Our current Supreme Court is dominated by regressive Justices who insist–as did the late Antonin Scalia–that they reach their conclusions by being “originalists.” Their definition of originalism differs rather substantially from mine–I’m firmly of the conviction that an authentic originalism requires fidelity to the values embraced by the Founders, while they insist that an originalist is bound by the constitutional text as it was understood at the time.
Permit me an example of why this is horse-pucky.
I used to ask my students what James Madison thought about porn on the internet. Obviously, Madison could not have conceived of the Internet–but he had very explicit beliefs about the value of free speech and the need to prevent government censorship. The current majority’s crabbed and dishonest “originalism”–if consistently pursued– would reserve free expression to communication methods in place during Madison’s time. A workable originalism protects speech from government censorship irrespective of the method of its transmission.
Of course, the majority doesn’t apply its version consistently, because it would be unworkable. Instead–as legal scholars have pointed out–they are selective in their application. (At least so far, they haven’t allowed government to censor radio, television, movies, and the internet–none of which the Founders could have envisioned.)
I thought about that very telling selectivity when I read an essay by Thom Hartmann about theocracy and the Dark Ages. I encourage you to read it in its entirety, but the part that struck me–and reminded me of the selectivity of Justices like Scalia, Thomas and especially Alito– were the sections detailing the Founders’ approach to Separation of Church and State.
Hartmann began by quoting extensively from John Adams. Adams was a practicing Christian, but was wary–to say the least– of government efforts to compel religiosity. Among the Adams quotes shared by Hartman was the following:
“Since the promulgation of Christianity, the two greatest systems of tyranny that have sprung from this original, are the canon and the feudal law. The desire of dominion, that great principle by which we have attempted to account for so much good and so much evil, is, when properly restrained, a very useful and noble movement in the human mind.
“But when such restraints are taken off, it becomes an encroaching, grasping, restless, and ungovernable power. Numberless have been the systems of iniquity contrived by the great for the gratification of this passion in themselves; but in none of them were they ever more successful than in the invention and establishment of the canon and the feudal law.”
Hartmann also quoted Jefferson, who wrote in his Notes on the State of Virginia:
“Reason and free enquiry are the only effectual agents against error. … Had not free enquiry been indulged, at the æra of the reformation, the corruptions of Christianity could not have been purged away.”
And he shared an often-cited Jefferson line:
“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
Adams and Jefferson weren’t the only Founders who believed in separating church from state. As Hartmann notes,
George Washington refused to declare himself a Christian; Thomas Paine wrote an entire book embracing atheism; Ben Franklin famously fled Massachusetts as a teenager to escape the censorship and threats of imprisonment by religious leaders.
The essay points out that today’s White Christian Nationalist movement is both ahistoric and anti-American–a conclusion with which credible scholars entirely agree.
So here’s my question, aimed especially at Justice Alito (Thomas is simply corrupt, but Alito seems to be a true theocrat.) If you are really an originalist, bound by that doctrine to decide constitutional debates as the Founders would have understood them, why are you ignoring both the Constitutional text and the substantial contemporaneous evidence of their belief in the importance of Separation of Church and State?
Hartmann’s essay focused on the Dark Ages, a thousand-year period introduced and maintained by virtue of the close alliance of church and government. He ends with a question:
Will we go down a nationalist religious road similar to that now being followed by Modi in India and Netanyahu in Israel? Could we end up as bad as Iran, Afghanistan, or 17th century New England? Will Republicans trigger a new Dark Age?
Or will we re-embrace the Renaissance and Enlightenment values and ideals of the Founders of this nation and hold to a secular democratic republic?
If the pseudo-originalists on today’s Court prevail, we won’t like the answer to that question.
The very fact that Adams and Jefferson were in agreement says more than we need to know about religion. The two of them rarely agreed with one another. In fact, the pretend originalists have ignored so much of the original document, I wonder where they get the nerve to call themselves originalists.
Shiela exposes a profound discussion, the substance of which I could only be a student because the legal implications and argument accountable to root understanding of constitutional fundamentals are beyond my pay grade.
Today we face the threat of Christian Nationalism. Constantine was the first Christian Nationalist in recorded world history. We know what eventually happened to the Byzantine Empire. Christian Identity was hijacked for purposes of uniting the state.
