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Liberty Magazine | March / April 2006

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Freedom in the Old Testament

Robert's Rules

Quiet Case May Have Far-Reaching Impact

Jews and the Christian Right

Freedom and Tolerance

All in the Family

A Populist Religious Movement

Toward a Medieval Model

MARCH / APRIL 2006

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Liberty Magazine | March / April 2006

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BY: MORDECAI ROSHWALD

There is a widespread notion that the Bible, and especially the Old Testament, is and has historically been a force working against thefreedom of man. This opinion is often stated not only by college students but also by distinguished scholars. They believe that theGreek heritage, with its philosophy, its poetry, its drama, its art, expresses the free-roaming human spirit, while the Old Testamentrepresents a fervent religious belief that, by its very nature, is fanatical and intolerant of doubt, let alone dissent.

Ancient Greeks, though religious people on the whole, did not take their religion seriously, and their many gods quarreled amongthemselves, thus setting an example for diversity of opinion. Ancient Israelites, whose religion dominated their life and civilization, hadone jealous God who would not tolerate other deities—a belief expressing commitment to one all-embracing absolute and intoleranttruth.

However plausible such arguments may sound, they are not borne out by facts. An impartial reader of the Old Testament will find thathuman freedom is assumed, allowed, encouraged, and exercised on the pages of the Old Book. Alas, few admirers of the Greekheritage read the Bible at all. Even fewer read the text without preconceptions. There is a point, therefore, in proving our case byquoting and exploring a few cardinal examples.

Freedom of Will

One instance of liberty, fundamental to the religious philosophy of the Old Testament, is the liberty of the collective will. The relationshipbetween God and a people—the 12 tribes of Israel—is based on the conclusion of a covenant, not unlike a legal agreement betweentwo parties. The terms of the agreement, originated and concluded in the wilderness of Sinai, are specified by God, who is one of thecontracting parties: "Now therefore, if ye will obey my voice indeed,. . . then ye shall be a peculiar treasure unto me. . . a kingdom ofpriests, and an holy nation" (Exodus 19:5, 6). And the other party to the agreement, the people of Israel, answer: "All that the Lord hathspoken we will do" (verse 8). Significantly, this statement is not a mere pious uttering, but the collective decision and commitment of anation, a decision duly conveyed by Moses, serving as an intermediary between the two parties, to God: "And Moses returned thewords of the people unto the Lord" (verse 8). Obviously, an agreement is based on the free will of those who enter into it. The people ofIsrael, not unlike God Himself, have the free choice to enter into the agreement or not to do so: their decision, while binding, is madefreely.

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The idea of free choice, assumed here implicitly, is deliberately stressed in anothercontext. On reaching the Promised Land, the tribes of Israel are to gather at MountGerizim and Mount Ebal and be given the option between blessing and curse: "Ablessing, if ye obey the commandments of the Lord your God,. . . and a curse, if ye willnot obey the commandments" (Deuteronomy 11:27, 28. See also chapters 27 and 28).Indeed, the entire moral-legal code of the Pentateuch is based on the assumption thathumanity—also as individuals—can choose between the right and the wrong way,between good and evil.

This assumption of free will can in no way be deemed as either self-evident ornegligible. For there have been philosophies—and some are even fashionabletoday—that deny man this freedom of choice. It is quite acceptable to say that thewrongdoer is not really responsible for his action. It is his family circumstances,socioeconomic background, or the like that is the true cause of his behavior. In otherwords, it is not the free will of the individual but external factors that are responsible forhis conduct.

Similarly, one could argue that the doer of good is not acting out his own will, buthappens to act that way because his circumstances are beneficial. In both cases manis demoted from a free agent to a pawn of circumstances. The Old Testament assertsthe humanity of man, the dignity of man, the sovereignty of man's will—whether hechooses good or evil. In a way this concept asserts the dignity even of the wrongdoer.For the Bible conceives man's actions not as an effect of causes, but as the outcome ofconscious decisions. Here is human responsibility: Man cannot blame hiscircumstances; he is to blame. Free will and moral responsibility are interdependent,and the Old Testament insists on both.

Apart from philosophical resolution of the question of free will, it can be said that thenotion of man's freedom and his responsibility for his actions, whenever and whereverit was adhered to, had had a beneficial influence both on man's self-awareness and onhis conduct in society. A society of people believing in their responsibility, because theyconsider themselves free agents, is superior to a society of people who abdicateresponsibility and see themselves as manipulated by circumstances, or ordered byother men.

Political Freedoms

The Old Testament's concept of free will shaped political as well as religious institutions. Democracy, as the direct rule of the people,may have been developed and instituted in ancient Greece; the freedom of the people to decide on the form of government to whichthey would submit, a fundamental democratic principle, is clearly expressed in the Bible.

The relevant passage can be found in 1 Samuel 8. There the people of Israel come to Samuel and demand establishment of apermanent monarchy, instead of a sporadic rule of judges. Samuel, as the spokesman for God, discourages them from taking such astep. Indeed, the biblical story suggests that the establishment of a human kingship is tantamount to the rejection of the direct rule ofGod. Says God to Samuel: "For they have not rejected thee, but they have rejected me, that I should not reign over them" (1 Samuel8:7). Yet the divine displeasure does not nullify the will of the people, and God, however reluctantly, accepts the people's decision andtells Samuel: "Hearken unto their voice, and make them a king" (verse 22). The freedom of the people to decide, even to make anerroneous decision, is firmly established.

While the people can err and, of course, bear the consequences, the Bible does not relinquish its own responsibility for promoting thefreedom of the people—collectively and individually. It therefore codifies laws for the behavior of the king, who must not become adespotic ruler. Not only is the king exhorted not to "multiply horses," nor to "multiply wives to himself" (Deuteronomy 17:16, 17), but he iscommanded to have a copy of the divine law and "read therein all the days of his life: that he may learn to fear the Lord his God, to keepall the words of this law" (verse 19). And the Bible adds a democratic argument to the religious one: "that his heart be not lifted up abovehis brethren" (verse 20). The king of Israel, far from being a god—as the Egyptian monarchs or later Roman emperors styled themselves—remains human and subject to the laws of God, which are binding on him as they are on his brethren. Monarchy, however elevatedand powerful, must not become a means for enslaving the people. Equality of all, under divine law, means freedom of man fromenslavement.


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The biblical notion of divine rule over men impelled individuals in ancient Israel to criticizesociety, to oppose governmental policies, to rebuke kings, in the name of God and morality.The history of prophecy, from Elijah to Jeremiah, abounds in examples of vigorous criticism ofthe mistakes and sins of kings and of the people. Political liberty involved the freedom and theright—indeed, the duty—of moralists to participate in social and political affairs throughcriticism and censure. And the voice of the prophets was not, by and large, a voice in thewilderness. It seems to have proved not less effective than the voice of any modernopposition party. It certainly has had a more lasting effect on humanity.

Freedom of the Mind

If the rule of God provided leverage for freedom of political and social criticism, the Bible alsocontains the testimony of man's freedom of mind and speech that is independent of God'sauthority, and even questions and criticizes God's ways with man.

A key story in this connection is the dialogue between Abraham and God with respect to theimpending destruction of Sodom and Gomorrah, the sinful cities. Abraham, on being informedby God about His intent, does not accept the judgment passively, does not say, "Thy will bedone," but, surprisingly, starts to question God. There may be in the city some righteouspeople, he argues, and poses the simple yet monumental question: "Wilt thou also destroy therighteous with the wicked?" (Genesis 18:23). Abraham, with great persistence, is trying tosave the cities if there are some righteous people there, and through cautious yet persistenthaggling brings down from 50 to 10 the number of the righteous for whose sake God wouldspare the cities. Though Abraham is fully aware that he is "but dust and ashes" (verse 27), heperseveres in his charitable attempt and drives home his point with great moral fervor: "Thatbe far from thee to do after this manner, to slay the righteous with the wicked. . . . Shall notthe Judge of all the earth do right?" (verse 25).

As we know, no 10 righteous were found in the sinful cities, and Lot and his family, the only righteous people there, escaped beforedestruction. God did not slay the righteous with the wicked. However, the significance of the dialogue is not affected by the sequel to thestory. For the very fact that such a dialogue is included in the Bible—without being censured by the biblical editor—shows the profoundrespect it holds for freedom of opinion and liberty of speech. Man may question and even doubt the rightness of God's action. Man maybe dust and ashes, but his condition does not deprive him of moral responsibility and judgment.

Nor is this story the only case of man's argument with God. On various occasions Moses argues with God, and so do some otherprophets. The psalmist questions God's conduct of the world, especially why the righteous suffer and the wicked prosper (see Psalm73). The book of Job reflects an even more profound criticism and skepticism. Ecclesiastes records views altogether dissenting from themainstream of religious belief. The significant point about all this with respect to our theme is that freedom of mind and of speech isvigorously asserted in the Old Testament. Opinions sincerely held are given expression, even if they question God Himself and Hisconduct of the universe. This freedom of speech is not asserted as a doctrine; it is vindicated by example, by the actual inclusion ofcritical opinions and books in the compilation called the Bible.

If man is free to question God and argue with Him, it is obvious that he may disagree with fellow men and voice his opinion, irrespectiveof their numbers, social status, or political role. The conclusion is too obvious to require explicit elaboration—either in the Bible or in thisessay. It must have served as another factor in the daring criticism of the prophets, who had the examples of Abraham and Moses intheir respective arguments with God.

Contribution to Modern Liberalism

While the case of human liberty in the Bible can be substantiated by the biblical text itself and requires no outside authority andconfirmation, it is important to mention that the point was understood by some prominent men of the past who influenced the moderntendency for freedom of expression. A prominent example in this respect is Milton.

John Milton, an English poet of the seventeenth century, versed both in Greek and in Hebrew, acknowledges the wide freedom ofexpression in the Bible and uses it as an argument for establishment of the universal principle of freedom. If censorship is allowed onthe ground of the harm resulting from reading sinful and false matter, argues Milton, the Bible itself must become a prohibited book: "For. . . it brings in holiest men passionately murmuring against Providence through all the arguments of Epicurus" (John Milton,Areopagitica).The Bible not only set an example for tolerance of opinions, but its very theology is based, as Milton recognizes, on the assumption ofman's freedom of choice: "When God gave him [Adam] reason, He gave him freedom to choose, for reason is but choosing"


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(Areopagitica). Thus the dignity of man and the freedom of man in the Bible are recognized by Milton and reasserted by him.

