“I bet you’ve seen the fundamentalist bumper sticker that says, ‘God said it! I believe it! That settles it!’ That must be a typo because what the driver really means is, ‘I said it! God believes it! That settles it!’” ~ Robert M. Price
There’s a distinction there, about just who is saying just what, and when, but that oddball American theologian Robert Price has long been fed up with Biblical literalism – study the core texts carefully enough and you find all the contradictions, the three or four somewhat contradictory creation stories and the stuff thrown in by random parties here and there with an axe to grind about this and that. Price, a former Baptist minister with two separate doctorates in theology, finally decided he was a Christian Atheist – not at all sure about the God thing but in awe of the moral teachings of Jesus, whoever He was.
That may seem odd now, in today’s hyper-religious America, but that wasn’t odd not so long ago. Anyone who was ten years old in 1957, when the Soviets put Sputnik up there, the first satellite to orbit the earth, round and round, over and over again, remembers how that scared America shitless. What was wrong with us? We had fallen behind, and that meant school would change for all of us – from that point forward it would be lots and lots of math and science. The odd thing is that a few years earlier, on June 14, 1954, the words “one nation under God” had been added to Pledge of Allegiance which had opened each school day back then – added to show we were not like those godless communists. As President Eisenhower said at the time – “From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural school house, the dedication of our nation and our people to the Almighty… In this way we are reaffirming the transcendence of religious faith in America’s heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country’s most powerful resource, in peace or in war.”
Yeah, well, that transcendence of religious faith hadn’t done us much good in the Space Race, as it was called back then. Three years later no one was bitching about schools teaching about the principles of evolution, in those days of fear and humiliation, or bitching about teaching the science that underpinned it all. Those godless communists had been onto something, damn it – so things shifted. God and the teachings of Jesus were not the nation’s business. That was your business, a private matter, and if you were a strict fundamentalist, who saw science as simply wrong about life, because God said something else way back when, you were a bit odd. The big hit film in 1960 was Inherit the Wind – Spencer Tracy as Clarence Darrow at the Scopes Trail, masterfully demolishing the arguments of the fundamentalists. But he did that gently, with warm humor, because those God guys were actually quite good men – just stuck in the past. That movie was emblematic of the times – Spencer Tracy was the nation’s gentle but firm Christian atheist, showing how it’s done. It was perfect casting. Everyone loved the kind and insightful Spencer Tracy. William Jennings Bryan might rant on and on about God’s word, but God’s word was courteously and respectfully set off to the side, for the good of the nation.
All this wasn’t an anomaly, really. Don’t let the Tea Party crowd tell you otherwise. Jill Lepore, a professor of American history at Harvard, has a new book explaining why, as in this excerpt from her book:
Precisely what the founders believed about God, Jesus, sin, the Bible, churches and hell is probably impossible to discover. They changed their minds and gave different accounts to different people: Franklin said one thing to his sister, Jane, and another thing to David Hume; Washington prayed with his troops, but, while he lay slowly dying, he declined to call for a preacher. This can make them look like hypocrites, but that’s unfair, as are a great many attacks on these men. They approached religion more or less the same way they approached everything else that interested them: Franklin invented his own, Washington proved diplomatic, Adams grumbled about it (he hated Christianity, he once said, but he couldn’t think of anything better, and he also regarded it as necessary), Jefferson could not stop tinkering with it, and Madison defended, as a natural right, the free exercise of it. That they wanted to preserve religious liberty by separating church and state does not mean they were irreligious. They wanted to protect religion from the state, as much as the other way around.
That obviously creates problems for those who take what the founders said literally:
Originalism as a school of constitutional interpretation has waxed and waned and has always competed with other schools of interpretation. Madison’s invaluable notes on the Constitutional Convention weren’t published until 1840, and nineteenth-century constitutional theory differed, dramatically, from the debates that have taken place in the twentieth century. In the 1950s and 1960s, the Supreme Court rejected originalist arguments put forward by southern segregationists, stating, in Brown v. Board of Education in 1954, that “we cannot turn back the clock” but “must consider public education in the light of its full development and its present place in American life throughout the Nation.”
