Vouchers (Again) And The First Amendment

I was asked to speak to the Shepherd’s Center at North United Methodist Church about  vouchers and Separation of Church and State. Here’s the speech I delivered. Warning:  longer than my usual posts!

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I was asked to talk today about the relationship of the First Amendment’s religious liberty clauses—clauses which, when read together, establish America’s Separation of Church and State—to the nation’s wildly expensive and expanding school voucher programs.

That relationship is key to understanding the overarching threat posed by voucher programs. There are many problems with these programs, and I frequently rant about them on my blog, but the threat to the First Amendment is far and away the most serious.

The exercise of religion requires that each person follow his or her own conscience.  Since opinions and beliefs can be shaped only by individual consideration of evidence that a given individual finds persuasive, no one can really impose opinions on anyone else– government can only force outward obedience to any particular religious tenet. That realization led the nation’s Founders to decree that government should be—to use James Madison’s term– “noncognizant” of its citizens’ religions. Madison believed that government simply had no jurisdiction over religion. He, Jefferson and other Founders believed that a just state is required to be blind to religion–that government should not use religion to classify citizens and should neither privilege nor penalize citizens on the basis of religion.

From the earliest days of the American colonies, separating Church from State was seen as an important protection for both government and religion. Let me just begin this discussion with some history that I hope illuminates that assertion.

Roger Williams, who founded Rhode Island, is most often cited for the religious view of the importance of separation; he was the originator, as far as we know, of the phrase “a wall of separation”— a full 150 years before Thomas Jefferson used it. Historians sometimes overlook the importance 18th and 19th century Christians placed on the doctrine of liberty of conscience—what they called “soul freedom.” Such views were most strongly held by Mennonites, Quakers and Baptists, but they were also part of the beliefs of colonial era Episcopalians, Methodists and Presbyterians.

John Leland was a traveling evangelical Baptist with a strong view of the individual’s relationship to God, the inviolability of the individual conscience, and the limited nature of human knowledge. He wrote, “religion is a matter between God and individuals; religious opinions of men not being the objects of civil government, nor in any way under its control.” He also wrote that “the state has no right or leave to concern itself with the beliefs of an individual or that individual’s right to expound those beliefs…The state is to maintain order, not to judge right and wrong.” And here’s my favorite Leland quote: “The very tendency of religious establishments by human law is to make some hypocrites and the rest fools; they are calculated to destroy those very virtues that religion is designed to build up…Government has no more to do with the religious opinions of men than it has with the principles of mathematics.”

Did some people living at the same time as Founders like Jefferson and Madison and religious figures like Leland think otherwise? Of course. But it was the position of Madison and Leland that prevailed; it was their view of the proper relationship (which might more accurately be described as the proper lack of a relationship) between church and state that became part of our constitutional structure.

Today, in addition to rampant historical revisionism, there are two common justifications for allowing government to take cognizance of religion—arguments that are mutually exclusive, although often offered by the same people. The instrumental argument holds that public expression of religion changes behavior, and the ceremonial justification says public prayers don’t amount to establishment because they are just meaningless ceremonies meant to add solemnity to occasions.

You are all familiar with the instrumental argument; it is best summarized by a bumper sticker that was popular a few years ago: something along the lines of “When prayer was removed from the classroom, guns and teenage pregnancy came in.”

This naive belief that exposure to a denatured and generic religion in the classroom will make students behave is the same justification given for efforts to post the Ten Commandments—if people see “Thou shalt not kill” on the wall of a public building, well, they won’t kill. (For complex theological reasons I do not understand, this evidently won’t work if the building is privately owned.) Unfortunately, available evidence does not support this belief in the magical powers of religious iconography.

The United States is by far the most religious of all the western industrialized nations—and we are also the most violent. There are few—if any—atheists in our prisons. Folks in the Bible Belt pray more—and kill more. And most school shootings haven’t occurred in hotbeds of secularism like Berkeley or Cambridge or New York City, but in towns where Norman Rockwell and James Dobson would feel right at home.

Historically, a large percentage of America’s persistent arguments over separation of church and state have focused on the nation’s public schools. We’re seeing this mirrored in the current “anti-woke” efforts to ban books in public school libraries; evidently, a significant number of Americans are fixated on shielding children from contact with beliefs of which they do not approve—and that fixation is typically rooted in religion.

