Madison Under Fire
One of the most interesting parts of my work with the ACLU has been the opportunity to meet a variety of people who hold widely differing views about the relationship between religion and the state.
As a matter of fact, I participated this week in a conference in Utah and Washington, D.C., hosted by Brigham Young University, Catholic University, and the International Academy for Freedom of Religion. (I highly recommend checking out the program for the Utah portion.)
The participants included not only U.S. federal judges and scholars, but visitors from more than fifty countries. The legal systems of these countries have a wide variety of approaches to regulating religion. The participants' own backgrounds included most of the world's major religions and many were non-believers.
The principal organizer of the conference was Professor Cole Durham, with whom I have worked for years on issues involving freedom of religion. One of my favorite participants was Professor Tahir Mahmood, a Muslim and one of India
When I speak about the American legal approach to religion in such settings I like to emphasize the founding role played by James Madison, who was probably the single most important legislator to promote the adoption of the Bill of Rights and who was the principal drafter of the First Amendment.
Madison also wrote what I think of as perhaps the most significant early document espousing the American approach to freedom of religion and belief: the "Memorial and Remonstrance" (1785).
Madison's principal assertion was that religion thrives best when governments stay out of religion, and when religion does not seek financial support from governments. He made this argument out of respect for religion--out of the wish that religion would prosper in his new country.
And Madison was right.
Polls consistently show that among the populations of industrialized countries, Americans are among the most religiously active. (See this fascinating discussion at the Pew Forum on Religion and Public Life.) The United States is a country that, relatively speaking, has followed Madison's advice (of course no one is perfect!). I know of no country in the world that has more respect for religious freedom than the United States, and this is something for which Americans can and should be proud.
Madison warned us of the dangers that come when religions vie among each other for political power and for financial support from governments. In doing so, Madison believed, they lose sight of their religious values and their principal mission.
Unfortunately, more than at any other time in American history, some government officials and some religious groups are now seeking to reach into each others' pockets for support.
The good old American approach--articulated perfectly by Madison two hundred years ago--is in danger of being tarnished. Why would we want to abandon an approach that has worked so well in favor of something that has shown itself to have so many problems? We need to show the same wisdom as Madison and avoid the temptations of trading money and influence. The Madisonian approach is good for religion and good for government.
Comments (9)
So does business.
But more seriously, are you really asserting that the ACLU's current no religious symbol/expression whatsoever stance has historical precedent all the way back to Madison? Because I think that is rather overreaching.
October 10, 2005 9:45 PM | Reply | Permalink
Sebastian, if you want to be some sort of originalist, no, IMO, the ACLU's stance doesn't reach back to the letter of Madison.
But, I doubt the majority of people reading and posting here are originalists, certainly not in the sense conservatives understand the word.
To me, the question is, with American's much greater ethnic and social diversity, does the ACLU's stance reach back to the spirit of Madison? I say yes, indeed (in part as a "card-carrying member of the ACLU").
October 10, 2005 10:12 PM | Reply | Permalink
This idea is one of the shibboleths of the American rightwing. While, overall, at the comprehensive level of protection of freedom of expression (as Madison and his colleagues plainly understood it to be necessary) they are a phalanx of laundering and excusing underground repression of authentic progressives, a unanimity at the leadership level of eggplant tennis anyone, they meow about "originalism" and doing what the original founders intended without natural growth.
Any way you slice it, it is 100% railroading and self-dealing nonsense, 0% valid argument. But that is plenty when you have the clout, and when even the best liberal opposition within the elite is only interested in helping you do your dirty business (& cover their asses).
If you want to test "originalism" and the right, without even a syllable of invective, or at least none unwarranted by the facts, look at the history of the 11th Amendment. The 11th Amendment was passed in the 1790s, and then completely rewritten by a usurpatory rightwing Supreme Court in 1891 in Hans v Lousiana (1891) during the height of the era of Jim Crow jurisprudence in order to obstruct the 14th Amendment. That utter, brazen usurpation (check it out yourself, especially the dissenting opinions by people like Brennan in Atascadero) is the exact opposite of honest originalism. Rather than follow the original text literally, they read into it things that it plainly did NOT say and were not reasonable extensions or matters of interpretation (like the right of privacy). But this kind of usurpation, in the 1980s and today, serves the interests of the rightwing to obstruct the 14th, now as in the 1890s and is a living legacy of Jim Crow. Do you see any of these rightwing "originalists" raising hell insisting on overturning the doctrine, maintained by a 5-4 conservative majority on the SCOTUS in the 1980s? Of course not. You can name all the honest rightwing originalists in the country. Of the prominent ones in jurisprudence, they are the ones who have been outspoken in demanding the 11th Amendment doctrine of Hans be overturned. It isn't a very long list at all.
