Tag: Constitution

Concept of “Limited Government” Is Right-Wing Bunk: Try to Find Anything Remotely Like It in the Constitution

Right-wingers claim the country was founded on “limited government” — It’s totally bogus.

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Source: Consortium news, via Alternet

Author: Jada Thacker

The Cato Institute’s Handbook for Policy Makers says, “The American system was established to provide limited government.” The American Enterprise Institute states its purpose to “defend the principles” of “limited government.” The Heritage Foundation claims its mission is to promote “principles of … limited government.” A multitude of Tea Party associations follow suit.

At first glance the concept of “limited government” seems like a no-brainer. Everybody believes the power of government should be limited somehow. All those who think totalitarianism is a good idea raise your hand. But there is one problem with the ultra-conservatives’ “limited government” program: it is wrong. It is not just a little bit wrong, but demonstrably false.

The Constitution was never intended to “provide limited government,” and furthermore it did not do so. The U.S. government possessed the same constitutional power at the moment of its inception as it did yesterday afternoon.

This is not a matter of opinion, but of literacy. If we want to discover the truth about the scope of power granted to federal government by the Constitution, all we have to do is read what it says.

The Constitution’s grant of essentially unlimited power springs forth in its opening phrases: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

As might be expected in a preamble to a founding document, especially one written under supervision of arch-aristocrat Gouverneur Morris, the terms are sweeping and rather grandiose. But the point is crystal clear: “to form a more perfect Union.” If the object of the Constitution were to establish “limited government,” its own Preamble must be considered a misstatement.

Enumerated Powers

Article I establishes Congress, and Section 8 enumerates its powers. The first clause of Article I, Section 8 repeats the sweeping rhetoric of the Preamble verbatim. While it provides for a measure of uniformity, it does not so much as hint at a limit on the federal government’s power to legislate as it sees fit:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States…”

No attempt is made here, or at any other place in the Constitution, to define “general Welfare.” This oversight (if that is what it was) is crucial. The ambiguous nature of the phrase “provide for the…general Welfare” leaves it open to widely divergent interpretations.

Making matters worse for federal government power-deniers is the wording of the last clause of Article I, the so-called “Elastic Clause”: Congress shall have power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Thus the type, breadth and scope of federal legislation became unchained. When viewed in light of the ambiguous authorization of the Article’s first clause, the importance of the “necessary and proper” clause truly is astonishing. Taken together, these clauses – restated in the vernacular – flatly announce that “Congress can make any law it feels is necessary to provide for whatever it considers the general welfare of the country.”

Lately there has been an embarrassingly naïve call from the Tea Party to require Congress to specify in each of its bills the Constitutional authority upon which the bill is grounded. Nothing could be easier: the first and last clauses of Article I, Section 8 gives Congress black-and-white authority to make any law it so desires. Nor was this authority lost on the Founders.

“Limited government” advocates are fond of cherry-picking quotes from The Federalist Papers to lend their argument credibility, but an adverse collection of essays called the Anti-federalist Papers unsurprisingly never gets a glance. Here is a sample from New Yorker Robert Yates, a would-be founder who walked out of the Philadelphia convention in protest, written a month after the Constitution had been completed:

“This government is to possess absolute and uncontrollable power, legislative, executive and judicial, with respect to every object to which it extends. … The government then, so far as it extends, is a complete one. … It has the authority to make laws which will affect the lives, the liberty, and the property of every man in the United States; nor can the constitution or the laws of any state, in any way prevent or impede the full and complete execution of every power given.”

Yates, it must be emphasized, took pains to identify the “necessary and proper” clause as the root of the “absolute power” inherent in the Constitution well over a year before ratification.

The Tenth Amendment

A particular darling of secession-prone, far-Right Texas Gov. Rick Perry, the Tenth Amendment is often claimed as the silver-bullet antidote for the powers unleashed by the “general welfare” and “elastic clauses.” Here is the text of the Amendment in its entirety: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Superficially, the Tenth seems to mean “since certain powers are not delegated to the federal government, then those powers are reserved to the states or the people.” This would seem to be good news for champions of limited government. But this is not the case.

The Tenth does not say that important powers remain to be delegated to the United States. It merely says that powers “not [yet] delegated” are “reserved” to the states or the people. This sounds like a terrific idea – until we realize, of course, that all the important powers had already been delegated in 1787, four years before the Tenth Amendment was ratified.

