Posted on by Mark Movsesian

How the Supreme Court Found the Wall

Many Americans know that the Supreme Court has stated that the Framers intended the Establishment Clause “to erect ‘a wall of separation between Church and State.'” A smaller number know that the Court was quoting a letter from President Thomas Jefferson to Baptists in Danbury, Connecticut–a bit of bad history, since Jefferson’s  idiosyncratic views did not fairly reflect the consensus on church-state relations at the time of the Framing. A still smaller number know that the metaphor of the wall goes back even further, to Roger Williams, who adapted it from the Book of Isaiah.

But hardly anyone knows the very interesting story that historian and sometime CLR Forum guest Don Drakeman (Church, State, and Original Intent) tells in a recent paper. In “Why Do We Think the American Framers Wanted to Separate Church and State?,” delivered at Oxford’s Rothmere American Institute last month, Don explains that Chief Justice Morrison Waite (above) first used the metaphor in Reynolds v United States (1878), a case involving a ban on polygamy. According to Drakeman, Waite came upon the metaphor more or less by accident. Waite happened to live next door to the eminent American historian George Bancroft, for whom Jefferson was a hero. Waite consulted Bancroft about the case, and Bancroft advised that, if Waite wanted to know the Framers’ views on establishment, he should consult Jefferson:

The Chief Justice then went to the library and skimmed through the index to Jefferson’s collected works. There, he discovered an 1802 letter, in which Jefferson said that the First Amendment built a “wall of separation between church and state.” This statement had been buried for nearly 80 years until Chief Justice Waite unearthed it and cemented it into the foundations of church-state jurisprudence. Bancroft, by the way, got a thank-you note, but no visible credit for creating the Jeffersonian First Amendment.

So much for good originalism. Indeed, so much for ex parte communications about a pending lawsuit! But there it is. Don’s essay is a delight. Check it out here.

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Ragosta, “Religious Freedom: Jefferson’s Legacy, America’s Creed”

In April, the University of Virginia Press will publish Religious Freedom: Jefferson’s Legacy, America’s Creed by John Ragosta (Hamilton College). The publisher’s description follows.

Ragosta sk11.2.inddFor over one hundred years, Thomas Jefferson and his Statute for Establishing Religious Freedom have stood at the center of our understanding of religious liberty and the First Amendment. Jefferson’s expansive vision—including his insistence that political freedom and free thought would be at risk if we did not keep government out of the church and church out of government—enjoyed a near consensus of support at the Supreme Court and among historians, until Justice William Rehnquist called reliance on Jefferson “demonstrably incorrect.” Since then, Rehnquist’s call has been taken up by a bevy of jurists and academics anxious to encourage renewed government involvement with religion.

In Religious Freedom: Jefferson’s Legacy, America’s Creed, the historian and lawyer John Ragosta offers a vigorous defense of Jefferson’s support for a strict separation of church and state. Beginning with a close look at Jefferson’s own religious evolution, Ragosta shows that deep religious beliefs were at the heart of Jefferson’s views on religious freedom. Basing his analysis on that Jeffersonian vision, Ragosta redefines our understanding of how and why the First Amendment was adopted, showing how the amendment’s focus on maintaining the authority of states to regulate religious freedom demonstrates that a very strict restriction on federal action was intended. Ultimately revealing that the great sage demanded a strict separation of church and state but never sought a wholly secular public square, Ragosta provides a new perspective on Jefferson, the First Amendment, and religious liberty within the United States.

Posted on by Mark Movsesian

McMahon, “Slavery and Emancipation in Islamic East Africa”

From Cambridge University Press, a new monograph on the abolition of slavery in Africa 100 years ago, Slavery and Emancipation in Islamic East Africa (2013), by Tulane professor Elizabeth McMahon. The publisher’s description follows:

Examining the process of abolition on the island of Pemba off the East African coast in the late nineteenth and early twentieth centuries, this book demonstrates the links between emancipation and the redefinition of honor among all classes of people on the island. By examining the social vulnerability of ex-slaves and the former slave-owning elite caused by the Abolition order of 1897, this study argues that moments of resistance on Pemba reflected an effort to mitigate vulnerability rather than resist the hegemonic power of elites or the colonial state. As the meanings of the Swahili word heshima shifted from honor to respectability, individuals’ reputations came under scrutiny and the Islamic kadhi and colonial courts became an integral location for interrogating reputations in the community. This study illustrates the ways in which former slaves used piety, reputation, gossip, education, kinship, and witchcraft to negotiate the gap between emancipation and local notions of belonging.

