Monday, May 31, 2010

Memorial Day Speech 1878, President Hayes

As I have pointed out many times, the religious faith of our Founders and our very history is obvious if one reads a little about our legacy. It is infused in speeches and documents from colonial times through the present days. Below is a speech by President Hayes on the occasion of Memorial Day, 1878. In it he borrows Lincoln's words saying that we are one nation under God.

Memorial Day Speech, Rutherford B. Hayes, May 30, 1878

Gettysburg, Pennsylvania


The battle of Gettysburg will probably always be regarded as a battle which did more than any other to determine the result of the great civil war in the United States. The honored dead who fought and perished here will therefore be forever held in special and grateful remembrance. The great martyr of the conflict was Abraham Lincoln. He by his immortal words spoken here as indissolubly linked his name, fame and memory with the battle of Gettysburg. Lincoln gave his life, and the brave men who responded to his call gave their lives for the Union, for liberty, and for a stable, constitutional government. They believed that our institutions were equal to any emergency, and that they ought to be maintained at the cost of property or of life. If our assembling in this place shall fitly honor the men we now wish remembered with gratitude, it will be because beholding these scenes and contemplating the example of the heroes who made Gettysburg illustrious, we shall be able to estimate more wisely the value of our country and of her institutions, and be better prepared for the duties which, under Providence, have devolved upon us. Let us here give heed to the words of Abraham Lincoln. Let us here highly resolve that these dead shall not have died in vain; that the nation, under God, shall have a new birth of freedom, and that a government of the people and by the people shall not perish from the earth

Learn more at The Rutherford B. Hayes Presidential Center

Saturday, May 29, 2010

Created Equal: How Christianity Shaped The West

DINESH D’SOUZA is the author of several best selling books, including Illiberal Education, The End of Racism, What’s So Great About America, and, most recently, What’s So Great About Christianity. A graduate of Dartmouth College, he served previously as a policy analyst in the Reagan White House, John M. Olin Fellow at the American Enterprise Institute, and Robert and Karen Rishwain Fellow at the Hoover Institution. His articles have appeared in several magazines and newspapers, including the New York Times, the Wall Street Journal, The Atlantic Monthly, Vanity Fair, The New Republic, and National Review.

The following is adapted from a speech delivered on September 16, 2008, at a Hillsdale College National Leadership Seminar in Colorado Springs.

Created Equal: How Christianity Shaped The West
By Dinesh D’Souza
(Author, What’s So Great About Christianity)

IN RECENT YEARS there has arisen a new atheism that represents a direct attack on Western Christianity. Books such as Richard Dawkins’ The God Delusion, Christopher Hitchens’ God Is Not Great, and Sam Harris’ The End of Faith, all contend that Western society would be better off if we could eradicate from it the last vestiges of Christianity. But Christianity is largely responsible for many of the principles and institutions that even secular people cherish—chief among them equality and liberty.

When Thomas Jefferson wrote in the Declaration of Independence that “all men are created equal,” he called the proposition “self-evident.” But he did not mean that it is immediately evident. It requires a certain kind of learning. And indeed most cultures throughout history, and even today, reject the proposition. At first glance, there is admittedly something absurd about the claim of human equality, when all around us we see dramatic evidence of inequality. People are unequal in height, in weight, in strength, in stamina, in intelligence, in perseverance, in truthfulness, and in about every other quality. But of course Jefferson knew this. He was asserting human equality of a special kind. Human beings, he was saying, are moral equals, each of whom possesses certain equal rights. They differ in many respects, but each of their lives has a moral worth no greater and no less than that of any other. According to this doctrine, the rights of a Philadelphia street sweeper are the same as those of Jefferson himself.

This idea of the preciousness and equal worth of every human being is largely rooted in Christianity. Christians believe that God places infinite value on every human life. Christian salvation does not attach itself to a person’s family or tribe or city. It is an individual matter. And not only are Christians judged at the end of their lives as individuals, but throughout their lives they relate to God on that basis. This aspect of Christianity had momentous consequences.

Though the American founders were inspired by the examples of Greece and Rome, they also saw limitations in those examples. Alexander Hamilton wrote that it would be “as ridiculous to seek for [political] models in the simple ages of Greece and Rome as it would be to go in quest of them among the Hottentots and Laplanders.” In The Federalist Papers, we read at one point that the classical idea of liberty decreed “to the same citizens the hemlock on one day and statues on the next….” And elsewhere: “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” While the ancients had direct democracy that was susceptible to the unjust passions of the mob and supported by large-scale slavery, we today have representative democracy, with full citizenship and the franchise extended in principle to all. Let us try to understand how this great change came about.

A New Morality

In ancient Greece and Rome, individual human life had no particular value in and of itself. The Spartans left weak children to die on the hillside. Infanticide was common, as it is common even today in many parts of the world. Fathers who wanted sons had few qualms about drowning their newborn daughters. Human beings were routinely bludgeoned to death or mauled by wild animals in the Roman gladiatorial arena. Many of the great classical thinkers saw nothing wrong with these practices. Christianity, on the other hand, contributed to their demise by fostering moral outrage at the mistreatment of innocent human life.

Likewise, women had a very low status in ancient Greece and Rome, as they do today in many cultures, notably in the Muslim world. Such views are common in patriarchal cultures. And they were prevalent as well in the Jewish society in which Jesus lived. But Jesus broke the traditional taboos of his time when he scandalously permitted women of low social status to travel with him and be part of his circle of friends and confidantes.

Christianity did not immediately and directly contest patriarchy, but it helped to elevate the status of women in society. The Christian prohibition of adultery, a sin it viewed as equally serious for men and women, and rules concerning divorce that (unlike in Judaism and Islam) treated men and women equally, helped to improve the social status of women. Indeed so dignified was the position of the woman in Christian marriage that women predominated in the early Christian church, and the pagan Romans scorned Christianity as a religion for women.

Then there is slavery, a favorite topic for the new atheist writers. “Consult the Bible,” Sam Harris writes in Letter to a Christian Nation, “and you will discover that the creator of the universe clearly expects us to keep slaves.” Steven Weinberg notes that “Christianity…lived comfortably with slavery for many centuries.” Nor are they the first to fault Christianity for its alleged approval of slavery. But we must remember that slavery pre-dated Christianity by centuries and even millennia. It was widely practiced in the ancient world, from China and India to Greece and Rome. Most cultures regarded it as an indispensable institution, like the family. Sociologist Orlando Patterson has noted that for centuries, slavery needed no defenders because it had no critics.

But Christianity, from its very beginning, discouraged the enslavement of fellow Christians. We read in one of Paul’s letters that Paul himself interceded with a master named Philemon on behalf of his runaway slave, and encouraged Philemon to think of his slave as a brother instead. Confronted with the question of how a slave can also be a brother, Christians began to regard slavery as indefensible. As a result, slavery withered throughout medieval Christendom and was eventually replaced by serfdom. While slaves were “human tools,” serfs had rights of marriage, contract, and property ownership that were legally enforceable. And of course serfdom itself would eventually collapse under the weight of the argument for human dignity.