As we have seen, the first and last clauses of Article I, Section 8 made the Tenth Amendment a lame-duck measure even as James Madison composed its words in 1791 – and so it remains today. The sweeping powers “to make all laws necessary and proper” in order to “provide for the general welfare,” had already been bestowed upon Congress. The Johnny-come-lately Tenth Amendment closed the constitutional pasture gate after the horses had been let out.

This apparently has never occurred to the likes of Gov. Rick Perry and his far-Right cohorts who believe a state may reclaim power by withdrawing its consent, in effect repossessing their previously delegated power through state legislation. Superficially, the logic of this position seems sound: if the states had the legal authority to delegate power, then they may use the same authority to “un-delegate” it by law.

But a close re-reading of the Tenth’s wording nixes such reasoning. Oddly, the Tenth Amendment does not say thestates delegated their powers to the federal government – although it may be argued that it probably ought to have said so. It says “The powers not delegated to the United States by the Constitution … are reserved to the States. …”

Thus, according to the Tenth Amendment, the Constitution itself delegated the power to the federal government. States, in other words, now have no standing to “reserve-back” what they had never “delegated-away” in the first place.

Had it been possible to “un-delegate” the powers of the United States by invoking the Tenth, the Old South would have simply done so and spared itself the bother of secession – not to mention the bother of being annihilated by a series of subsequent Northern invasions. The fact that the South did not even attempt such a strategy attests to the toothlessness of the Tenth Amendment.

No other instance in law would be a better example that we should choose our votes carefully. For in ratifying the Bill of Rights, which included the Tenth Amendment, the American people endorsed the legal fiction that the Constitution – not the original 13 states, or “We the People” – authorized the power of the United States because the Constitution itself said so. If the Constitution has an Orwellian twist, this is it – no matter which side of the aisle you’re on.

The states and the people may amend the Constitution. But they may not do so by nullification (according to the logic inherent in the wording of the Tenth Amendment), or by the judgment of state courts (according to the “supremacy clause” of Article VI), nor may any Amendment be made without the participation of the federal government, itself (according to Article V.) If the Founders had meant to
ensure “limited government,” there is no trace of such intent here.

Paucity of Rights

If the Constitution were intended to provide “limited government,” we might expect it to be chock full of guarantees of individual rights. This is what Tea Partiers may fantasize – but this is not really true. In fact, the Constitution is amazingly stingy in reference to “rights.”

–The word “right” is mentioned only once in the Constitution as ratified. (Art. I, Sec. 8 allows Congress to award copyrights/patents to ensure their holders “… Right to their respective Writings and Discoveries.”)

–The word “right” – somewhat counter-intuitively – appears only six times in the ten Amendments called the “Bill of Rights.”

Almost a century later, the first of seven other rights were added under pressure from Progressive activists – almost all of which were intended to create and extend democratic participation in self-government.

–Amendment XIV (sanctions against states denying suffrage); XV (universal male suffrage); XIX (women’s suffrage); XXIV (denial of poll tax); and XXVI (18 year-old suffrage); and twice in Amendment XX, which gives Congress the “right of choice” in presidential succession.

–In grand total, the word “right” appears only 14 times in the entire Constitution, as it exists today (including the two rights conferred to government).

Did we all notice that the “Constitution of the Founders” did not include the “right” for anybody at all to vote? Notable, too, is the absence of language implying that any “rights” are “unalienable” or “natural” or “endowed by their Creator.” All such phraseology belongs to the Declaration of Independence, which – apparently unbeknownst to Tea Partiers everywhere – bears no force of law.

The word “power,” by the way, occurs 43 times in the Constitution, each time referring exclusively to the prerogative of government, not right-wingers. Since “individual” rights are mentioned only 12 times, this yields a ratio of about 4:1 in favor of government power over individual rights. Without the efforts of those pesky, democracy-mongering Progressives, who fought for universal voting rights, the ratio would be more than 6:1 today – or 50 percent higher.

This statistical factoid is not as trivial as it may appear. Expressed in practical terms, Michele Bachmann, Sarah Palin or Clarence Thomas would almost certainly never have achieved public office had they lived under the “limited government” designed by the Founders they so revere.

The Bill of Rights

So what exactly are our non-patent/copyright “rights,” under so-called “limited government?”