Posted on by Mark Movsesian

Wheeler, “How Sex Became a Civil Liberty”

In America, sex has been constitutionalized. In a series  of opinions over several decades, the Supreme Court has held that the Constitution protects sexually explicit speech, contraception, abortion, and, latterly, homosexual conduct. The Court may be about to declare same-sex marriage a constitutional right. All this has put significant pressure upon traditionalist religions. More and more, fights about religious liberty involve the right to dissent — and to act in ways that reflect that dissent — from the legal consensus on sexuality.

How did this conflict develop? A new book from Oxford University Press, How Sex Became a Civil Liberty (2012), traces the role of one particular organization, the American Civil Liberties Union. Leigh Ann Wheeler (Binghamton University) argues that “creative individuals” at the ACLU “wrote sexual rights into the U.S. Constitution, a document that made no mention of them,” and helped change American culture. She does not simply celebrate these developments, however; she “shows how hard-won rights for some often impinged upon freedoms held dear by others.” Here’s the publisher’s description of the book:

How Sex Became a Civil Liberty is the first book to show how and why we have come to see sexual expression, sexual practice, and sexual privacy as fundamental rights. Using rich archival sources and oral interviews, historian Leigh Ann Wheeler shows how the private lives of women and men in the American Civil Liberties Union shaped their understanding of sexual rights as they built the constitutional foundation for the twentieth-century’s sexual revolutions.

Wheeler introduces readers to a number of fascinating figures, including ACLU founders Crystal Eastman and Roger Baldwin; nudists, victims of involuntary sterilization, and others who appealed to the organization for help; as well as attorneys like Read more

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McGuckin, “The Ascent of Christian Law”

We’re a little late getting to it, but earlier this year Byzantinist John McGuckin (Columbia/Union Theological Seminary) wrote a new monograph as part of Emory’s Christian Jurisprudence series, The Ascent of Christian Law: Patristic and Byzantine Reformulations of Greco-Roman Attitudes in the Making of a Christian Civilization (St. Vladimir’s Seminary Press 2012). The volume looks to be an important contribution to an unfortunately underwritten field: law in the Eastern Christian tradition.  Here’s the publisher’s description:

This volume aims to fill a large gap in the historical materials available to students of early Christian and Byzantine Christian studies. To that extent, it will be designed as a wide-ranging historical survey that covers the varying attitudes among the major early Christian theorists of law and governance issues as the church moved in its condition from a minority of resistance to the imperial church. The field of early studies of Christian law is dominated by scholars of Western canon law (though often microscopically treated). Eastern canon law remains massively neglected, relegated to studies by Orthodox canonists who have been concerned largely with issues of ecclesiastical precedence and protocol, rather than with large questions of the role of law in culture-making.

This book intends to consider questions such as: “What difference did Christianity make as a builder of civilization?” To what extent did the church, in presenting to late Roman society a vision of a Read more

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O’Malley, “Trent: What Happened at the Council”

The Counter-Reformation Council of Trent (1545-1563) had a major impact on the canons of the Catholic Church, including regulations concerning marriage and papal authority. This week, Harvard University Press is releasing a new study of the council by Georgetown University Professor John W. O’Malley, Trent: What Happened at the Council (2013). The publisher’s description follows:

The Council of Trent (1545–1563), the Catholic Church’s attempt to put its house in order in response to the Protestant Reformation, has long been praised and blamed for things it never did. Now, in this first full one-volume history in modern times, John W. O’Malley brings to life the volatile issues that pushed several Holy Roman emperors, kings and queens of France, and five popes—and all of Europe with them—repeatedly to the brink of disaster.

During the council’s eighteen years, war and threat of war among the key players, as well as the Ottoman Turks’ onslaught against Christendom, turned the council into a perilous enterprise. Its leaders declined to make a pronouncement on war against infidels, but Trent’s most glaring and ironic silence was on the authority of the papacy itself. The popes, who reigned as Italian monarchs while serving as pastors, did everything in their power to keep papal reform out of the council’s hands—and their power was considerable. O’Malley shows how the council pursued its contentious parallel agenda of reforming the Church while simultaneously asserting Catholic doctrine.