Modern liberalism, whose spokesmen have not always resorted to the Hebrew sources, benefits from the erudition and insight of Milton,while all too often forgetting an important source of his inspiration.image 4 right original >___________________________Mordecai Roshwald was professor of humanities at the University of Minnesota. This article first appeared in the May/June 1976issue of Liberty.


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Has Order Been Restored To The Supreme Court With The Appointment Of LegalWunderkind John Roberts, And Samuel Alito An Associate Justice? After Talk OfThe Nuclear Option, His Easy Confirmation Seemed Like The End Of The Cold War.The Relatively Collegia

Has order been restored to the Supreme Court with the appointment of legal wunderkind John Roberts, and Samuel Alito an associatejustice? After talk of the Nuclear Option, his easy confirmation seemed like the end of the cold war. The relatively collegial grilling ofJudge Samuel Alito—the justice described as filling Sandra Day O'Connor's shoes—also belied the real battles on the Court. There isindeed a great deal of ideological repositioning that has significant implications for religious freedom in America.

There is a certain irony in the fact that most of the Rehnquist Court were Republican/conservative appointees. But at the same time itsomewhat vindicates the intent of the framers of the Constitution that the Court, by having tenure, be above party loyalty. However, ifyou listen carefully to the cry of partisans—and in particular the Religious Right—they are more and more calling for the appointment ofideologues who will push agenda over law. This is problematic to all liberty.Roberts at his confirmation seemed a poster boy for middle-American values. And he may prove to be, without threatening religiousfreedom issues. But listening carefully to his spare comments and reading his paper trail show a clear identification with ajudicial/constitutional worldview that is problematic.

In testimony he hedged on whether there is a general constitutional guarantee of privacy. Of course, that signals he may not favor Roev. Wade and abortion. While we can rightly join religious activists in decrying the whole abortion model, it did arise from well-thought-outmodels of the rights of the individual versus the state. Roberts seems to share a growing conservative view that rethinks individualrights. The implications for religious freedom and divergent religious thought are troubling.

Roberts is on record as being uncomfortable with a strict separationist view of the First Amendment. This will further enable things suchas the faith-based initiative of the Bush administration—a historic move across the line of separation and one that should properly havebeen declared unconstitutional by the Supreme Court.

It has been remarked that some of Roberts' noncomments in hearings are eerily similar to those of Clarence Thomas, who is radicallyconservative in the mold of Antonin Scalia, who opined not long ago that Sunday blue laws are not unconstitutional.

In reality the issue is not quite one of conservative versus liberal in the old sense. The Religious Right has introduced a moral agenda toconservatism that creates a split between the old conservative models of fiscal policy and government restraint and a new reactionaryone that has an agenda to reclaim America to a specific historic model of behavior and faith. This new movement has also successfully

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demonized liberalism by casting it as the mind-set of immorality.

It is worth noting that Scalia best enunciates the new conservative judicial model when he speaks of original intent and textual accuracy.He and others are quite open about this, and it fuels the charge against liberals of legislating from the bench. For Scalia the documentmeans what it says—no more, no less. Of course, the Constitution is a very spare document by design, so many of the modern modelsare a poor fit taken literally. In those cases Scalia and many of the new conservatives look to original intent. This involves more than alittle projecting of their own views into the minds of 200 years ago, and not a little endorsing of views of freedom and religion that we findabhorrent today. Look to a court dominated by such "conservatives" to encourage state involvement in religion, to restrict religiousexpression that is out of the mainstream, to uphold the prerogatives of business and property (read less rights of divergent religiousexpression in the workplace), to further empower the executive power, and in general to roll back freedom issues of the past 50 years.

However, if the Court is subject to the influence of the current line of judicial liberalism, we may equally fear for religious freedom.

Justice Scalia regularly demeans those of his fellow justices who hold to a view of a "living" or "evolving" Constitution, whereby theyadopt the principles and ideals of the document to today's realities. Justice Stephen Breyer just admitted to this charge in a recentlyreleased book outlining his philosophy. It is well thought out and responsible—but in a crisis this mind-set also could subvert religiousfreedom if the nation seemed to demand it.

In the chaos of the election of 2000 the Supreme Court effectively conferred the election to George Bush because, as Scalia famouslyput it, there was a good chance that he would lose if they did not act. They did have the right to make a determination—but it ignoredthe fact that there were other, constitutionally mandated, procedures to follow in an electoral impasse. Here even a conservative-dominated court somewhat responded to political clamor rather than closely adhering to legal proscription. Breyer overtly says thatjustices should rule based on evolving democratic norms.

For too many, a less-separated church and state is, if not a norm, an agenda item. I fear that both the presently conservative court or acourt influenced by an evolving view of the Constitution could as easily restrict true religion.___________________________Comments by Lincoln E. Steed, Editor Liberty magazine___________________________

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Missing Were The Shouting Protestors With Placards, The Miniature TenCommandments Tablets, And The Throng Of Media Representatives. It Was AlmostBusiness As Usual The Day The Supreme Court Heard The Term's Sole ReligiousLiberty Case. Unlike The Ten Com

BY: K. HOLLYN HOLLMAN

Missing were the shouting protestors with placards, the miniature Ten Commandments tablets, and the throng of media representatives.It was almost business as usual the day the Supreme Court heard the term's sole religious liberty case. Unlike the Ten Commandmentsdisplay cases that received so much media attention last term and flamed the cultural debates on religion, the case of O Centro EspiritaBeneficiente Uniao Do Vegetal v. Gonzalez made its way to the Supreme Court rather quietly. At oral argument in November last year,the case drew the attention mostly of the members of the small religious sect whose central sacrament is threatened by the enforcementof federal drug laws against them. While much of the media took a pass on this one, all who are interested in the protection of religiousliberty should take note, because the importance of this case may far exceed the particular religious practice at issue.

In broad terms, the case addresses the fundamental question of what the government must do to protect the free exercise of religion. Aswith many of the Court's religious freedom cases, it also demonstrates how cases dealing with religious minorities and uncommonreligious practices often test our country's commitment to fundamental freedoms that others may take for granted. It is in cases arisingfrom religious minorities that courts affirm or deny the principles of the religion clauses that apply to all. Such cases remind us that whenreligious liberty is denied to anyone, everyone's religious liberty is threatened.

The case began more than six years ago with the federal government's attempt to prohibit a small church from practicing its religion.The church (known as "UDV") has about 150 members in the United States and follows the teachings of a religion native to Brazil. Thechurch's religious practices involve a central sacrament of ingesting a tea, known by its Portuguese name, hoasca, that is rituallyprepared from two Brazilian plants. Members of the church believe that hoasca, when used in UDV's religious ceremonies, brings themcloser to God. A small amount of the chemical dimethyltryptamine (DMT) results from the preparation of the tea. DMT is on a list ofchemicals regulated by the Controlled Substances Act.

The government confiscated the church's plants and records, threatened its members with prosecution, and sought to prevent furtherimportation and use of hoasca. When negotiations failed to resolve the dispute, UDV sued the government under the Religious FreedomRestoration Act (RFRA) to stop the government from using the Controlled Substances Act against them. The church presented evidencethat the consumption of hoasca has caused no significant adverse health consequences and has not been diverted to illicit use. Thegovernment claimed that hoasca posed a health danger to UDV's members and was likely to be diverted to nonreligious use, and itsimportation from Brazil would cause the United States to violate an international treaty. UDV was successful in the lower courtproceedings, and the government appealed to the Supreme Court.

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This case marks the first time an RFRA case has reached the Supreme Court since the 1997 City of Boerne case invalidated RFRA'sapplication to state laws. RFRA, which was supported by a broad coalition of religious and civil liberties organizations, includingSeventh-day Adventists, Baptists, Catholics, Jews, and Muslims, requires that the federal government have a compelling interest,exercised by the least restrictive means, when it substantially burdens religion. The federal statute, which remains in effect as to federallaws after City of Boerne, is an essential protection for religion in light of the Supreme Court's 1990 decision in Employment Division,Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990), which has been widely criticized for reducing protections underthe free exercise clause. Without RFRA, religious practices that are burdened by neutral, generally applicable laws of the federalgovernment would not be protected. When Congress passed RFRA, it did so recognizing that many times general laws incidentally andunintentionally harm religion. RFRA was intended to guard against such harms.

In the UDV case the federal government makes the expansive argument that it has a compelling interest in the "uniform application" ofthe drug laws. In other words, the Controlled Substances Act cannot allow exceptions based upon religious beliefs; uniform enforcementmeets the compelling interest test without a case-by-case review. The significance of the case to the larger religious community lies inthat broad claim. The government's analysis would sharply limit RFRA. It is that concern, and the deep investment many religiousorganizations had made as part of the broad Coalition for the Free Exercise of Religion that supported the passage of RFRA, that led tobroad amicus support in favor of UDV.

In fact, RFRA was specifically designed to make it hard for government to impinge on the free exercise of religion without a good specificreason. The government's position, however, would allow it to be excused from making the proper statutory showing. As Judge MichaelMcConnell explained in the case at the Tenth U.S. Circuit Court of Appeals, "Congress' general conclusion that DMT is dangerous in theabstract does not establish that the government has a compelling interest in prohibiting the consumption of hoasca under the conditionspresented in this case."

UDV, and many religious entities that filed briefs on its side, argued forcefully that the government cannot avoid its burden under RFRAby asserting that the drug laws can bear no exemptions. To satisfy the compelling interest test, the government must show a seriousharm, based on specific evidence rather than speculation or general statements.

At the Supreme Court, a senior deputy solicitor general, Edwin S. Kneedler, argued the government's case. The questions came quickly,and at least some of the questions from the bench indicated skepticism about the government's sweeping theory. A couple of justicesnoted exceptions in drug laws for the use of peyote as a sacrament in the Native American Church. Justice Antonin Scalia asserted thatsuch an exception was a "demonstration that you can make an exception without the sky falling in." Justice Ruth Bader Ginsburg hadthe same concern and questioned whether permitting an exception for one religious group, but not others, would raise constitutionalconcerns.

Questions for UDV, represented at oral argument by Albuquerque, New Mexico, attorney Nancy Hollander, however, indicated that thecontext of the claim in the federal drug law arena and international treaty obligations relating to those laws make this case a challengingone for the Court. Chief Justice John Roberts, hearing his first religious freedom case since his confirmation, asked questions aboutwhether the Court's outcome should be different if UDV expanded or if later hoasca was diverted from its religious use. Othersquestioned how an exemption for UDV would square with United States treaty obligations.