–Amendment I – the right of people “peaceably to assemble, and to petition the government for redress of grievances”

–Amendment II – the right “to keep and bear arms, shall not be infringed”

–Amendment IV – the right “to be secure…against unreasonable searches or seizures”

–Amendment VI – the right “to a speedy and public trial”

–Amendment VII – the right “of a trial by jury”

–Amendment IX – enumeration “of certain rights” shall not deny “others retained by the people”

That’s it. What happened to the famous rights of free speech, religion or press? The way the First Amendment is worded does not enumerate these as positive rights that people possess, but rather as activities the government may not infringe upon. If Bill of Rights author James Madison had meant to stipulate them as positive “rights” all he had to do was write it that way, but he did not.

Bear in mind Madison (then a federalist) wrote the Bill of Rights under political duress. Since anti-federalists (recall the skepticism of Robert Yates) flatly refused to ratify the Constitution unless it guaranteed something, Madison had to write something. In effect, the amendments were the pig the anti-federalists had bought in the poke, three years after ratification had paid for it.

Madison, at the time of writing, had little incentive to take pains with what he wrote because federalists did not believe a Bill of Rights was necessary, or even good idea (with Alexander Hamilton arguing a Bill of Rights would be “dangerous.”) This may account for the fact that some of what Madison wrote seems vague, or even ambiguous, as in the case of Amendment II.

Amendment IX, for example, actually makes little sense, which may account for the fact nobody ever seems to mention it: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This sounds “righteous” enough, until we recall the Constitution to which this Amendment pertains had “enumerated” only a single right in the first place! Even if Amendment IX applies to the Bill of Rights (to include itself), then all it says is “the people may have more rights than the half dozen mentioned so far, but we’re not going to tell you what they are.” (So if Amendment X is Orwellian, Amendment IX verges on Catch-22.)

Of course the idea was to calm suspicions that people would possess only the half-dozen rights enumerated in the Bill of Rights (plus patents!) and no others. Even so, Amendment IX did not guarantee any un-enumerated rights; it just did not peremptorily “deny or disparage” any.

And what sense should we make of the crucial Amendment V – one of the four Bills of Rights not actually containing the word “right” at all?

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor bedeprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” [Emphasis supplied]

Thus, life, liberty and property are not expressly granted status as fundamental “rights,” but only as personal possessions that may be deprived or taken according to “due process.” The crucial implication is that Amendment V exists in order to stipulate how the government may deny an individual claim to life, liberty or property. With due process, you life, liberty and property may be toast. That is what it plainly says.

It is interesting, too, that the Bill of Rights does not speak to the origin of rights, but only to their existence. Moreover, the Constitution never speaks of granting rights, but only protecting them. There is a good reason for this: excepting the Progressive suffrage Amendments, none of the guaranteed rights were American inventions, but had for centuries been considered the rights of the English nobility.

For those who want to believe in “American Exceptionalism” as the basis of “limited government,” this is not encouraging news. Moreover, the Constitution, including the Bill of Rights, hardly includes any “right” that had not already been recognized at one time or another by medieval English monarchs or in ancient Rome and Greece.

Property Rights and ‘Republic’

The strict libertarians among us claim the sole legitimate power of government is that which is necessary to protect private property rights. On this score, however, the “limited government” of the Founders is practically mute. Except for the aforementioned Article I, Section 8 provision for patents and copyrights, private “property” is only mentioned twice in the Constitution, both times in a single sentence of the “right”-less Amendment V quoted above:

“No person shall … be deprived of life, liberty or property without due process of law; nor shall private propertybe taken for public use, without just compensation.” [Emphasis supplied]

Once again, Amendment V fails to guarantee personal immunity from the power of the state, but rather details the way state power may be used to dispossess individuals of their property. And we must bear in mind these words were not penned by Marxists, socialists, or Progressives.

Whether by design or happenstance, the original “Constitution of the Founders,” or the Bill of Rights, or even the Constitution with all its Amendments does not grant any irrevocable “right of possession” to property. Even the Second Amendment’s “right to keep” arms, is subject to the terms by which property may be taken under terms of Amendment V, and it always has been.

Tellingly, the word “democracy” does not appear in the Constitution. This intentional oversight is often smugly celebrated by anti-democrats among us, who insist that the United States of America was founded as a “republic.” No doubt this is true, given that the Constitution was written by an exclusive, hand-picked cadre of oligarchs, whose number did not include a single woman, person of color, or wage-earner.