According to the Byzantine and generally European apocalyptic tradition, the return of Constantinople under Christianity was also prophesized. The Last Roman Emperor would “tame” the Blond Peoples (associated with Nordic peoples) and eventually defeat the “Ishmaelites” and take the capital back with their help.
Maybe MAGA is reading history after all and have determined they are divinely appointed to a more successful outcome than the eventual fate of the Byzantine Empire.
As Shiela rightfully implies, selective originalism in the hands of people who occupy positions of power are a threat to the democratic republic … and this student of contemporary issues believes … “Christian” Nationalism is a cancer spreading that threatens authentic Christianity.
No one is more adamant regarding the separation of church and state than I. Thanks for your thoughts and history on the subject, and a huge thanks for reminding me of the world of Thom Hartmann, who I followed religiously (pun?) years ago and have now reengaged with.
The “Originalism” of the SCOTUS folks seems all too disingenuous to me; it appears to be nothing but a way of excusing their moneyed agenda.
Adams was very clear, in a letter to the rulers of the Barbary Coast, regarding their support of piracy, when working out protection for U.S. shipping, that the country was NOT founded upon religious principles.
I do argue within myself and trusted colleagues that there is a distinction to be made between religious principles and principles of faith. I do believe our founding fathers were greatly influenced by principles of faith such as the global ethic of reciprocity otherwise known among Christians as The Golden Rule.
There are a few that want Christian Nationalism. Most evangelicals want to stop the march of progressivism as the country is moved furthest to the left.
Wallbuilders.org is one of those organizations that we need to look at to see how history is viewed from all sides from original source documentation
Wallbuilders is a scam, run by David Barton, a “historian” who–through ignorance or malice–rewrites history to suit his preferences. As the Southern Poverty Center –among others–has described him:Historians and scholars across the political and religious spectrum have panned Barton’s version of U.S. history, which supports his religious nationalism, for what they claim are its many fundamental inaccuracies, so much so that the publisher of Barton’s The Jefferson Lies said in 2012 that it was pulling the book. Even though such criticism would usually end the career of an academic historian, Barton’s Texas-based group, WallBuilders, sells an abundance of books and DVDs pushing Barton’s vision, while his ideological history has found new life in Rick Green’s Patriot Academy. Barton should be seen less as a serious historian than as a political operative and cultural warrior.
I believe I’m correct when saying that the Federalist Society was founded/funded by John Birch and Fred Koch. These two creatures of the darkest of ideological nights were as fundamentally misguided about the truth, ALL history and provable facts as anyone in our history past or present. The fact that so many SCOTUS Justices are spawns of that fetid organization speaks volumes about how they want the nation to be governed. They care not a whit about democracy or fundamental rights that differ from their own. So, naturally, Republicans embrace them because they are both funded by corporate/banking America.
I think our founders would be appalled by what our Justice-driven society looks like today. Is it a rhyme or is the pendulum just swinging?
All you really need to know about the Federalist Society is their list of donors who are identical to the dark money crowd behind all of the conservative movements. From Wikipedia:
“Later funding of $5.5 million came from the John M. Olin Foundation. Other early donors included the Scaife Foundation and the Koch family foundations. Donors to the Federalist Society have included Google, Chevron, Charles G. and David H. Koch, the family foundation of Richard Mellon Scaife, and the Mercer family.”
In Indiana, they have an active chapter with plenty of events hosted in Indy:
https://fedsoc.org/past-events?chapter=indianapolis-lawyers-chapter
The opposition to the FS is the progressive American Constitution Society. According to Wikipedia, there are no major sponsors/donors. Also:
“And the relative impact of the organizations can hardly be compared. The federal and state judiciaries are filled with Federalist judges, but there are no ‘ACS’ judges to be found on the Supreme Court or the federal benches. It’s just not a thing.” Mandery writes that the liberal legal academy “hasn’t come up with an easily digestible rival idea” to the originalism of the Federalist Society and that the ACS’s “focus on outcomes rather than first principles immediately colors it with politics.”
In Indiana, ACS has a chapter but there have been no active events for two years:
https://www.acslaw.org/chapter/in-indianapolis/#tab3
Thanks, Your view was anticipated long ago on this. did you send Alito a E mail to your site for todays subject?to read your educated,taught and ongoing view of the educated here,beyond his closed little world?
maybe his staff would need a wake up also. they maybe the reason for some of his sidestepping..did leo send them?