It's a little like Al Gore's version of the macarena.
October 10, 2005 11:56 PM | Reply | Permalink
Thank you for bringing some "original" wisdom to the attention of this forum. With the Mier's SCOTUS nomination running afoul of Alexander Hamilton, perhaps it's time to create a toteboard that keeps track of how many of our Founding Fathers are rolling in their graves due to WH policy.
I'd like to comment on a couple of cherrypicked arguments from Madison's text:
"The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men"
Obviously, Madison knew nothing of push-polling and the powers of Rovian persuasion.
Before any man can be considerd as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign.
Right-wing conservative claims that we were founded as a "Christian" country are belied by ample historic evidence that many of our Founding Fathers were Deists. Nice to see this backed up by Madison's prose.
Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?
Can I hear an Amen?
October 11, 2005 1:33 AM | Reply | Permalink
Why would we want to abandon an approach that has worked so well in favor of something that has shown itself to have so many problems?
Hmmmm . . . maybe political expediency?
If you think any of our leaders put the interest of the country over their own political interests, then you are far more generous than I.
October 11, 2005 6:20 AM | Reply | Permalink
The Madison approach is religion neutral. The current Administration is not. The current Administration favors certain religious groups over others by doling out to religious supporters the spoils that come from political victory. Yet this Administration sees government's embrace of particular religious groups for political gain rather than because of religious principles. How else could you square patronage hires of members of the Church of Scientology and followers of the Rev. Moon with hires of followers of fundamentalist Christian groups.
Any time the Government takes up the mantle of giving official endorsement to religious practices and activities, you can be sure it will do a poor job because its motives are not religious in nature.
As rightwing fundamentalist Christians attempt to consolidate through surrogates their use of governmental power and obtain public tax money to promote their particular religion, they will soon find that with a shift in political power new governmental leaders will use these changes today to promote practices and religions tomorrow that this same group finds abominable.
As the founding fathers knew, government best promotes religious freedom by maintaining its wall of separation from it. And when government or religion breaches that wall, both are soiled by the interchange.
October 11, 2005 6:45 AM | Reply | Permalink
Cloudy - I am not sure that I see how your post follows the original comment. Actually, I am sure it doesn't. Since I normally agree with much of what you write, please go back and link the two together more - I think there is point in there, but I am not seeing it.
October 11, 2005 6:58 AM | Reply | Permalink
Madison believed so strongly in no religious symbol/expression whatsoever that he didn't want to allow people to state on the census form that their job was "minister", because that involved the state in questions of the church.
<blockquote>The gentleman from Massachusetts (Mr. Sedgwick) has asked, why the learned professions were not included: I have no objection to giving a column to the general body. I think the work would be rendered more complete by the addition, and if the decision of such a motion turned upon my voice, they shall be added. But it may nevertheless be observed, that in such a character, they can never be objects of legislative attention or cognizance. As to those employed in teaching and inculcating the duties of religion, there may be some indelicacy in singling them out, as <b>the general government is proscribed from interfering, in any manner whatever, in matters respecting religion; and it may be thought to do this, in ascertaining who, and who are not, ministers of the gospel</b>. Conceiving the extension of the plan to be useful, and not difficult, I hope it may meet the ready concurrence of this house.</blockquote>
Emphasis mine, text from <a href="http://press-pubs.uchicago.edu/founders/documents/a1_2 _3s19.html">The Founders Constitution</a>.
Thanks,
-Vardibidian
October 11, 2005 7:01 AM | Reply | Permalink
While the ACLU is naturally focused on protecting religious freedom, and while Madison eloquently supports protecting religion from the influences of government, it’s worth considering the inverse argument, that government works best when it is not tied to religion.
The liberal democratic tradition was founded on a belief that people could best govern by resorting to reason. Law would be derived, not from ancient religious texts, but from legislative bodies of learned representatives who would use reason as their guide.
Justice would be administered, not by the Church, but by juries of men [and women] who would examine the evidence rationally, and thus render a reasonable verdict without blindly submitting to religious dogma.
Our nation’s founders believed in Reason as the basis of a sound government.
And while the liberal democratic experiment is still respected by many, for some people, the laws and verdicts rendered by a religious-neutral government leave much to be desired.
Our country’s current stand on abortion, contraception, sex education, and pornography, do not align well with the beliefs of many conservatives. And for some, this misalignment is evidence that Reason alone is not a sufficient guide for government.
In their view, it has become necessary to rely on religious sources as a guide to our governance. An erosion of faith in Reason has lead conservatives to challenge the legitimacy of liberal democracy, and to attempt a marriage of goverment and religion.
October 11, 2005 8:58 AM | Reply | Permalink