Moreover, politically active Christians were at the forefront of the modern anti-slavery movement. In England, William Wilberforce spearheaded a campaign that began with almost no support and was driven entirely by his Christian convictions—a story powerfully told in the recent film Amazing Grace. Eventually Wilberforce triumphed, and in 1833 slavery was outlawed in Britain. Pressed by religious groups at home, England then took the lead in repressing the slave trade abroad.

The debate over slavery in America, too, had a distinctively religious flavor. Free blacks who agitated for emancipation invoked the narrative of liberation in the Book of Exodus: “Go down Moses, way down to Egypt land and tell old Pharoah, let my people go.” But of course throughout history people have opposed slavery for themselves while being happy to enslave others. Indeed there were many black slave owners in the American South. What is remarkable in this historical period in the Western world is the rise of opposition to slavery in principle. Among the first to embrace abolitionism were the Quakers, and other Christians soon followed in applying politically the biblical notion that human beings are equal in the eyes of God. Understanding equality in this ingrained way, they adopted the view that no man has the right to rule another man without his consent. This latter idea (contained most famously in the Declaration of Independence) is the moral root both of abolitionism and of democracy.

For those who think of American history only or mostly in secular terms, it may come as news that some of its greatest events were preceded by massive Christian revivals. What historians call the First Great Awakening swept the country in the mid-eighteenth century, and helped lay the moral foundation of the American Revolution. Historian Paul Johnson describes the War for Independence as “inconceivable…without this religious background.” By this he means that the revival provided essential support for the ideas that fueled the Revolution. Jefferson, let us recall, proclaimed that human equality is a gift from God: we are endowed by our Creator with inalienable rights. Indeed there is no other possible source for them. And Jefferson later wrote that he was not expressing new ideas or principles when he wrote the Declaration, but was rather giving expression to something that had become settled in the American mind.

Likewise John Adams wrote: “What do we mean by the American Revolution? The war? That was no part of the Revolution; it was only an effect and consequence of it. The Revolution was in the minds of the people…a change in their religious sentiments.” Those religious sentiments were forged in the fiery sermons of the First Great Awakening.

The Second Great Awakening, which began in the early nineteenth century, left in its wake the temperance movement, the movement for women’s suffrage, and most importantly the abolitionist movement. It was the religious fervor of men like Charles Finney, the Presbyterian lawyer who became president of Oberlin College, that animated the abolitionist cause and contributed so much to the chain of events that brought about America’s “new birth of freedom.”

And finally, fast forwarding to the twentieth century, the Reverend Martin Luther King’s “I Have a Dream” speech referred famously to a promissory note and demanded that it be cashed. This was an appeal to the idea of equality in the Declaration of 1776. Remarkably, King was resting his case on a proclamation issued 200 years earlier by a Southern slave owner. Yet in doing so, he was appealing to a principle that he and Jefferson shared. Both men, the twentieth-century pastor and the eighteenth-century planter, reflected the influence of Christianity in American politics.

Freedom Redefined

Christianity has also lent force to the modern concept of individual freedom. There are hints of this concept both in the classical world and in the world of the ancient Hebrews. One finds, in such figures as Socrates and the Hebrew prophets, notable individuals who have the courage to stand up and question even the highest expressions of power. But while these cultures produced great individuals, as other cultures often do today, none of them cultivated an appreciation for individuality. And it is significant that Socrates and the Hebrew prophets came to bad ends. They were anomalies in their societies, and those societies—lacking respect for individual freedom—got rid of them.

As Benjamin Constant pointed out, freedom in the ancient world was the right to participate in the making of laws. Greek democracy was direct democracy in which every citizen could show up in the agora, debate issues of taxes and war, and vote on what action the polis should take. The Greeks exercised their freedom solely through active involvement in the political life of the city. There was no other kind of freedom and certainly no freedom of thought or of religion of the kind that we hold dear. The modern idea of freedom, by contrast, is rooted in a respect for the individual. It means the right to express our opinion, the right to choose a career, the right to buy and sell property, the right to travel where we want, the right to our own personal space, and the right to live our own life. In return, we are responsible only to respect the rights of others. This is the freedom we are ready to fight for, and we become indignant when it is challenged or taken away.

Christianity has played a vital role in the development of this new concept of freedom through its doctrine that all human beings are moral agents, created in God’s image, with the ability to be the architects of their own lives. The Enlightenment certainly contributed to this understanding of human freedom, though it drew from ideas about the worth of the individual that had been promulgated above all by the teachings of Christianity.

* * *

Let me conclude with a warning first issued by one of Western civilization’s greatest atheists, the German philosopher Friedrich Nietzsche. The ideas that define Western civilization, Nietzsche said, are based on Christianity. Because some of these ideas seem to have taken on a life of their own, we might have the illusion that we can abandon Christianity while retaining them. This illusion, Nietzsche warns us, is just that. Remove Christianity and the ideas fall too.

Consider the example of Europe, where secularization has been occurring for well over a century. For a while it seemed that secularization would have no effect on European morality or social institutions. Yet increasingly today there is evidence of the decline of the nuclear family. Overall birthrates have plummeted, while rates of divorce and out-of-wedlock births are up.

Nietzsche also warned that, with the decline of Christianity, new and opposing ideas would arise. We see these today in demands for the radical redefinition of the family, the revival of eugenic theories, and even arguments for infanticide.

In sum, the eradication of Christianity—and of organized religion in general—would also mean the gradual extinction of the principles of human dignity. Consider human equality. Why do we hold to it? The Christian idea of equality in God’s eyes is undeniably largely responsible. The attempt to ground respect for equality on a purely secular basis ignores the vital contribution by Christianity to its spread. It is folly to believe that it could survive without the continuing aid of religious belief.

If we cherish what is distinctive about Western civilization, then—whatever our religious convictions—we should respect rather than denigrate its Christian roots.

Copyright © 2008 Hillsdale College. 
Reprinted by permission from Imprimis, a publication of Hillsdale College.

Thursday, May 27, 2010

National Day of Prayer Proclamations, 1900-1910 (13 in all)

A previous post here (Judge Declares National Day of Prayer Unconstitutional) discussed a federal judge declaring that our 235-year-old tradition of declaring a national day of prayer was not constitutional. So after 230 years of this tradition, started by the very men who wrote the Constitution, only now does someone think it an offense to the Constitution?

Here are 12 examples from the years 1900-1910:

1900 - William McKinley Proclamation on October 29, 1900. A day for “thanksgiving and praise” set apart on November 29, 1900. Reflecting on the closing year motivated the call to prayer.

1901 - Theodore Roosevelt Proclamation on September 14, 1901. A day of “mourning and prayer” set apart on September 19, 1901. The assassination of President McKinley motivated the call to prayer.

1901 - Theodore Roosevelt Proclamation on November 2, 1901. A day of “praise and thanksgiving to God” set apart on November 28, 1901. Reflecting on the closing year motivated the call to prayer.

1902 - Theodore Roosevelt Proclamation on October 29, 1902. A day of “festival and thanksgiving to God” set apart on November 27, 1902. Reflecting on the closing year motivated the call to prayer.