The courts consistently ruled against efforts to circumvent the First Amendment by bringing prayer and other religious observances into public school classrooms, so proponents of religious indoctrination found a workaround– and educational vouchers were born. (In all fairness, many early proponents of vouchers were persuaded by arguments that private schools were doing a better job—that children “trapped” in substandard public schools would benefit. Subsequent research has proved those arguments wrong, but I don’t mean to suggest that every voucher proponent wanted public money for religious education. Many did, but others just wanted to destroy the teachers’ unions.)

Predictably, opponents of early voucher programs raised both First Amendment and state constitutional concerns, arguing that the use of public funds to pay tuition at religious schools violated both the First Amendment’s Establishment Clause and state-level prohibitions known as “Blaine Amendments.” The Supreme Court considered those First Amendment arguments in 2002, in a case called Zelman v. Simmons-Harris. That case challenged an Ohio voucher program in place in Cleveland. In 1999 and 2000, 82% of the schools participating in the Cleveland program were religiously affiliated, and 96% of the students using the vouchers were enrolled in one of those religious schools. Both the District Court and the Court of Appeals had ruled for the parents who were challenging the program; however, the Supreme Court reversed, accepting the argument that the vouchers weren’t payments to the schools, but to the parents, whose choice of religious schools was made freely and voluntarily, and that as a result, the vouchers could not properly be characterized as tax support for the religious schools. Since the choice of school was made by the parents, and the program’s official goal was secular—it was characterized as a program to allow low-income children to escape a failing school system– the Court held that the voucher program didn’t run afoul of the Establishment Clause.

And we were off to the races.

State courts, including the Indiana Supreme Court, have largely adopted the logic of the Zelman decision, and have allowed voucher programs to operate despite state constitutional provisions forbidding the payment of state tax dollars to religious institutions. The Indiana Constitution has one of these provisions, commonly called “Blaine Amendments.”  They were named for Congressman James Blaine, who sponsored a federal constitutional amendment in 1875 that would have forbidden public funding of religious schools. Blaine’s amendment was seen as an effort to prevent government from supporting Catholic schools—schools that had originally been established in response to Protestant bible-reading in public school classrooms.  Blaine’s effort at a federal amendment failed, but thirty-eight states subsequently added those provisions to their state constitutions. In sixteen states where Blaine Amendments seemed likely to preclude judicial approval of voucher programs, so-called “neo-vouchers” have used tax credits to circumvent the problem; the subsidies have been deemed “tax reductions” rather than direct spending. Arizona is the most prominent state employing this tactic; its Supreme Court upheld the state’s “tax credit scholarships” in 1998. In two states, Massachusetts and Michigan, both vouchers and neo-vouchers have been held to violate those states’ constitutions.

On my bIog, I’ve posted numerous times about multiple ways advocates of privatization and “choice in education” have contributed to the hollowing out of America’s civic structure.  “Choice” sounds great. Providing citizens with a wide freedom of choice–of religion, politics, lifestyle– is quintessentially American. The problems occur when institutionalized choices promote division and undermine civic cohesion.

In far too many communities today, the “educational choice” being offered is the opportunity to shield one’s children from intellectual and cultural diversity. Vouchers provide parents with tax dollars that allow them to insulate their children from one of the very few remaining “street corners” left in contemporary American society. Whatever their original intent, as vouchers work today, they are mechanisms allowing parents to remove their children from public school classrooms and shield them from classmates conveying information incompatible with those parents’ beliefs and prejudices.

In virtually all states with active voucher programs, including Indiana, well over 90% of participating schools are religious, and a disproportionate number of those are fundamentalist Christian schools teaching bogus history and creationism rather than science.

Several academic studies and media outlets have reviewed the textbooks used in those schools. One history textbook exclusively refers to immigrants as “aliens”. Another blames the Black Lives Matter movement for strife between communities and police officers. A third discusses the prevalence of “black supremacist” organizations during the civil rights movement, and calls Malcolm X the most prominent “black supremacist” of the era.

The media continues to report on acrimonious battles in legislatures and boards of education about how issues of race and equity are handled in public school classrooms, but it has largely ignored the education provided by private schools, thousands of which have been excluding diverse voices and teaching biased versions of history for years.

The Guardian is one of the few media outlets that has reviewed the textbooks currently used in thousands of private religious schools. These are schools that receive tens of thousands of dollars in public funding every year. Those textbooks downplay descriptions of slavery and ignore its structural consequences.  The report notes that the books “frame Native Americans as lesser and blame the Black Lives Matter movement for sowing racial discord.”

