It isn't often that a TV show causes me to have flashbacks to the constitutional law course I took as a freshman at Berkeley. Or maybe I'm fundamentally uncomfortable with the expository form and need to grasp at any tenuous excuse to segway into a topic of my choice.
On last night's episode of the Daily Show, Jon Stewart had as his guest David Barton, an advocate of what he calls "historical reclamation." In essence, he argues that at the time of the founding of the United States, religion was a far more central and accepted feature of public life than it is today; the part where reclamation fits in is that as we've turned away from overt displays of religion in the public sphere, we have also forgotten or tended to downplay its contribution to early US history. I think that's a very fair description of DB's views. I also think it's fair to say that he considers the legal banishment of religion from government an affront to Christians, whose right to worship is being ever more tightly encircled. Jon, being the "secular humanist" that he is, pretty much disagreed about everything DB said, so from start to finish the entire interview consisted of challenging each other's little factoids, citations, and the context of the citations dating back to founding of the US.
I tend to think that, for the purposes of teasing out questions of present day morality and constitutional law, arguing over the historicity of society and values in early America is a distraction from the real meat. For one, practically everyone at the time could agree that they were Christians and Christianity really did pop up everywhere (sorry Jon). Secondly, - and I know I make this point way too often - I've never been able to understand why we debate ourselves breathless to make the point that the Founding Fathers agree with me and not you, as if having a bunch of 18th century slaveholders on our side vindicates our beliefs or lends us moral credibility. I admire the Founding Fathers for what they are: men - they were all men - who were far ahead of time with revolutionary ideas about liberty and justice. But it's far too easy to get sucked into the originalist/strict-constructionist trap and begin taking every single one of their ideas at face value.
For me the most interesting moment of the debate came when David Barton pointed out that the First Amendment actually reads "Congress shall not pass any law respecting the establishment of religion." This supports DB's claim that the Founders were intentionally silent on the question of whether the individual states could do so. In fact, he's correct that states historically could pass laws establishing or impeding the free exercise of religion in ways that we would today consider unconstitutional. Of course, DB's larger point was that once upon a time, sub-federal jurisdictions could make community decisions to worship in public space with the preference of the law. Never mind that communities can still worship together even without the backing of force of law... In the originalist construction, giving preference to the local religion before the law is just dandy, because there's at least some historical evidence that this was practiced in the early years of the republic.
Fortunately, the Supreme Court came to apply the First Amendment against the states in a process known among jurists as "incorporation of the Bill of Rights," and I wish either Jon or DB had given more context about it because it's a wonderful illustration of the Constitution evolving with country. This process basically interprets provisions of the US Constitution's Bill of Rights, which enshrines principles like equal treatment and due process before the law, and applies them more broadly than we had previously understood by holding not just the federal government to it, but state governments too. Before the First Amendment was incorporated (that is, for most of American history) state governments could issue certifications granting religions the right to proselytize or require that public school students pray together.
Throughout the legal history of incorporation, most cases have occurred through the Due Process Clause of the Fourteenth Amendment. According to my con law professor Gordon Silverstein, the 14th has been described by some scholars as a new constitution, because of how dramatically it shifted the balance between federal and state power. That's not surprising, given the historical context of its ratification. The 14th was passed in reaction to the Civil War, which saw the most strident partisans of states' rights defeated by the Union. Among other things, the 14th Amendment expressly reverses the infamous Dred Scott decision by granting US citizenship and its rights to all persons born in the US and codifies the right to equal protection and due process before the law. The idea of amendments itself poses a fatal process to DB's reclamationist logic, for the Constitution's own framers provided for a built-in amendment process to ensure that it evolves with time. And as the capstone of Reconstruction(ism), the 14th Amendment constitutes a real paradigm shift that the original constructionists can't quite account for.
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