Sorry I have not returned to this blog in a couple of days, but, in any case, be my guest to use it.

The notion that by declaring the National Day of Prayer unconstitutional the government is favoring atheism is total nonsense. If the government had a National Day Against Prayer Act that required the president to proclaim the futility of prayer to non-existing deities then that would be an establishment of atheism and striking down that law would not favor theism. People like Professor Coulter are so unbalanced in their perspective that they consider government silence in place or government adoption and promotion of their own monotheistic beliefs to be biased against their beliefs. What Newdow is pursuing is a balanced and correct view of non-establishment that includes everyone and favors no one. The notion that Newdow is seeking to favor his own views is inside out, upside down, backwards. Newdow is working against government favoritism, both for his minority atheism and for the majority monotheism and for all other such viewpoints. And all of his lawsuits demonstrate that his position is the balanced one here.

It is my pleasure. And FYI I plan on incorporating some of your last comment in a blog post.

My two group blogs (one with a libertarian theme, and the other with an American Founding & religion theme) may well discuss it in comment threads, if you are interested.

When it comes to Lincoln he didn’t just appeal to general natural law (I don’t want to get too complicated here) but rather what was written in America’s DOI. That’s what I mean with abstracting ideals to supplement the original meaning of the Constitution’s text, that sometimes control and trump dominant historical tradition.

Without the DOI, I don’t think one can make the case that Lincoln was right. Though I’ve see some try.

And if Lincoln were not right, then the post Civil War Amendments are not valid.

Amendments are legally valid if they pass according to the procedures of Article V. I don’t see the need to justify them by “ideals abstracted from the Founding” when the explicit purpose is to change or override the founders. The Constitution permitted slavery until the 13th, and did not allow the federal government to collect income taxes until the 16th, etc. As a self-governing republic we are not bound for all time by the decisions of a convention held in 1787, we are free to overturn their ideas when there is sufficient national consensus to pass an amemdment. But by the same token the original meaning of the Constitution can only change by amendment, NOT by judicial fiat.

I would make the moral case that Lincoln was right by appealing to Natural Law principles independent of any founding tradition. Slavery is wrong, pure and simple. Whether the founders realized this or not is immaterial to the discussion.

As for the founding, there is much to look fondly on despite the glaring defects. For one, the system of checks and balances has worked far better than any of the founders could have hoped. For another, the 1st amendment was quite extraordinary at a time when every major European power was either officially Catholic or else had an established state church. The history of American is a history of expanding rights over time: first to all religions, then to all races, then to women, and I hope and pray in the near future to all persons from conception until natural death.

I would simply add a caveat:

It seems to me that the best way to respect the atheist and also preserve the liberties of conscience for religious persons is not to endorse a “secular” govt. that removes religion from the public square (and here I track with Fr. Neuhaus), but to recover the founders’ notion of government not endorsing any sectarian position. I would simply argue that socially speaking atheism is sectarian, as many others have done, and thus is no different than any other sectarian approach to religion and morality. It’s funny that you invoke Newdow since he does hold some credentials in a religious organization ironically enough. So, he qualifies as espousing a sectarian form of national life, which he can do, but he should not ask the courts to endorse his sectarianism in the name of preserving separation of church and state.

In bringing these lawsuits that seek to vacate religious language from all govt. activities or entities, Atheism unfairly, in my view, pits itself against all religious positions and then screams for equality as though the Muslim is not just as uncomfortable with a Baptist prayer as an atheist would be with any religious prayer. Or, even more, some Baptists cannot be in the same room as a Catholic when prayers are being said.

At their best, the founders conceived of a separation in which no sectarian position gained the upper hand, and that is what has resulted. In a living, breathing body politic this means that all sectarian positions must have their say. The govt. does not endorse any single one because it implicitly endorses all of them, including the atheist, precisely by endorsing religious liberty or liberty of conscience, and grounding that liberty in human nature itself, which precedes any social compact. The atheist has to make room for a Muslim in the same way that a Baptist has to make room for a Catholic, etc. This means that the atheist must put up with religious language or activities as part of govt. events in the same way that Catholics have to put up with Baptists praying the inaugural prayer, etc., etc.

Thanks for the exchange, it’s been fun.

In other words, slavery was left to the states, just like religion.

I don’t mean that to be a glib dismissal of the argument. But there is an oft-repeated argument that “religion was left to the states,” and there were, as with slavery, competing traditions.

There was the more narrow tradition of extending religious liberty and equality rights to certain types of believers and the broader one, Roger Williams’, whom you have invoked numerous times, of extending religious rights universally.

The Michael Newdow types, it seems to me, haven’t just come in from outer space. They argue in the latter tradition, saying “hey we atheists are citizens too, entitled to equal respect.”

And I agree with them in that regard. However, I just don’t agree that government words really harm them in such a tangible way that it necessarily rises to the level of an individual constitutional right to be free from hearing or seeing government messages that make them feel like unequal citizens.

But I certainly see where Newdow is coming from and what aspects of Founding era rhetoric resonate with his position.

Perhaps. But 1) that still gets you a Founding that is hard to look fondly on and a Constitution that is not laudable until after the 13th-14th, etc. Amendments. And 2) without ideals abstracted from the Founding, it’s hard to make the case that Lincoln was right and the post Civil War Amendments are themselves valid.