On February 21, the Court issued a unanimous opinion in favor of UDV. The opinion was written by Chief Justice Roberts in his firstreligious liberty case. The Court rejected the Government's argument that it had a compelling interest in the uniform application of theControlled Substances Act that would not allow exceptions to accommodate UDV. That argument was fatally undermined by thelongstanding exemption for religious use of peyote by Native Americans. Instead, the Court read RFRA according to its terms andenforced it in a way that bodes well for religious freedom and the continuing vitality of RFRA. Because the case was decided on apreliminary injunction, the case now goes back to district court for additional proceedings.___________________________K. Hollyn Hollman is general counsel for the Baptist Joint Committee for Religious Liberty in Washington, D.C.___________________________

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BY: CLIFFORD GOLDSTEIN

It has been one of the stranger political alliances in American history: the conservative evangelicals of the Christian Right and America'sJews, two groups that—given their differences on just about everything from prayer in public school to abortion, taxes, andJesus—would normally find themselves at each other's throats, not in each other's arms. Indeed, the Christian Right is uniformlyhard-core Republican, while the Jews—though much less homogenous politically—have traditionally been tried-and-true Democrats.What, then, has kept this strange alliance going?

One word sums it up: Israel.

Probably no group, outside of the Jews themselves, has been more steadfastly, dogmatically unwavering in its support for the Jewishstate than the Christian Right—a position that has kept many Jews, while fearing the Christian Right, relatively quiet about those fears.After all, with much of the world hostile to Israel, with many liberal Protestant churches openly, unabashedly pro-Palestinian, how nice tohave a powerful ally so fervently supportive of what is for many Jews their primary concern. Sure, the Jews might disagree with theChristian Right on a host of domestic issues, but what's a manger scene with a few reindeer in a public square compared to thepotential destruction of the only Jewish state since the Bar Kokhba rebellion in A.D. 135?

Not much. Which is why the Jews, despite their deep-seated differences with the Christian Right, have kept quiet.

Until now. Late last year two well-known Jewish leaders spoke out strongly, even harshly, against their erstwhile allies in the ChristianRight. Both Abraham Foxman, national director of the Anti-Defamation League (ADL), and Rabbi Eric Yoffie, president of the Union forReform Judaism, launched into unnuanced attacks on the Christian Right and the potential danger they believe the movementrepresents to America and, particularly, the Jewish people.

The Two Witnesses

Though tensions have been fomenting for years within the Jewish community, things came out more in the open when Foxman, at an

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ADL National Commission meeting last November, lashed out at the Christian Right, calling it "the key domestic challenge" to the Jewishcommunity in America. He warned about the trend "to throw out the constitutional balance that protects our public square for somethingquite different: an effort to Christianize America." Then, pulling no punches, he openly challenged the Christian Right, naming groupssuch as Focus on the Family, Alliance Defense Fund, American Family Association, and Family Research Council.

"Make no mistake," said Foxman. "We are facing an emerging Christian Right leadership thatintends to 'Christianize' all aspects of American life, from the halls of government to thelibraries, to the movies, to recording studios, to the playing fields and locker rooms ofprofessional, collegiate, and amateur sports, from the military to SpongeBob SquarePants."The nation, he said, faces "a better financed, more sophisticated, coordinated, unified,energized, and organized coalition of groups in opposition to our policy positions onchurch-state separation than ever before. Their goal is to implement their Christian worldview.To Christianize America. To save us!"

Two weeks later in Houston, at the Union for Reform Judaism 68th General Assembly, RabbiYoffie, in a sermon delivered to about 5,000 people, spent part of the time in open criticism ofthe Christian Right's political agenda in the name of religion.

"We are particularly offended," he said, "by the suggestion that the opposite of the ReligiousRight is the voice of atheism. We are appalled when 'people of faith' is used in such a way that it excludes us, as well as most Jews,Catholics, and Muslims. "What could be more bigoted than to claim that you have a monopoly on God and that anyone who disagreeswith you is not a person of faith?"

Then, more bluntly, he continued: "So we ask our neighbors on the Religious Right to take note: We are religious Jews, gathered inHouston to study, pray, and commit ourselves to God. And yes, we are generally liberal in our politics. But our liberalism flows directlyfrom our religious commitments. And we worry that you don't understand what this means, or what it means for anyone to be a liberalreligious believer.

"What it means is this: that we bring a measure of humility to our religious belief. We study religious texts day and night, but we have nodirect lines to heaven, and we aren't always sure that we know God's will. It means believing that religion involves concern for the poorand the needy, and giving a fair shake to all. When people talk about God and yet ignore justice, it just feels downright wrong to us.When they cloak themselves in religion and forget mercy, it strikes us as blasphemy."

Finally, after castigating them on their position toward gay marriage, he expressed a wish to dialogue, but only if it were understood that"religion is far too important to be entangled with government; that we need beware the zealots who want to make their religion thereligion of everyone else; and that we all need to put our trust in America, the most religiously diverse country in the world."

Fissures

Though Rabbi Yoffie wasn't as direct, or confrontational, as Foxman, the message of both was understood. And not everyone, whetherJewish or Christian, was happy with it either. Writing in Salon.com (November 29, 2005), Michelle Goldberg said that Foxman and Yoffie"have enraged some evangelicals and opened a fissure in the larger Jewish community. Some leaders are worried about provoking aconservative backlash and ushering in a new era of anti-Semitism. Others rejoice that someone has finally articulated what so manyordinary American Jews have been thinking. Either way, the culture wars have suddenly taken on an overtly sectarian cast."

Whether a shift in Jewish thinking, or merely a few garlicky burps in what's never been a lovefest at best between the two groups, theirwarnings have caused harsh rhetoric on both sides. Plus, as Goldberg said, they have caused a fissure in the Jewish communitybetween those who want other Jews to back off criticizing Israel's most loyal supporters and those who, despite the Christian Right'spro-Zionist stance, believe that the movement poses a threat. In one case Jewish author David Klinghoffer mocked Foxman's rhetoric,arguing that with the president of Iran talking about the need "to wipe Israel off the map," the head of the ADL is sounding a direwarning. . . about James Dobson and Focus on the Family?

"So," wrote Klinghoffer, "what are we to make of the weird air of unreality in the ADL's public statements about Christians?"Some evangelicals didn't respond fondly either. Going right for the jugular, Don Wildmon, head of the American Family Association, oneof the groups specifically named by Foxman, warned that statements like these could endanger Christian support for Israel. SaidWildmon: "The more [Foxman] says that 'you people are destroying this country,' [the more] some people are going to begin to get fedup with this and say, 'Well, all right then. If that's the way you feel, then we just won't support Israel anymore.'"

The Prophetic Factor


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This ugly kind of sectarian rhetoric, Jew versus Christian, is exactly what many Jews want to avoid, especially since they're vastlyoutnumbered, in every way, by the Christian Right. Plus, why alienate Israel's most fervent, and powerful, Gentile supporters in theUnited States?

On the other hand, Wildmon's words were pure bluff. How could evangelicals not support Israel when, according to their owninterpretation of Bible prophecy, God has called the Jews back to the land? To stop supporting Israel would be, in their thinking,tantamount to fighting against God's will, something they're not likely to do, at least not until the time is right (see below).

Here's where things get complicated. Jewish enthusiasm for the Christian Right's fervid pro-Israel stance remains tempered by the factthat this support is based on a theology that predicts, among other things, the destruction of millions of Jews in the Holy Land during thefinal battle of Armageddon. Almost 20 years ago, in the pages of Liberty (November/December 1987), I wrote an article, "The ReligiousRight and the Destruction of Israel" (subsequently reprinted by the Baltimore Jewish Times on January 29, 1988), in which I warned thatthe Christian Right's support of Israel is based on a skewed interpretation of Bible prophecy that, according to the various scenarios,predicts the death of millions of Jews, all part of end-time events to precede the second coming of Jesus. Meanwhile those Jews whoaren't slaughtered will accept Jesus as the Messiah and become, in the words of Hal Lindsey (one of the best-selling purveyors of thistheology), "144,000 Jewish Billy Grahams turned loose at once!" That was their theology then, when I wrote the article, and with littlemodification it remains their theology today, as well. In the end, before Jesus comes, the Jews will face disaster because, they say, it'sall been predicted in the Holy Scriptures.

What's most disturbing, and what I pointed out back then and believe is worth pointing out again, is that should persecution of the Jewsarise again, should Israel really be threatened in a big way, how much support should the Jews and the Jewish nation expect from, Iwrote, "those whose greatest hope—the second coming of Jesus—is predicated upon another Holocaust?" Sure, the support's solidnow, but what happens when events unfold and people start saying, "Wow! This [the impending destruction of Israel and the Jews] isprophecy being fulfilled before our eyes! Hallelujah!"

Conclusion

Already the brouhaha caused by Foxman and Yoffie has subsided, even if the underlying distrust remains, and no doubt will for at leastas long as the Christian Right is around and wielding power. And, from all indications, they aren't going anywhere soon. On the contrary,having made incredible strides in the past few decades, they're firmly ensconced in the American political arena, all but taking over theRepublican Party.


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Not bad for some Bible-thumping hicks.

In fact, that's precisely what the Christian Right isn't, at least anymore. Long gone are the days when, coming into Washington, D.C., onthe heels of Ronald Reagan in 1980, the movement's leaders loudly threatened electoral damnation to any politician who didn't vote the"biblical" position on everything from Star Wars, to aid to the Contras, to taxes. Instead, as Foxman said, they are "a better financed,more sophisticated, coordinated, unified, energized, and organized coalition" than ever before; and with their stranglehold on theRepublican Party, they're in for the long haul, which means their best days are probably still ahead.

And if their best days are still ahead, what does that mean for the Foxmans, the Yoffies, and for all Americans, Jew or Gentile, who don'tfit into their version of a Christian America? However scary the prospect, if we stick around long enough, we'll probably all find out.___________________________Clifford Goldstein is a formaer editor of Liberty magazine and a prolific author. He writes from Mount Airy, Maryland___________________________


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Does Religion Promote Freedom And Tolerance? It Is A Question That Might BeAsked By Any Observer Of The Rioting That Has Followed Publication Of CartoonsIn Denmark That Offend Muslims Worldwide.

BY: LINCOLN E. STEED

Does religion promote freedom and tolerance? It is a question that might be asked by any observer of the rioting that has followedpublication of cartoons in Denmark that offend Muslims worldwide.