Unfortunately for the pro-republic “limited government” crowd, the Constitution does not contain the word “republic” either. The word does appear as an adjective, but only once, (Article IV, Section 4): “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them from Invasion…”

Typically for the Constitution, which defines few of its terms, the word “Republican” also remains unexplained. The ambiguity of the term turned out to be handy, however, as Radical Republicans continuously and egregiously violated Article IV, Sec. 4 from 1865-1877 as they enforced blatantly unconstitutional military occupation of former Confederate states during the gross misnomer of “Reconstruction.”

It should be obvious that the “Constitution of our Founders,” including the Bill of Rights, may not protect as many rights as many wish to believe. Moreover, we have already noted the Constitution dropped all revolutionary talk of “unalienable” rights and “Creator endowed” liberty. This was not an oversight.

The revolutionary bit about “consent of the governed” posed an especially delicate problem for the Founders. Almost all owned slaves or were masters of property-less tenants or domestic servants, including their wives – none of whom could offer their legal consent even if they wished to do so. Thus the Founders shrewdly considered it unnecessary to include any voting rights in the new republic they planned to rule, uncontested by the disenfranchised lower castes.

Did this result in the land of the free, with liberty and justice for all? Let’s see.

Under the U.S. Constitution, Americans were sentenced to death for protesting unfair taxes; journalists and citizens imprisoned for criticizing government officials; citizens’ property seized illegally; workers murdered by government agents; thousands jailed without the “privilege” of habeas corpus; entire states deprived of civilian courts; untold numbers of American Indians defrauded of  liberty and property; debt-peonage and debtors’ prisons flourished, as did slavery and child labor; and the majority of the public was denied the vote.

All this was considered constitutional by the Founders. None of these outrages, please note, was the result of “progressivism,” which had yet to be articulated, and all were common prior to the New Deal and the advent of so-called Big Government. Was this the face of “limited government?”

No, it was not. The concept of a democratically “limited government” was not for a moment entertained by our Founders, nor is it by those who idolize them today. With few exceptions, the Founders were Eighteenth Century patricians who took a revolutionary gamble meant chiefly to perpetuate their privileges, free from English colonial overlord-ship. It should come as no surprise these elitists drafted a Constitution that posed no threat to aristocracy.

‘Limited Government’ as Act of Faith

The original Constitution of the United States of America was just so much ink on paper. The Constitution, as it stands today, is just a lot more ink on paper.

But the Constitution’s ink is important and deserves respect because it represents nothing less than the collective civic conscience of the American people. A great many Americans have dedicated their lives in trust to that conscience – on battlefields, in classrooms, in everyday civic life, and even a few in the halls of power.

It is evident that most of the Amendments to the original Constitution – as well as the Supreme Court’s decisions interpreting its scope and purpose – were made because the document had over the course of time been found wanting by the American people, whose common interests it was not originally intended to serve. As the collective civic conscience of the people changed, so too did their interpretation of self-government.

But the entire concept of social evolution (much less biological evolution) is something the ultra-Conservative rank-and-file likely does not comprehend and it is not something their leaders encourage them to consider. The reason for this may have less to do with politics than with fundamentalist faith.

An anecdote in point: the editor-in-chief at Random House once asked the extremist libertarian Ayn Rand if she would consider revising a passage in one of her manuscripts. She reportedly replied, “Would you consider revising the Bible?”

Ergo, that which is sacrosanct neither requires nor will tolerate change – to include the fantasized “limited government” of the immortalized “Founding Fathers.” The fact that Rand was a noted atheist only underscores the point that fundamentalist faith is not restricted to any particular brand of fanaticism.

Yet the Constitution’s conception was anything but immaculate. It was not carted down from the Mount in tablets of stone, nor is it the product of some mysterious Natural Law interpretable only by libertarian gurus. And whether its meaning is best exemplified by the Tea Party flag depicting a talking snake (“Don’t Tread on Me”), perhaps only Eve could judge with authority.

The Constitution is not a holy book, and there is no good reason for anybody to treat it like one. The men who wrote it were not prophets, nor were they particularly virtuous, though some could turn a pretty phrase. In fact, the Constitution’s most unholy-book characteristic is its most welcomed attribute: its readers are not required to believe in its infallibility in order for it to make sense to them.

But we are required to read the Constitution if we want to know what it says. The ultra-conservatives’ obsession with a constitutionally “limited government,” which has never actually existed, suggests they do not understand the Constitution as much as they merely idolize it.

These constitutional fundamentalists – along with the American public in general – would do better to pick the document up and read it sometime, not fall on bended knee before it and expect the rest of us to follow their example.