While we do read about Americans fighting over wildly distorted descriptions of Critical Race Theory and public school “indoctrination,” the Guardian article pointed out that there has been virtually no attention paid to the curricula of private schools accepting vouchers. As the article notes,

“Private schools, unlike public ones, receive little oversight or restrictions when it comes to curriculum. In truth, thousands of private schools are currently teaching history through a racially biased lens.”

The Guardian reviewed dozens of textbooks produced by the Christian textbook publishers Abeka, Bob Jones University Press and Accelerated Christian Education, three of the most popular textbook sources used in private religious schools throughout the US. These textbooks describe slavery as “black immigration”, and say Nelson Mandela helped move South Africa to a system of “radical affirmative action”.

The Abeka website boasts that in 2017, its textbooks reached more than 1 million Christian school students. The Accelerated Christian Education website claims its materials are used in “tens of thousands of schools.” One of its textbooks still refers to the civil war as the “war between the states,” and has a section titled “Black immigration” that characterizes the slave trade as “sometimes unwilling immigration.”

With respect to Reconstruction, the Accelerated Christian Education textbook contained the following paragraph:

“Under radical reconstruction, the south suffered. Great southern leaders and much of the old aristocracy were unable to vote or hold office. The result was that state legislatures were filled with illiterate or incompetent men. Northerners who were eager to make money or gain power during the crisis rushed to the south … For all these reasons, reconstruction led to graft and corruption and reckless spending. In retaliation, many southerners formed secret organizations to protect themselves and their society from anarchy. Among these groups was the Ku Klux Klan, a clandestine group of white men who went forth at night dressed in white sheets and pointed white hoods.”

Huffpost has reported that Christian textbooks used in thousands of schools around the country teach that President Barack Obama helped spur destructive Black Lives Matter protests, that the Democrats’ choice of Hillary Clinton in 2016 reflected the party’s focus on identity politics, and that President Donald Trump was the “fighter” Republicans needed. The Huffpost analysis found that language used in the books “overlaps with the rhetoric of Christian nationalism, often with overtones of nativism, militarism and racism as well.” One scholar was quoted as saying that, as voucher programs have moved more children into these schools, Christian Nationalism has become more mainstream.

Unsurprisingly, since most of these schools refuse to admit gay children or the children of same-sex partners, the books were also biased against homosexuality and same-sex marriage.

I’m clearly not a neutral observer, but I don’t think that science denial, bogus history and homophobia are the best way to prepare students for life in contemporary American society.

Worse, multiple academic studies confirm that these vouchers that have increased religious and racial segregation have done that damage without improving academic performance. Back in 2018, The Wall Street Journal –hardly a leftwing publication–analyzed data on Milwaukee’s program, the nation’s oldest, and found that the city’s 29,000 voucher students, “on average, have performed about the same as their peers in public schools on state exams.” Other studies have found voucher students lagging behind similar students attending public schools.

Meanwhile, in Indiana, which has one of the nation’s largest voucher programs, public schools are struggling to perform without adequate resources, and underpaid teachers are leaving in droves.

The U.S. Constitution gives parents the right to choose a religious education for their children. It does not impose an obligation on taxpayers to fund that choice.

Back in 2005, I wrote an article for an academic journal about the privatization of education, titled Privatizing Education: The Liberal Democratic Idea, Constitutionalism, and the Politics of Vouchers. I’ll conclude this by quoting one of the paragraphs from that early article:

One of the largest and most active blocs working for vouchers are the cultural conservatives of the Christian Right. Groups like the Christian Coalition and Citizens for Excellence in Education (CEE) might at first blush seem very strange bedfellows for libertarians, with whom they share little ideological ground. And it is certainly true that their motives for supporting school choice have little to do with markets and much to do with their views on morality. Many believe, with Robert Simonds of CEE, that “Atheism and many perverted forms of immorality are being forced upon all public-school students, not just Christian students.”

Theodore Lowi has linked the politicization of the Christian Right to the nationalization of the Bill of Rights and especially the application of the First Amendment to the states. Even a cursory reading of their literature will confirm that anger with current Establishment Clause jurisprudence, particularly rulings against officially sanctioned school prayer, is the source of much Christian Right hostility to public schools and support for school choice.

There are many, many other problems with vouchers, but the negative effect on a pluralist democracy is perhaps the most significant–and least recognized.

Thank you.