Those were the days when the nation also decided to sideline the God stuff for a bit, but things on both fronts changed:
Constitutional scholars generally date the rise of originalism to the 1970s and consider it a response to controversial decisions of both the Warren and Burger Courts, especially Roe v. Wade, in 1973. Originalism received a great deal of attention in 1987, with the Supreme Court nomination of Robert Bork. Bork’s nomination also happened to coincide with the bicentennial of the Constitutional Convention. “Nineteen eighty-seven marks the 200th anniversary of the United States Constitution,” Thurgood Marshall said in a speech that year. Marshall (who went to Frederick Douglass High School) had argued Brown v. Board of Education in 1954 and, in 1967, after being nominated by Lyndon Johnson, became the first African American on the Supreme Court. In 1987, contemplating the bicentennial of the Constitution, Marshall took a skeptical view. …
Marshall was worried about what anniversaries do. “The odds are that for many Americans the bicentennial celebration will be little more than a blind pilgrimage to the shrine of the original document now stored in a vault in the National Archives,” rather than the occasion for “a sensitive understanding of the Constitution’s inherent defects, and its promising evolution through 200 years of history.” Expressing doubts about unthinking reverence, Marshall called for something different…
That wasn’t to be:
Even as Marshall was making that speech, the banner of originalism was being taken up by evangelicals, who, since joining the Reagan Revolution in 1980, had been playing an increasingly prominent role in American politics. “Any diligent student of American history finds that our great nation was founded by godly men upon godly principles to be a Christian nation,” Jerry Falwell insisted. In 1987, Tim LaHaye, an evangelical minister who went on to write a series of bestselling apocalyptic novels, published a book called The Faith of Our Founding Fathers, in which he attempted to chronicle the “Rape of History” by “history revisionists” who had systemically erased from American textbooks the “evangelical Protestants who founded this nation.”
Documenting this claim was no mean feat. Jefferson posed a particular problem, not least because he crafted a custom copy of the Bible by cutting out all the miracles and pasting together what was left. LaHaye, to support his argument, took out his own pair of scissors, deciding, for instance, that Jefferson didn’t count as a Founding Father because he “had nothing to do with the founding of our nation,” and basing his claims about Benjamin Franklin not on evidence (because, as he admitted, “There is no evidence that Franklin ever became a Christian”), but on sheer bald, raising-the-founders-from- the-dead assertion. LaHaye wrote, “Many modern secularizers try to claim Franklin as one of their own. I am confident, however, that Franklin would not identify with them were he alive today.” (Alas, Franklin, who once said he wished he could preserve himself in a vat of Madeira wine, to see what the world would look like in a century or two, is not, in fact, alive today. And, while I confess that I’m quite excessively fond of him, the man is not coming back.)
Those are the roots of what we have now:
Set loose in the culture, and tangled together with fanaticism, originalism looks like history, but it’s not; it’s historical fundamentalism, which is to history what astrology is to astronomy, what alchemy is to chemistry, what creationism is to evolution.
The framers would have none of it:
Following the faith of their fathers is exactly what the framers did not do. At a time when all but two states required religious tests for office, the Constitution prohibited them. At a time when all but three states still had an official religion, the Bill of Rights forbade the federal government from establishing one. Originalism in the courts is controversial, to say the least. Jurisprudence stands on precedent, on the stability of the laws, but originalism is hardly the only way to abide by the Constitution. Setting aside the question of whether it makes good law, it is, generally, lousy history.
There’s a parallel here. God said it! I believe it! That settles it! That hadn’t worked out well for us, and that wasn’t even the idea in the first place. The framers of the Constitution said it! I believe it! That settles it! That too is not working out all that well, as the Washington Post’s E. J. Dionne explores here:
You cannot talk for very long to a conservative these days without hearing the words “constitutional” and “constitutionalist.”
Formulations such as “I am a constitutional conservative” or “I am a constitutionalist” are tea party habits, but they are not confined to its ranks. Many kinds of conservatives contend that everything they believe is thoroughly consistent with the views and intentions of our 18th-century Founders.
Wielding pocket-sized copies of the Constitution, they like to cite it to settle political disputes.
