The University of Chicago Law School Faculty Blog

Romney's Founders

Mitt Romney’s recent reflections on the role of religion in American politics implicitly called to mind a disturbingly distorted version of history that has become part of the conventional wisdom of American politics in recent years.

 

That version of history suggests that the Founders intended to create a “Christian Nation,” and that we have unfortunately drifted away from that vision of the United States. In fact, nothing could be further from the truth.

 

Those who promote this fiction confuse the Puritans, who intended to create a theocratic state, with the Founders, who lived 150 years later. The Founders were not Puritans, but men of the Enlightenment. They lived not in an Age of Faith, but in an Age of Reason. They viewed issues of religion through a prism of rational thought.

 

To be sure, there were traditional Christians among the Founders, including such men as John Jay, Patrick Henry and Samuel Adams. Most of the Founders, however, were not traditional Christians, but deists who were quite skeptical of traditional Christianity. They believed that a benevolent Supreme Being had created the universe and the laws of nature and had given man the power of reason with which to discover the meaning of those laws. They viewed religious passion as irrational and dangerously divisive, and they challenged, both publicly and privately, the dogmas of traditional Christianity.

 

Benjamin Franklin, for example, dismissed most of Christian doctrine as “unintelligible.” He believed in a deity who “delights” in man’s “pursuit of happiness.” He regarded Jesus as a wise moral philosopher, but not necessarily as a divine or divinely inspired figure. He viewed all religions as more or less interchangeable in their most fundamental tenets, which he believed required men to treat each other with kindness and respect.

 

Thomas Jefferson was a thoroughgoing skeptic who valued reason above faith. He subjected every religious tradition, including his own, to careful scrutiny. He had no patience for talk of miracles, revelation, and resurrection. Like Franklin, Jefferson admired Jesus as a moral philosopher, but insisted that Jesus’ teachings had been distorted beyond all recognition by a succession of “corruptors,” such as Paul, Augustine, and Calvin. He regarded such doctrines as predestination, trinitarianism, and original sin as “nonsense,” “abracadabra” and “a deliria of crazy imaginations.” He referred to Christianity as “our peculiar superstition” and maintained that “ridicule” was the only rational response to the “unintelligible propositions” of traditional Christianity.

 

John Adams, who identified most closely with the early Unitarians, also believed that the original teachings of Jesus had been sound, but that Christianity had subsequently gone awry. He wrote to Jefferson that the essence of his religious beliefs was captured in the phrase, “Be just and good.” As President, Adams signed a treaty, unanimously approved by the Senate in 1797, stating unambiguously that “the Government of the United States . . . is not in any sense founded on the Christian religion.”

 

George Washington was respectful of traditional Christianity, but he did not have much use for it. His personal papers offer no evidence that he believed in biblical revelation, eternal life, or Jesus’ divinity. Clergymen who knew Washington well bemoaned his skeptical approach to Christianity. Bishop William White, for example, admitted that no “degree of recollection will bring to my mind any fact which would prove General Washington to have been a believer in Christian revelation.”

 

Tom Paine, the author of Common Sense, The Rights of Man, and The Age of Reason, insisted that “the religion of Deism is superior to the Christian religion,” because it “is free from those invented and torturing articles that shock our reason.” Paine explained that deism’s creed “is pure and sublimely simple. It believes in God, and there it rests. It honours Reason as the choicest gift of God to man” and “it avoids all presumptuous beliefs and rejects, as the fabulous inventions of men, all books pretending to revelation.” Paine dismissed Christianity as “a fable, which, for absurdity and extravagance, is not exceeded by anything that is to be found in the mythology of the ancients.” In Paine’s view, traditional Christianity had “served to corrupt and brutalize mankind.”

 

These words no doubt sound shockingly blunt and “politically incorrect” to modern ears, but they were in fact the views of many of our most revered Founders. The fable that the United States was founded as a Christian Nation is just that – a fable.

