Posted on 09/18/2005 9:30:23 PM PDT by betty boop
Freeper Investigation: Original Intent and Constitutional Jurisprudence
by Jean F. Drew
English and Anglo-American law’s core principle is the opposition to abusive power as exercised by the state. As Dan Gifford writes in “The Conceptual Foundations of Anglo-American Jurisprudence in Religion and Reason,”
“The law is not the law regardless if it be good, bad, or indifferent. There is a higher moral law, originating within ancient Jewish law, which requires individual responsibility for opposing evil and promoting goodness. It is from this basic tenet that English law and Anglo-American law embody the following principle: The individual has rights against the state….
“The danger posed by the usual suspects in government for the sake of power is obvious. However, not as obvious is the more insidious danger posed by a list of usual suspects claiming to be [society’s] defenders…. Their attacks on God, traditional Judeo-Christian morals, the Calvinist concept of conscience, republican virtu, and Aristotelian reason or logos — the five essential elements that make our system work — as obstructions to social progress have been devastating….”1
Without doubt, “God, traditional Judeo-Christian morals, the Calvinist concept of conscience, republican virtu, and Aristotelian reason or logos” informed the worldview of the Framers of the Constitution and constitute that document’s spirit, meaning, philosophy — and vitality.
Russell Kirk corroborates this understanding, stating that the roots of American order trace back to four historical cities: (1) Jerusalem, in both the Israelite and Christian developments; (2) Athens, with its classical view of man as a “thinking animal” who possesses reason and soul; Rome, for the idea of “republican virtu” — personal self-restraint and direct participation in the governance and defense of the state; and London, for its concepts regarding the necessity of restraining monarchical power vis-à-vis the subject in the interest of preserving the public good of individual liberty. 2
Thus the Constitution is an extraordinarily “conservative document,” given its “roots in a much older tradition,” writes Stephen Tonsor. “Its world view is Roman or Anglo-Catholic; its political philosophy, Aristotelian and Thomist; its concerns, moral and ethical; its culture, that of Christian humanism.” 3
The “problem with the constitution” nowadays is that these ideas no longer inform the worldview of many Americans, in particular the “cultural elites” who sit on federal and state benches, who man the federal bureaucracies, staff the professoriate, and run the organs of public communications (i.e., the so-called “mainstream media”). All these constituencies, moreover, are effectively unaccountable to the people whom they purport to serve.
In light of breaking events — the recent ruling of a federal court in California that the Pledge of Allegiance is unconstitutional because of its “under God” language, the recent New London eminent-domain decision of the Supreme Court, and two Supreme Court vacancies (with possibly more to come within the tenure of the Bush presidency) — as well as long-standing public quarrels over the meanings of e.g., the Second, Tenth, and Fourteenth Amendments, we thought it would be useful to inaugurate a Freeper Research Project into theories of the Constitution, “then” and “now”; i.e., the original intent of the Framers vs. modern “prudential” and ideological constructions. In particular it would be useful to explore the roles of all the players in a constitutional system based on the separation and balance of powers, to see how well that concept is working nowadays.
Or not, as the case may be. And if that is the case, then to ask: Why not? What has “gone wrong” such that, e.g., federal judges routinely feel free to legislate their ideals of social progress from the bench?
I thought I’d get the ball rolling with a piece on the cultural component of such questions. I’m sure my thoughts may prove controversial to some of my Freeper friends; for I intend to show that the single most influential cause of current-day constitutional chaos is the breakdown of a common understanding of God and man and of their mutual relations. It is my view, however — the only view that I can relate, based on my observation, experience, and the indirect sources that further inform the present state of my knowledge — and anyone’s free to disagree with it. I just hope we can all be civil and respectful when/if we do disagree.
The point is, I can’t “do your seeing for you” anymore than you can “do my seeing for me.” Under the circumstances, it seems to me the best course would be to simply “compare notes” and see if we might learn something from one other.
My friend YHAOS writes: “The Founders bequeathed to their posterity rather a unique philosophy, not only of government, but of human relationships.” Indeed, YHAOS; the Framers’ view of human relationships was predicated on the understanding that “all men are created equal,” and thus all have dependence on a creator. Further, because they are equally the creations of one Creator, all men share a common humanity that effectively makes them “brothers.” All men are created with possessing reason and free will as a natural birthright, and are “endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.” All men are equal before the law, while constituting the sovereign We the People — connoting one single community — who delegate a very few existential powers (29 by my last count) to the government, and retain all others unto themselves.
YHAOS continues, “It was a philosophy that was greeted with disfavor by all the rulers of the world the moment they were exposed to it, because it left their rule to the sufferance of their subjects, and eliminated their ability to rule as they saw fit. They hated it then, they hate it today. This philosophy, so hated by the rulers and other elites of the world, is found and best expressed in the words of the Founders and of others who were most closely associated with the philosophy of Natural Law and with the events which occasioned the creation of the Declaration of Independence and of The Constitution.”4
Indeed, YHAOS. Those who would rule don’t much care for this sort of thing as a rule….