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A Battle Between Worldviews

Several sources have now reported on a speech that MAGA House speaker, Mike Johnson, recently gave at the Museum of the Bible in Washington, D.C., at an event for the National Association of Christian Lawmakers. Although the address was being livestreamed, Johnson seemingly believed he was speaking privately when he told the audience that “the Lord had called him to be a new Moses.”

The Lord! (Can we say “self-important”?)

Johnson then said something with which I do agree. He told the audience that the U.S. is “engaged in a battle between world-views” and “a great struggle for the future of the Republic.”

Johnson clearly believes that far-right Christians will prevail–a belief that the history of culture change fortunately doesn’t support, and that I don’t share. The conflict between world-views that Johnson referenced is not new. It formed the organizing thesis of my 2007 book, God and Country: America in Red and Blue. (Still available at Amazon…)

When I was researching that book, I came across a legal historian’s very useful description of the two different groups that created the United States–the  “Planting Fathers” and the “Founding Fathers.” The Planters were the Puritans. They came to the New World for “religious liberty,” which they defined as freedom to worship the right God in the right church and to establish a government that would require their neighbors to do likewise. One hundred and fifty years later, those we call the Founders–the men who drafted the Constitution and Bill of Rights– defined liberty very differently. For them, liberty was the right to form and follow one’s own beliefs, free of government interference.

What had intervened between the two sets of founders– what had caused a significant  change in Americans’ then-predominant world-views– was the Enlightenment. And therein lies the problem we still face today, because this country is still home to a significant number of Puritans.

Our Puritans are a minority, but they are a fervent and activist minority. America’s legal framework is based on the Enlightenment understanding of liberty and the proper role of government,  but America is still grappling with the intransigence of the Puritans who reject that understanding– along with the Enlightenment’s emphasis on science, evidence and empiricism. The Speaker of the House is rather clearly one of them.

America’s increasingly acrimonious culture war is being waged between our contemporary Puritans, on the one hand, and the rest of us– secularists and adherents of  non-fundamentalist religions– on the other. In the abstract, it raises some important and too often neglected questions: what good is religion? do modern societies still need it? what separates “good” religions from harmful ones? what’s the difference between a religion and a cult? between religion and philosophy?

The problem is, we don’t have the luxury of considering and debating those questions in the abstract.

We really are engaged in a battle between totally inconsistent intellectual paradigms. America’s two political parties have sorted themselves into tribes with contending and incommensurate world-views. Today’s GOP has for all intents and purposes become a cult,  fixated upon imposing fundamentalist religious precepts (and its disdain for nonWhites and nonChristians) on the rest of the country, and discarding inconvenient impediments like Separation of Church and State. The Democratic Party is far less cohesive, but despite deep disagreements on a wide array of issues, virtually all Democrats have accepted secular modernity and rejected Puritanism and theocracy.

Talk about “alternative realities”! 

Of course, not every Republican is a Puritan. But every single vote cast for a Republican candidate is a vote for a Puritan world-view that has been publicly and fervently embraced by Republicans like Michael Johnson and Jim Banks.

It really is not an overstatement to say that the 2024 election will be pivotable. That election will tell us whether Johnson is right in believing that, at least in the short term, Puritans will prevail–or whether my faith in the essential common sense and good-will of the American public will be vindicated. 

The assertion that we are engaged in a battle of world-views may be the only thing on which Johnson and I agree.

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Appalling

In a comment a couple of days ago, Sharon referenced a truly appalling situation in Floyd County, Indiana. She’d received a request for a donation from the Indiana Sheriff’s Association. The newsletter accompanying the request profiled a program instituted by the sheriff of Floyd County: Residents Encountering Christ. The newsletter described a 3 day retreat, reporting that Sheriff Bush “went in and talked to inmates, sharing his faith and encouraging them in theirs. In all, 41 inmates were baptized during this event. Local news media took note of the program’s success.”

As Sharon wrote, “I’m not sure which I find more appalling, that a law enforcement officer uses his position of power to proselytize to inmates or that local ‘journalists’ consider baptisms achieved under these conditions to be  ‘a success.'”

I am equally appalled.

Law enforcement officers assume an obligation to abide by the Constitution. There is a very lengthy string of  legal precedents confirming the lawlessness–and cluelessness– of Sheriff Bush’s behavior. 

