BFOQ and Bookstores
maule at LAW.VILLANOVA.EDU
Wed Dec 20 21:33:33 PST 2000
>>> mnewsom at LAW.HOWARD.EDU 12/20/00 06:59PM >>> writes, in response to my posting [I've snipped out where possible to make this readable]
> There's an irony here. If we go back to when this country was being forged out of the experiences of colonists in 13 separate and very different colonies, we find that the concerns leading to the religion clauses in the First Amendment arose not from the sort of homogenization that characterizes much of present day analysis but tolerance ("you leave us alone and we'll leave you alone" and "don't tax us for your minister's salary and we won't tax you for our minister's salary").
One needs to consider the range of views or positions held by the Founders. There were the Pietists who wanted to keep religion free from the taint of government, there were the Rationalists who wanted to keep government free from the taint of religion, there were the civic republicans who thought that religion was a good thing for society, but they were not inclined to push the point from a theological perspective, and there were the Puritans, who held to a Calvinist orthodoxy that taught that religion and the state needed to have a close relationship. Add to this the fact that no one religion could command a national majority at the Founding. Furthermore, consider the fact that the imperative of white settlement militated against an establishment in the traditional sense because prospective -- and desirable -- white immigrants held to a variety of Protestant religious traditions.
But at least as important is the question of the philosophical tension between the "toleration" view held by Patrick Henry and others, that traces its origins to John Locke and finds expression, thanks Michael McConnell for pointing it out, in Edmund Burke and also finds expression, in a particularly American pan-Protestant form, in Joseph Story, and the "rights" view held most notably by James Madison.
But, of the utmost importance, we have to take into account the attack, at the time of the Founding, as well as before and after, on the religion of Native Americans and African Americans. The willingness to destroy those religion certainly ought to give one pause in the face of claims of either "toleration" or "rights." A discussion about the primarily intra-Protestant squabbles of white people is, at best, incomplete, therefore.
Aside from the Puritans, who wanted to conjoin religion and government to the exclusion and intolerance of all others, the founders shared an appreciation of separation and free expression. Treatment of natives and of African-Americans varied. Certainly the Quakers cannot be accused of "attacking" the religion of Native Americans and African Americans. And certainly Catholics (white and European) were subject to attacks of the highest order by Puritans and by members (if not the hierarchies) of other denominations. But I fail to understand how the intolerance of certain religions justifies the establishment of a federal secular religion, unless the notion is that once one or another religion is attacked, all of them should be equally attacked to level the playing field. There's a fascinating logic to such an approach but it doesn't have much appeal.
JEM> Because religion has faded so much from the national culture at an everyday level,
Has it, really? Church attendance is much higher now, as a percentage of the total population, than it was at the Founding.
Indeed. A report that was released recently (and I cannot remember who did it, but I saw a news article on it, not the report itself) highlighted its findings with the summary that although church attendance had increased, the number of respondents who claimed to consider religious concerns in their activities outside of church had declined. The phenomenon of "Sunday believers" isn't new, but it is interesting to note empirical support for its observation. After all, one would think that a nation of believers would be a nation of social phenomena far different that what currently exists.
JEM> Sociologists tell us that the tendency to "us and them" and to fragmentation into tribes is the predominant social force. History proves that... great nations and empires arise when a person (or family) with great charisma "unites" various tribes, but usually the unity breaks down on the person's death or the family's demise. E.g., Rome, Alexander's Greece, the British Empire, "Great Britain" itself. Yugoslavia, the Ottoman Empire, the Soviet Union, etc etc. The same decentralization pressures bear on the American Empire, and the more of the countervailing unifying, conforming, centralized pressure comes to bear, the farther flung are the fragments when the momentum tears apart the temporary unity. It is said that "blood is thicker than water" and if we take blood to mean not only biological connection but cultural identity, and consider water to be the weaker ties of political and expedient alliance, then it is certainly true, blood is thicker than water.
I guess that I am confused. Who is the "uniter" and when did he/she/they/it die? I also do not understand what the phrase "decentralization pressures" means. What American tribes, white or otherwise, are now breaking apart (assuming of course, that at some point in the past these tribes were "united")?
There are all sorts of "uniters". Tito was one, in Yugoslavia. His charisma and political leadership skills held together a coalition of ethnic groups for whom the historical pattern had been fragmentation and conflict. Stalin and his immediate successors were another group of "uniters" though using something different than "charisma." Eventually the disparate conglomeration of nationalities, religions and cultures fragmented. Further back in history, Alexander was a "uniter" albeit through yet a third means, conquest, but his united conglomeration fell apart when he died. So there are a lot of uniters and they died at various times.
Decentralization pressures are the forces that fragment large conglomerations into smaller fragments. Large empires of homogenized cultures are the exception, not the norm, and don't last very long (on history's time scale). Rome and the British Empire may be considered to be among the longer-lived, though one can argue that Rome as a centralized empire actually lasted for far less time than it did "formally." (e.g., Dicoletian's carving up of the empire into four segments). In any event the point is that the American Empire is fragmenting, breaking into "us" and "them" pieces in ways far more threatening to its continued existence than all but a few of the crises of the past, particularly because this fragmentation is not bipolar but multifaceted. I don't intend to claim this is good, just that it exists, and that it is in fact troubling.
I hope this has clarified my previous posting.
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)
More information about the Religionlaw