The “spirit of liberty” that informed the American Founding whereby the role of the state was to be severely delimited and constrained was brilliantly expressed by Trenchard & Gordon in Cato’s Letters (~1720):
All men are born free; Liberty is a Gift which they receive from God; nor can they alienate the same by Consent, though possibly they may forfeit it by crimes….
Liberty is the power which every man has over his own Actions, and the Right to enjoy the Fruit of his Labor, Art, and Industry, as far as by it he hurts not the Society, or any Member of it, by taking from any Member, or by hindering him from enjoying what he himself enjoys.
The fruits of a Man’s honest Industry are the just rewards of it, ascertained to him by natural and eternal Equity, as is his Title to use them in the Manner which he thinks fit: And thus, with the above Limitations, every Man is Sole Lord and Arbiter of his own Private Actions and Property5….
In short, in the early eighteenth century, there was a cultural consensus in England and in the Colonies that it is the God–Man relation from which the just relations of man with his fellow man flows that (not coincidentally) constitutes the limit or check on state power and authority. The Constitution itself epitomizes and expresses this consensus.
So it’s hardly surprising that, as YHAOS continues, “It was a philosophy that was greeted with disfavor by all the rulers of the world the moment they were exposed to it, because it left their rule to the sufferance of their subjects, and eliminated their ability to rule as they saw fit. They hated it then, they hate it today. This philosophy, so hated by the rulers and other elites of the world, is found and best expressed in the words of the Founders and of others who were most closely associated with the philosophy of Natural Law and with the events which occasioned the creation of the Declaration of Independence and of The Constitution.”6
Indeed, YHAOS. Those who would rule don’t much care for this sort of thing as a rule…. And I am particularly intrigued by your notice of “the other elites.”
These “other elites” are informed by other notions that were altogether foreign at the time of the American Founding, and for more than a century thereafter. These notions are a specifically German cultural import — from Hegel, Nietzsche, Marx & Co., a going (and growing) concern since the mid-nineteenth century.
All three men were obsessed by power. Hegel’s model of the ideal state was Prussia, which was authoritarian and repressive. He worshipped Napoleon as a new World Savior. All three men wanted to “kill God.” This last, of course, is required for the free exercise of an unconstrained Will to Power: With God around, plans for constructing Utopia could never come to fruit. So they all decided He needed to be “bumped off” in order to clear the decks for a reconstruction of the world and human history, in order to perfect future history. Thus history as we know it must end.
And as it turns out, history under God becomes a dead letter with His demise. Then — and only then — can self-appointed Great Men assume the divine rule and enterprise with a free hand, “starting over from scratch,” as it were. Hegel and Marx both apparently believed that they could just start from nothing and, by the use of “pure” Reason, construct ever more perfect worlds, correcting all the imperfections that God left in His Creation, which is now to be happily Over, dispensed with. Men — or at least some men — have become “self-divinized.” A New World is a-borning.
We are speaking of the construction of progressivist utopias here.
Now the meaning of “Utopia” — a neologism of Thomas More — means “Nowhere.” Utopia is “a model of a perfect society that cannot be realized because an important sector of reality has been omitted from its construction, but its authors and addicts have suspended their consciousness that it is unrealizable because of the omission.”7 As the greatest English-speaking poet of the twentieth century put it:
They constantly try to escape From the darkness outside and within By dreaming of systems so perfect that no one Will need to be good….
But the man that is will shadow The man that pretends to be. 8
The “omitted sector” of reality is precisely the spiritual sector, constituted by the relations of God and man — the divine-human encounter that orders human souls, and from souls to societies, including political societies. That is to say, the total eclipse of the great Hierarchy of Being: God – Man – Society – World. It seems plain to me that “the murder of God” involves a double homicide, one a parricide, the other a suicide….
Clearly, there was a profound sea-change in the understanding of Reality and of human self-understanding between the time of Locke and the time of Hegel. Rather than present a lengthy and probably tiresome analysis of how this noxious diremption occurred, let me just give you a sampler of how meanings central to the human person and to political society are understood these days under the respective frameworks of the Judeo-Christian/classical (JCC) worldview, and the progressivist (P) worldview.
JCC says: “There is a nature of man, a definite structure of existence that puts limits on perfectability.”9
P replies: “The nature of man can be changed, either through historical evolution or through revolutionary action, so that a perfect realm of freedom can be established in history.”10
JCC says: “Philosophy is the endeavor to advance from opinion (doxa) about the order of man and society to science (episteme)…”11
P replies: “No science in such matters is possible, only opinion; everybody is entitled to his opinions; we have a pluralist society.” 12
JCC says: “Society is man written large.”
P replies: “Man is society written small.” 13
JCC says: “Man lives in erotic [faithfully loving] tension toward the divine ground of his existence.”