1903 - Theodore Roosevelt Proclamation on October 31, 1903. A day of “praise and
thanksgiving to God” set apart on November 26, 1903. Reflecting on the closing
year motivated the call to prayer.

1904 - Theodore Roosevelt Proclamation on November 1, 1904. A day to “give thanks unto Almighty God” set apart on November 24, 1904. Reflecting on the closing year motivated the call to prayer.

1905 - Theodore Roosevelt Proclamation on November 2, 1905. A day of “thanksgiving for the past and of prayer for the future” set apart on November 30, 1905. Reflecting on the closing year motivated the call to prayer.

1906 - Theodore Roosevelt Proclamation on October 22, 1906. A day of “thanksgiving and supplication” set apart on November 29, 1906. Reflecting on the closing year motivated the call to prayer.

1907 - Theodore Roosevelt Proclamation on October 26, 1907. A day of “general Thanksgiving and Prayer” set apart on November 28, 1907. Reflecting on the closing year motivated the call to prayer.

1908 - Theodore Roosevelt Proclamation on October 31, 1908. A day of “general thanksgiving and prayer” set apart on November 26, 1908. Reflecting on the closing year motivated the call to prayer.

1909 - William Howard Taft Proclamation on November 15, 1909. A day of “general thanksgiving... [for] praise and thanks to Almighty God” set apart on November 25, 1909.

1910 -William Howard Taft Proclamation on November 5, 1910. A day of “National Thanksgiving and Prayer” set apart on November 24, 1910. Reflecting on the closing year motivated the call to prayer.

The quotes above and the citations for them can be found in the ACLJ's amicus brief linked from this page:

ACLJ: Court Decision Declaring National Day of Prayer Unconstitutional 'Flawed' - Case Could End Up At Supreme Court

Tuesday, May 25, 2010

The REST of the First Amendment

The First Amendment covers several topics, although I have focused only on the Religion Clauses. Here is the entire Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceable to assemble, and to petition the Government for a redress of grievances.”

If you have followed the news lately, you may have heard that some of the largest news outlets are in major financial trouble. You may have also heard speculation about a government bailout for these companies. How did the discussion even get that far? What if a church or denomination were in financial trouble, and what if the government were thinking about a bailout for them? Wouldn't the phrase "separation of church and state" come up immediately? (That phrase is too often used to "summarize" the Religion Clauses.) Why, then, do we not hear immediate and strong objections to the very mention of government aid to news outlets?

The first few words of the Amendment, "Congress shall make no law..." applies to all the clauses that follow. So whatever restriction there is on Congress about religion would apply to the freedom of the press as well. How about "separation of media and state" or some similar phrase?

Both religious organizations and media organizations would want to be careful to avoid the government obtaining a measure of control. There is already some entanglement because of tax policies, which applies in different ways, but perhaps no less strongly, to the press as to religion.

Just food for thought.

Sunday, May 23, 2010

No School Graduations in Church!!

Now that high school graduations are upon us again this year, we hear of more lawsuits to block holding the ceremonies in churches. One would think that the objection is that the ceremony is going to turn into a prayer meeting. But, no, the objection is simply that the building is a church. The claim is made that it would violate the so-called "separation of church and state" of our First Amendment. This might have come as a surprise to our Founders, who even thought it permissible to hold church services in the U.S. Capital.

Some objections center around the fact that the rooms to be used "look" like a church. In one case the fact that is has red carpet was cited (among other reasons). From the school's point of view it makes all kinds of sense. In many cases the facility is much more suitable than anything owned by the school. In a case from Enfield, CT, the school could not use school facilities and said the nearby civic center would have cost $70,000 to rent. The megachurch the selected was charging them $16,000 and had large screen TV's so parents could clearly see their own graduate.

Our Founders did not want the federal government to declare one particular sect a national religion and force citizens to support it. Merely stepping into a church for a secular ceremony does not create an official religion. And the reason for choosing that facility had nothing to do with religion.

Read more here:

Battles loom over holding public school graduations in church

Friday, May 21, 2010

FEMA Apologizes About Objection to Religious Logo

You may know that Mississippi suffered losses due to a tornado recently. Many volunteers assisted those in trouble and performed general clean-up work. The Federal Emergency Management Agency (FEMA) was involved as well, and later sent a videographer to film a story on the relief efforts.

Many of the volunteers wore T-shirts supplied by the local TV station, who was sponsoring some of the efforts. The shirts had the TV station logo and the logo of the Salvation Army, among others. For the interviews with two of the volunteers, the videographer asked them to change into other shirts because he did not want the religious logo in the scene.

FEMA says that they did not instruct the photographer to do this. They also issued a sincere-sounding apology to the volunteers involved.

I only know what I can read in news accounts, but something is not quite complete in the story as I read it. FEMA says the photographer was concerned about the production, but the story also says that they fired the photographer. If it was an innocent mistake made for no malicious purpose and with no prejudice, why did they fire him? While I think his actions were offensive and insensitive, or at least ignorant, I never hear of people getting fired for such actions. I hear of people whose jobs are at risk because they wear religious logos or jewelry.

In any case, I think the story is reflective of attitudes which are too-often found in today's society. Somehow, religion has become an offensive matter, but it seems that it's fine for South Park or stand-up comics to lampoon Christians. They don't get fired for that, do they?

We have migrated from a First Amendment that is intended to keep the Federal Government from interfering with religion, all the way to a more-or-less common belief that every citizen must be protected from seeing or hearing anything about religion in public.

Read the story here:

FEMA Apologizes to Volunteers Over T-Shirt Flap

Wednesday, May 19, 2010

Presidents Harrison, Cleveland, McKinley Proclamations for Prayer

A previous post on this blog reviewed the news of a federal judge's ruling that our tradition of declaring a national day of prayer is not constitutional. This was despite evidence presented of 164 such declarations starting with our first Congress (who wrote the Constitution).

Below are the 13 proclamations made just in the years between 1889 and 1899:

1889 - Benjamin Harrison Proclamation on April 4, 1889. A day to “implore the favor of God” set apart on April 30, 1889.65 The centennial of George Washington’s inauguration address as the first President of the United States motivated the call to prayer.

1889 - Benjamin Harrison Proclamation on November 1, 1889. A day of “national thanksgiving and prayer” set apart on November 28, 1889.66 Reflecting on the closing year motivated the call to prayer.

1890 - Benjamin Harrison Proclamation on November 8, 1890. A day of “prayer and thanksgiving” set apart on November 27, 1890.67 Reflecting on the closing year motivated the call to prayer.

1891 - Benjamin Harrison Proclamation on November 13, 1891. A day of “joyful thanksgiving to God” set apart on November 26, 1891.68 Reflecting on the closing year motivated the call to prayer.

1892 - Benjamin Harrison Proclamation on July 21, 1892. A day to express “gratitude to Divine Providence for the devout faith of the discoverer and for the divine care and guidance which has directed our history and so abundantly blessed our people” set apart on October 21, 1892.69 Celebrating the four hundredth anniversary of Christopher Columbus’ discovery of America motivated the call to prayer.