Jada Thacker, Ed.D is a Vietnam veteran and author of Dissecting American History. He teaches U.S. History at a private institution in Texas. Contact: jadathacker@sbcglobal.net

Jada Thacker, Ed.D is a Vietnam veteran and author of Dissecting American History. He teaches U.S. History at a private institution in Texas. Contact: jadathacker@sbcglobal.net

Emphasis Mine

see: http://www.alternet.org/exposed-why-right-wings-interpretation-constitution-can-only-be-believed-if-you-havent-read-it?akid=10671.123424.gMWqCs&rd=1&src=newsletter866005&t=7

 

America Does Not Have a Religious Identity

The Constitution of Religious Freedom: God, Politics, and the First Amendment
by Dennis J. Goldford
Baylor University Press , 2013

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Source: Religion Dispatches

Author: DENNIS J GOLDFORD

What inspired you to write The Constitution of Religious Freedom?

At a practical level, I have been fascinated by the rise of Christian conservatism, and particularly the claim of what some call Christian nationalism, that America is a Christian nation, as a major factor in American politics. At a theoretical level, I have always thought that, at its broadest, politics is the process by which we negotiate our differences. In particular, liberal democracy—a political order in which majorities rule but not over everything—is an institutionalized agreement to disagree. My concern is the question: what happens, and what do we do, if there are some things about which we cannot agree to disagree? Prominent on that list is religion.

What’s the most important take-home message for readers?

The central argument of the book is that the Constitution does not protect religion—it protects religious freedom. The latter is very different from the former, and understanding the distinction enables us to understand the political meaning of the religion clauses of the Constitution. Specifically, I argue that the meaning of the religion clauses is that the locus of religious identity is the individual, not the nation; that the American political order does not have a religious identity of its own, but, rather, is a political order that allows and encourages individuals and groups of their choosing to have their own religious identity without having one of its own.

  • Is there anything you had to leave out?There is nothing I had to leave out. Baylor University Press was nothing but supportive of my scholarship. My goal was to explore what I think is problematic about the conventional discussion of the religion clauses of the Constitution: debates about “separation of church and state” or “neutrality” have come to obscure more than they reveal. The central question underlying an understanding of the political meaning of the religion clauses, as noted above, is whether the locus of religious identity is the individual or the nation. This is what the literature seems to miss.

    What are some of the biggest misconceptions about your topic?

    When I ask an audience of students or others whether America is a Christian nation, they usually reply by saying either that the Founders were themselves Christian or that the Founders intended that the nation be Christian. My argument is that the question here is not an historical one, but a theoretical one, the one noted in point 2 above.

    Did you have a specific audience in mind when writing?

    While a major purpose of the book is to make a significant contribution to an ongoing scholarly literature, I always strive to write for what I call the intelligent but uninformed reader who has no prior knowledge of the subject matter. That pushes me to be as clear, careful, and precise as possible in laying out the argument I am trying to make. We always have a reader or an audience in mind when we write, and thinking in terms of the intelligent but uninformed reader instead of the specialist forces me to avoid the hidden and uncontested assumptions that can weaken even the best scholarly work. Nevertheless, I did write The Constitution of Religious Freedom to make a scholarly argument for a scholarly audience and thus did include a substantial footnote apparatus.

    Are you hoping to just inform readers? Entertain them? Piss them off?

    As my response to the next question indicates, I am certainly trying to provoke readers, but to do so in the sense of challenging their unexamined assumptions and encouraging them either to agree with me or to push me to reformulate my argument to address significant objections to it. At the same time, I am indeed attempting to advance a meaningful, scholarly argument about what having our Constitution means to the politics of religious freedom.

    What alternative title would you give the book?

    My original title was deliberately provocative: One Nation under Whose God? Law, Politics, and Religion in America. The experienced people at Baylor University Press said, however, that this title might suggest the mistaken perception that the book was more of a sociological work than the theoretical work it actually is. Deferring to their expertise, I chose the main title, The Constitution of Religious Freedom, with the deliberate double meaning of 1) the Constitution as a charter of religious freedom, and 2) the act of constituting religious freedom, and Baylor came up with the clever subtitle, God, Politics, and the First Amendment. I was able to give my concluding chapter the title, “One Nation under Whose God?”

    How do you feel about the cover?

    I’m actually quite happy with it. Beyond being aesthetically attractive, it makes a substantive point by nesting the title, my subject matter, in the text of the Constitution.

    Is there a book out there you wish you had written? Which one? Why?