P replies: “He doesn’t; for I don’t; and I’m the measure of man.”14
JCC says: “Education is the art of periagoge, or turning around (Plato).” [Essentially, this means that education is the art of transmitting the greatest achievements of human intellect and culture to the next-rising generation, which, as we have already suggested above, include achievements of great antiquity. In the specific Platonic sense, this process requires a “turning to the Light” or alternatively, a “tuning into the God.”]
P replies: “Education is the art of adjusting people so solidly to the climate of opinion prevalent at the time that they do not feel any ‘desire to know.’ Education is the art of preventing people from acquiring the knowledge that would enable them to articulate the questions of existence. Education is the art of pressuring young people into a state of alienation that will result in either quiet despair or aggressive militancy.”15
JCC says: “Through the life of reason (bios theoretikos) man realizes his freedom.”
P replies: “Plato and Aristotle were fascists. The life of reason is a fascist enterprise.”16
JCC says: The process in which the nature of man and the other participants in the great Hierarchy of Being becomes conscious and noetically articulate and luminous to the human mind constitutes the life of reason.
P replies: “Reason is instrumental reason. There is no such thing as a noetic rationality of man.”17
Just in case the foregoing “dialog” comes across as a tad too “abstract,” let me give an example from concrete American historical experience that fully reflects the “tensions” inherent in such “irreconcilable differences,” and get off the soap box. (Then it will be someone else’s turn).
My example concerns the scope and meaning of the Second Amendment.
JCC says:
Surely one of the foundations of American political thought of the [Founding] period was the well-justified concern about political corruption and consequent governmental tyranny. Even the Federalists, fending off their opponents who accused them of foisting an oppressive new scheme upon the American people, were careful to acknowledge the risks of tyranny. James Madison, for example, speaks in Federalist Number Forty-Six of “the advantage of being armed, which the Americans possess over the people of almost every other nation.” The advantage in question was not merely the defense of American borders; a standing army might well accomplish that. Rather, an armed public was advantageous in protecting political liberty. It is therefore no surprise that the Federal Farmer, the nom de plume of an anti-federalist critic of the new Constitution and its absence of a Bill of Rights, could write that “to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them....” On this matter, at least, there was no cleavage between the pro-ratification Madison and his opponent.
In his influential Commentaries on the Constitution, Joseph Story, certainly no friend of Anti-Federalism, emphasized the “importance” of the Second Amendment. He went on to describe the militia as “the natural defence of a free country” not only “against sudden foreign invasions” and “domestic insurrections,” with which one might well expect a Federalist to be concerned, but also against “domestic usurpations of power by rulers.” “The right of the citizens to keep and bear arms has justly been considered,” Story wrote, “as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
“…the repository of a monopoly of the legitimate means of violence [by the state] — that is so commonly used by political scientists … is a profoundly statist definition, the product of a specifically German tradition of the (strong) state rather than of a strikingly different American political tradition that is fundamentally mistrustful of state power and vigilant about maintaining ultimate power, including the power of arms, in the populace.” 18
P replies (actually, this is Justice William Burger, who “never wrote a word abut the Second Amendment. Yet after retirement, he wrote an article for Parade magazine that is the only extended analysis by any Supreme Court Justice of why the Second Amendment does not guarantee and individual right”).19
“… the Second Amendment is obsolete because we “need” a large standing army, rather than a well-armed citizenry.”20 Plus we all know guns are dangerous things. Dangerous things should not be left in the hands of “innocent” (inept) civilians, especially when there are standing armies and organized police forces to whom we may safely delegate the use of force in our society.
To which JCC might retort: “Well, who’s policing the police? And what if the standing army comes after US?”
On that happy note, a few last words:
“Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master! “— George Washington
“All powers granted by the Constitution, are derived from the people of the United States; and may be resumed by them when perverted to their injury or oppression; and … every power not granted remains with them, and at their will; and … no right of any description can be canceled, abridged, restrained or modified by Congress, the Senate, the House of Representatives, the President or any department, or officer of the United States.” — John C. Calhoun
“The power of kings and magistrates is nothing else, but what is derivative, transferred and committed to them in trust from the people, to the common good of them all, in whom the power remains fundamentally, and cannot be taken from them without a violation of their natural birthright.” — John Milton
_________________________
Notes:
1 In Tennessee Law Review: Second Amendment Symposium, vol. 62, no. 3, 1995: 759, http://www.saf.org/LawReviews/Gifford1.htm .
2 Russell Kirk, The Roots of American Order, Washington, D.C.: Regnery Gateway, 1991.
3 Retrieved from a collection of aphorisms I’ve been compiling for many years. Unfortunately, at the time I found this one, I was not in the habit of recording the titles of works in which the aporism appears, e.g., in which Tonsor’s remark was given; and now do not remember it. (Mea culpa — So sorry!)
4 YHAOS at http://www.freerepublic.com/focus/f-news/1470264/posts?page=1150#1150
5 John Trenchard and Thomas Gordon, Cato’s Letters or Essays on Liberty, Civil and Religious, and Other Important Subjects, Indianapolis: Liberty Fund, 1995 [1720]. Trenchard & Gordon were writing about 40 years after England’s Glorious Revolution of 1688, of which John Locke was major mentor and instigator. The Framers were well acquainted with the works of all three men, for Locke and Trenchard & Gordon were quintessential sources of the history of “revolution” in the British historical context; plus the philosophical/sociopolitical movements that they were describing were relatively recent from the Framers’ standpoint.