1892 - Benjamin Harrison Proclamation on November 4, 1892. A day for “thanksgiving to God for His mercies and of supplication for His continued care and grace” set apart on November 24, 1892.70 Reflecting on the closing year motivated the call to prayer.

1893 - Grover Cleveland Proclamation on November 3, 1893. A day of “thanksgiving and praise” set apart on November 30, 1893.71 Reflecting on the closing year motivated the call to prayer.

1894 - Grover Cleveland Proclamation on November 1, 1894. A day of “thanksgiving and prayer” set apart on November 29, 1894.72 Reflecting on the closing year motivated the call to prayer.

1895 - Grover Cleveland Proclamation on November 4, 1895. A day of “thanksgiving and prayer” set apart on November 28, 1895.73 Reflecting on the closing year motivated the call to prayer.

1896 - Grover Cleveland Proclamation on November 4, 1896. A day of “thanksgiving and prayer” set apart on November 26, 1896.74 Reflecting on the closing year motivated the call to prayer.

1897 - William McKinley Proclamation on October 29, 1897. A day of “national thanksgiving and prayer” set apart on November 25, 1897.75 Reflecting on the closing year motivated the call to prayer.

1898 - William McKinley Proclamation on October 28, 1898. A day for “giving thanks to Almighty God” set apart on November 24, 1898.76 Reflecting on the closing year motivated the call to prayer.

1899 - William McKinley Proclamation on October 25, 1899. A day for “general thanksgiving and prayer” set apart on November 30, 1899.77 Reflecting on the closing year motivated the call to prayer.

The quotes above and the citations for them can be found in the ACLJ's amicus brief linked from this page:

ACLJ: Court Decision Declaring National Day of Prayer Unconstitutional 'Flawed' - Case Could End Up At Supreme Court

Monday, May 17, 2010

Thomas Jefferson and the Accumulation of Washington Power

You see Jefferson's name a lot on this blog, mostly because he is now remembered in many circles for stating that our Constitution creates a "separation of church and state."  I have expressed my opinion in countless posts here that his little metaphor has been misused, and has be assumed to mean something that he no doubt did not mean.

But those who revere Jefferson should read this article, which nicely points out how Jefferson was against the gathering of too much power in Washington. He wanted power at the most local level that was possible, and yet people use his words to allow the Supreme Court to tell high schools that they can not have prayer at their graduations, for one small example.

Thanks for Hillsdale College for providing this article for no charge.

“All Honor to Jefferson”
By Jean Yarbrough
Professor of Government, Bowdoin College

It is one of the wonders of the modern political world that John Adams and Thomas Jefferson both died on the 50th anniversary of the Declaration of Independence. Unaware that the “Sage of Monticello” had died earlier in the day, the crusty Adams, as he felt his own life slipping away, uttered his last words, “Thomas Jefferson still lives.” And so he does.

Today, as we dedicate this marvelous statue of our third President, and place him in the company of George Washington, Winston Churchill, and Margaret Thatcher on Hillsdale’s Liberty Walk, soon to be joined by Abraham Lincoln, it is fitting to reflect on what of Thomas Jefferson still lives. What is it that we honor him for here today?

Without question, pride of place must go to Jefferson as the author of the Declaration of Independence. That document established Jefferson as one of America’s great political poets, second only to Abraham Lincoln. And fittingly, it was Lincoln himself who recognized the signal importance of its first two paragraphs when he wrote: “All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times,” where it continues to stand as “a rebuke and a stumbling block to the very harbingers of reappearing tyranny and oppression.”

That abstract truth, of course, was that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.—That to secure these rights Governments are instituted among Men, 
deriving their just powers from the consent of the governed.” It is surely a sign of our times that so many Americans no longer know what these words mean, or what their signal importance has been to peoples around the world. The one thing they are certain of, however, is that Jefferson was a hypocrite. How could he assert that all men were created equal and yet own slaves? What these critics fail to notice is that this is precisely what makes Jefferson’s statement so remarkable. Under no necessity for doing so, he penned the immortal words that would ultimately be invoked to put the institution of slavery on the road to extinction. His own draft of the Declaration was even stronger. In it, he made it clear that blacks were human and that slavery was a moral abomination and a blot upon the honor of his country.

Jefferson was serving as Minister in Paris while the Constitution was being drafted, and played no direct part in framing it. But he did make known his objections, the most important being the omission of a Bill of Rights. After the Constitution was ratified, he returned to the United States to serve as Secretary of State in the Washington administration. In and out of government in the 1790s, he challenged Hamilton’s expansive views of federal power, warning against a mounting federal debt, a growing patronage machine, and what he considered dangerous monarchical pretensions.

In the tumultuous contest for the presidency in 1800, Jefferson presided over the first peaceful transition of power in modern history, assuring those he had defeated that they too had rights that the majority was bound to respect. His observation, “We are all Republicans, we are all Federalists,” established a standard toward which every incoming administration continues to strive.

As president of the United States, Jefferson sought to rally the country around the principles of limited government. His First Inaugural Address reminded his fellow citizens that their happiness and prosperity rested upon a “wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.” This, he thought, was “the sum of good government” and all that was “necessary to close the circle of our felicities.” Although Jefferson had omitted property from the inalienable rights enumerated in the Declaration, he strongly defended private property because it encouraged industry and liberality—and, most importantly, because he thought it just that each individual enjoy the equal right to the fruits of his labor.

From these political principles, Jefferson never wavered. Writing in 1816, he once again insisted that the tasks of a liberal republic were few: government should restrain individuals from encroaching on the equal rights of others, compel them to contribute to the necessities of society, and require them to submit their disputes to an impartial judge. “When the laws have declared and enforced all this, they have fulfilled their functions.”

At the same time, Jefferson believed that constitutions must keep pace with the times. If the people wished to alter their frame of government, say, to fund public improvements or education, they were free to do so. But they should do so by constitutional amendment and not by allowing their representatives to construe the powers of government broadly. He particularly objected to the Court’s sitting in judgment on the powers of the legislative and executive branches, or acting as an umpire between the states and the federal government. To cede to the judiciary this authority, he believed, would render the Constitution a “ball of wax” in the hands of federal judges. In his battles with Chief Justice John Marshall, he defended the principle of coordinate construction, as Lincoln (and almost every strong president since then) did after him, arguing that each branch of government must determine for itself the constitutionality of its acts.

After his retirement from politics, Jefferson returned to Monticello, where he continued to think about the meaning and requirements of republican government. Republicanism, he was convinced, was more than just a set of institutional arrangements; at bottom, it depended upon the character of the people. To keep alive this civic spirit, he championed public education for both boys and girls, with the most talented boys going on at public expense all the way through college. He envisioned the University of Virginia, to which he devoted the last years of his life, as a temple that would keep alive the “vestal flame” of republicanism and train men for public service. And here, I cannot help but notice how the recent renovations and additions to the Hillsdale campus seem to take their inspiration from Mr. Jefferson’s university, paying graceful homage to an architecture of democracy that inspires and ennobles.