No matter how ya see it,the time line on this subject and the journalism keeping some of us aware of WTFs has been ongoing to spell out, ya dont get this far without money.. hense, ill keep my conspiratorial view as, this is just part of the package for the rich to run this country outright and finding ways to keep us in line..project 2025 is the simple plan, imagine the reality?
Thank you for raising this fundamental principle in our country’s founding, and the threat we face in this packed Supreme Court.
The excessive repression of women, the erosion of civil rights, the censoring of books and now setting the stage for an executive to act with impunity (Presidential immunity) all go back to this theocratic Supreme Court majority.
We have seen the disregard for precedent and settled law. We have seen the blueprint for taking power, as in Project 2025. There is no doubt where this Republican Party will take us. And left unrestrained, we can expect what our Founders fought against.
This defines our present danger. It is not a world war or civil war. It is the disinformation within that cannot allow reason, and brings us to this election.
If we win in November we have another chance to stave off the darkness the Republican Party will bring to our doorsteps.
But winning is a necessary step in the ongoing battle against purposeful lying hiding behind free speech, and all the damage done to so many of our citizens taken in by these lies.
The embrace of “originalism” is just a convenient front. Alito absolutely has a specific world that he desires, and he makes “originalism” mean whatever he needs it to mean at any given time. It’s just a prop.
Thomas is the same, but tempered by a desperate and overwhelming greed. The other “conservative” judges are varying degrees of similarity, but I expect them to trend towards Alito/Thomas territory as they settle into the “job” in the coming years. Right now, they are still new and retain a little of their youthful idealism.
Alito is much like Trump in this regard. Trump will say whatever he needs to say whenever he thinks it will be beneficial to him. The main difference is Trump is much more stupid, and doesn’t care about hiding his disingenuousness. (Or is just too stupid to be able to hide it. Hard to say.)
What may come from this cynical abuse of Christianity, though, is that religion will be seen as just another means to some other end just as the increasing secularization of America appears, at least in part, to be a backlash to the use of religion for partisan ends.
If the impulses of religion are being poured into politics, consider that it may also be that politics is being poured into religion. As a result, there’s a growing disinterest in, and disappointment with, religious institutions. The intrusion by religious institutions into secular life may be forcing people to evaluate what religion is and why people remain attached to it. Spirituality appears to have little to do with it.
Nonprofits have the right to free speech, according to the Citizens United ruling. However, to address what Linda Stamato just mentioned, it is to have the IRS enforce its own rules. Supposedly, Biden was going to do this, but not sure if it happened or not.
One thing is clear: if the IRS enforced its clause about religions or churches staying out of politics, we could make some headway into cleaning up the conservative messes in our country. I’m not stupid, though, I know the 23-24 Republican AGs will attack any effort to shut down organized religion in the realm of politics.
” . . .and Jesus wept.”
Authoritarian thinking is a closed way that rebuffs other legitimate aspects to our reality. The canon in the church was selected to uphold unity and power in the organization and defend and defeat, in unchristian ways, the truth and spiritual development of all people. Dominion and control are the organizations m.o., prodding its members to cultivate self-discipline to protect themselves and dominate others for the benefit and expansion of the Church.
Many have suffered under the relentless mind/soul control where people give up their power to think and do what’s best for themselves in order to conform to the prescience rules of the church i.e family planning.
As an American we have the right/ responsibility to question authority and make good healthy decisions for ourselves that would not hurt others. Authoritarianism shuns questions and alternate ways of doing things.
The majority of the Supremes come across as choosing authoritarianism over allowing our laws and democracy to play out. i.e. delays and deference toward DJT. Too bad we the people can’t charge those justices with obstruction of justice which is what they’re doing! Weeding out corruption in an authoritarian system is possible with exposure, persistence and continual calling out their malfeasance.
When harmful dishonest disinformation is purposely spread in public to deceive and control people and their decisions, actions and money, seems our government could take action to intervene. I heard about Orsen Wells broadcast of “War of the Worlds” which caused panic, injury and death just due to the fact that it was on the radio, so it must be true. Government stepped up then with FCC.
US today has a similar situation, a cold (so far) civil war that is heading to crossroads in this fall’s presidential election. Are there enough Americans to vote to uphold Democracy and the rule of legitimate law and/or do our votes still count?