6 YHAOS op cit.
7 Eric Voegelin, “Wisdom and the Magic of the Extreme,” op. cit. The Collected Works of Eric Voegelin, p.316.
8 T. S. Eliot, Choruses from “The Rock,” as quoted by Voegelin, ibid.
9 Eric Voegelin, op. cit., p. 258
10 ibid.
11 ibid.
12 ibid.
13 ibid.
14 ibid.
15 ibid, p. 260 16 ibid.
17 ibid.
18 Sanford Levinson, “The Embarrassing Second Amendment,” Yale Law Journal. Originally published as 99 Yale L.J. 637–659 (1989).
19 David B. Kopel, “The Supreme Court’s Thirty-five Other Gun Cases: What the Supreme Court Has Said about the Second Amendment,” 2000; http://www.i2iorg/SuptDocs/Crime/35.htm
20 ibid.
I think we may be building a mountain out of a molehill here, yankeedame. Theory can never trump the good order and salvation of souls. "Even though" an RC by theology, I find Martin Luther to have been a remarkably God-chosen and faithful man, right down to the very core of his being.
As I mentioned in an earlier post, Reformed Church is not big on saints. The Catholic tradition is otherwise. And so I would say there ought to be a St. Martin Luther.... For his faith, for his love, for his fides quaerens intellectus, his faith in search of reason, of eternal Truth.
You wrote: "The idea that church -- both the physical building and congregation -- are simply a convenient assembly place for worship of the Divine. That it is not -- or should not be -- needed for the true believers.But while this may be good theory it is, I'm afraid, rather bad psychology."
There is great wisdom in your observation, yankeedame. Plato insisted that the people should not be led in revolt from even such as the Olympian gods (whom he personally, apparently did not hold in high repute); because once a man has lost the "customary" god, that doesn't necessarily mean he is soon going to find "a better god." Maybe he just loses God altogether. Which is disastrous -- for him, and at the end of the day, maybe also for the society of which he is a participant.
But I didn't at all mean to suggest any such thing. As my dear sister Alamo-Girl says, the Epistles of Paul and John's Apocalypse speak of seven different churches, in terms of praise and blame. It's as if God presents Himself to the human mind and soul through the medium of a seven-facted gemstone (the various churches). When we pray to Him, it is generally through one of the seven facets. And regardless of which facet one is viewing through/praying through, it is still one Truth, one Light, one God. And it is addressed to One God, Father, Son, and Spirit.
As for Deitrich Bonhoeffer's "Churchless Chrisitianity": By no means do I interpret him as saying he wants to establish some kind of new "innovative" sect. You have to put yourself in his historical shoes, and experience how disturbing, shocking, it was for him to see Hitler "commandeer" the German Church into service of the "Fatherland." In despair at times (presumably, since he spent a whole lot of time incarcerated by the Reich under exacrable conditions, and ended up murdered by it for his Witness), Bonhoeffer in his suffering was (perhaps) given a salvific vision, that the love and grace and light of God would continue to be radiated unto mankind, whether there be church buildings, or even a formal priesthood, or no. For when push comes to shove, Jesus Christ is our priest, our confessor -- and our ultimate judge.
If I were about to be executed for confessing to God's Truth, I'm sure I would find that a deeply comforting and consoling Word....
In the love and peace of Christ.
Inasmuch as the formal church identifies itself as a cultural institution it is a cultural religion.
Cultural religion is distinct from the spiritual relationship between man and God. The one exists as a function of society. The latter is intimately personal. They are not codependent.
To survive, the institutional church does not require spirituality. In fact mainline churches are notorious for focusing on cultural issues and dissuading members from overly spiritual zeal.
The church is a cultural institution and, as such, must be protected by the government from attacks on its corporate life. This is precisely, I predict, how the establishment clause will next be interpreted.
It is insanely impossible to remove all vestiges of religious expression from public life. If public life is presumed to be the domain of the government, as it is in the current state of affairs, then it is impossible for the government to limit religious activity. (Or, at least, the religious activity of the cultural church.)
Finally, the court will be required to allow religious activity in all aspects of public life. It is at this juncture that the establishment clause will become of extreme significance.
As soon as the government allows for the free and open expression of religious activity it will begin to define, proscribe and means test religious expression. When that happens the government will have begun to establish a religion. We will have gone full circle.
As has been noted earlier by various posters, what the government subsumes as its prerogative, the government destroys.
Society does not belong to government. Yet the governing elite act as if they are the masters of life within our territorial boundaries.
===================
Inasmuch as the formal church identifies itself as a cultural institution it is a cultural religion.
Ah, my friend, here we are entering deep water. For with the above statement would come the need to define the word "cultural". A word which most people today would associate with the fine-arts, i.e. classic concerts, ballet, etc. etc.