It is a question the United States government must be asking itself. After all, a linchpin of the war on terrorism has been the president'sdetermination to advance democratic norms around the world. While the media inundate the public with tales of roadside bombing woeand officialdom sticks to the line that democratic renewal is proceeding apace, few take the time to really look at what is emerging.

Both Afghanistan and Iraq have new constitutions. Both are superficially modeled on the United States Constitution. Both give not only apreeminent position to the majority Muslim faith, but also give the Koran a veto power over civil legislation. And in Iraq in particular, thereligious leaders have become the true arbiters of power.

Perhaps it is not coincidental that in Afghanistan the Taliban is on the comeback trail. Perhaps there is a reason that so many of themillion or so Iraqi Christians have left the new Iraq.

It seems to me that a basic flaw here is the assumption that the majority will always act in concert with democratic values. The Foundersof the United States Constitution did not share that assumption. That was why they muted pure democracy by a principle ofrepresentative government, a complicated system of checks and balances, and the overall restraint of the Bill of Rights and theConstitution, with its distancing of religion from state power.

I have to believe that most Muslims around the world are embarrassed by the at times violent reaction to the cartoons—even if theyshare the sense of insult. For most of them, Islam is indeed a religion of peace. I want to believe that, even as I am reminded that withany religion worth committing one's life to there is a sense of privilege over lesser belief systems. And when true adherents are granteda degree of secular power, they do not easily share its benefits equally.

For 100 years this magazine has argued for the necessity of a separation between church and state. Of course individuals can oftenpractice their faith conviction adequately within a system that does not have a bright line divide between church and state. But without aclear separation, the prerogatives of church and state, spiritual allegiance and public duty either conflict or cojoin. And while most of thedeveloping Western clichés about Islam are either dead wrong or dangerous extrapolations, one thing is unarguably true: separation ofchurch and state is incomprehensible to Islamic norms. This fact alone means that intolerance, extremism, and even violentexpression—all present to some degree on the fringes, at least, of any "serious" faith persuasion—can easily leap the species barrierbetween private expression and state policy.

Far be it from me or this magazine to pretend to know how to rein in the most dangerous manifestations of Islam or any other religion.

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(When invoking "dangerous manifestations," we should realize that much of the Islamic world still smarts in memory of the largelyunjustified Crusades.) That is the work of nations, and of responsible communities. I only know that joining church and state is thesurest way to give life to religious intolerance and bring an end to the freedom of religious minorities everywhere.

Writing these editorials is sometimes an exercise in shadowboxing against potential attacks—even friendly fire. I am well aware that forsome the word "tolerance" is out of line when discussing religious liberty. To tolerate implies a certain dislike of the other, even if yougrant them the right to exist and practice a faith. And what is tolerated now can be easily disallowed on a pretext if it is not legallyprotected, from a point of respect.

We are right to suspect mere tolerance. Yet, in some instances it may be the best we can hope for. The academic, the nominallyreligious, and the few moved by a deeply held compassion for others may move beyond it and grant all, as God does, the right to holdwhatever faith view they will. Unfortunately the majority cannot be presumed to be more than a mix of tolerant and intolerant, accordingto the provocation of the moment. Therefore, unless religion is off the table for civil powers, even a democracy is capable of projectinggross intolerance or worse.

Back to where we started: the infamous cartoons. Someone seeking to avoid offending Islam might not have wanted to caricature itsprophet—especially if they knew its prohibitions against visual representations. Islam is probably right to feel offended and to see at thevery least a disregard for their sensibilities. Where the demonstrators, the embassy burners, the clerics who call for revenge killing, erris in demanding that their norms be adhered to by all others. Certainly they would have more than cause to resist if Buddhists insistedthat all Muslims bow to the Lord Buddha, or if they were denied the right to say what they do about Judaism.

In recent years various religious communities have joined some very productive dialogue on the often contentious issue of proselytism.There is regular friction between faith groups over the mechanism whereby individuals are able to change their faith identification inresponse to information from another group. What has emerged is a well-intentioned but problematic requirement that all groups refrainfrom attacking or misrepresenting others. This is far too subjective and easily restricts the marketplace of ideas.

I believe this thinking has influenced authorities in my birthplace of Australia. They recently sentenced a Christian evangelist to alengthy prison term after a Muslim attendee at one of his meetings objected to his comparing Bible passages to passages from theKoran. A judge said that it was immaterial whether his points were true or not; all that mattered was that it offended.

In Canada a judge recently opined that it would be a civil offense to repeat, even without comment, certain biblical passagescondemning homosexual behavior. The point is that there is an inherent offense regardless of intent or the rights of the person to projecttheir religious point of view.

Here in the United States I have heard it said by national media that to believe otherwise on certain hot-button moral agenda items is tobe non-Christian, anti-American, and even pro-terrorist.

As I write this the demonstrations and violence sparked by the cartoons are still escalating. One can only pray that tempers will subsideand some sense of faith dignity wins out. We can all regret the insensitivity that led to this. But insensitivity itself is not a new problem.And neither is the religious intolerance or religious violence that flows from it. May we have the global wit to work toward keeping churchand state separated. In their union the worst impulses of what we are now witnessing can only be institutionalized.

Lincoln E. SteedEditor,Liberty Magazine

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Behind Closed Doors At A Religious Right Strategy Session In Washington, D.C.,Last Spring, James Dobson Sounded More Like A Hardball Political Operator ThanA Christian Family Counselor. Impatient With President George W. Bush AndRepublican Congressiona

BY: JOSEPH L. CONN

Behind closed doors at a Religious Right strategy session in Washington, D.C., last spring, James Dobson sounded more like a hardballpolitical operator than a Christian family counselor. Impatient with President George W. Bush and Republican congressional leaders forfailing to move quickly enough on the Religious Right's agenda, Dobson issued a pointed directive."We voted for them," said Dobson, "and now they need to get on with it."

Demanding action on the confirmation of judges and a range of other legislative and policy concerns, he added, "We only have about 18months to get this done, because after that George Bush will be a lame duck president. And we'll be in a new election cycle, and he'snot going to have the power that he does now&. If we let that 18 months get away from us—and then maybe we've got Hillary [Clinton]to deal with, or who knows what—we absolutely will not recover from that."

Dobson's remarks and other developments at the Family Research Council's (FRC's) 2005 Washington Briefing at the historic WillardHotel reveal a new pinnacle of power for religious activists in the nation's capital—and a movement that is hungry for more. Some 300activists gathered to hear from top congressional leaders and to plot strategy for exerting influence not only over the White House andthe Congress but also the Supreme Court and other governmental posts throughout the country—all with the goal of repealingchurch-state separation and ushering in a regime that reflects a fundamentalist Christian viewpoint.

The March 17-19 FRC event shows that the Religious Right already has extraordinary influence in Washington. Speakers and guests atthe event included Senate Majority Leader Bill Frist (R-Tenn.) and then House Majority Leader Tom DeLay (R-Tex.), as well as SenatorSam Brownback (R-Kans.), Representative Bobby Jindal (R-La.), Federal Communications Commission Chair Kevin Martin, StateDepartment official John Miller, and Kansas Attorney General Phill Kline. Senator Mel Martinez (R-Fla.) and Senator Tom Coburn

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(R-Okla.) were scheduled to appear but had to cancel because of a series of special budgetary votes in Congress.

DeLay brought up an issue that is dear to the hearts of activist Christian forces: federal tax law revision. At present, churches, like othernonprofits, are forbidden to get involved in partisan politics. Houses of worship may freely speak out on issues, but they may notendorse candidates.A congressional measure removing the threat of IRS intervention drew DeLay's endorsement.

"If they go after and get a pastor, then other pastors shrink from what they should be doing," he said. "It forces Christians back into thechurch, and that's what's going on in America.. . . That's not what Christ asked us to do."

Religious Right forces are already working to build a church-based political machine despite federal law. The FRC holds an annualpastors' conference to train clergy, and the group is working with ministers' groups in Ohio, Texas, and elsewhere to set up politicalaction organizations.

The Reverend Laurence White, pastor of Houston's Our Savior Lutheran Church, told the FRC gathering, "I believe within thedepths of my heart and soul that pastors are the missing component in the coalition to take back our America. They are absent

without leave from the Lord Jesus Christ in the battle for the soul of our nation. That has got to change."

Former FRC president Gary Bauer took up a similar theme.

"We're electing a lot of fantastic Christians who happen to be Republican," said Bauer, a former GOP presidential candidate, "and theseguys are fighting for our values. We just have to elect a lot more of them. The way to judge elective bodies is not how may Rs[Republicans] there are, but how many Cs [Christians] there are next to their names. When we get majorities in some of the legislaturesand Congress of people that take their faith seriously, then I think that a lot of these issues go the right way."

If that sounds a lot like a crusade for theocracy, the FRC and its allies don't seem to mind. Speaker after speaker used the mostinflammatory and divisive language to rage against federal judges and other Americans who fail to toe the Religious Right line onabortion, gay rights, and church-state relations. All those are legitimate topics for debate, of course, but these activists demonize thosewho disagree with them, sometimes literally. Opponents, to them, are not just misguided, but enemies in a culture war.

David Limbaugh, brother of radio pundit Rush Limbaugh, said, "We're not just in a war against terrorists, where we face external andinternal violence against our system, our culture; but we're in a war against the secularists in our own culture who have tried to supplantthe Judeo-Christian value base with their secular humanist value base."

Kansas Attorney General Kline added, "We are in a war for the heart and soul of America," while Alabama's former "TenCommandments" judge Roy Moore thundered, "You see, we're not just in a war in Iraq; we're in a war right here."

Bishop Wellington Boone, the only African-American on the speakers list (and virtually the only one at the conference) dismissed theidea of church-state separation as unbiblical and suggested that those who disagree are agents of Satan.

When people call him a "Bible fanatic," he replies, "I can see through you; I know that behind you is your father the devil."

Bauer even suggested that differences over social issues are a greater threat to America than what he called the battle against "Islamo-fascism."

"I think we can survive planes that are hijacked and flown into buildings," Bauer said. "I am not convinced we can survive judges whohave hijacked the Constitution and are using it as a weapon against everything we love and everything we hold dear."

The fight over judges—especially the selection of new Supreme Court justices—was an overriding theme of the FRC gathering.

Railing against Supreme Court decisions upholding church-state separation in public schools, Dobson told the crowd that a vacancy onthe Supreme Court will unleash a bitter conflict that religious conservatives must win.