 

It is worth noting that the Declaration of Independence does not invoke Jesus, or Christ, or Our Father, or the Almighty, but the “Laws of Nature,” “Nature’s God,” the “Supreme Judge,” and “Divine Providence,” all phrases that belong to the tradition of deism. The Declaration of Independence is not a Puritan or Calvinist or Methodist or Baptist or Protestant or Catholic or Christian document, but a document of the Enlightenment. It is a statement that deeply and intentionally invokes the language of American deism. It is a document of its own time, and it speaks eloquently about what Americans of that time believed.

 

The Constitution goes even further. It does not invoke the deity at all. Unlike the Puritan documents of the early seventeenth century, it makes no reference whatever to God. It cites as its ultimate source of authority not “the command of God,” but “We the People,” the stated purpose of the Constitution is not to create a government “according to the will of God” but to “secure the Blessings of Liberty.” Significantly, the only reference to religion in the 1789 Constitution expressly prohibits the use of any religious test for public office.

 

The Founders were not anti-religion. They understood that religion could help nurture the public morality necessary to a self-governing society. But they also understood that religion was fundamentally a private and personal matter that had no place in the political life of a nation dedicated to the separation of church and state. They would have been appalled at the idea of the federal government sponsoring “faith-based” initiatives. They would have been quite happy to tolerate Mitt Romney’s Mormonism – as long as he keeps it out of our government.

Uncle Sam on the Lam

In an op-ed in the New York Times on November 5, (“Uncle Sam on the Line”), former Attorney General John Ashcroft offers a seemingly reasonable case for Congress to grant immunity to the major telecommunications carriers accused of cooperating in allegedly unlawful government surveillance programs. In short, Ashcroft argues that the carriers should not be held liable for their actions insofar as they acted on the basis of “explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful.”

This sounds sensible. After all, the telecommunications companies were only doing what the government told them to do. What more could we or should we expect from them? It would be unfair and unwise – perhaps even un-American – to hold them accountable for cooperating with the government in a matter of national security – even if the programs were in fact unlawful.

Constitutional Vision

We are now several weeks into the Supreme Court’s 2007 Term. We should keep a watchful eye on the Court. With Chief Justice Roberts and Justice Alito now firmly ensconsed, we might be on the verge of a significant paradigm-shift within the Court. If their performance last Term is any indication of what is to come, we may be in for quite a ride.

A Balanced Court?

In the media, we constantly read about how “closely divided” the Court is and about how many cases are decided by a vote of five-to-four. There are, according to the media, the “conservative” Justices – Scalia, Thomas, Roberts, and Alito; the “liberal” Justices – Stevens, Souter, Ginsburg, and Breyer; and Justice Kennedy -- the “man in the middle.” The impression created by such accounts is that this is an “evenly balanced” Court. This is a fallacy, and a dangerous one at that. What do we mean by “balance”? Why don’t the many five-to-four decisions prove that this is a “well-balanced” Court?

Geof Stone on The Roberts Court

On Oct. 1st, 175 Law School Alumni and guests gathered for the annual First Monday lecture at Chicago's University Club (similar lectures were also held in Washington and New York). This year's talk, by Geoffrey Stone, was "The Roberts Court: STARE WHAT?" A video of the event appears after the jump (you'll need to have the  Quicktime plugin installed on your browser).

Don't want to watch online, but want to download this talk to your portable media player? Just right-click on one of these links and save the file to your computer:
Video (.mov) | Audio (.mp3)

Law and Politics Book Review Looks at Geof Stone's "War and Liberty"

In the Law and Politics Book Review, published by the Law and Courts Section of the American Political Science Association, Torin Monahan of Arizona State University's School of Justice and Social Inquiry reviews Geof Stone's recent book,  WAR AND LIBERTY: AN AMERICAN DILEMMA: 1790 TO THE PRESENT.Monahan writes that the book "offers one effective means of encouraging discussion of [challenges to the preservation of civil liberties and an active civil society], especially in classroom environments, and fostering productive critique of current practices in light of similar (and dissimilar) ones in the past."