    That’s an interesting and difficult question. At the risk of giving an erroneous impression, I might say that I wrote the books I’ve written for a very selfish reason—in each case there was an issue or topic that I wanted to clarify for myself and find out what I really thought about it. In that sense, to borrow the old saying, I write to find out what I think. I enjoy the way an argument seems to take on a life of its own, such that the process of exploring one idea leads me to discover views or positions I didn’t know beforehand that I had. That said, I have always taught in teaching-intensive academic settings, and I regret never having had the chance to turn my dissertation on Hegel’s Phenomenology of Spirit into a book and to make my definitive statement on the Hegel-Marx relationship. My scholarly interests simply changed along the way.

    What’s your next book?

    I have been interested in the constitutional claims of the Tea Party movement, whose supporters always express reverence for the Constitution and who claim to be “constitutional conservatives.” My early explorations have led me to believe that Tea Party constitutionalism, for all its reverence for the Constitution, is actually the preferred constitutional theory of the Anti-Federalist opponents of the Constitution rather than the Federalist supporters. I am still in the process of deciding how I want and need to pursue this argument.

Emphasis Mine

see: http://www.religiondispatches.org/books/rd10q/7108/

Why Is There So Much God in America’s Politics?

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From: AlterNet

By:Santiago Wills, Salon

N.B.: “Religion is not a majoritarian issue in the United States.”  Judge John E. Jones.

“His silence about his faith notwithstanding, Mitt Romney will become the first Mormon to win a major-party presidential nomination. That could put more attention on his religion than any candidate has faced since John Kennedy in 1960, especially as Romney tries to attract skeptical evangelical voters. Meanwhile, President Obama’s endorsement of gay marriage and the ongoing social issues surrounding the war on women are bound to intensify criticism from the religious right and the crucial faction of conservative Latino voters.

But religion has profoundly influenced presidential politics since the days of George Washington. As Michael I. Meyerson argues in his new book, “Endowed by Our Creator: The Birth of Religious Freedom in America,” a scholarly account of how the framers of the Constitution viewed the role of religion in government, the current campaign has a lot in common with some of the country’s first electoral bouts. Then as now, Meyerson says, the debates were portrayed as a clash between a godless candidate who wanted a secular country and a true defender who was willing to restore the morals of a Christian nation. He says that the study of the formation of the American government can help us understand the reasons behind the growing partisan divide and help bridge the conflicting religious opinions of both political parties.

Salon spoke to Meyerson — a professor of law and a Piper & Marbury Faculty Fellow at the University of Baltimore. — about the framers of the Constitution, the upcoming elections, and religious discrimination.

Throughout your book, you highlight how some of the writings and actions of the framers of the Constitution have been taken out of their historical context to support the political agendas of both liberals and conservatives. How does the historical record compare to the way both parties portray the framers today?

The framers were generally far more nuanced, complicated and willing to be complicated than the modern political dialogue. They didn’t have to be purely on the left or on the right. Most of them were trying to make a compromise between multiple concerns and constituencies.

Compared to the late 18th century and the beginning of the 19th century, how would you describe the current discussion of religion in politics?

In terms of the role of religion in government, what I’ve found is that much of the modern dialogue is trying to make the framers entirely one thing or another. You have those who want to argue for a strict separation of church and state, and those who believe that America is a Christian nation. The former go through history assuming a lot and use writings by Madison and Jefferson with a very narrow desire to say that government should not have anything to do with religion. The latter look at the large amount of religious reference and activity in the colonies and say that there is a long history of government being entwined with religion. What neither side does is take into account the validity of the history of the other side. What you end up reading are two half-histories, and generally neither political side has been willing to put the two different components together, which is what I tried to do in my book.

You write that it is essential to create an “accurate picture of what freedom of religion meant at the time of the framing” of the Constitution. Why does that matter?

Even though we are a more pluralistic society, it is important to remember that the framers of the Constitution were dealing with a diversity of their own — and with very violent conflicts between the different denominations, some of which were caused and abetted by government. So what we can learn, first of all, is how to balance competing concerns. The debates that we are having about the role of religion in government are not new; we are dealing with a centuries-old debate. The framers, and especially the vastly underrated George Washington, were very aware of the fact that religion could be a force for good and a force for evil. That was what they were trying to balance.

