Around the Web

Here are some important law-and-religion news stories from around the web:

Chapman on Government Funding of Christian Education for Native Americans (and the meaning of the Establishment Clause)

Pretty neat paper by Nathan Chapman on the history of federal funding of Christian education for Native Americans from the Revolution to Reconstruction, and its implications–if any–for the meaning of the Establishment Clause. Here’s the abstract:

In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of “religious assessments,” or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.

What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to “civilize” American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to “persons of good moral character” to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.

This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.

This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.

A New Translation of Second Nicea

9781786941275The Seventh Ecumenical Council, Second Nicaea (787 AD), is famous for its rejection of iconoclasm, a question that roiled the Byzantine state in the eighth century.  It’s the last council accepted as ecumenical by Eastern Orthodox Christians. (The Catholic Church has convened many since, including, most recently, Vatican II). All of which is to say that Second Nicea represents an important moment in church-and-state history.

Late last year, Oxford University Press published a new, two-volume English translation of the formal acts of the Council. Very few English translations exist, so this is an important addition to the scholarly literature. The book is The Acts of the Second Council of Nicaea (787),  and the translator is Richard Price (University of London). Here’s the description from the Oxford website:

The Second Council of Nicaea (787) decreed that religious images were to set up in churches and venerated. It thereby established the cult of icons as a central element in the piety of the Orthodox churches, as it has remained ever since. In the West its decrees received a new emphasis in the Counter-Reformation, in the defence of the role of art in religion. It is a text of prime importance for the iconoclast controversy of eighth-century Byzantium, one of the most explored and contested topics in Byzantine history. But it has also a more general significance – in the history of culture and the history of art. This edition offers the first translation that is based on the new critical edition of this text in the Acta Conciliorum Oecumenicorum series, and the first full commentary of this work that has ever been written. It will be of interest to a wide range of readers from a variety of disciplines.

The Anti-Weber

3a49f43d92258c9b95781734e9db2f85 (1)A new book from Yale University Press argues that Max Weber had it all wrong. Christianity, even in its Protestant version, doesn’t create a capitalist mentality. Rather, Christianity offers a direct challenge to capitalism. Seems pretty straightforward, actually. The book, Christianity and the New Spirit of Capitalism, by Yale theologian Kathryn Tanner, is one of many new works, from both the left and the right, that critique the easy association many American Christians make between their religion and market economics. Here’s the description from the Yale website:

One of the world’s most celebrated theologians argues for a Protestant anti-work ethic

In his classic The Protestant Ethic and the Spirit of Capitalism, Max Weber famously showed how Christian beliefs and practices could shape persons in line with capitalism. In this significant reimagining of Weber’s work, Kathryn Tanner provocatively reverses this thesis, arguing that Christianity can offer a direct challenge to the largely uncontested growth of capitalism.

Exploring the cultural forms typical of the current finance-dominated system of capitalism, Tanner shows how they can be countered by Christian beliefs and practices with a comparable person-shaping capacity. Addressing head-on the issues of economic inequality, structural under- and unemployment, and capitalism’s unstable boom/bust cycles, she draws deeply on the theological resources within Christianity to imagine anew a world of human flourishing. This book promises to be one of the most important theological books in recent years.

A New History of Catholicism in Postcolonial Africa

9780674987661-lgHere is a new book from Harvard on the history of Catholicism in Africa in the postcolonial period, African Catholic: Decolonization and the Transformation of the Church, by Tufts University historian Elizabeth A. Foster. The publisher’s description of the book, below, suggests an historical struggle in French Africa between conservative European clerics and liberation-minded Africans. Ironic, that–because nowadays the struggle in Catholicism, and other Christian communions, is between progressive European clerics and conservative African ones. Times change:

A groundbreaking history of how Africans in the French Empire embraced both African independence and their Catholic faith during the upheaval of decolonization, leading to a fundamental reorientation of the Catholic Church.

African Catholic examines how French imperialists and the Africans they ruled imagined the religious future of French sub-Saharan Africa in the years just before and after decolonization. The story encompasses the political transition to independence, Catholic contributions to black intellectual currents, and efforts to alter the church hierarchy to create an authentically “African” church.

Elizabeth Foster recreates a Franco-African world forged by conquest, colonization, missions, and conversions—one that still exists today. We meet missionaries in Africa and their superiors in France, African Catholic students abroad destined to become leaders in their home countries, African Catholic intellectuals and young clergymen, along with French and African lay activists. All of these men and women were preoccupied with the future of France’s colonies, the place of Catholicism in a postcolonial Africa, and the struggle over their personal loyalties to the Vatican, France, and the new African states.

Having served as the nuncio to France and the Vatican’s liaison to UNESCO in the 1950s, Pope John XXIII understood as few others did the central questions that arose in the postwar Franco-African Catholic world. Was the church truly universal? Was Catholicism a conservative pillar of order or a force to liberate subjugated and exploited peoples? Could the church change with the times? He was thinking of Africa on the eve of Vatican II, declaring in a radio address shortly before the council opened, “Vis-à-vis the underdeveloped countries, the church presents itself as it is and as it wants to be: the church of all.”