Today's institutions of worship are indeed cultural b/c those who assemble there for worship are, and seek -- perhaps need? --to gather in a place, in the bosom of a system that is in tune with their lives. Which, of course, are affected by the zeitgeist in which they live.
Cultural religion is distinct from the spiritual relationship between man and God. The one exists as a function of society. The latter is intimately personal. They are not codependent.
It seems to me that this statement is based on the unspoken assumption that (organized) religion was imposed on the people, and not derived from the people. But is this so? Or could it be that religion was organized; established with hierarchies, Canons, etc. to bring the bring the beliefs/superstitions of the people into organized, enforceable, controllable form(s). Not like chains imposed, but rather like a river channeled.
To survive, the institutional church does not require spirituality. In fact mainline churches are notorious for focusing on cultural issues and dissuading members from overly spiritual zeal.
Again we are faced with the thorny matter of semantics: What is an "institutional church"? A state control -- active? passive? -- method of Divine worship? How does an "institutional church" differ -- if it differs at all --from a "mainline church"? Also the word notorious is a subjective word, like the term overly spiritual zeal.
What may strike Joe Doe as "notorious" may strike Sam Smith as worth little more than a Gaelic shrug of the shoulders. And what strikes Mr. Smith as "overly spiritual zeal" may be nothing more than basic spirituality to Mr. Doe.
The church is a cultural institution and, as such, must be protected by the government from attacks on its corporate life. This is precisely, I predict, how the establishment clause will next be interpreted.
Why? By that I mean, why would it in the (best) interest of the/a government to protect "the church" [a.k.a. organized religion or one specific creed]? In order to "control" the populace? Then we circle back to the premise that religion is imposed from above.
Finally, the court will be required to allow religious activity in all aspects of public life. It is at this juncture that the establishment clause will become of extreme significance.
Ah, but the key word upon which this hinges is "religion", as in all religions?
As soon as the government allows for the free and open expression of religious activity it will begin to define, proscribe and means test religious expression.
But this is been the case throughout United States history. And as far as I know no government agency, private employer, state, or charitable group has required means-tests of those who seek its service(s)
...what the government subsumes as its prerogative, the government destroys.
This statement puzzles me. What do you mean?
I think it is more closely akin to 'working for good' than it does assembling together to rejoice and give praise, the latter being more like a coffee break from the true work.
Absolutely correct, bb, but your observation takes us away from the rather different point I am trying to establish. Can we gain a little perspective here, and note that the usual hysterical protestations against an ‘establishment of religion’ which we are constantly hearing from a trivial but noisy Left, quickly take on a rather silly appearance when compared to the actual events which would have to occur in a genuinely concerted attempt at an establishment of religion. And that’s assuming the mere seven conditions I listed constitutes an exhaustive list, which I imagine they do not. So anything substantive added to what I’ve already enumerated simply presents us with bleaker prospects.
Furthermore, I think it true, as you say, that a federal religion has, in effect (“effectively already is ”), been established, and not even by Congress, but by a simple majority of nine black robes. I would note what is really an observation commonly made, and state that Congress could not have mustered the votes necessary to pass most of what has managed to get in through the courts. We can then add that what this means is that in certain ways, by several means, we have gone from a representative republican form of government to an oligarchal form of government, composed of nine members, of whom five is a sufficient number to effectively rule.
I would further note that this effectively established federal religion was established, and is being maintained, by the use of the seven features I had outlined previusly.
I had intended to raise this issue as the next topic, but you’ve stolen my thunder [grin], so we may consider the topic covered, and move on.
I am the one who has put his neck in it. Your notes demonstrate my lack of clarity with, as you suggest, the meaning of words.
First, let me say that I am coming from a particular perspective, that of the church in America. There has been considerable research on the church over the past half century viewing the church as a cultural institution. This means, in this context, that the church is not, in the traditional Catholic sense, set apart from the world but is, rather, an expression of it. That is the water I am wading and I daresay there are deep spots, at least up to my neck.
Martin Marty, church historian, uses the term to describe the church as a secular institution rather than a religious one. This is the context in which I am working. It is not a Marxist definition nor does it describe a qualitative state such as fine arts. The term is not a generic one used to define every gathering of people.
The idea of cultural religion derives from an anthropoligical understanding of the nature of cultural institutions. They have a binding quality in the body politic by which they define, sustain and nurture society.
This is a profound role for the church. From this perspective the role of the institutional church is to define, protect and sustain the wider culture.
Thus, we find mainline denominations engaging in matters that reflect contemporary culture. These include homosexual marriage, abortion on demand, opposition to Zionism, and other politically correct issues. By becoming the voice of the (elitist) culture, the church turns its back on its role as church militant - at war with the world. The church in America, under this rubric, has become the voice of “enlightened” culture.
This is the important context in which Marty and others find the modern church. It has forsaken its explicitly spiritual role and assumed a gentler, kinder one. By virtue of institutional demands the church finds itself increasingly beholden for its special tax exempt status and need to be a healer not a divider. It must increase numbers and play nice.