In fact, Dionne cites Ramesh Ponnuru arguing that there is a new and valuable “popular interest in constitutionalism” that’s taking the nation by storm, although Dionne is skeptical:
“Instead of treating the Constitution as the property of lawyers and judges,” [Ponnuru] notes, “it proposes that legislators, and even citizen-activists, have an independent duty to evaluate the constitutionality of legislation.”
One plausible progressive response is to see Ponnuru’s exercise as doomed from the start. The framers could not possibly have foreseen what the world would look like in 2014. In any event, they got some important things wrong, most glaringly their document’s acceptance of slavery.
Moreover, because the Constitution was written primarily as a foundation for government, it can answer only so many questions. David Strauss of the University of Chicago Law School authored a book called “The Living Constitution” to make plain that there is a lot more to this concept than its detractors suggest. He notes that “a great part of the framers’ genius lay exactly in their ability to leave provisions general when they should be left general, so as not to undermine the document’s ability to serve as common ground.”
The problem with “originalists,” Strauss says, is that they “take general provisions and make them specific,” even when they’re not.
The Constitution does give the federal government the specific power to raise taxes – “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States…” – but there’s nothing specific about an income tax, which required the Sixteenth Amendment in 1913, and there’s still nothing in there about gasoline taxes. Maybe the federal gasoline tax is unconstitutional. Ponnuru might imagine tens of thousands of American citizens waving their pocket-size copies of the Constitution at each other, arguing about that, but that would be like William Jennings Bryan waving his Bible at Clarence Darrow back in 1925 – a bit pathetic.
Dionne has a better idea. Two can play at that game:
Progressives should take Ponnuru’s proposal seriously and think constitutionally themselves. In doing so, they would challenge conservative claims about what the Constitution really demands.
In the May issue of the Boston University Law Review, Joseph R. Fishkin and William E. Forbath of the University of Texas School of Law show that at key turning points in our history (the Jacksonian era, the Populist and Progressive moments and the New Deal), opponents of rising inequality made strong arguments “that we cannot keep our constitutional democracy – our republican form of government – without constitutional restraints against oligarchy and a political economy that maintains a broad middle class, accessible to everyone.”
Their article is called “The Anti-Oligarchy Constitution,” though Forbath told me that he and Fishkin may give the book they’re writing on the topic the more upbeat title “The Constitution of Opportunity.” Their view is that by empowering the wealthy in our political system, Supreme Court decisions such as Citizens United directly contradict the Constitution’s central commitment to shared self-rule.
“Extreme concentrations of economic and political power undermine equal opportunity and equal citizenship,” they write. “In this way, oligarchy is incompatible with, and a threat to, the American constitutional scheme.”
That would mean anything that increases income inequality might be unconstitutional, which is a pretty cool idea, and one could go further:
While their overarching vision contrasts sharply with Ponnuru’s, they make a similar critique of what they call an excessively “court-centered” approach to constitutionalism. “Constitutional politics during the 19th and early 20th centuries” was very different and the subject of democratic deliberation. In earlier eras, they say, the Constitution was seen as not simply permitting but actually requiring “affirmative legislation… to ensure a wide distribution of opportunity” and to address “the problem of oligarchy in a modern capitalist society.”
The authors remind us of Franklin Roosevelt’s warning that “the inevitable consequence” of placing “economic and financial control in the hands of the few” would be “the destruction of the base of our form of government.” And writing during the Gilded Age, a time like ours in many ways, the journalist James F. Hudson argued that “imbedded” in the Constitution is “the principle” mandating “the widest distribution among the people, not only of political power, but of the advantages of wealth, education and social influence.”
If you want to go back to the original idea, maybe that was it, so the other side should go for it:
For too long, progressives have allowed conservatives to monopolize claims of fealty to our unifying national document. In fact, those who would battle rising economic inequalities to create a robust middle class should insist that it is they who are most loyal to the Constitution’s core purpose. Broadly shared well-being is essential to the framers’ promise that “We the people” will be the stewards of our government.
That would be like telling an angry evangelical, itching for another war or two, to prove once and for all that we’re the good guys, that Jesus was serious about “that turn the other cheek” business, and in this case that would mean telling the constitutional “originalists” that “We the People” might actually include gays and Hispanics and the poor and whatever hippies are left these days, and atheists too. What else could those words mean? The Declaration of Independence posited, as a given, that all men are created equal, with basic inalienable rights. The Constitution was an attempt to operationalize that.