Like What Happened at Vatican II, O’Malley’s Trent: What Happened at the Council strips mythology from historical truth while providing a clear, concise, and fascinating account of a pivotal episode in Church history. In celebration of the 450th anniversary of the council’s closing, it sets the record straight about the much misunderstood failures and achievements of this critical moment in European history.

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Ross on Mosaic Law in Early Protestant Jurisprudence

From the beginning, Christian jurisprudence has tried to distinguish the “moral” elements of the Mosaic Law, which continue to bind Christians, from the “ceremonial,” which do not. Richard Ross (University of Illinois) has written what looks to be a fascinating essay, Distinguishing Eternal from Transient Law: Natural Law and the Judicial Law of Moses,  on the efforts of Protestants in early modern Europe and New England to grapple with this distinction. He ties their work  to similar efforts by natural law theorists of the period to differentiate between eternal and merely local principles. The abstract follows.

This essay examines two interlinked efforts in early modern Europe and New England to distinguish legal provisions valid across different societies and time periods from those that were local and transitory and therefore not compulsory in the present. Consider, first, the judicial laws of Moses. A minority of Protestants, whom I will call the “Mosaic legalists,” tried to ascertain which Old Testament judicial ordinances were no longer obligatory because they were particular to the Jewish commonwealth, and which were eternally-valid “appendices” to the natural law and Decalogue. The challenge of differentiating the perpetual from the local also occupied early modern students of the law of nature. Whether one believed that God impressed natural law upon the world or that people deduced natural law Read more

Posted on by Mark Movsesian

Levy-Rubin on Dhimmi Restrictions

Here’s an interesting post about an essay, written by Hebrew University Professor Milka Levy-Rubin, in a recent book from the University of Pennsylvania Press, Beyond Religious Borders: Interaction and Intellectual Exchange in the Medieval Islamic World (2011). Levy-Rubin’s essay, “Shurut Umar: From Early Harbingers to Systematic Enforcement,” discusses the development of classical Islamic law restrictions on “protected” peoples, or dhimmis, including Christians and Jews. She asserts that these restrictions, which date from the notional seventh-century “Pact of Umar,” were more or less uniform throughout the Muslim world, not idiosyncratic or haphazard, although enforcement of the restrictions may have varied. The rules included prohibitions on crosses, churches, processions, and certain kinds of dress, as well as payment of the jizya, or poll tax. The essay looks worthwhile for anyone interested in the history of fiqh restrictions on religious minorities.

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Deutscher, “Punishment and Penance: Two Phases in the History of the Bishop’s Tribunal of Novara”

This December, University of Toronto Press, Scholarly Publishing Division will publish Punishment and Penance: Two Phases in the History of the Bishop’s Tribunal of Novara by Thomas B. Deutscher (St Thomas More College, University of Saskatchewan). The publisher’s description follows.

Punishment and Penance provides the first comprehensive study of an Italian bishop’s tribunal in criminal matters, such as violence, forbidden sexual activity, and offenses against the faith. Through numerous case studies, Thomas B. Deutscher investigates the scope and effectiveness of the early modern ecclesiastical legal system.

Deutscher examines the records of the bishop’s tribunal of the northern Italian diocese of Novara during two distinct periods: the ambitious decades following the Council of Trent (1563–1615), and the half-century leading up to the French invasions of 1790s. As the state’s power continued to rise during this second time span, the Church was often humbled and the tribunal’s activity was much reduced.

Enriched by stories drawn from the files, which often allowed the accused to speak in their own voices, Punishment and Penance provides a window into the workings of a tribunal in this period.

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Calabresi and Salander on Religion and the Equal Protection Clause

Here’s an important new paper,  Religion and the Equal Protection Clause, arguing that the Fourteenth Amendment independently forbids state action that discriminates on the basis of religion, even without incorporation of the First Amendment’s Establishment and Free Exercise Clauses. Steve Calabresi (Northwestern) and a student co-author defend this novel claim by looking to the Fourteenth Amendment’s original meaning. They also reference trends in foreign constitutional and international human rights law. (Originalism and comparative constitutionalism – there’s an unusual combination). The wide-ranging and provocative paper also argues that public education, as currently funded, is unconstitutional. Here’s the abstract:

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter on the basis of religion. We defend our argument that the Fourteenth Amendment bans Read more