Unlike Madison or Jefferson, Washington was very explicit in saying that he considered divine intervention one of the main reasons we won the Revolutionary War. He saw the hand of Providence in the writing of the Constitution, but he also understood — and this was where his genius was — that if you are sectarian, if you favor any particular religion, you end up dividing, rather than uniting, the nation. So, again, what we can learn from the framers is that government is not barred from acknowledging religion, but that it must do so in an extraordinarily careful and respectful way, in which the goal is making sure that every American feels a part of the country regardless of their religious beliefs.

In your book, Washington emerges as a practical thinker who saw religious freedom as a way of avoiding conflict and promoting morality. While he was in office, he used inclusive religious language in his speeches and was careful not to support the idea that the country was founded as a Christian nation, a belief that many people from the right accept today as an unquestionable truth. Why was the first president so vehement in his refusal to say that Christianity was the nation’s religion?

Washington knew that people don’t go to war for God; they go to war for a particular God. George Washington was unique in American history because he was the first person to look after a united country. He was the head of the military during the Revolutionary War, so he was forced to work with soldiers from all the different states, including those that had different religious backgrounds than his own. He knew that if he wasn’t careful and, more importantly, if his soldiers weren’t careful, then religion was going to destroy his army. Washington had to learn as a military person and as a political person that if you discussed religion, you had to do so in a respectful way. At the same time, he was not going to ignore either his religious views or those of the population.

How have the framers’ views on religious freedom shaped America as a whole?

First of all, they made America, ironically, a more religious country. A lot of the religious movements from the 19th century have their roots in the framers’ actions, given that there was no favored governmental religion. Especially in the newer states, there existed a sentiment that people could find the religion that spoke to them most. Second, once immigrants arrived — and despite the strong anti-Catholic and anti-Semitic views of most people throughout the 19th century — there was always a strong sense that the true American understanding was that all religions were welcome. It became part of the definition of what America was. You had, then, both a space for religion to grow on its own and a welcoming of religion. Finally, the Constitution also allowed for a secular view of society and life to also flourish as government was forced to step away. In the end, there was an ironic combination of more religion and more freedom of religion at the same time.

In your book, you mention the 1800 election between John Adams and Thomas Jefferson. It was framed in the Gazzette of the United States by the question: “Shall I continue in allegiance to GOD — AND A RELIGIOUS PRESIDENT; Or impiously declare for JEFFERSON — AND NO GOD!!!” There are some parallels with the current elections.

[Laughs] Yes, yes. The idea of a presidential battle being a proxy for a view of religion is very old. Indeed, there was the sense that the Adams side viewed their efforts as the only way to protect religion, and that Jefferson’s side viewed their efforts as the only way to stop an establishment of religion in a narrow sectarian government. One of my goals in the book is to show that the debates that we are having today are not a creation of our times. We can learn from the lessons of the election of 1800. One of the most radical parts of the Constitution said that no one had to take a religious oath to serve in government. It was a major step, a radical change, perhaps the most important moment in American religious history. However, that doesn’t mean that people can’t vote based on their religious beliefs. The vote of 1800 seems to suggest that the people then didn’t want to have a purely religious government. They were more comfortable with the Jefferson approach, which sought to limit the role of government, than with the Adams approach, which was far more sectarian than that of Washington and Jefferson.

Mitt Romney’s religion played a significant role in the Republican primary. Because of his faith, after winning the nomination, he’s been forced to reach out to some of the Christian groups that had previously shunned him. Do you think there’s an implicit faith test for candidates within the GOP and one for the president within the country?

First of all, I think that surely within the country there is. There are surveys that say people will vote for almost anyone over an atheist. There is a 30 or 40 percent part of the population that will not vote for someone who doesn’t believe in God, so there’s definitely a religious test for the highest office.

Within the Republican Party, I think there is also a small group that does have a sort of religious test. Sometimes the test, if you will, will be passed if the candidate abides by politics that mirror religious beliefs, and sometimes [it will be passed] by the adherence to a specific faith.

In the book I tried to avoid the ongoing debate surrounding what were Washington’s and Jefferson’s specific religious faiths. I think that most American voters get that people’s professed faith doesn’t matter, and that someone’s beliefs can be incredibly complicated. What matters is how they live their lives and their view of government. One of the points of the framing period is that there were people that were very conservative, devout and pious men, who believed in a very limited role of government — for example, my hero John Leland, the Baptist minister. On the other hand you had people that were largely irreligious, like Benjamin Franklin, who supported teaching religion because they thought it was good for the masses. In political thought, there’s a sense that people should not search for a candidate with their same religious beliefs, but rather for one whose politics support their religious beliefs and tenets.