As Jefferson understood it, education had a distinctly political mission, beginning at the elementary level: schools were to form citizens who understood their rights and duties, who knew how earlier free societies had risen to greatness, and by what errors and vices they had declined. Knowing was not enough, however. Jefferson also believed that citizens must have the opportunity to act. Anticipating Tocqueville, Jefferson admired the strength of the New England townships and sought to adapt them to Virginia. The wards, as he called them, would allow citizens to have a say on those matters most interesting to them, such as the education of their children and the protection of their property. If ever they became too dispirited to care about these things, republican government could not survive.

The wards were certainly not the greatest of Jefferson’s contributions to the natural rights republic—that honor must be awarded to the Declaration—but they were his most original. Instead of consolidating power or attempting to forge a general will, Jefferson went in the opposite direction, “dividing and sub-dividing” political power, while multiplying the number of interests and views that could be heard. He saw these units of local self-government as a way of bringing the large republic within the reach of citizens and so keeping alive the spirit of republicanism so vital to its preservation. And in this day and age, when the federal government seems to intrude on every aspect of our daily lives, and people feel powerless over matters of most interest to them, can we doubt that he was right? For this insight, too, let us echo Lincoln: “All honor to Jefferson”!

Jean Yarbrough is professor of government and Gary M. Pendy, Sr. Professor of Social Sciences at Bowdoin College. She received her B.A. at Cedar Crest College and her M.A. and Ph.D. at the New School for Social Research. The author of American Virtues: Thomas Jefferson on the Character of a Free People and editor of The Essential Jefferson, she is currently completing a study of Theodore Roosevelt and the Progressive critique of the Founders.

The address above was delivered at Hillsdale College on April 16, 2009, at the dedication of a statue of Thomas Jefferson by Hillsdale College Associate Professor of Art Anthony Frudakis.

Reprinted by permission from Imprimis, a publication of Hillsdale College.

Saturday, May 15, 2010

President Arthur and Cleveland: 9 Proclamatons for National Day of Prayers

If you have been following this blog or some of the national news, you know that a judge recently declared that a national day of prayer is unconstitutional. Yet, does the judge believe she understands the Constitution better than the men who wrote it or the many other Presidents who followed the tradition? Here are nine examples from just two of our Presidents, President Chester Authur (1881-1885) and President Grover Cleveland (1885-1889):

1881 - Chester A. Arthur Proclamation on September 22, 1881. A day of “humiliation and mourning” to “render... tribute of sorrowful submission to the will of Almighty God” set apart on September 26, 1881.56 The death of James A. Garfield, former President of the United States, motivated the call to prayer.

1881 - Chester A. Arthur Proclamation on November 4, 1881. A day of “national thanksgiving and prayer” set apart on November 24, 1881.57 Reflecting on the closing year motivated the call to prayer.

1882 - Chester A. Arthur Proclamation on October 25, 1882. A day of “national thanksgiving and prayer” set apart on November 30, 1882.58 Reflecting on the closing year motivated the call to prayer.

1883 - Chester A. Arthur Proclamation on October 26, 1883. A day for expressing “devout gratitude to God that He hath dealt so bountifully with this nation and pray that His grace and favor abide with it forever” set apart on November 29, 1883.59 Reflecting on the closing year motivated the call to prayer.

1884 - Chester A. Arthur Proclamation on November 2, 1884. A day for expressing “reverent acknowledgment to the Giver of All Good for the countless blessings wherewith He hath visited this nation” set apart on November 27, 1884.60 Reflecting on the closing year motivated the call to prayer.

1885 - Grover Cleveland Proclamation on November 2, 1885. A day of “public thanksgiving and prayer” set apart on November 26, 1885.61

1886 - Grover Cleveland Proclamation on November 1, 1886. A day of “thanksgiving and prayer” set apart on November 25, 1886.62 Reflecting on the closing year motivated the call to prayer.

1887 - Grover Cleveland Proclamation on October 25, 1887. A day of “thanksgiving and prayer” set apart on November 24, 1887.63

1888 - Grover Cleveland Proclamation on November 1, 1888. A “day of thanksgiving and prayer” set apart on November 19, 1888.64

Thursday, May 13, 2010

ACLU's Case May Be Won By Vandals

Readers of this blog (and the rest of the news/internet) will know that in the Mojave desert there is a cross put up in 1934 by the VFW as a war memorial. The ACLU sued to get the cross taken down, since it was within federal land, even though the actual plot the cross is on was transferred to private parties.

The Supreme Court said the cross could remain, and the VFW celebrated the victory. However, this week it seems that parties unknown cut the bolts holding the cross to its stand and removed it. The whereabouts are not know, and it is unclear if authorities have any leads.

So apparently come people in favor of removing the cross were going to see the ACLU win the batter one way or the other. Now that the long-standing cross is gone, it is unclear if the court will allow a new one to be put up.

I guess "winning by any means" is still winning in some peoples' books.

Read more here:

Disputed Mojave cross honoring US war dead stolen

Tuesday, May 11, 2010

No First Amendment Rights for the Elderly?

In Port Wentworth, GA, the local senior center has a meals program that is strongly subsidized by tax dollars. Because of this tie-in with government money, and because of a profound misunderstanding of the phrase "separation of church and state," the programs leaders told the seniors that they could not say prayers before their meals. They may still pray, he says (big of him), if they do so silently.

Such an action must have Thomas Jefferson, who used the "separation" phrase once in a letter, rolling over in his grave. Jefferson was not a fan off the government taking any more control than what is explicitly specified in the Constitution. On the same line, he probably would not have approved of tax funding of seniors' meals in the first place, but that is a different story. If one wishes to quote Jefferson, you can find many more examples where he used the phrase "freedom of religion" than where he referred to "separation."

The supposed Constitutional limit is not found in the First Amendment, which simply prohibits the Federal (or state) governments from establishing an official religion by law. In fact, the same First Amendment protect our freedom of speech. Couldn't a senior say a prayer out loud as a freedom of speech moment?

It is probably worth noting that the same Congress who wrote and ratified the First Amendment gave us a historic record that could shed light on what they thought the Amendment means. They petitioned our first President to declare a national day of prayer and fasting. They authorized and attended worship services held in the U.S. Capitol building (which Jefferson attended). They had the U.S. Marine Band play at some of those services. They opened each session of the Congressional meetings with prayer.

Requiring people to say a certain prayer as a condition of getting the subsidized meal would be a violation of their Constitutional rights. And not allowing them to pray aloud is also a violation of their rights.

Read more on the story here:

Port Wentworth nixes prayer at senior center

Sunday, May 9, 2010

Prayer Proclamations, 1866 - 1880

Recently in the news and on this blog, there has been discussion about a federal judge's ruling that our tradition of declaring a national day of prayer is not constitutional. Such a belief overlooks the fact that the men who wrote and ratified the Constitution petitioned our first President to declare such a day. The tradition continued until our current history.

Below are the proclamations that were made between 1866 and 1880:

1866 - Andrew Johnson Proclamation on October 8, 1866. A “day of thanksgiving and praise to Almighty God” set apart on November 29, 1866.40 Reflecting on the closing year motivated the call to prayer.