Ed Kilgore, however, has a few qualms about Dionne’s bold idea:
Truth is, “originalism” as we understand it today is a relatively recent doctrine. When I was taking constitutional law back in the late 1970s, “progressive” approaches like those endorsed by Dionne were far more prevalent than “originalism.” So this subject is inevitably (and has always been) an ideological battleground, and not the paradise of settled doctrine recently upset by “radical” progressives that “constitutional conservatives” tend to project.
But while I offer best wishes to those who wish to argue for “constitutional progressivism,” I do think it’s important for progressives to raise an occasional objection to the general idolatry of the Founders and their work before competing for the allegiance of their acolytes. Yes, the basic constitutional framework has held up relatively well, and probably better than the Founders themselves had any reason to anticipate. But it still required a bloody civil war and significant amendment (not to mention judicial interpretation) to function effectively at all.
There’s no point in another civil war:
“Constitutional conservatives” engage in making a Golden Calf of the constitution (as amended even before its adoption by the Declaration of Independence, of course) because they are interested in preserving eighteenth and nineteenth century governing norms against both democratic demands and more contemporary necessities. So they ignore the document’s imperfections and deem it blessed perpetually by Nature or God Almighty – so long as it serves their reactionary purposes. I’d prefer to stay well clear of that sort of obscurantism.
Likewise, Jonathan Bernstein says let the framers rest in peace:
We should use the Constitution with eyes wide open, aware of its problems and limitations. That’s true regardless of whether we believe “originalist” interpretations of the Constitution should be binding for us.
It’s complicated:
When it comes to our views of the Framers and the Constitution, there are a lot of judgments to keep separate. Begin with our views of the Framers, individually and collectively, as political actors. Then add how we feel about them as political theorists. Next are our views of what the Constitution of 1787 said and meant, and then our views of what the Constitution of 2014 says and means (given that even the strictest originalist must include the Amendments). And our views of what democracy really is, and what the Constitution does or doesn’t do to fulfill it. We also should be careful not to conflate what we believe the Constitution allows with what policy choices would be best.
There’s nothing wrong with using these separate things to inform one another – by consulting Madison, for example, to develop our own views on democracy. We get in trouble when we look for a straight line: Madison thought such-and-such, so that’s what the Constitution meant then, which is unalterably what the Constitution means now, which tells us what policies we should follow.
Bernstein sees danger there:
More broadly, I’m no fan of any outcome-based justifications for democracy. That is, democracy isn’t a good system because it produces policy outcomes we like, or because it makes winners of groups we want to win. Democracy, self-government, involves giving everyone the ability to do politics, and that means the outcomes are unpredictable because politics is inherently unpredictable. So neither conservatives nor liberals nor anyone else should support democracy because they believe it will yield the policy results they want. Nor should anyone assume that a system that produces policy outcomes they oppose must be less democratic than one that produces outcomes they support.
It doesn’t work that way:
The Framers were brilliant, and deserve praise. But inserting them into today’s policy fights, or even ideological fights, is a mug’s game. The fight over who owns the Constitution is fundamentally flawed. It either belongs to every citizen, or to no one.
It is a mug’s game, but that won’t stop the originalists from arguing that the Constitution says only what it says, specifically, and no more than that. What’s not there is not there on purpose. The framers decided not to say one word on the Affordable Care Act’s individual mandate, and they thought long and hard about it and decided not to say anything at all about regulation of the internet because of the massive bandwidth required to stream first-run movies. If they wanted to say something about things, they would have said something about such things. Others will point out that our perfect and complete Constitution started out with ten amendments in the first place, the Bill of Rights, so it was always a work in progress, a framework rather than a set of specific rules, and specific rules that were purposefully excluded. The framework is what matters.
Oddly enough, that’s how Robert Price came to see the Bible too – a framework, periodically amended. Consider the New Testament, the Jesus stuff, an amendment to the Old Testament with the stuff in Leviticus about how you’re supposed to stone your disobedient child to death and all the rest. The general principles are nifty, but the specifics aren’t terribly useful – as Clarence Darrow tried to explain to William Jennings Bryan long ago. Why do we keep having the same argument?