The church does, however, remain flexible. As conservatism increasingly influences society the church will follow suit. Its leaders know how to get out in front of the parade.
My attempt, then, with this little treatise, is not to be long-winded but to clarify the context of my observations on the church as a cultural institution as opposed to a predominantly spiritual one. It is an important distinction and one I expect I will be clarifying as we go along.
Finally,
Amos:...what the government subsumes as its prerogative, the government destroys.
Yankeedame: This statement puzzles me. What do you mean?
In matters of civil society the government has no legitimate role, unless, that is, the government has defined itself as including civil society. When government codifies, defines and controls activities of civil society such as social services and education it restrains the variety of civil responses to the social concern.
As sole or primary provider, government regulations that control its own activities have the effect of law on non- government organizations. Thus, in the context of the 80’s in which all religious sentiment was to be kept out of government, no religious organization was permitted to receive government funds for the provision of social services. This narrow and indefensible view has given way to the more conservative view that spiritually based organizations have a place at the table. This is confounded, of course, by the fact that government has no business being involved in the provision of such services in the first place.
Now to the crux. As government increasingly relates to the church as a cultural institution it will, as a matter of bureaucratic enterprise, define and clarify the nature of that relationship. This is the slippery slope.
In the name of conservatism we are seeing the government become solicitous of the role of the church in society and then begin to define the nature of that role. This will inexorably define the church. The fly in the ointment, of course, is that the government is sticking its nose in where it does not belong.
Government must be weeded out of civil society if we are to make any sense of who we are and what we are about. A free people cannot long tolerate the intrusion of the King in matters that do not concern him.
edlis
A keen and timely observation!!! Thank you.
That is the focus of another discussion were are having on another thread.
Ooooooopppps! Sorry, YHAOS -- jeepers, but I didn't mean to step on your toes!
I truly appreciate your insightful observation that the United States has become a de facto oligarchy, ruled by nine black robes on the basis of a simple majority. You wrote:
...Congress could not have mustered the votes necessary to pass most of what has managed to get in through the courts.Indeed. That is the very reason the Progressive Left "prefers" to do things through the federal courts, not the legislative branch.
Last night I came across a copy of a memo sent by Handgun Control, Inc. to its functionaries that demonstrates the tactics the Progressive Left uses to manipulate the courts. I wish I could give you the text verbatim, but I don't have it with me; maybe later on today. It's a humdinger. The jist is they understand they don't have to win in court every time. It is enough to cast the pall of a threatened lawsuit to make things tough for targeted miscreants -- in the instant case, gun manufacturers. Keep them so tied up with lawyers and lawsuits long enough, and you might even bankrupt them. Plus you just might win your case, in which case you get a nice, juicy monetary settlement that further drains the company of resources. It's a "win-win" proposition for "activists" like HCI.
As my friend joanie-f recently wrote on another thread:
…the over-riding purpose of the Constitution was to limit the power of government over the God-given liberties of the individual.Senate Democrats care very much about stare decisis because they don't want the "social progress" enacted by the courts to be unwound. This is what makes for such bitter conflict in the matter on confirming conservative judges, of course.That paramount principle has found itself compromised via countless convoluted, self-serving arguments – many of which are known as ‘judicial/legal precedents.’ All that is required to open the door for a myriad of illogical, senseless, dangerous (not to mention politically motivated) judicial rulings is one such ruling. That ruling can -- and often does -- comprise the first microscopic germ upon which successive parasites will feed until they succeed in consuming their host.
The monstrous pyramid known as stare decisis, or case law, has become far more powerful a (n anti-individual-liberty) force in this republic than the Constitution upon which it is supposed to rest.
On that note, I saw about four hours of the Senate Judiciary Committee Hearing with Judge Roberts. I have a sneaking suspicion that this man -- it looks like it would take an Act of God to prevent his accession to the office of Chief Justice -- is not a "stare decisis ideologue." The sense I got of him is that he loves the law, loves the Constitution. He could be the beginning of a sea-change on SCOTUS and, thus on the federal bench at all levels.
But it'll take a few more conservative appointments; and there will be plenty of blood spilt on the Senate floor before that happens....
I am very much enjoying this thread - and I apologize for being absent. My niece is here through tomorrow so I only have time to read, no time to contribute. Sigh...
"I don't want government controlling religion, I'd rather God control religion."
Or, as somebody famous once said, "Render unto Caesar that which is Caesar's, and render unto God that which is God's."
Then conquer we must, when our cause it is just,
And this be our motto: “In God is our trust!”
. . . . . FS Key
Well, I’m happy to have solidified some of your thoughts, albeit however inadvertently. Your reaction seems to have produced good results. You’ve made some good points.
My own experience confirms what you report. It’s been about forty years since I fired the ‘mainline denominations,’ as you characterize them. Particularly the Presbyterian Church, but the Methodists as well, and very much for the reasons you specify in your remarks. I think your most telling observation is that the mainline denominations put their souls in jeopardy for the sake of the public sector influence they hoped to preserve, and in the doing, they lost both. Amen, Brother.