That cluelessness extended to the news coverage.According to the local News and Tribune (paywall),

On July 24th, 41 Inmates at the Floyd County Jail that volunteered to take part in Residents Encounter Christ (REC) were baptized. What a powerful moment to witness! 

One has to be truly naive–or blissfully unaware of the reality of power relationships–to believe that inmates “volunteered.” (As numerous women can attest, when someone with authority to make your life miserable “requests” some “accommodation,” it’s hard to refuse.) 

There is absolutely no legal argument supporting Sheriff Bush’s appalling conduct. Numerous Supreme Court opinions have echoed Justice Black’s words in Engel v. Vitale:

The constitutional prohibition against laws respecting an establishment of religion must at least mean that, in this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.

That case considered the constitutionality of a rule promulgated by the New York State Board of Regents, authorizing public schools to hold a short, “voluntary” prayer at the beginning of each school day. The Court held that state laws permitting prayer “must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs.”

It is true–and very troubling–that the current Supreme Court has eroded previous First Amendment jurisprudence. But even those regrettable decisions don’t come close to making Sheriff Bush’s activities permissible. Perhaps someone should share these paragraphs from Justice Black’s decision with the Sheriff.

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power.

The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say – that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment’s prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.

Sponsorship of religious activity by a government official is unconstitutional.

Floyd County has a Sheriff who is either ignorant of the Constitution or willing to ignore it. In either case, he’s unfit for public office.

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Don’t Know Much About History…

Before my stint as Executive Director of Indiana’s ACLU, I had never heard of David Barton. When that job required me to engage in discussions with people who refused to believe in the separation of Church and State, however, he was frequently quoted.

Barton–a total fraud–was frequently touted in these debates, cited as a “respected Christian historian,” and it was unsurprising that  the folks making those assertions  dismissed the debunking protestations of a female ACLU lawyer (Jewish, to boot!). 

That background may explain why I immediately clicked through to read a Politico article titled “The Bogus Historians Who Teach Evangelicals They Live in a Theocracy.” Here’s what the author–himself a devout Evangelical–had to say about Barton:

The people packed into FloodGate Church in Brighton, Mich., weren’t here for Bill Bolin, the right-wing zealot pastor who’d grown his congregation tenfold by preaching conspiracy-fueled sermons since the onset of Covid-19, turning Sunday morning worship services into amateur Fox News segments. No, they had come out by the hundreds, decked out in patriotic attire this October evening in 2021, to hear from a man who was introduced to them as “America’s greatest living historian.” They had come for David Barton. And so had I.

It would be of little use to tell the folks around me — the people of my conservative hometown — that Barton wasn’t a real historian. They wouldn’t care that his lone academic credential was a bachelor’s degree in religious education from Oral Roberts University. It wouldn’t matter that Barton’s 2012 book on Thomas Jefferson was recalled by Thomas Nelson, the world’s largest Christian publisher, for its countless inaccuracies, or that a panel of 10 conservative Christian academics who reviewed Barton’s body of work in the aftermath ripped the entirety of his scholarship to shreds. It would not bother the congregants of FloodGate Church to learn that they were listening to a man whose work was found by one of America’s foremost conservative theologians to include “embarrassing factual errors, suspiciously selective quotes, and highly misleading claims.”
 
All this would be irrelevant to the people around me because David Barton was one of them. He believed the separation of church and state was a myth. He believed the time had come for evangelicals to reclaim their rightful place atop the nation’s governmental and cultural institutions. Hence the hero’s welcome Barton received when he rolled into FloodGate with his “American Restoration Tour.”

Throughout his decades of public life — working for the Republican Party, becoming a darling of Fox News, advising politicians such as new House Speaker Mike Johnson, launching a small propaganda empire, carving out a niche as the American right’s chosen peddler of nostalgic alternative facts — Barton had never been shy about his ultimate aims. He is an avowed Christian nationalist who favors theocratic rule; moreover, he is a so-called Dominionist, someone who believes Christians should control not only the government but also the media, the education system, and other cultural institutions. Barton and his ilk are invested less in advancing individual policies than they are in reconceiving our system of self-government in its totality, claiming a historical mandate to rule society with biblical dogma just as the founders supposedly intended.

The author went on to describe the speech Barton delivered, which he described as “exalting a curious version of the Christian ideal.” Evidently gun restrictions are un-Christian. So too are progressive income taxes, government health care and public education. During his denunciation of critical race theory, he shared a slide showing logos for The New York Times’s 1619 Project and Black Lives Matter framed around a Soviet hammer and sickle.