A Review of Jack Goldsmith's "The Terror Presidency"

Jack Goldsmith's "The Terror Presidency" is one of the most interesting and most insightful books yet to come out of the Bush White House.

In October 2003, President Bush appointed Goldsmith, a self-described conservative who proudly proclaims that he is not a civil libertarian, head of the Justice Department's Office of Legal Counsel, thus making him chief adviser to the president about the legality of presidential actions. Ten months later, Goldsmith resigned because he could not endorse the unlawful policies the administration had implemented in the war on terror.

Shortly after taking office, Goldsmith reviewed a series of highly confidential opinions written by his predecessors in the Bush administration that defended the legality of "some of the most sensitive counterterrorism operations in the government." To Goldsmith's shock and dismay, he found that some of these opinions "were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President." What was going on?

Columbia, MoveOn.org, and General "Betray Us"

In a recent post, I argued that Columbia University did nothing "wrong" in inviting Mahmoud Ahmadinejad to speak. To the contrary, its invitation to this allegedly "cruel and petty dictator" was well within Columbia's fundamental mission as a university, which is not to "endorse" particular ideas as "right" or "wrong," but to promote a robust and lively and sometimes controversial exchange of views in order to promote the ultimate goal of education.

In this post, I want to draw a subtle but perhaps illuminating connection between the response of Columbia to its own decision to invite Mr. Ahmadinejad to campus and the Senate's response to the recent MoveOn.org ad in the New York Times attacking General Petraeus.

Ahmadinejad and Columbia University

Why all the fuss about Iranian President Mahmoud Ahmadinejad’s speech at Columbia University? Critics of Columbia’s decision to invite Mr. Ahmadinejad to speak maintain that, because he is a “cruel and petty dictator,” in the words of Columbia President Lee Bollinger, Columbia should not have invited him to speak. In their view, a great American university should not lend its name and prestige to a man who denies the Holocaust, threatens to destroy Israel, promotes terrorism, and routinely violates human rights. Columbia’s critics argue that in providing Mr. Ahmadinejad a forum, Columbia implicitly dignified his views and betrayed its own values.

It would be difficult to be more wrong. A fundamental mission of a university is to educate. A university does this not by taking positions on political, social, moral, economic, medical, or international issues, but by creating an environment in which all perspectives on all issues are open to robust and lively debate.  The central responsibility of a university is not to decide who is right about the war in Iraq or the moral legitimacy of terrorism or the meaning of human rights, but to create and nurture an intellectual environment in which faculty, students, staff, alumni and others have the complete freedom to explore such questions without constraint or intimidation.

"Conscience of a Conservative"

I commend to you Jeffrey's Rosen's article in this Sunday's New York Times Magazine, which describes the experiences of former University of Chicago Law School Professor Jack Goldsmith in the Bush Justice Department. Goldsmith and I overlapped briefly on the faculty. During most of his time at the Law School, I was serving as Provost of the University. But we got to know one another, and I was much impressed with his intelligence, integrity, and judgment.

Goldsmith and I disagreed about many issues. I am a civil libertarian. As Goldsmith says in the Rosen article, he is not. We therefore often came to quite different conclusions about the appropriate limits of government power, particularly in the realm of individual rights. In our discussions of such issues, Goldsmith was always smart, open-minded, and thoughtful. I learned a lot from him. I hope he felt the same about me. In some ways, our mutual respect, friendship, and colleagueship despite strong differences of opinion, like my more long-term relationships with Dick Posner, Richard Epstein, and Bill Landes, represent what is truly best and most unique about the culture of the University of Chicago Law School.

The Gonzales Legacy

“The first thing we do, let’s kill all the lawyers.” Alberto Gonzales’s sorry tenure in the Bush administration would seem to give credence to Shakespeare’s oft-cited incitement against the legal profession.

The primary responsibility of the Attorney General is to uphold the Constitution and laws of the United States in a fair and even-handed manner. In failing to comprehend this responsibility, Alberto Gonzales compromised himself, his office, the Constitution, and ultimately even the President who appointed him.