1867 - Andrew Johnson Proclamation on October 26, 1867. A “day of national thanksgiving and praise to the Almighty Ruler of Nations” set apart on November 28, 1867.41 Reflecting on the closing year motivated the call to prayer. President Johnson noted that proclaiming a national day of praise and thanksgiving to Almighty God was “[i]n conformity with a recent custom that may now be regarded as established on national consent and approval[.]”

1868 - Andrew Johnson Proclamation on October 12, 1868. A “day for public praise, thanksgiving, and prayer to the Almighty Creator and Divine Ruler of theset apart on November 26, 1868.42 Reflecting on the closing year motivated the call to prayer.

1869 - Ulysses S. Grant Proclamation on October 5, 1869. A “day of thanksgiving and of praise and of prayer to Almighty God” set apart on November 18, 1869.43 Reflecting on the closing year motivated the call to prayer.

1870 - Ulysses S. Grant Proclamation on October 21, 1870. A day “to give thanks for the bounty of God during the year about to close” set apart on November 24, 1870.44 Reflecting on the closing year motivated the call to prayer.

1871 - Ulysses S. Grant Proclamation on October 28, 1871. A day to “make the usual annual acknowledgments to Almighty God for the blessings He has conferred” set apart on November 30, 1871.45 Reflecting on the closing year motivated the call to prayer.

1872 - Ulysses S. Grant Proclamation on October 11, 1872. A day “publicly to thank the Almighty for His mercies and His blessings” set apart on November 28, 1872.46 Reflecting on the closing year motivated the call to prayer.

1873 - Ulysses S. Grant Proclamation on October 14, 1873. A day “for renewed thanksgiving and acknowledgment to the Almighty Ruler of the Universe for the unnumbered mercies which He has bestowed” set apart on November 27, 1873.47 Reflecting on the closing year motivated the call to prayer.

1874 - Ulysses S. Grant Proclamation on October 27, 1874. A day for “offer[ing] thanks to Almighty God for the mercies and abundance of the year which is drawing to a close” set apart on November 26, 1874.48 Reflecting on the closing year motivated the call to prayer.

1875 - Ulysses S. Grant Proclamation on October 27, 1875. A day to “offer to Almighty God [ ] acknowledgments and thanks for all His mercies and [ ] humble prayers for a continuance of His divine favor” set apart on November 25, 1875.49 Reflecting on the closing year motivated the call to prayer.

1876 - Ulysses S. Grant Proclamation on June 26, 1876. A day for “public religious and devout thanksgiving to Almighty God” and for “invoke[ing] a continuance of His favor and of His protection” set apart on July 4, 1876.50 The 100th anniversary of the independence of the United States motivated the call to prayer.

1876 - Ulysses S. Grant Proclamation on October 26, 1876. A day to offer “thanks and prayers to Almighty God” set apart on November 30, 1876.51 Reflecting on the closing year motivated the call to prayer.

1877 - Rutherford B. Hayes Proclamation on October 29, 1877. A day of “national thanksgiving and prayer” set apart on November 29, 1877.52 Reflecting on the closing year motivated the call to prayer.

1878 - Rutherford B. Hayes Proclamation on October 20, 1878. A day of “national thanksgiving and prayer” set apart on November 28, 1878.53 Reflecting on the closing year motivated the call to prayer.

1879 - Rutherford B. Hayes on November 3, 1879. A day of “national thanksgiving and prayer” set apart on November 27, 1879.54 Reflecting on the closing year motivated the call to prayer.

1880 - Rutherford B. Hayes Proclamation on November 1, 1880. A day for “mak[ing] . . . acknowledgments to Almighty God for His bounties and His protection and to offer to Him prayers for their continuance” set apart on November 25, 1880.55 Reflecting on the closing year motivated the call to prayer.

The quotes above and the citations for them can be found in the ACLJ's amicus brief linked from this page:

ACLJ: Court Decision Declaring National Day of Prayer Unconstitutional 'Flawed' - Case Could End Up At Supreme Court

Friday, May 7, 2010

Bible Case Part of National Park Service Display

It seems that these days we are not taught much about the religious roots of our nation and its leaders. Christianity and religion in general played an important role in the early history of our nation and continued through our whole history.

The National Park Service would probably not be seen as an organization promoting a right-wing agenda. Yet, part of their function is to preserve our history. They don't make it up, they just preserve it.

So it should not be surprising that we find a "Bible Box" on display as part of the National Park Service Museum Collections. It is an antique box owned by the Roosevelt family, and dates to the 16th century (it is probably an antique obtained by the family to use long after it was built). The box held the Bible that was used to swear in FDR for each of his four Inaugurations. With many families at the time and earlier, a Bible was a treasured book, not just a device for ceremonies. It was used for worship, reading practice, and to record births and deaths in the family. Boxes like this displayed and protected the Bibles in some families.

See the Bible Box here:

Wednesday, May 5, 2010

Christian Religion Extremely Important to Colonial America

When I was in public school, I learned a little about the religious roots of our country. Mostly I learned that the Pilgrims came here for religious freedom to worship in the way they chose. Today, even that is not taught as often. But a huge part of our early religious-influenced history was not taught when I was in school. This is logical enough, because there is only so much time for teaching history and there was a lot to cover. Still, more perspective can be gained by understanding how religion was ingrained into our early culture AND laws.

Consider one of the governing documents of early Massachusetts, the "Body of Liberties of the Massachusets Collonie in New England." It contains several items that would raise eyebrows today, even in the context of 300+ year-old history. A few excerpts follow.

"1. No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under colour of law or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country waranting the same, established by a generall Court and sufficiently published, or in case of the defect of a law in any parteculer case by the word of God.

"58. Civill Authoritie hath power and libertie to see the peace, ordinances and Rules of Christ observed in every church according to his word. so it be done in a Civill and not in an Ecclesiastical way.
"91. There shall never be any bond slaverie, villinage or Captivitie amongst us unles it be lawfull Captives taken in just warres, and such strangers as willingly selle themselves or are sold to us. And these shall have all the liberties and Christian usages which the law of god established in Israell concerning such persons doeth morally require. This exempts none from servitude who shall be Judged thereto by Authoritie.
"If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death.
"If any person shall Blaspheme the name of god, the father, Sonne or Holie Ghost, with direct, expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death."

Such provisions were not in our own U.S. Constitution (like being put to death for speaking against God) and are not acceptable in today's thinking. But there were a part of our history. As uncomfortable as they are to consider in today's context, they do point to the strong religious convictions of our Founders.

Read more in "The Founders' Constitution" on the University of Chicago's website:

Monday, May 3, 2010

Illinois Responds to 9-11 with Day of Prayer

On this blog you can find many references to mistaken limitations on prayer in public venues because of a belief that our Founders actually intended "separation of church and state" to mean that public officials may not invoke religion in any public way or even use it to help them make decisions about policy. But consider the following.