My reason for asking ‘what, exactly, is meant by ‘government sanctioned’ religion? stems from an entirely different motive than yours in writing what you did, yet it still definitely ties in with your most excellent points. Over the past forty years, from time to time we hear of a speaker at a college or high school, or in some other government venue, who gives a particularly outrageous anti-American speech, or a talk attacking the values of Western Civilization. But much more the case is that speeches and talks are routinely given all the time about a wide range of topics in such venues. In both instances, in controversy and non-controversy, seldom, if ever, do I recall anyone suggesting that such speeches and talks, over whatever topics, were ‘government sanctioned.’
Yet, let it be merely proposed that a speech or a talk be given on a religious theme, and immediately such a howl is raised as to shake the very rafters of Heaven itself. Such a double-standard is so blatant as to be absurd. By reason or logic, there can be no justification to declare a religious speech or talk to be government sanctioned simply because of the forum in which it is given, while denying that the same status, then, would apply to all subjects.
There are any number of similar absurd contradictions in the arguments of the anti Judeo-Christian forces which today infest American society. Had the religious leaders of the major denominations attacked these contradictions head-on when first they arose sixty years ago, and pressed the issue by enjoining their flocks to put on the heat with our spineless politicians, then we would not be fighting a desperate battle to keep our faith from being exiled entirely from public discourse. Instead, just as you say Amos, religious leaders chose what they thought was the smart play, and hunkered down in the belief they could outlast the storm. They couldn’t.
At a time when history demonstrated our need for strong religious leaders of unshakable courage and integrity, our mainline denominations sent us weak fools.
"Some people do not worship God; some people “worship themselves,” believing that they alone are “the captains of their souls, the masters of their fates.” They “give law” unto themselves, and resent the idea that there is a God to whom they owe any duty. Clearly, this is a religious view, specifically the religious view of the atheist. It seems to me the First Amendment protects this view just as assuredly as it protects the views of theism."
This brings up an interesting point. According to this view, a person's soul is their own responsibility.
Their conduct, however, is a matter for public concern.
A person's religious opinions are irrelevant compared to their opinions on the rule of law, justice, capitalism vs. socialism, conservatism vs. liberalism- to the State and their fellow citizens, these are much more important.
If a (hypothetical) person denys God, but obeys society's laws and traditions, then this person has been a "good citizen." Their fate after death has no bearing on their fellows.
I believe in the concept of a secular morality. I believe that there exists a code of conduct, written and unwritten, that allows humans to interact socially without decending into howling barbarism and killing each other off.
Some of these rules are simple, some more complex. These are some examples:
Protect the breeding-age females and young children.
Do not kill other humans except in defense of life or property. (In a survival situation, protecting food, water and shelter is equivalent to protecting life.)
Speak to others quietly and politely; do not present yourself as a threat unless you mean to.
Do not enter another's territory without permission.
Do not touch with your hands another's property.
Speak no word that is not true.
Perform a "courtesy flush" immediately after defecating in a public restroom.
These "rules" can be found everywhere from the Ten Commandments to the Thirteen Satanic Principles to "Everything I need to know I learned in Kindergarten" to bus-station graffiti. And it is these rules- either through mutual agreement, or as codified in civil law- that allow a society to function and thrive.
“all Congress has to do is to enact law to codify the atheistic decisions of the Supreme Court for the last quarter century”
In light of subsequent posts, I’m sure you understand by now I was posing that question as an introduction to my thesis that all the alarms over a merging of state and religion are nothing but a lot of ephemeral squawking designed to exclude from the public square any discussion of Judeo-Christian values.
But, let me say this:
We may expect that Congress has done about all it can do to enact laws codifying the atheistic decisions of the Supreme Court, short of committing wholesale political suicide. Surely there are some significant number who would do more if they thought they dared. It is incumbent on us to beam the fear of electoral failure squarely in their eyes and hold it there. Nothing else has any effect on them. It is a sad commentary, but fear is the only emotion which will control a significant number of our representatives and senators and hold them to an honorable course.
“Further, I suspect a keen legal mind (like soon to be Chief Justice Roberts) - will pick up on atheism as a religion . . .”
There was a case some thirty or forty years ago where a judge found secular humanism to be a religion, subject to the same constitutional restraints effecting any other religion. Not unexpectedly, it was overturned at the appellate level and not appealed further. I wish I could remember the name of the case. Maybe it will come to me.”
I do not think declaring secular humanism or atheism a religion will hold up under Supreme Court scrutiny, but neither do I believe the phrase ‘under God’ in the PoA will be found unconstitutional. The Supremes do not like to be held up to ridicule, and they are surrounded by too many references to God and the Judeo-Christian tradition right on their building to risk torpedoing their own dignity. They will find the phrase has too much historical and traditional significance to be found unconstitutional. The Ninth Circus Court of Appeals, on the other hand, seems to revel in being ridiculous. Just one man’s opinion.