"Folks, I am telling you all," said Dobson, an FRC board member and dominant force, "that is going to be the mother of all battles, andit's right around the corner."

In the meantime Religious Right activists are working with allies in Congress to try other tactics to corral judges who issue rulings theydon't like. The FRC's president, Tony Perkins, said he has been meeting with congressional leaders to discuss a range of possibilities.

Impeachment, he said, has not worked well in the past, so other possibilities include defunding the courts or limiting judicial jurisdiction.


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"There's more than one way to skin a cat," he said, "and there's more than one way to take a black robe off the bench."

What does all this mean for America? The constitutional principle of church-state separation and the independent judiciary that ensuresits vitality are very much at stake. While many Americans don't realize it, a resurgent Religious Right is quietly building an extraordinarychurch-based political organization that could place freedom of conscience and the rights of religious and political minorities in jeopardy.This theocracy-minded movement has the potential of changing the face of our pluralistic democracy.

Founder Thomas Jefferson said that the American people, through the First Amendment, had built a "wall of separation between churchand state." If Religious Right activists have their way, however, that wall may turn into rubble.___________________________Joseph L. Conn edits the magizine Church and State. He writes from Silver Spring, Maryland.___________________________


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Stories Of Religious Disestablishment In America Usually Revolve AroundDiscussion Of The Origins And Meaning Of The Establishment Clause Of TheFederal Constitution. But The Story Of Disestablishment, At Least In The EarlyRepublic, Was Much More A State

BY: NICHOLAS P. MILLER

Stories of religious disestablishment in America usually revolve around discussion of the origins and meaning of the establishmentclause of the federal Constitution. But the story of disestablishment, at least in the early Republic, was much more a state-centeredevent. This is true for the simple fact that the First Amendment did not originally apply to state governments. As law professor CarlEsbeck recently noted, "The American disestablishment occurred over a fifty to sixty year period, from 1774 to the early 1830s" and was"entirely a state-law affair," completely independent of the adoption of the Bill of Rights.Thus the blame or the credit for disestablishment cannot be placed on the small, elite group of largely Enlightenment thinkers gatheredin Philadelphia to draft a new national constitution. Rather, disestablishment was a populist movement, in which religious rather thanEnlightenment influences were predominant. As Esbeck puts it, "At the state level, where the work of disestablishment did take place,the vast number of those pushing for it were not doing so out of rationalism or secularism. Rather, they were religious people whosought disestablishment for (as they saw it) biblical reasons." Once one turns, in an attempt to account for widespread statedisestablishment, from the elites to the grassroots, religious thought becomes central.

There were four basic steps in the acceptance of the disestablishment ideal in the world of American religious thought. First, in the NewEngland Puritan community, the heart of establishment in America, there was a bitter controversy over something called the HalfwayCovenant, a standard of church membership, and this led to two main factions that, for different reasons, both became influential fordisestablishment. Second, dissenting religions supported disestablishment for both theological and practical reasons, and thesereligions rapidly grew in size and influence because of their resonance with the ascendant ideologies of democracy and republicanismduring and after the Revolution. Third, after the Revolution New England was affected by the Calvinist struggle with liberalism, and thisforced a rethinking of establishment in its former stronghold. Finally, the ascendant idea of disestablishment was reinforced by therevivalism of the Second Great Awakening.

I Jonathan Edwards, the Halfway Covenant, and the Shaking of the Puritan Way

The Great Awakening sowed seeds of disestablishment that were not fully reaped until the Second Great Awakening. These seedswere not always intentionally sown. A prime example of this is Jonathan Edwards and his rejection of the Halfway Covenant. TheHalfway Covenant was an innovation created to keep alive New England's covenant with God in the face of growing numbers ofmarginally religious citizens. After the first generation of Puritans or so, it became apparent that not all in the community were capable ofbeing faithful to the covenant of grace promoted by the church. This posed a civic problem, as the Puritan ideal was that the society andthe church would basically be coextensive, making both part of a united covenant with God.

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A disturbingly large population began to emerge who could not make the needed testimony of conversion. Their children would thus beineligible for baptism and remain outside of church and outside of the covenant. This meant that the community of believers and largersociety would gradually drift further apart. The solution was the Halfway Covenant. This covenant created two tiers of churchmembership. It allowed socially upright, but not regenerate, citizens to attend church and allowed their children to be baptized andobtain church membership. Thus the community at large was linked together and was able to retain its covenant relationship with God.

The leaders and participants of the Great Awakening of the 1740s challenged some of the fundamental assumptions of the HalfwayCovenant. Spiritual conversion was posited as a prerequisite for any covenant with God. The church was viewed as consisting of onlythose who were renewed. Large numbers of unconverted church members, it was argued, caused spiritual lethargy and compromisewithin the church. These new emphases caused the "new lights" of the awakening to challenge the legitimacy of the Halfway Covenant.

The most prominent figure to openly challenge the Halfway Covenant was Jonathan Edwards. He moved the covenant from being anexus between person, church, and society to being one that simply connected the converted individual and the church. Those who"were not in his sense visible saints were not saints at all." He rejected the idea of "halfway" church members, who could have theprivilege of either Communion or the baptism of their children. Edwards' covenant theology struck directly at the core of the Puritancovenant of the larger community. Edwards' early preaching had talked of God's covenant with New England. But later in his life hequestioned whether any covenant existed outside God's covenant of grace with His church.

It would be a mistake to overstate Edwards' influence in his own time. He was fired from his church for preaching against the HalfwayCovenant. And the traditional standing order, with its interconnection between church and state, remained largely in place. But hisdismissal freed up time for him to write his major theological treatises, which did have an ongoing influence. Edwards' speaking andwriting contributed to the division of the New England religious community into at least three factions in regard to the covenant.

The largest group continued to favor the traditional standing order that linked church and state under a single covenant. But thisparadigm began to be challenged by a small but energetic and growing group of Separatist and Baptist radicals who followed Edwards'points to what they considered their logical conclusions: that no church or churches should be established. The final group was whereEdwards himself stood, rejecting the Halfway Covenant, but accepting a continued role for the state in promoting the church's interest.This last group dwindled over time as it became clear that if Edwards' logic was right, then so were the full Separatists, and if he wasincorrect, then the standing order was correct.

Edwards stood on dwindling middle ground. But the two groups he helped solidify would both contribute, in their own ways, todisestablishment. We take up the fate of the first group, the established standing order, below. But first we will look at the new andgrowing group of dissenting religions that shared Edwards' conclusions regarding the covenant and took these conclusions to theirlogical, or at least radical, disestablishment conclusions.

II Religions of Equality: The Success of Populist Religion

The churches most favorable to disestablishment, the Baptists and Methodists, were also those with the greatest democratic or populistspirit. Their polity was not necessarily democratic—the Methodists had a hierarchical structure—but the message was one of equality ofbelievers, individual responsibility, and direct biblical authority. These latter points, the authority of the Bible and the individual believer'sresponsibility to interpret it for himself or herself, were the most revolutionary in civic terms. If each person had a responsibility to readand interpret the Bible personally, then no one else could do that for him or her. Thus, the government had no role in legislating onreligious matters, because this immediately undercut the role and authority of the priesthood of believers.

This was, at least in part, the theoretical, theological impulse to disestablishment harbored by these groups. The practical impulse waslikely even greater. These groups, at least prior to the Revolution, were community outsiders, and the laws of establishment constantlyrestricted and hemmed them in—or at least forced them to go through religious tax exemption procedures that were burdensome andoften unfairly applied.


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But because the core of these dissenting groups found a resonance in the burgeoning democratic and republican impulses in the largercommunity, these groups flourished. Between 1770 and 1790 Methodists grew from about 20 churches to a little over 700, a growthmultiple of more than 35. The Baptists went from around 150 to 850, a more modest but still impressive multiple of nearly 6. By contrast,the Presbyterians had a much slower rate of growth, going from 500 to 725, or a growth of less than 50 percent. The Congregationalistswent from 625 to 750, about a 20 percent growth rate. The Anglican/Episcopal churches actually lost ground, dropping from about 350to 170, a decline of 50 percent, although this can be attributed in good part to these churches' connections with the losing side of thewar.

By 1790 the populist groups, who for both theological and practical reasons supported disestablishment, had grown to an equivalentsize of the established churches. But they had reached that point with tremendous momentum, and that momentum continued into theearly to mid nineteenth century. By 1860 the populist churches—one can no longer call them dissenters, as that implies the existence ofa long-vanished center—outnumbered the former establishment churches by three to one.

So in good part the theological shift was not the change of theology within existing churches, as it was the rapid growth of what hadbeen theologically eccentric churches. Dissenting theology had become mainstream because it had become more successful atmarketing itself than the former mainstream community. Christian preachers such as Elias Smith and Alexander Campbell and theMethodist "Crazy" Lorenzo Dow bound up individual, revival religion with a radical Jeffersonian political message of the rights of thepeople. They railed at priest craft and political tyranny in consecutive breaths.

A citizenry effulgent with a republican sense, having just freed itself from political tyranny, was most open to churches thatcommunicated spiritual things in these same terms. Thus these populist churches grew explosively, and with them the commitment todisestablishment spread across the country. Much is often made of the practical impulse to disestablishment of these minority religions.Nobody likes to be persecuted, and those experiencing it often develop a theory of minority rights. But that the impulse was alsotheological and principled is supported by the fact that these churches retained their disestablishment ideals long after they had becomethe majority.

III Puritanism and Liberalism: Establishing Unorthodoxy

The populist religions swept the new country in the early 1800s, leaving the former establishment religions in a majority only in southernNew England. Connecticut and Massachusetts retained their establishments for some decades after the other states had given uptheirs. Connecticut did not disestablish until 1818, and Massachusetts hung on until 1833. But the Congregationalists were stilldominant in southern New England, even in 1850, and thus the disestablishment of New England cannot be fully explained by the riseof populist religions.

What else led to the demise of the standing order in New England? The rest of the story lies in the sequel to the establishment'srejection of Edwards' critique of the Half-way Covenant. The standing order had continued the two standards of church affiliation. Therewere the full "communicants" and the socially upright but unregenerate Halfway Covenanters, or mere "members." This latter groupgrew in size and influence over time. But by their very nature the members were concerned less with theological orthodoxy than thecommunicants.