In 2001, then-Governor George Ryan of Illinois declared a "Day of Prayer and Remembrance" in support of the American people (due to the attacks of 9/11/2001). The wording of the proclamation refers to prayer OR meditation, but it certainly officially encourages prayer. And we have also seen "separation of church and state" used to say that schools may not have a moment of silence during the day, because such might make students feel compelled to pray or feel left out if they do not. But wouldn't a state-wide event with "prayer" actually in the title do the same thing?

If you think such a think is unconstitutional, does it become less so after a national heartbreak like 9/11? Or did objectors not speak up because the outrage would have been overwhelming and might have set them back on their mission to strip prayer from civic occasions?

Governor Ryan Declares Day of Prayer and Remembrance in Illinois

Saturday, May 1, 2010

The Coming Constitutional Debate

The following is an excellent article from Imprimis, published by Hillsdale College.

The Coming Constitutional Debate
By Stephen Markman
Michigan Supreme Court

AS ASSISTANT ATTORNEY GENERAL under President Ronald Reagan, I prepared a report for Attorney General Edwin Meese entitled “The Constitution in the Year 2000: Choices Ahead.” This report sought to identify a range of areas in which significant constitutional controversy could be expected over the next 20 years. As critical as I believe those controversies were, they pale in significance before the controversies that will arise over the next several decades. The resolution of these emerging controversies will determine whether the Constitution of 2030 bears any resemblance to the Constitution of 1787—the Framers’ Constitution that has guided this nation for most of its first two centuries and has rendered it the freest, most prosperous, and most creative nation in the history of the world.

Proponents of a “21st century constitution” or “living constitution” aim to transform our nation’s supreme law beyond recognition—and with a minimum of public attention and debate. Indeed, if there is an overarching theme to what they wish to achieve, it is the diminishment of the democratic and representative processes of American government. It is the replacement of a system of republican government, in which the constitution is largely focused upon the architecture of government in order to minimize the likelihood of abuse of power, with a system of judicial government, in which substantive policy outcomes are increasingly determined by federal judges. Rather than merely defining broad rules of the game for the legislative and executive branches of government, the new constitution would compel specific outcomes.

Yes, the forms of the Founders’ Constitution would remain—a bicameral legislature, periodic elections, state governments—but the important decisions would increasingly be undertaken by courts, especially by federal courts. It will be the California referendum process writ national, a process by which the decisions of millions of voters on matters such as racial quotas, social services funding, and immigration policy have been routinely overturned by single judges acting in the name of the Constitution—not the Framers’ Constitution, but a “constitution for our times,” a “living constitution,” resembling, sadly, the constitutions of failed and despotic nations across the globe.

This radical transformation of American political life will occur, if it succeeds, not through high-profile court decisions resolving grand disputes of war and peace, abortion, capital punishment, or the place of religion in public life, but more likely as the product of decisions resolving forgettable and mundane disputes—the kind mentioned on the back pages of our daily newspapers, if at all. Let me provide a brief summary of six of the more popular theories of the advocates of the 21st century constitution. In particular, it is my hope here to inform ordinary citizens so that they will be better aware of the stakes. For while judges and lawyers may be its custodians, the Constitution is a document that is the heritage and responsibility of every American citizen.

1. Privileges or Immunities Clause

Since shortly after the Civil War, the privileges or immunities clause of the 14th Amendment has been understood as protecting a relatively limited array of rights that are a function of American federal citizenship, such as the right to be heard in courts of justice and the right to diplomatic protection. In defining the protections of the privileges or immunities clause in this manner, the Supreme Court in the Slaughterhouse Cases (1873) rejected the argument that the clause also protects rights that are a function of state citizenship, asserting that this would lead to federal courts serving as a “perpetual censor” of state and local governments. This decision has served as a bulwark of American federalism.

Although a considerable amount of federal judicial authority has since been achieved over the states through interpretations of the due process clause of the 14th Amendment, many proponents of a 21st century constitution seek additional federal oversight of state and local laws. Their strategy in this regard is to refashion the privileges or immunities clause as a new and essentially unlimited bill of rights within the 14th Amendment. The practical consequences of this would be to authorize federal judges to impose an ever broader and more stultifying uniformity upon the nation. Whatever modicum of federalism remains extant at the outset of this century, considerably less would remain tomorrow.

2. Positive Rights

For the 21st century constitutionalist, perhaps the greatest virtue of redefining the privileges or immunities clause is the prospect of transforming the Constitution from a guarantor of “negative liberties” into a charter of “affirmative government,” guaranteeing an array of “positive” rights. As President Obama has observed in a radio interview in criticism of the legacy of the Warren Court of the 1950s and 1960s, “[It] never ventured into the issues of redistribution of wealth and . . . more basic issues of political and economic justice in this society. . . . [T]he Warren Court . . . wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution. . . that generally the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.”

President Obama is correct. The Framers’ Constitution defines individual rights in terms of what the government cannot do to you. For example, the government cannot inflict cruel and unusual punishment, and therefore the individual has a constitutional right not to be subject to such punishment; the government cannot engage in unreasonable searches and seizures, and therefore the individual has a constitutional right not to be subject to such searches and seizures, and so forth. By contrast, the Framers’ Constitution does not guarantee rights to material goods such as housing, education, food, clothing, jobs, or health care—rights that place a related obligation upon the state to obtain the resources from other citizens to pay for them.

Proponents of a 21st century constitution have many grievances with the individual rights premises of our Constitution as written—such as the largely procedural focus of the 14th Amendment’s due process clause, with its old-fashioned conception of such rights as those to “life, liberty, and property”; the negative cast of the specifically-defined rights in the Bill of Rights; and the limited application of the equal rights clause to things that have been enacted by legislatures (as opposed to things that they should have been required to enact). Each of these “limitations” poses significant barriers to what 21st century constitutionalists hope to achieve in reconfiguring America. This explains their interest in employing the privileges or immunities clause, which seems to them open-ended and susceptible to definition by judges at their own discretion.

As various advocates of a 21st century constitution have urged, a privilege or immunity might be interpreted to allow the invention of a host of new “rights,” and thus be construed to guarantee social or economic equality. However pleasing this might sound to some people, there should be no mistake: adopting this interpretation will supplant representative decision-making with the decision-making of unelected, unaccountable, and life-tenured judges. Should the privileges or immunities clause be used in this way, as a charter of positive rights, ours will become an America in which citizens are constitutionally entitled to their neighbors’ possessions; in which economic redistribution has become as ingrained a principle as federalism and the separation of powers; in which the great constitutional issues of the day will focus on whether porridge should be subsidized and housing allowances reimbursed at 89 or 94 percent of the last fiscal year level; and in which a succession of new “rights” will be parceled out as people are deemed worthy of them by berobed lawyers in the judiciary.

3. State Action

A barrier posed by both the due process and the privileges or immunities clauses, and viewed as anachronistic by 21st century constitutionalists, is the requirement of state action as a precondition for the enforcement of rights. In the Civil Rights Cases (1883), another post-Civil War precedent, the Supreme Court asserted that these provisions of the 14th Amendment prohibited only the abridgment of individual rights by the state. “It is state action of a particular character that is prohibited. . . . The wrongful act of an individual is simply a private wrong and if not sanctioned in some way by the state, or not done under state authority, the [individual’s] rights remain in full force.” However, for advocates of 21st century constitutionalism, if fairness and equity are to be achieved, the Constitution must become more like a general legal code—applicable to both public and private institutions.