Meanwhile, Obama’s spirituality has been questioned many times … 

Yes, he has been forced to declare his religion far more than most other presidents. While George Washington would never say in public that he was a Christian, President Obama has to do it all the time. Whether he is comfortable with it or not is irrelevant, but it’s a shame. It’s sad that we have to brand him with a religion. First of all, it implies something very hostile, given that he’s had to say that he is Christian because he’s been accused of being a Muslim, as if that were something really bad. On the other hand, the fact that he has to declare his religion implies that that is the right religion for a political leader. I don’t think he believes in doing that, but he knows that politically he has to sort of fit in with this mindset.

Taking Romney into account, what I think you end up with, ironically, are two candidates who consider themselves to be Christian, even though the Mormon faith is not considered to be Christian by some Christians, and Obama is not considered to be a Christian by some Christians. Both of them need to present their bona fide credentials in a way that I think works to divide, rather than to unite, religious faith.

And those credentials are the faith test you mentioned earlier.

Exactly. In fact, it was understood by de Tocqueville and others that the governmental oath test was removed, but the individual’s religious test could remain. It has fluctuated over time, and I think you saw it in the Republican primaries. It might be muted a little in this campaign because I think that many people are going to vote for the candidates’ politics and not for a candidate who represents their faith.

Republicans have constantly accused Obama of waging a so-called war on religion. Many Catholic groups have filed law suits against the government claiming that their religious freedom was violated by the inclusion of contraceptives in basic health care coverage for women. His recent statements regarding gay marriage have only exacerbated that view among his opponents. Do you think those complaints have any legal standing? 

Well, let’s break up the two issues. President Obama had to deal with the religious objections to gay marriage by giving his support in religious language, so that’s not a “war on religion.” Both sides can quote the Bible in support of their own beliefs. You can make a very strong religious argument, as he did, in favor of an inclusive view of society to combat those who use their faith to oppose that view.

In terms of the Catholic Church and other institutions being “forced” to provide contraception, the problem is more complicated. There are two different issues here. First, all institutions, religious or otherwise, must follow generally applicable laws. These are laws which require everyone to do something. For example, there’s a famous case in which the state of Oregon banned the use of peyote, the psychedelic drug. At the time, the drug was used recreationally and also for religious purposes by Native Americans. The Supreme Court said that the law didn’t target religion. It was universal: No one could use the law. Therefore, even though the law had the effect of crippling a religious practice, the law was considered to be constitutional because it was neutral.

However, there was a response to that case that [argued for making] exceptions so that religious groups can follow their faith. This was adopted in all sorts of cases, including conscious objectors to the draft. Since then, the government tries to accommodate minority religions, in part because majority religions are always accommodated. Only minority religions need special accommodations.

In the case of Obama and contraception, though, the administration learned from past mistakes and arranged for private insurance companies to be in charge of the distribution of contraception. Meanwhile, there are ongoing negotiations on how to be sensitive to religious needs.

The second issue has to do with those ongoing negotiations. While they are taking place, the Supreme Court is bound to rule on whether the health care act is unconstitutional. If the court rules against it, the whole issue will go away. Now, what’s incredibly sad is that a religious argument has been put in the midst of a political debate. I think that contraception is a very important and difficult issue because there are the rights of religious institutions and also the right of women to have health care. To drag this into court in the middle of the presidential campaign while the negotiations are under way smells more like politics than religion.

Their complaints aside, the Catholics don’t seem to be the religious group that the government has actually targeted. Since 9/11, Muslims have been singled out by, among others, the NYPD. Are there any similar historical precedents in America?

From what I know of the issue, what happened is similar to what was done with other minority religions in the past. Catholics were viewed as suspect because they were connected with foreign powers, be it the Pope or France. There was a suspicion of the whole group, an assumption that anyone who was Catholic couldn’t be loyal. John Kennedy had to deal with that in the 1960 presidential campaign — this presumption not of divided loyalty but of lack of loyalty to America because of your religion. I think you have the exact situation here. There’s an invidious presumption that if you believe in X religion, then you must be part of an alien culture that’s un-American. The widespread distrust of Muslims, whether in fighting where a mosque is built or regarding the monitoring of Muslim individuals, is part of this view that being a part of a minority religion make you un-American.”

Emphasis Mine

see:http://www.alternet.org/story/155971/why_is_there_so_much_god_in_america%27s_politics