.  

"The basic tenet of evangelical Christianity was that religion is a personal matter between an individual and his or her God.  This is why 18th-century evangelicals were strong supporters of the separation of church and state; they regarded entanglement between religion and government as an insult to God, not government."

by Bruce Wilson on Wed Nov 30, 2005 at 12:46:53 PM EST
[ Parent ]






Thanks for your work in this area (none / 0)
Amidst the dialogue on various technical points, I don't want to leave an impression that is critical of your work.

I deeply appreciate the research you have done and what you have written.  

I'll do all I can to assist you and others in rebuilding an evangelical/secularist coalition that supports church/state separation.

by Mainstream Baptist on Tue Nov 29, 2005 at 06:40:17 PM EST


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COinMS (0 comments)
Exposing The Dark Side Of Tupelo MS
It’s really ironic that the so-called Christian Religious Right (ie., AFA) are seemingly dedicated to the unnecessary bashing of Paganism when Pagans made such a well-documented historical contribution toward the rise of Christianity. For......
AlBratt (0 comments)

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