It has been noted that from the early to mid 1800s the theology of the New England clergy became more liberal and "feminized," morefocused on sentiment and feeling than on propositions and systems of truth. This has been explained, at least in good part, by theeffects of clerical disestablishment. Disestablishment caused clergy, or so the theory goes, to become more responsive and attuned totheir congregants, who were largely women. Thus the liberalization and feminization of New England theology was accomplished.

This story can perhaps be better told with the same facts, but with the causes and effects reversed. It is apparent that the feminizationand liberalization of influential portions of the New England clergy was well under way between 1820 and 1830. Yet disestablishmentdid not occur in Massachusetts, where much of this liberalization was centered, until 1833. The so-called "cause" of liberal theologyactually occurred well after that liberalization was under way.


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It makes more sense that liberalization, rather than being an effect of disestablishment, was in fact one of its causes. A betterexplanation for growth of the liberal, feminized theology is the ultimate effects of the dual church membership scheme, the HalfwayCovenant, on the standing order. As the "members" grew in number and influence, they caused the clergy to develop a theology thatwas softer and more acceptable to "unregenerate" ears. If leaders in government and commerce had to be church members to retaintheir standing in the community, it was not long before they shaped those churches according to their own interests and tastes. Soonthere was an outbreak of "diluted" theologies, including Unitarianism, Universalism, and basic biblical liberalism.

While never having a numerical advantage statewide, these unorthodox groups did gain the upper hand in some important locales,including Boston. As the New England establishment was never a centralized, statewide establishment, but based on parish levelpreference, the orthodox could only watch in dismay and chagrin as the standing order system was used to turn over certain tax-builtchurches to Unitarian and Universalist groups. As unorthodoxy became established, some orthodox Congregationalists suddenly foundthemselves allied with their old dissenter foes in opposing establishment.

Establishment in New England became a victim of the Halfway Covenant, but not before that covenant had itself victimized the theologyof the Congregational churches. The attempt to bring the world nearer the church through the Halfway Covenant had in actualitybrought the church nearer the world and its philosophies, much as Jonathan Edwards had predicted.

IV Conclusion: The Second Great Awakening Seals Disestablishment

The spread of disestablishment as outlined above was sealed and affirmed by the nation's experiences during the Second GreatAwakening of the early to mid nineteenth century. This religious revival was based on voluntary gatherings at which the individual andhis or her experience was made the norm, subject only to the authority of the Bible as understood by the laity. The movement's theologyand experience reinforced the existing views that the state should not impose or support religious systems or views. It exalted the notionthat religious morality could best be promoted through spiritual revival and influence, rather than through legal coercion.

Events in the city of Rochester related to Charles Finney's revivals illustrated this point in microcosm. In the mid to late 1820s the cityexperienced a growth in commerce and industry. This created the need for a number of laborers too numerous to live with employers'families, as had previously been the practice. This caused the family-based moral restraints to loosen. The city fathers becameconcerned with the increasing drunkenness, violence, and dissipation found within the city. They had tried a number of legal measures,including temperance laws and Sunday laws, to stiffen the moral fibers of the community. These efforts essentially failed.

Then one of the city fathers, merchant and land owner Josiah Bissell, invited Charles Finney to come to Rochester in the autumn of1830 for a series of revival meetings. The meetings were attended by a wide range of citizens, including large numbers of Bissell'speers from the wealthy merchant and manufacturing classes. The results were dramatic. A new informal but highly effective moralinfluence was created in the town. This was not the direct control of law but of the internal restraint of an awakened morality and thepositive peer pressure of moral coworkers and employers. Those who did not fit in with the new moral environment moved on to otherplaces.

The moral change was felt not just in Rochester, but throughout other areas affected by the revival. As one historian succinctly put it, "In1825 a northern businessman dominated his wife and children, worked irregular hours, consumed enormous amounts of alcohol, andseldom voted or went to church. Ten years later the same man went to church twice a week, treated his family with gentleness and love,drank nothing but water, worked steady hours and forced his employees to do the same. . . . That transformation bore the stamp ofevangelical Protestantism." As important, this kind of vital and spiritual transformation became associated with voluntary and privateefforts of churches and religious leaders unconnected with legal measures or tax support.

This experience of the power of the voluntary church in turn strongly affirmed the theological shifts that had already moved the countryto disestablishment. With the confirming experiences of the Second Great Awakening, disestablishment became the American way justas surely and as fully as establishment had been the Puritan way.

___________________________Attorney Nicholas P. Miller is a longtime advocate for religious freedom. He heads up the International Religious Liberty Institute,based at Andrews University, Berrien Springs, Michigan, and with Liberty editor Lincoln Steed cohosts a regular weekly televisionshow called the Liberty Insider.

1 The precise meaning of "disestablishment" is much debated, and it is a term with many possible variations of meaning. For thepurposes of this paper, we will use the term to describe simply a decision by a state to discontinue formal recognition of a state churchand/or to discontinue financial support for a particular church or churches, accepting that churches should be supported by private,voluntary means.2 "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" (First Amendment to


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the U.S. Constitution [emphasis added]).3 Carl H. Esbeck, "Dissent and Disestablishment: The Church-State Settlement in the Early American Republic," Brigham YoungUniversity Law Review No. 4 (2004): 1590.4 Ibid.5 As Nathan Hatch put it, "The rise of evangelical Christianity in the early republic is, in some measure, a story of the success of thecommon people in shaping the culture after their own priorities rather than the priorities outlined by gentlemen such as the framers ofthe constitution" (Nathan O. Hatch, The Democratization of American Christianity (New Haven: Yale University Press, 1989), p. 9.6 Mark A. Noll, America's God: From Jonathan Edwards to Abraham Lincoln (Oxford University Press, 2000), pp. 37-48.7 Ibid., p. 45.8 Ibid.9 Ibid., p. 47.10 Ibid., p. 23.11 Ibid., p. 48.12 Hatch, pp. 6, 10.13 "In a culture that increasingly balked at vested interests, symbols of hierarchy, and timeless authorities, a remarkable number ofpeople awoke one morning to find it self-evident that the priesthood of all believers meant just that—religion of, by, and for the people"(ibid., p. 69).14 These and the following figures are taken from Noll, p. 166, Table 9.3.15 Hatch, pp. 36-37, 68-71.16 Noll, p. 168, Table 9.5.17 Christopher Grasso, "The Fall of the Massachusetts Standing Order and the Rise of the Boston Brahmins," Reviews in AmericanHistory 27.4 (1999): 541-547.18 Ann Douglas, The Feminization of American Culture (New York: The Noonday Press, 1977), pp. 22-28.19 Ibid., pp. 97-104.20 Ibid., pp. 98, 105.21 Grasso, pp. 543, 544.22 Ibid., Noll, p. 168, Table 9.5.23 Paul E. Johnson, A Shopkeeper's Millennium: Society and Revivals in Rochester, New York, 1815-1837 (New York: Hill and Wang,1978), pp. 3-14.24 Ibid., p. 45.25 Ibid., pp. 58-60.26 Ibid., pp. 75-88.27 Ibid., pp. 116-128.28 Ibid., p. 8.

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Amid All The Activity Of A Turbulent Year, Many Missed The March 3, 2005, FilingOf The Constitution Restoration Act Of 2005 (CRA) In Both Houses Of Congress (S.520 And H.R. 1070). If Enacted, The CRA Would Effectively Turn The United StatesInto A Theoc

BY: MICHAEL PEABODY

Amid all the activity of a turbulent year, many missed the March 3, 2005, filing of the Constitution Restoration Act of 2005 (CRA) in bothhouses of Congress (S. 520 and H.R. 1070). If enacted, the CRA would effectively turn the United States into a theocracy, in which thearbitrary dictates of God—as interpreted or discovered by a judge, politician, or bureaucrat—would override the rule of law.

In the words of the legislation, which is identical in both houses, federal judges would be barred from reviewing "any matter to the extentthat relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or localgovernment (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of Godas the sovereign source of law, liberty, or government."

The enforcement clause of the CRA calls for the "impeachment, conviction, and removal of judges" who exceed the new jurisdictionallimit or violate the CRA's additional prohibition on reliance on foreign or international law.

Given its drastic approach, the CRA could easily be dismissed as a legislative flight of fancy were it not for the fact that as of this writingthe bill has found 45 cosponsors in the House and eight in the Senate. While the likelihood of passage of this bill remains slim, theremarkable support that this bill is receiving, and the dramatic way in which it would affect American jurisprudence if passed, make itdeserving of our close attention.

Cowritten by Roy Moore, embattled Ten Commandments display advocate and former chief justice of the Alabama Supreme Court, andhis attorney, Herb Titus, and introduced by Senator Richard C. Shelby (R-Ala.) and Representative Robert B. Aderholt (R-Ala.), the CRAis designed to provide protection so that local and state officials can "acknowledge God" without fear of being sued in federal court fortheir actions.

Ever since the Supreme Court issued its ruling on Roe v. Wade in 1973, legalizing abortion, Christian fundamentalists have becomeincreasingly galvanized against the federal court system, because they perceive that liberal groups have used the courts to achievewhat could not be done legislatively. Theologian Francis Schaeffer, in a speech at Coral Ridge Presbyterian Church in 1982, said thiswas because "the courts are not subject to the people's thinking, nor their will, either by election nor by a re-election. Consequently, thecourts have been the vehicle used to bring [secular humanism] and to force it on our total population."

Fundamentalists also blame the federal courts, and in particular the Supreme Court, for the breakdown of morality in the United States,

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which they believe directly correlates with the Court's decisions on compulsory school prayer and Bible reading during the latter half ofthe twentieth century.

Rather than continue to attempt to win victories in the federal courts, and blocked by legal precedent, the proponents of the CRA hopeto bypass the courts altogether by limiting the jurisdiction of the courts. They argue that this is possible because Article III of theConstitution grants Congress the authority to establish and control the composition and jurisdiction of the federal courts.

If passed, the CRA could also eliminate that portion of the Fourteenth Amendment that operates to apply the Constitution's Bill of Rightsto the state and local governments, and send the nation into a methodical tailspin when it comes to individual rights.Prior to the ratification of the due process and equal protection clauses of the Fourteenth Amendment in 1868 (following the Civil War),the Bill of Rights was thought to apply only to actions of the federal government. And state and local abuses did occur.

In 1857 the Supreme Court, in Dred Scott v. Sandford, ruled that it did not have jurisdiction, even if a slave started in a slave state andmoved to a free state, reasoning that the federal court could not step in and take away the "property rights" of the owners in theoriginating state. By failing to apply the Bill of Rights to state actions, the Scott Court galvanized the nation by effectively spreadingslavery across state lines.

