My good friend and a thinker I admire greatly, Pejman Yousefzadeh, has read my book The End of Secularism and commented on it. I am very happy to have him read it because he is one of the few non-Christians of whom I am aware who have read the book.
Because I value his opinion so highly, I feel I must take a moment to correct what I think is a misperception on his part. In his short review of the book over at The New Ledger, he essentially defends First Amendment religion clause jurisprudence from my historical attack. At the root, because I argue the clause did not mean at the founding what it has come to mean today, he thinks I am saying the current construction has no basis. I want to be clear that I am not going that far.
Instead, I simply argue that the debate over whether the founding was Christian, deist, secular, or whatever is not relevant to the interpretation of the religion clauses because they do not set forth a substantive theory of religious freedom. My point is that we have so much trouble divining a substantive theory from the clauses because they were not written to accomplish what they use them to achieve. Steven D. Smith has written more and better than me on that point. And he is simply correct. I don’t think there is much getting around it.
Certainly, you can argue that there is another way to read the constitution to reach the result we currently have, but it does not rise directly from the text of the First Amendment if you have any interest in original intent at all.
June 1st, 2010 | 10:16 am
Dear Mr. Baker,
As an Orthodox Jewish Rabbi, I have no doubt that I qualify as a “non-Christian” who has bought and read your book. It is truly a remarkably valuable work, and in brief posts to various First Things blogs, I have referred to it as such.
I have also recommended it to a variety of attorneys, which I hope helps somewhat.
Looking forward to the sequel.
Rabbi Chaim Frazer
June 1st, 2010 | 10:27 am
“Original intent” is a meaningless term. It is clear that the folks who repeatedly use it do not care at all whether their interpretation is what the founders wanted or not. As we see from the very activist decision of Citizens United, voted for by those who claim to follow original intent, the appeal to original intent is only made when it is convenient and the person invoking it thinks that he can sell it to his reactionary colleagues.
If the constitutional cases were obvious, we wouldn’t need a Supreme Court to decide them. These decisions are always pragmatic. When they become dogmatic, they undermine our constitution. If you can offer a better approach for protecting our right to publicly believe as we like and keep the government from supporting religions (are those tax benefits not an establishment of religion?), then offer it. So far those who complain about the current jurisprudence seem quite happy to have religions use the government for their own furtherance. Would you be as happy if Moslems or Hindus were doing this? Would Scalia think it’s just fine that a massive religious symbol that is not a cross be put up in a public park because it’s ‘just a memorial symbol’?
June 1st, 2010 | 2:51 pm
Thank you so much Rabbi Frazer. I am very pleased to hear that you have read my book.
June 1st, 2010 | 4:03 pm
freelunch: The fact (if it is a fact) that some who use the term ‘original intent’ use it in an improper, self-serving way is no reason at all to conclude that the term ‘original intent’ is meaningless. Nor is the fact (if it is a fact) that Supreme Court decisions are always pragmatic any reason at all to think that the original intent of the framers is beside the point. After all, before the Court can make those pragmatic decisions, it has to start with some understanding of what is meant by the relevant Constitutional passages. And what else could those passages mean other than what the framers originally intended? Certainly not the interpretation of the Court. The interpretation is not the meaning, it’s an attempt to figure out the meaning.
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