There was much more…

What the deeply religious author described is part and parcel of a phenomenon that has become increasingly obvious over the past several years: the transformation of Evangelical Christianity from a religion into a political ideology. In this essay and in his new book,”The Kingdom, the Power, and the Glory: American Evangelicals in an Age of Extremism,” he documents what he calls the “deterioration of American Christianity.”

The Politico article is quite lengthy. And terrifying. I strongly encourage you to click through and read it in its entirety. It illustrates the politicization of the churches the author witnessed firsthand in his research for the book–research that took him to “half-empty sanctuaries and standing-room-only auditoriums” and included shadowing big-city televangelists and small-town preachers. He says he reported from inside hundreds of churches, Christian colleges, religious advocacy organizations, denominational nonprofits, and assorted independent ministries.

Among the other things his chilling descriptions illuminated was the importance of  teaching accurate history–and the motives of the Christian Nationalists who are attacking the public schools that teach that history.

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Twenty-First Century Puritans

Being out on the ocean prompts reflection… 

When I taught Law and Public Policy, I approached the material through a constitutional lens, because I was–and remain–convinced that a basic understanding of American history and the philosophy that shaped what I call “the American Idea” is critically important for anyone hoping to understand today’s politics.

The American Constitution was a product of the 18th Century cultural, intellectual and philosophical movement known as the Enlightenment. Most of us know that the Enlightenment gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government, but what is less appreciated is that the Enlightenment also changed the way people today understand and define human rights and individual liberty.

We are taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty; what we aren’t generally taught is how they defined liberty.

Puritans saw liberty pretty much the same way current politicians like Mike Pence and Mike Johnson do– as “freedom to do the right thing” as they definied it. That meant their own freedom to worship and obey the right God in the true church, and it included their right to use the power of government to ensure that their neighbors did likewise.

The Founders who crafted the American constitution some 150 years later were products of an intervening paradigm change brought about by the Enlightenment and its dramatically different definition of liberty.

America’s constitutional system is based on the Enlightenment concept of liberty, not the Puritan version. It’s an approach we sometimes call “negative liberty.” The Founders believed that our fundamental rights are not given to us by government (nor necessarily “God given” either). Most of them–especially the Deists– believed that rights are “natural,” meaning that we are entitled to certain rights simply by virtue of being human (thus the term “human rights”) and that government has an obligation to respect and protect those inborn, inalienable rights.

That philosophical construct is why–contrary to popular belief–the Bill of Rights does not grant us rights—it protects the rights to which we are entitled by virtue of being human, and it protects them against infringement by an overzealous government. As I used to tell my students, the American Bill of Rights is essentially a list of things that government is forbidden to do. For example, the state cannot dictate our religious or political beliefs, search us without probable cause, or censor our expression—and government is forbidden from doing these things even when popular majorities favor such actions.

Most Americans today live in a post-Enlightenment culture. We accept and value science. We understand liberty to mean our right to live our lives free of government control so long as we are not harming others, and so long as we respect the right of other people to do likewise. But there is a persistent minority that has never accepted an Enlightenment worldview, and that minority currently controls the Republican Party. These contemporary Puritans–who, along with their other religious convictions tend to see Black people and non-Christians as unworthy subordinates– use the word “freedom” in the older, Puritan sense of “freedom to do the right thing” as their reading of their holy book defines “the right thing.” They also  believe it is government’s job to make other citizens do the “right thing” –to impose their version of “Godliness” on the rest of us.

These contemporary Puritans are throwbacks to the early American settlers who defined “liberty” as the imposition of the correct religion on their neighbors. The Enlightenment construct of “live and let live”–the notion that each of us should have the right to believe as we wish, the right to follow our own set of moral imperatives (again, so long as we are not harming the person or property of someone else) was utterly foreign to those original Puritans, and it is evidently equally inconceivable to their philosophical descendants.

(Interestingly, these throwbacks to Puritanism never seem to doubt that they know precisely what God wants–that, as a friend once put it, God hates the same people they do. But that’s a phenomenon for a different post.)

If you had told me ten years ago that American government would once again be under the thumb of Puritans, I wouldn’t have believed it. But here we are–with a Speaker of the House of Representatives who is a full-blown Puritan throwback and a Republican Party that has rejected the Enlightenment.

When I have computer problems, I reboot. That usually returns my laptop to working order. Can we reboot America?

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