During an 1866 debate over the postwar Fourteenth Amendment, which in part wasresponsive to Scott, future U.S. president James Garfield warned of the abuses of localpolitics when he said, "In reference to persons, we must see to it that, hereafter, personalliberty and personal rights are placed in the keeping of the nation; that the right to life, liberty,and property shall be guaranteed to the citizen in reality as they are now in the words of theConstitution, and no longer left to the caprice of mobs or the contingencies of local legislation.. . . We must make it as true in fact as it is in law, that 'the citizens of each State shall beentitled to all the privileges and immunities of the citizens in the several states."

Although representatives from the Southern states initially opposed the FourteenthAmendment as infringing upon their local autonomy, the courts have applied the amendmentto set precedent extending all of the provisions of the Bill of Rights to citizens at the state andlocal level, beginning with the freedom of speech in Gitlow v. New York (1925), and including

free exercise of religion in Hamilton v. Regents of the University of California (1934).

The Constitution Restoration Act of 2005 would, and in fact is designed to, reverse nearly 140 years of legal actions to the states,whereby religious fundamentalists can have more control over the outcome of decisions. State supreme court decisions would be thefinal word when it comes to the way that local governmental officials apply the "sovereignty of God" to their decisions, and would erasemany constitutional protections that the CRA claims to restore. Or perhaps more accurately, the CRA would indeed "restore" theConstitution to the Dred Scott days.

On November 11, 2005, the Louisiana state legislature passed a resolution (SCR 30) requesting that Congress pass the CRA. Theresolution, which passed the state senate unanimously, makes a curious argument. It says that when the First Amendment states that"Congress shall make no law respecting an establishment of religion," that is a specific and unequivocal instruction directed only to theUnited States Congress. The Louisiana resolution thus reasons that this limits the power of the amendment and that "the United StatesConstitution makes no restriction on the ability of the states to acknowledge God, the Supreme Ruler of the Universe."

The attempted removal of constitutional rights and the establishment of the "acknowledgment of God" as valid law would inevitably leadto a legal, if not practical, reemergence of the medieval model in which both church and state claimed political power that deriveddirectly from God. Between the establishment of the Holy Roman Empire and the writing of the Declaration of Independence, the claimof "divine right of kings" made political leaders into spiritual leaders whose somewhat spurious theological viewpoints became the law ofthe land.

With both the church and the crown presumably speaking for God, the people were forced into subservience and were unable toquestion the dictates of their divinely appointed rulers. Any human rights or freedoms that existed were provided at the paternal pleasureof the crown or the church, and could accordingly be manipulated and eliminated through excommunication, punishment, or even death.

The founders of the United States turned this concept of "rule by divine right" on its head when they recognized the sovereignty of "we,the people." The founders wisely recognized the sincerity with which incompatible religious views were held, and thought it best that thegovernment not assume the role of sovereign theologian. They understood the types of abuses that could occur when political leadersassumed that they were speaking on behalf of God.

The American experiment has proved that when allowed to grow freely, religion flourishes. This is evident in the depth of religious


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devotion, in which people are free to express the full range of beliefs undisturbed, in forums ranging from individual conversations tomegachurches where tens of thousands attend services. This ubiquitous freedom places faith the mere push of a button away frommost Americans, with a dazzling array of spiritual content being present on the Internet, radio, and television.

And it is just as easy to spread religious messages, with the only limitations being moderate investments in time and money.

The continuous complaints of modern fundamentalists that they are being shut out of the public discourse and are, indeed, facing"persecution" are difficult to understand in the context of so many opportunities and venues. In short, they perceive that they are beingpersecuted because they are unable to "acknowledge" God in certain unavoidable governmental venues. Fundamentalists are longingfor the day when all Americans will be forced to come face-to-face with their version of "the truth" in unavoidable places such as publicschools, courthouses, and the Department of Motor Vehicles. The idea, apparently, is that while awaiting trial, for instance, you wouldbe unable to avoid reading a display of the Ten Commandments, which would remind you that you had not only violated the laws of thestate but should also fear the condemnation of God.

The CRA is the latest in a series of increasingly troubling attempts by fundamentalists to secure religious authority in the secular world.In the midst of arguments against "activist judges" on the federal bench, they support the "civil disobedience" of jurists such as RoyMoore, whose "acknowledgment of God" consisted of placing a display of the Ten Commandments in the rotunda of the AlabamaSupreme Court, and his right to deny other groups the right to post other forms of expression.

Moore's and the CRA's definition of "acknowledgment" of God extends far beyond intellectual assent or recognition, and moves towardestablishing the actual supremacy of the fundamentalist brand of Christianity over all other forms of religious or secular thought. TheTen Commandments would be more than a symbol—they would be the law of the land if a state approved it, including the first four,requiring recognition of the supremacy of God.

When Alabama state representative Alvin Holmes asked then Chief Justice Moore to include Martin Luther King, Jr.'s "I Have a Dream"speech alongside the Ten Commandments monument, Moore responded that "the placement of a speech of any man alongside therevealed law of God would tend in consequence to diminish the very purpose of the Ten Commandments Monument."Moore similarly denied an atheist group's request to display their symbol, an atom, which Moore said was inconsistent with the rotunda'stheme.

While passage is not expected this session, the Constitution Restoration Act would "restore" the United States to a time and place inwhich civil rights were inaccessible. If passed, this attempted end run around the Constitution and the intent of the Founders will lead tofragmentation and confusion, ultimately failing to meet the equal protection requirement of the ultimate commandment, which is to loveour neighbors as ourselves.___________________________Michael Peabody is a lawyer working as a legislative liaison for church-state issues. He writes from Sacramento, California.

1 Roy Moore, So Help Me God (Nashville: Broadman and Holman Publishers, 2005), p. 250.2 Congressional Globe, 39th Cong., 1st session, 340 (1866). Cf. The Reconstruction Amendments Debates: The Legislative Historyand Contemporary Debates in Congress on the 13th, 14th, and 15th Amendments (Richmond, Virginia: Virginia Commission onConstitutional Government, 1967), p. 219.3 Louisiana State Concurrent Resolution No. 30 (enrolled November 22, 2005), available online at http://www.legis.state.la.us.4 Glassroth v. Moore, 229 F. Supp. 2d 1290 (M.D. Ala. 2002).5 Ibid.

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It Was The "Momentous Question" That "Awakened" And "Terrified" ThomasJefferson, Like A "Fire Bell In The Night." Jefferson Considered It The "Knell OfThe Union." The "Question" At Issue Was Ostensibly That Of Slavery. JeffersonWrote About His Nocturna

BY: NICHOLAS P. MILLER

It was the "momentous question" that "awakened" and "terrified" Thomas Jefferson, like a "fire bell in the night." Jefferson considered itthe "knell of the union." The "question" at issue was ostensibly that of slavery. Jefferson wrote about his nocturnal fright in 1819 andrelated it to the conflict around the Tallmadge Amendment, which sought to outlaw slavery in Missouri, and the subsequent MissouriCompromise, which averted, or at least postponed, a civil war. But Jefferson of all people knew that the slavery dispute was only thesymptom of the real legal question, that of federalism—the proper role the federal government should play in exercising powers andprotecting rights in the states.The Constitution contained a deep flaw—a flaw that Jefferson, or at least his close allies, had intentionally placed in the foundingdocument. The flaw was the intentionally ambiguous nature of the federalism, the relation of federal to state governments and theindividual, contained in the Constitution. The ambiguity had been placed there precisely to avoid dealing with the issue of slavery at thefounding—thereby passing the buck on this deeply divisive issue to the next generation. Given Jefferson's central role in the formationand leadership of the early Republic, it is conceivable that his "fire bell in the night" was a particularly acute attack of conscience atleaving this great moral issue unresolved.

But we cannot be too hard on Jefferson. Most of his colleagues at the founding also believed that a constitution with a clear position onthe question of federalism could not have gained passage. The ambiguity of the Constitution on this topic allowed both sides to read intheir own views of federalism, creating a Constitution whose type of federalism—and hence relation to slavery and other fundamentalcivil rights, including religious freedom—lay in the eye of the beholder.

These competing visions of the Constitution and the nation—whether it was a sovereign nation of states or a confederacy of sovereignstates—evolved over time, becoming most sharply contrasted between North and South. The contrast between these competing viewsof federalism and liberty grew starker and starker until the friction flared into the conflict of the Civil War. While the powder and bullets of

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that great conflict are a distant national memory, the same national and legal issues that sparked and stoked that controversy are withus today in current arguments over original intent, strict construction, states' rights, and the battle for civil rights. A walk over the terrainof this historic controversy can shed light on today's debates.

I Colonial Foreshadowings: Religious Liberty and Property Rights

Rather than twins separated at birth, the early American colonies were more like distant cousins thrown together by the accident ofgeography and ties to a common king who became a common enemy. All the colonies from Maryland northward had been foundedprimarily, at least ostensibly, by a desire to find havens of religious freedom. While that desire was often imperfectly expressed,especially in the governments of Puritan New England, religion was a core motivator for these northern colonies. Virginia andsouthward, the settlements had been primarily commercial enterprises, hopeful seedbeds of a market revolution.

Jamestown and the Massachusetts Bay Colony are perhaps the two archetypes that illustrate this divide: the former settled by fortuneseekers representing commercial speculators, the latter peopled by Puritans fleeing the turbulent English Reformation. Certainly themiddle and northern colonies had commercial concerns and interests, and the southern colonies had their share of religious devoteesand devotions. But it is remarkable how the primary impulse and motivations of the colony founders—liberty in the North and commercein the South—continued to dominate subsequent colonists' views of the role of government.

Outside the South, liberty was understood primarily in terms of personal liberties and the systems that sustained those liberties.Religious liberty was considered the first liberty, but its existence was defended and maintained by other liberties, those of the press,speech, trial by jury, and the ballot, at least for propertied White men. Property was protected as well, but as one right among a systemof rights.

In the South, by contrast, liberty was largely identified with pursuing one's own self-interest. Independence was the ability of the localmajority to assert its interests, which were usually commercial. Government's first role was to protect the economic interests of society.By the time of the Revolutionary War this had come to especially mean protecting the institution of slavery, upon which the agrarianSouth's economy and social stability were largely dependent.