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Here are some important law-and-religion news stories from around the web:

A New Reagan Biography

9781640120037 (1)To start this week’s books, here is a new biography of Ronald Reagan from the University of Nebraska Press, Ronald Reagan: An Intellectual Biography, by David Byrne (California Baptist University). The book highlights the role that Christianity played in Reagan’s worldview, particularly, the author says, the Christian concept of “a universal kingdom of God.” This puzzles me: Christianity and universalism don’t really go together. I wonder if what the author means is the American tendency, which Tocqueville recognized, to downplay religious difference in the name of equality. The “Kingdom of Freedom” the author describes, in other words, might be a bit more American than Christian. But then, again to cite Tocqueville, Americans have always conflated Christianity and liberty. Readers can judge for themselves. Here’s the description of the book from the publisher’s website:

In this ambitious work David T. Byrne analyzes the ideas that informed Ronald Reagan’s political philosophy and policies. Rather than appraising Reagan’s personal and emotional life, Byrne’s intellectual biography goes one step further; it establishes a rationale for the former president’s motives, discussing how thinkers such as Plato and Adam Smith influenced him. Byrne points to three historical forces that shaped Reagan’s political philosophy: Christian values, particularly the concept of a universal kingdom of God; America’s firm belief in freedom as the greatest political value and its aversion to strong centralized government; and the appeasement era of World War II, which stimulated Reagan’s aggressive and confrontational foreign policy.

Byrne’s account of the fortieth president augments previous work on Reagan with a new model for understanding him. Byrne shows how Reagan took conservatism and the Republican Party in a new direction, departing from the traditional conservatism of Edmund Burke and Russell Kirk. His desire to spread a “Kingdom of Freedom” both at home and abroad changed America’s political landscape forever and inspired a new conservatism that persists to this day.

Biskupic, “The Chief”

Here’s a new one that is not stricu sensu about religion, though of course it concerns law and religion inasmuch as many of the most controversial areas taken up by the Court involve law and religion questions, whether they are about abortion, disestablishment, free exercise, free speech, the rights of sexual freedom, and many others. Biskupic sets up a tension between promoting a “conservative agenda” and “protect[ing] the Court’s…place in history.” Well, that’s one way to say it. Some of us have been suggesting, albeit from a somewhat different perspective, for some time that the Chief Justice may sense himself to be “conflicted” in this way.

The book is The Chief: The Life and Turbulent Times of Chief Justice John Roberts (Basic Books), by the journalist Joan Biskupic.

“John Roberts was named to the Supreme Court in 2005 claiming he would act as a neutral umpire in deciding cases. His critics argue he has been anything but, pointing to his conservative victories on voting rights and campaign finance. Yet he broke from orthodoxy in his decision to preserve Obamacare. How are we to understand the motives of the most powerful judge in the land?

In The Chief, award-winning journalist Joan Biskupic contends that Roberts is torn between two, often divergent, priorities: to carry out a conservative agenda, and to protect the Court’s image and his place in history. Biskupic shows how Roberts’s dual commitments have fostered distrust among his colleagues, with major consequences for the law. Trenchant and authoritative, The Chief reveals the making of a justice and the drama on this nation’s highest court.”

Around the Web

Here are some important law-and-religion news stories from around the web:

Lacorne, “The Limits of Tolerance”

From the prominent French political theorist (and author of a political history of religion in America) Denis Lacorne comes this new book of intellectual history: The Limits of Tolerance: Enlightenment Values and Religious Fanaticism (Columbia University Press). Lacorne’s thesis seems to be the rather familiar one that tolerance is a distinctively 17th and 18th century idea emergent in the views of such people as Locke and Voltaire (Locke is perhaps a more familiar source on this score than Voltaire, whose writing about toleration is rather more uneven in its commitment). There also seems to be a very practical and how-to side of the book, as the description suggests, applying Enlightenment wisdom to contemporary problems. It would be interesting to put Lacorne in conversation with Robert Wilken, whose recent book on a similar theme offers a very different view.

“The modern notion of tolerance—the welcoming of diversity as a force for the common good—emerged in the Enlightenment in the wake of centuries of religious wars. First elaborated by philosophers such as John Locke and Voltaire, religious tolerance gradually gained ground in Europe and North America. But with the resurgence of fanaticism and terrorism, religious tolerance is increasingly being challenged by frightened publics.

In this book, Denis Lacorne traces the emergence of the modern notion of religious tolerance in order to rethink how we should respond to its contemporary tensions. In a wide-ranging argument that spans the Ottoman Empire, the Venetian republic, and recent controversies such as France’s burqa ban and the white-supremacist rally in Charlottesville, The Limits of Tolerance probes crucial questions: Should we impose limits on freedom of expression in the name of human dignity or decency? Should we accept religious symbols in the public square? Can we tolerate the intolerant? While acknowledging that tolerance can never be entirely without limits, Lacorne defends the Enlightenment concept against recent attempts to circumscribe it, arguing that without it a pluralistic society cannot survive. Awarded the Prix Montyon by the Académie Française, The Limits of Tolerance is a powerful reflection on twenty-first-century democracy’s most fundamental challenges.”

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