It's prety obvious that society grows out of mankind. Maybe the progressives would like to argue with my tagline. People came first, then society. What credible reasoning could possibly (even) indicate otherwise?
Since the statements are opposite, the validation of one is vitaition of the other.
Nature versus nurture arguments notwithstanding. 
I wonder what Mr. Calhoun would think about the "substantial effect" doctrine used with commerce clause.
By "civil society" you are not referring solely to polite society, correct? [I didn't think you were but just want to make sure.] And by going to my old friend Dictionary.com I find the definition for the term civil society as thus:
the aggregate of non-governmental organizations and
institutions that manifest interests and will of
citizens; individuals and organizations in a society
which are independent of the government.
Is this more-or-less the definition you mean? [Not challenging you, just trying to puzzle it out.] If this is the case then how would education and social services qualify as (a) civil society? It would seem to me that since both receive government money -- both state and national -- we have here a case of: "He who pays the piper calls the dance."
As sole or primary provider, government regulations that control its own activities have the effect of law on non- government organizations...
In what? In regard to what? Are these aformention regulation effects deliberate? Inadvertent? And by NGO do you mean the kind that are constantly pestering the UN, or organizations such as the Shiner's Children Hospital or the American Audubon Society?
This narrow and indefensible view has given way to the more conservative view that spiritually based organizations have a place at the table. This is confounded, of course, by the fact that government has no business being involved in the provision of such services in the first place...
Now this I think I understand. You are saying that by sitting down at the government's table (major) Religion(s) became "compromised" to a large degree. That it has become an angle with somewhat soiled wings.
In the name of conservatism we are seeing the government become solicitous of the role of the church in society and then begin to define the nature of that role.
This will inexorably define the church. The fly in the ointment, of course, is that the government is sticking its nose in where it does not belong.
Government must be weeded out of civil society if we are to make any sense of who we are and what we are about. A free people cannot long tolerate the intrusion of the
King in matters that do not concern him.
But through all times and places it has always been in the interest of government and the governing -- however it is defined -- to "see to" the religion(s) effecting, molding, restraining, re-channeling, civilizing, call it what you will, its citizens. If not a Religion based on the Divine or supernatural, then one based on Personal Cult (China under Mao, N. Korea today), or some large vague concept like "the people", "the state", or "the workers" (as in communist nations such as USSR, E. Germany, etc.)
With both history and human nature as our guide, IMHO it is possible to "weed out" government incursion -- whether state, city, national, local, country -- in assemblies where men gather. For, in truth, do these men not carry the government [defined as a code of rules, regulation re: behavior] with them where ever they go?
I believe it was Cicero who said, "Where ever I go, there (this place) is Rome to me." So we can say, "Where ever I go, there is my government --its laws, its restrictions, my inalienable right -- to me."
---------------
ooppss
Great. Nice to know I'm on the verge of being lumped in to the "open season" group.
…how would education and social services qualify as (a) civil society? It would seem to me that since both receive government money -- both state and national -- we have here a case of: "He who pays the piper calls the dance."
The Constitution does not allow the federal government to provide social services or to maintain a compulsory educational system. These are properly the venue of civil society, not government.
government regulations that control its own activities have the effect of law on non- government organizations... In what? In regard to what? Are these aformention regulation effects deliberate? Inadvertent?
Government regulations typically cover activities under the direct control of the government. There are many examples, however, of organizations outside the domain of the government that are nonetheless impacted by government regulations. Regulations have a way of trickling down into the private sector.
But through all times and places it has always been in the interest of government and the governing -- however it is defined -- to "see to" the religion(s) effecting, molding, restraining, re-channeling, civilizing, call it what you will, its citizens… I believe it was Cicero who said, "Where ever I go, there (this place) is Rome to me." So we can say, "Where ever I go, there is my government --its laws, its restrictions, my inalienable right -- to me."
You have nailed the meaning of cultural religion. Aquinas described quite another role for the church, that of the church militant. In this view the church stands against society, judging it and setting a standard that emanates from God, not man.
Our contemporary government and church seek to uphold a cultural ideal, not a spiritual one.
Having failed to quash religious sentiment, the government will now try to swallow up religion. The geniuses who wrote the Constitution have something to say about that as well.
Because the Kentucky decision was cited in the recent "atheism is religion" opinion of the Seventh (and exerpted at post 68) - it seemed like a good idea to revisit McCreary County, KY v. ACLU
The decision of the majority (which ruled against Kentucky) does indeed revisit equal status to nonreligion (which was previously declared in other opinions of the Court). Scalia, in writing the dissent, makes a compelling case that this country is pro-religion by history, tax laws, legislation, tradition, and reveals the conflict between decisions of the Court - which the majority opinion also recognizes.
It's a fascinating read considering there will be two new Justices in the next decision on this subject - and Roberts does not see legislation as a function of the Court. Even if he didn't want to touch settled law, this could hardly be called settled.
I'll be ready with popcorn if they take either the Pledge case or the "atheism is religion" case!
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