II The Constitutional Convention:Enshrining Ambiguity

Thus it was that two contrasting and even contradictory views of liberty and the role ofgovernment were well entrenched when it came time to frame the new Republic. This divisionover the ends of government led to a division over the means of government—the proper roleand powers of a federal government. These issues extended beyond the question of slaveryand encompassed range of possible government actions, from its role in regulating commerceto building public works, such as roads and canals, and how it should define itself in relationto its citizens.

Southern anti-federalists viewed a central state as "extremely pernicious, impolitic, anddangerous because it resulted from . . . an enormous transfer of power from the states to thecentral government." Such a consolidated, central power would threaten the South's interestsin tariff-free trade, equitable taxation, and, most important of all, slavery. Prominent Southernleaders, including Patrick Henry and George Mason, believed that the proposed Constitutionwould allow the North to abolish slavery.

In the end, though the ratification contest was close and severe in some places, the Southernfederalists carried the day. Men such as James Madison and Charles Pinckney assured theirfellow Southerners that the Constitution did not destroy state power or rights. They noted thatthe federal government was one of express and limited powers. Any power not expresslydelegated to it was reserved to the states. And as for abolishing slavery, Madison asserted,"There is no power to warrant it in the [Constitution]. If there be, I know it not."

But if the South took refuge in ambiguity, so did the North. The Constitution was not entirelysilent on the question of slavery. It did allow the slave trade to be abolished after 20 years.Many in the North felt that the implication was that slavery could be abolished then as well.There were also clauses that hinted at broader federal powers, including the ability toregulate commerce and the right to legislate to protect the general welfare.

In the end there was enough affirmative language to give both views of federalism


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respectability, enough ambiguity to give both sides hope, and sufficient silence to defeat the anti-federalist critics of both North andSouth. Subsequent events would only deepen the commitments of both sides to their versions of federalism and the Constitution.

III Federalism, the Courts, and Liberty: 1790 to the 1820s

In the federal courts, those favoring a strong federal union began to gain a clear advantage over the states' rights advocates. Thuswhile the practice of federalism remained largely inconclusive, the theory began to decisively favor the advocates of a strong centralunion.

The states' rights advocates did not lack for articulate and prominent champions. Both James Madison and Thomas Jefferson firedsome of the opening salvos on the states' behalf in the federalism struggle. The occasion was the passage in 1798 of theconstitutionally doubtful Alien and Sedition Acts. In response, Madison drafted for Virginia a statement declaring the actsunconstitutional and calling for their repeal. Jefferson went a step further and on behalf of Kentucky drafted a statement that said a statecould nullify a federal act that unconstitutionally oppressed its citizens.

It appeared that the states' rightists were able to hold the strong federalists to at least a stalemate in Congress during this period. Butthe federalists were gaining a decisive upperhand in the federal courts. Beginning in 1803 with Marbury v. Madison, John Marshallplaced the federal judiciary in a position to authoritatively define the shape and role of both the Constitution and federalism. Marshallplayed his hand cautiously for a few years. But soon he issued a series of rulings that placed the federal system in a clearly superiorposition to that of the states.

Implementing Marshall's and Joseph Story's views that the Constitution issued from the people, rather than from a confederation ofsovereign states, the Court declared that it could overrule the decision of a state supreme court on matters of federal law and that itcould declare both federal and state legislative acts unconstitutional. And perhaps most important, it authorized a broad construction offederal power under the "necessary and proper" clause. This last power was articulated in McCulloch v. Maryland in 1819, the sameyear that slavery reemerged on the national platform with the conflict over the Tallmadge Amendment and the Missouri Compromise.

So by 1820 it was apparent to the most fervent state rightist that the Supreme Court had tilted the legal balance of federalism stronglytoward the union. It was also clear that Congress was taking a renewed interest in the topic of slavery, and was willing to exercise itspowers to at least limit and contain the institution. This set the stage for a growing call to Congress by a number of groups, includingabolitionists and women's rights advocates, to exercise its growing powers in the arena of citizenship and civil rights. It was a call thatwould culminate in the Civil War and ultimately in the re-definition of federalism in relation to national citizenship.

IV Citizenship, Slavery, and Sex: 1830s to 1850s

The growing gap between the legal theory and the practice of federalism were eased somewhat by the success of Andrew Jackson, aSouthern populist. Jackson did not oppose slavery, but he did support a strong union. Defeating John Quincy Adams in the election of1828, Jackson heartened his Southern supporters by immediately questioning the legitimacy of the second federal bank. This institutionhad come to be viewed by many as a symbol of federal overreach—"the original sin against the Constitution."

But Southerners were less enthused by Jackson's perceived ambivalence toward the protective tariff. While it was lowered, the tariffcontinued under his watch. The tariff ignited the South Carolina nullification crisis of 1832, when that state's legislature purported tonullify the federal tariff. Jackson's reaction was prompt and decisive. He publicly declared nullification as treason and branded thenullifiers as traitors. He put the U.S. Army on alert and passed the Force Bill, giving congressional support to the use of force againstnullification.

Cooler heads eventually prevailed; a tariff compromise was reached before swords were drawn. But the message had been sent—by aSoutherner, no less—that the union would not be trifled with, but that such behavior would be met with force. A national context wasbeing created in which the national government was an independent and sovereign entity whose prerogatives must be taken seriouslyby the states.

It was in this context that questions of citizenship became increasingly agitated. The initial catalyst was the widespread social reformmovement that arose out of the Second Great Awakening of the 1830s. This outpouring of spiritual commitment has been credited withproviding energy for a wide range of reform movements, the most prominent of that time being that of abolition. The beginnings of theabolitionist movement are associated with the commencement of publication in 1831 of The Liberator, William Lloyd Garrison'santislavery paper. By the mid 1830s slavery was under an unprecedented assault of speech, pen, and petition. The South struck backwith almost equal fury: restricting freedom of speech and the press; refusing abolitionist literature in the Southern mail system; passing a"gag" rule forbidding Congress to consider abolitionist petitions; and stirring up mobs to attack abolitionists in the North and South.


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But these Southern tactics could not quell the ferment of talk of rights and citizenship. Arguments about Blacks being human anddeserving natural and constitutional rights inevitably raised these same question for others denied political and property rights, thelargest and most obvious group being women. The Second Great Awakening had seen women play leadership roles. Some of thesewomen also worked in abolitionist circles and imbibed the ideas of personhood in relation to natural and constitutional rights.

At the first major women's rights conventions at Seneca Falls, New York, in 1848, and in Worcester, Massachusetts, in 1850, thespeakers presented relatively mature and well-formed arguments regarding their natural rights as persons and their constitutional rightsas citizens. Their arguments had a coherence and a depth that revealed a growing public sense of what the rights of national citizenshipshould be, even if the laws did not reflect this standard. This was not a sort of identity politics, a reflection of Southern "liberty"concerns, in which interest groups advocated for their narrow interests. Rather, the language of personhood, citizenship, and naturaland constitutional rights reflected support for a system of liberty that would benefit those beyond the immediate petitioners.

Thus it was that many of those involved in abolition were also involved in the movement for women's rights, as well as in movements forreligious freedom. The arguments for these causes often began with notions of personhood and natural rights. But they usually becameframed in terms of citizenship and the Constitution, as these were the concrete legal terms and tools that would or could allow Congressto act on the petitioner's concerns.

While these movements did not talk much about federalism, their petitions and manner of protest clearly indicated that they viewed theproblems and the solution as lying with the federal government. Clearly, the South would not throw off the yoke of slavery sua sponte.Neither would each state spontaneously enlarge and protect the prerogatives of national citizenship. The solution to these problems laywith Congress.

Thus the legal question of federalism, so often concerned with the abstract balancing of state and federal rights, became profoundlypersonalized. In a growing number of minds it asked whether one was first and primarily a citizen of the state or of the nation. Theabolitionists, women's rights activists, and other rights advocates insisted that the ties that bound the union together were, at their base,those of personal liberty and human equality. They argued that the Constitution was not a document standing alone; that rather itimplemented the promises of the Declaration of Independence and that the Constitution should be interpreted in the spirit of that earlierorganic document. They argued, with increasing force and effectiveness, that the national government had an obligation to defendthese foundational American rights and commitments to its citizens against all intruders, including the states.

Southerners profoundly disagreed with these arguments. The resulting impasse was only resolved, in part, by the Civil War.ConclusionThe Civil War was a decisive event in relation to slavery. And the postwar amendments purported to deal with the broader question ofnational citizenship. But it would be another generation or more before the federal courts came to terms with these issues in a series ofdecisions that "incorporated" federal civil rights against the states in the 1920s and 1930s. This little narrative reveals that the war wasnot about slavery alone, nor about states' rights alone, but about the role of federalism in relation to national citizenship. Seen againstthis larger backdrop, incorporation was about legally finishing the federalism argument that had been practically decided by the CivilWar.

Slavery is over and gone. But arguments over federalism, strict construction, and the power of the federal government to define andprotect the civil rights and religious liberties of its citizens is as current as today's news headlines. Our cultural divide is no longer one ofNorth and South, but of red states and blue states, and the question of whose moral values will triumph. In this heated contest, will weremember that the federalism the Civil War vindicated was primarily about protecting the liberties of national citizenship, rather thanprotecting the cultural, property, or religious hegemonies of local majorities? Only time, and the newly configured Supreme Court, will tellus.

___________________________Attorney Nicholas P. Miller is a longtime advocate for religious freedom. He heads up the International Religious Liberty Institute,based at Andrews University, Berrien Springs, Michigan, and with Liberty editor Lincoln Steed cohosts a regular weekly televisionshow called the Liberty Insider.

1 William J. Cooper, Jr., Liberty and Slavery: Southern Politics to 1860 (Columbia, S.C.: University of South Carolina Press, 1983), p.15.2 Ibid., p. 63.3 Ibid., pp. 66, 67.4 Ibid., p. 67.5 Charles Sellers, The Market Revolution: Jacksonian America, 1815-1846 (New York: Oxford University Press, 1991), pp. 305, 306.6 Ibid., pp. 57, 58.


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7 Cooper, pp. 171, 172.8 Ibid., pp. 173, 174.9 Ibid, p. 178.10 Sellers, pp. 401, 403.11 Nancy Isenberg, Sex & Citizenship in Antebellum America (Chapel Hill, N.C.: University of North Carolina Press, 1998), pp. 5, 6.12 Ibid., p. 37.13 Ibid., pp. 75-77.14 Ibid., pp. 65-67.15 Ibid.16 Ibid., p. 21.

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