"Under God"

Thu Apr 1 23:43:09 PST 2004

The 1776 Virginia Declaration of Rights, written by George Mason and
James Madison, declares:

"That religion, or the duty which we owe to our Creator, and the manner
of discharging it, can be directed only by reason and conviction, not by
force or violence; and therefore all men are equally entitled to the
free exercise of religion, according to the dictates of conscience; and
that it is the mutual duty of all to practice Christian forbearance,
love, and charity towards each other."

This seems to raise several issues central to the discussions in this
evening's posts:

1. The entitlement to free exercise is based on religious principle and
belief;
2. The religious principle is stated as a "preamble" to the right;
3. There is no "secular purpose" in permitting free exercise-- human
beings are entitled to it because the state cannot enforce what is due
God as a matter of first principle;
4. The final clause states a "duty" unenforceable by virtue of the
previous two clauses, but is added as a statement of "fact."  (Analogous
to "under God" in the pledge?)

I'm curious whether most think section 16 is (or would or should be)
unconstitutional?  

Mike Schutt

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Francis
Beckwith
Sent: Thursday, April 01, 2004 10:16 PM
To: Religion Law Mailing List
Subject: Re: "Under God"

Michael makes some good points. But I believe that the plausibility of
his points--namely, that there have been "sins" and we can detect them
by investigating history--shows that we have an intuitive awareness of
moral principles that are not contingent on time or circumstances, for
we employ them, as Michael does, to make judgments about past times and
future hopes. The Founders believed that these principles are knowable
and are the basis on which Constitutional government is justified.  They
also believed that these principles cannot have their origin in our
will, for willfulness cannot itself be the ground of the will's
normative function.  They reasoned that principles that are universal,
immaterial, and knowable must reside in
a being who could be the ground of these principles.   So, it could not
be a
contingent intelligence, one whose existence and moral authority is
dependent upon something else outside itself.    For in order to be the
ground of these principles, a being must not receive its existence and
moral authority from another, for that other being, if it is not
contingent, would then be the ground of these principles.  Moreover, the
Source of these principles must be the sort of being who has the moral
authority to enforce
universal norms.   Therefore, the Source of these principles must be a
self-existent, perfectly good being whose appropriate realm is the
universe. It seems that it is fitting to call such a being "God."

Now, I know, I know that not everyone's going to agree with this
reasoning. And I know that there are steps in this argument about which
one may raise questions. But it is not obviously an unreasonable line of
reasoning, and it is the sort of  understanding some of the Founders had
about our rights and their relationship to God.

The reasoning here is "secular," not based on claims of revelation or
the edicts of churches.  Its purpose is secular as well, since it is an
argument that attempts to ground principles of a Constitutional
government that is committed to religious liberty. Because a vast
majority of citizens are theists of some sort, it provides a strong
reason for them to embrace the principles of religious liberty and
disestablishment.  Its conclusion is, of course, theological. But if a
theological conclusion derived from secular premises is the best ground
on which to base religious liberty, a secular purpose, then the Pledge
stands. Of course, students who want to opt out of the Pledge recitation
on religious or irreligious grounds may do so, but only because the
government acknowledges the natural rights they possess from a being who
they think wrong to acknowledge in a public recitation of the the
Pledge. 

Frank

On 4/1/04 9:28 PM, "Newsom Michael" <mnewsom at law.howard.edu> wrote:

> If America was -- and still is -- the Protestant Empire that I believe

> it to be, it would seem to follow that Beckwith is right.  The phrase 
> "under God" arguably reaffirms that fact.
> 
> I, of course, am not a fan of the Protestant Empire, for reasons which

> should be fairly clear to most of the readers of this listserv.  I 
> don't see America's history as Providential, responding to some 
> "manifest destiny."  I do see racial and religious minorities 
> struggling mightily to establish their legitimacy as Americans quite 
> without regard to the reigning norms of the evangelical Protestant 
> majority.  Sometimes they win, sometimes they lose.
> 
> My dislike of the phrase in the Pledge is based on my belief that our 
> history and my personal experience mock the claim that this country is

> "under God," or at least that is my view.
> 
> For the fans of the phrase, however, there is no small irony in the 
> fact that it more accurately refers to the God of Ceremonial Deism 
> than it does to the God of evangelical Protestantism, for example.  
> Ceremonial Deism most nearly resembles Unitarianism.  Not Methodism or

> Presbyterianism or Pentecostalism or the religion of the Baptizing 
> sects.  But that is for others to sort out.  Ceremonial Deism 
> undermines evangelical Protestantism for it is neither Trinitarian nor

> Biblicist. So for Trinitarian Biblicist Christians to rush to the 
> defense of the phrase (and for Catholics and Jews and Muslims and 
> others also) strikes me as very strange indeed.  (I could offer up my 
> explanation as to why I believe that evangelical Protestants would 
> acquiesce in Ceremonial Deism as our de facto established religion, 
> even though I think that Ceremonial Deism is, in the long haul, 
> against their interests, but not in this post.)  This is not to say 
> that there is anything wrong with Unitarianism.  But it is to say that

> it is a rather different religion that that of Trinitarians, Jews, 
> Muslims, Hindus, Buddhists, and others. That's all.
> 
> Given our history, we would do well to take separation of church and 
> state rather more seriously.  Tying God to the sins of our national 
> past is, at the very least, presumptuous.  There are other words I 
> could use to describe that, but I will refrain.  Most people probably 
> disagree with my take on our national history.  But I think that the 
> question is how one assesses our history, not some abstract notions 
> about why we need to root certain social and civic "goods" in "God."
> 
> The phrase ought to go, but I would vote, were I on the Court, to keep

> it in the Pledge.  It is, of course, not because I care for the 
> phrase, for I don't.  My concern is that we have enough on our 
> national plate right now that we don't need the brouhaha surrounding 
> the saying of and the text of the Pledge in addition.  I think that 
> there is a limit to the number of contentious issues that a democratic

> polity can reasonably be expected to handle at any given time.  I 
> think that a lot of Americans misapprehend the real theological 
> meaning of the phrase, but, again, that is just my view.  We will just

> have to put up with it and for what I suspect will be for a good long 
> while.
> 
> 
> 
> 
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