Consider, for example, Hillsdale College. Despite being the embodiment of a thoroughly private institution, government officials have sought to justify the imposition of federal rules and regulations upon Hillsdale by characterizing the college as the equivalent of a state entity on the grounds that it received public grants-in-aid. When in response to this rationale, and in order to retain its independence, Hillsdale rejected further grants, the government then sought to justify its rules and regulations on the grounds that Hillsdale was the indirect beneficiary of grants-in-aid going to individual students, such as GI Bill benefits. Once again in response to this rationale, Hillsdale asserted its independence by barring its students from receiving public grants, even those earned as in the case of GI benefits, and instead bolstered its own private scholarship resources. We have witnessed a steadily more aggressive effort by governmental regulators to treat private institutions as the equivalent of the state, and thereby to extend public oversight.

However, it would be more convenient simply to nullify the state action requirement altogether. Professor Mark Tushnet of Harvard Law School, for example, would reconsider the Civil Rights Cases:

The state-action doctrine contributes nothing but obfuscation to constitutional analysis. It works as a bogeyman because it appeals to a vague libertarian sense that Americans have about the proper relation between them and their government. It seems to suggest that there is a domain of freedom into which the Constitution doesn’t reach. We would be well rid of the doctrine.

If Professor Tushnet succeeds in this mission, Hillsdale’s policies concerning such things as tuition, admissions, faculty hiring, curriculum, and discipline will each have to pass the scrutiny, and receive the imprimatur, of judges.

4. Political Questions

In areas that were once viewed as inappropriate for judicial involvement, federal courts have begun to assert themselves in an unprecedented and aggressive manner. The limited role of the judiciary, for example, with regard to matters of national defense and foreign policy is not explicitly set forth in the Constitution, but such matters have from time immemorial been understood to be non-justiciable and within the exclusive responsibility of the elected branches of government. As far back as Marbury v. Madison (1803), Chief Justice John Marshall recognized that “Questions in their nature political . . . can never be made in this Court.”

Yet just in the last several years, the Supreme Court, in a series of 5-4 decisions, has overruled determinations made by both the legislative and executive branches regarding the treatment of captured enemy combatants. Most notably, the Court ruled in Boumediene v. Bush (2008) that foreign nationals captured in combat and held outside the United States by the military as prisoners of war—a war authorized by the Congress under Article I, Section 8, and waged by the President as Commander-in-Chief under Article II, Section 2—possess the constitutional right to challenge their detentions in federal court. Thus, in yet one more realm of public policy—one on which the sovereignty and liberty of a free people are most dependent, national defense—judges have now begun to embark upon a sharply expanded role.

If there is no significant realm left of “political questions,” if there are no longer any traditional limitations upon the exercise of the judicial power, then every matter coming before every president, every Congress, every governor, every legislature, and every county commission and city council can, with little difficulty, be summarily recast as a justiciable dispute, or what the Constitution, in Article III, Section 2, describes as a “case” or “controversy.” As a result, every policy debate taking place within government, at every level, will become little more than a prelude for judicial resolution.

5. Ninth Amendment

Another looming constitutional battleground concerns the meaning of the Ninth Amendment to the Constitution: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Many 21st century constitutionalists understand this amendment to say that there is some unknown array of unenumerated rights that lie fallow in the Constitution, waiting only to be unearthed by far-sighted judges.

Professor Thomas Grey of the Stanford Law School has suggested, for example, that the Ninth Amendment constitutes a “license to constitutional decisionmakers to look beyond the substantive commands of the constitutional text to protect fundamental rights not expressed therein.” Rights to abortion, contraception, homosexual behavior, and similar sexual privacy rights have already been imposed by judges detecting such rights in the Ninth Amendment. The problem is that, in the words of Justices Stewart and Black, this understanding of the amendment “turns somersaults with history” and renders the courts a “day-to-day constitutional convention.”

The more conventional understanding of the Ninth Amendment has viewed it in the historical context of the Bill of Rights, of which it is a part. By this understanding, it was written to dispel any implication that by the specification of particular rights in the Bill of Rights, the people had implicitly relinquished to the new federal government rights not specified. Like the Tenth Amendment—which serves as a reminder that powers neither given to the federal government nor prohibited to the states in the Constitution are reserved to the states or to the people—the Ninth Amendment was adopted to emphasize that our national government is one of limited powers. Its principal purpose was to prevent an extension of federal power, not to provide an open-ended grant of judicial authority that would have the opposite effect.

6. Transnationalism

Professor Harold Koh of the Yale Law School, and now State Department Legal Counsel, is perhaps the leading proponent of what he calls “transnationalism,” which he contrasts with the “nationalist philosophy” that has characterized American constitutional law for the past 220 years.

Transnationalists believe that international and domestic law are merging into a hybrid body of transnational law, while so-called nationalists persist in preserving a division between domestic and foreign law that respects the sovereignty of the United States. Transnationalists believe that domestic courts have a critical role to play in incorporating international law into domestic law, while so-called nationalists claim that only the political branches are authorized to domesticate international legal norms. Professor Koh predicts that these disagreements will play out in future Supreme Court confirmation hearings, and that these appointments will be “pivotal” in determining by 2020 the direction in which the jurisprudence of the United States proceeds.

In practice, transnationalism would legitimize reliance by American judges upon foreign law in giving meaning to the United States Constitution; it would bind federal and state governments to international treaties and agreements that had never been ratified by the United States Senate much less enacted into law by the Congress; it would render both the domestic and international conduct of the United States increasingly beholden to the review and judgment of international tribunals in Geneva and the Hague; it would expose American soldiers and elected leaders to the sanctions of international law for “war crimes” and “violations of the Earth”; and it would replace the judgments of officials representing the American people, and holding paramount the interests of the United States, with the judgments of multinational panels of bureaucrats and judges finely balancing the interests of the U.S. with those of other nations—including authoritarian and despotic governments—throughout the world.

* * *

It is with the intention of generating debate, and of providing a roadmap to help us better navigate the constitutional forks-in-the-road that will soon be facing our nation, that I offer these thoughts. While there has never been a time in our history in which there was not serious constitutional debate among our people, I would submit that there have been few times in which this debate was more fundamental in defining the American experiment.

Stephen Markman was appointed Justice of the Michigan Supreme Court in 1999, and was re-elected in 2000 and 2004. Previously, he served as United States Attorney in Michigan; as Assistant Attorney General under President Ronald Reagan, where he coordinated the federal judicial selection process; and as Chief Counsel of the Senate Subcommittee on the Constitution. He has published in such journals as the Stanford Law Review and the University of Chicago Law Review, and has been a distinguished professor of constitutional law at Hillsdale College since 1993.

The article above is adapted from a speech delivered in Washington, D.C., on February 25, 2010, at an event sponsored by Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship.

Copyright © 2010 Hillsdale College. 
Reprinted by permission from Imprimis, a publication of Hillsdale College.